KM Alam & Co. and another Vs. People's Republic of Bangladesh, and others, 2011, 40 CLC (HCD)

BTRC, being a statutory body and entrusted with the power of the people by the statute to deal with the State largess and benefits through its regulatory process cannot act like a private individual and grant benefits or largess in whatever way it likes. If a minimum irregularity/illegality in the procuring process is allowed, it will encourage corrupt people hiding behind the curtain to get illegal opportunity in the procuring process and cause huge damage to the public interest……………………..(30)

While the more stake (financial or others) is involved in a procuring process, the procuring entity should follow the relevant law more strictly. A statutory body like BTRC should not be allowed to somehow defy the law first, then give largess/benefits through such defiance and subsequently justify the same by saying that the State also has made some profit from such illegality. This sort of practice should be discouraged by strong words of this Court and must be nipped in the bud…………………………………….(32)

 

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Government of the People's Republic of Bangladesh Vs. Dr. Prodip Kumar Roy and others, 2012, 41 CLC (HCD)

Section 13(1) (Ka) specifically provided “(ক) প্রত্যর্পণযোগ্য সম্পত্তির তালিকা সরকারী গেজেটে প্রকাশের তারিখে উক্ত মামলায় উক্ত সম্পত্তি যতটুকু জড়িত ততটুকু বাবদ মামলাটি আপনা আপনি abated বলিয়া গণ্য হইবে; “The force of sub Rule (1) "ka" of section 13 provides that any litigation pending before any Court of law stood abated as a whole and the Court has nothing to decide upon the question involved in the Rule. The Rule stood abated as a whole by statute and that cannot be re-opened by any Court of law so long the statute remains in force. 

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Entaj Ali (Md.) Vs. Md. Numl Haque & others, 2012, 41 CLC (HCD)

The revisional power of the High Court Division is a supervisory power which may also be exercised suo motu.

Since the Rule is of 1987, and the matter is pending for hearing more then 26 years, it is very unfortunate for ends of justice, and the other hand the order of the Courts below are based upon proper consideration of the materials on records. Justice would be done if a direction be given upon the Court below to disposed of the suit expeditiously as possible………………………. (11) 

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Aslam (Md.) Vs. Md. Salauddin and another, 2011, 40 CLC (HCD)

A revenue officer acting in mutation cases under section 143 of the State Acquisition and Tenancy Act, 1950 is not a court, although the same officer acting in a proceeding under section 144 of the said Act is a court in view of Rule 39 of the Tenancy Rules, 1955. Therefore, filling of forged documents before the Revenue Officer acting under section 143 in mutation proceeding does not invoke the bar under section 195(1)(c) of the Code of Criminal Procedure and in such a case the court can take cognizance of the petition of complaint filed by a private person. ............. (6)

 

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Md.Hasanul Islam Hanif Vs. State, 2011, 40 CLC (HCD)

In view of section 134 of the Evidence Act, conviction can be based on the testimony of a solitary witness and it is not necessary to seek corroboration always from independent sources. Adverse presumption under section 114(g) of the Evidence Act is, essentially, a question of fact which is for the court to arrive at a decision. Non-examination of important witnesses creates presumption under section 114(g) of the Evidence Act and raises doubt about the prosecution case and benefit of doubt would always go in favour of the accused. petitioner. Non-examination of important witnesses creates presumption under section 114(g) of the Evidence Act and raises doubt about the prosecution case and benefit of doubt would always go in favour of the accused…………….(8) 

 

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Khorshed and another Vs. State, 2012, 41 CLC (HCD)

Section 164(3), the Code of Criminal Procedure, a mandatory provision of law

It is a settled principle of law that the requirement of adherence to the provisions of section 164(3) of the Code of Criminal Procedure is not a mere matter of form but of substance. Section 164(3) is a mandatory provision of law as has been settled by the Privy Council.......... (55)

Statement must be voluntary

Before recording a confession, a Magistrate is bound to make a real and substantial enquiry as to the voluntariness of the confession. In so doing, he must put questions to the accused with a view to finding out the real object of the confession, whether it is made out of repentance or for any other such good reason or whether it is the result of torture or tutoring by some body or whether it has been caused by any inducement, threat or promise. The questions put by the Magistrate and the answers given by the accused furnish sufficient data for coming to the conclusion whether the statement was voluntary or not.......... (55)

How confession to be recorded

Paragraph 7 of sub-section (3) of section 164 speaks of the manner as to how the confession of an accused is to be recorded by a Magistrate and this is a mandatory provision and failure to comply therewith shall make the confession invalid and unreliable. ....... (56)

Defect arising out of violation of mandatory provision, not curable

Before recording confession, it must be explained to the accused that he is not bound to make a confession and if he makes a confession, it may be used as evidence against him. It is a mandatory provision of law. No Magistrate should record any confession unless, upon putting questions to the accused, he has reason to believe that the confession was made voluntarily. Any defect arising out of violation of any mandatory provision of law is not curable under section 533 of the Code of Criminal Procedure ........ (57)

Confession, the sole basis of conviction

That a confession, if proved true and voluntary, can be the sole basis for conviction of the maker of confession. ......... (58)

Retraction immaterial, if confession is true and voluntary

If a confession recorded under section 164 of the Code of Criminal Procedure is true and voluntary, the same alone is sufficient for convicting the confessing accused and retraction of confession is immaterial, once it is found to be true and voluntary. ............ (61)

Overt act on the part of each accused

In order to support a conviction under section 34 of the Penal Code, mere presence would not be sufficient, but there must be proof of some overt act on the part of each accused done in furtherance of the common intention. ...... (86)

Pre-concert or pre-arranged plan essential

For the application of section 34, it must be established first that a criminal act has been done by several persons and secondly that all the participants intended that the criminal act should be done and lastly that the criminal act has been done in furtherance of common intention shared by all the offenders. There must be evidence to show that the accuseds were present at the scene of occurrence and have actually participated and there must be a pre-conert or pre-arranged plan. ........(89)

Characteristics of section 34 of Penal Code

1. The distinct feature of section 34 of the Penal Code is the element of participation in action;
2. A common intention pre-supposes prior concert. Accordingly, there must have been a prior meeting of mind. For an inference of common intention to be drawn for the purpose of section 34, the evidence and circumstances of the case should be established without any room for doubt that a meeting of minds and fusion of ideas had taken place amongst different accuseds and in furtherance of that common intention, overt acts of the accused persons flowed out as if in obidience to the command of a single mind;
3. Criminal sharing of overt or covert act by active presence or by distant direction making out certain measure of jointness in the commission of the act is the essence of section 34;
4. A person merely because he was present at or near the scene without doing anything could not and can not be convicted with the aid of section 34 for the offence committed by other accused person; and
5.  Common intention of the accused persons to do a criminal act may be formed at the spot even on the spur of the moment............ (92) 
   

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Nazir Ahmed and others Vs. Fajal Ahmed & others, 2011, 40 CLC (HCD)

Adverse possession neither pleaded nor any evidence lent

Adverse possession was neither pleaded nor any evidence was lent by the plaintiffs, findings arrived at by the trial court is no doubt a gratuitous one which is not at all sustainable in law.

Plaintiff is to prove his case

The case of the defendants have been established by credible evidence although  as a matter of fact in a civil suit the onus does not in any way lies on the dependant to prove his case rather plaintiff is to prove his case and he can not succeed on the weakness of the defendant. ........... (52)   

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Hedayet Ullah and others Vs. State, 2012, 41 CLC (HCD)

Sine die postponement discouraged

When a title suit is filed later than a criminal case has already been disposed of in that case there is no bar to proceed with the criminal case........ (7)

Criminal Proceedings should not run for an indefinite period

It is well settled that the criminal proceedings should not be at all have indefinite period for the cause of pendency of civil suit......... (10) 

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Jakir Hazi Vs. State, 2011, 40 CLC (HCD)

Confessional statement can not be sole factor of quashment

In a case where the accused petitioner is not FIR named and he was implicated in that case on the basis of confessional statement made by FIR named accused, the proceeding against the petitioner is liable to be quashed…….........(9)

Confessional statement can not be the basis of implicating petitioner

Implicating a petitioner in the charge-sheet on the basis of confessional statement is baseless and proceeding against the accused petitioner is purely abuse of the process of the law.......... (12) 

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Sadek Hossain (Md.) Vs. State and another, 2012, 41 CLC (HCD)

No quashment before charge-sheet

No case can be subject matter of quashment before submission of the charge-sheet and cognizance is taken thereunder.

Cognizance starting point of criminal case

A criminal case starts from the stage of taking cognizance. Unless cognizance is taken, the FIR named suspected persons are not accused before the court in the eye of law.

Non-existent case can not be quashed

When no criminal case exists before the date of taking congnizance, the question of quashing such a non-existent criminal case by invoking section 561A of the Code of Criminal Procedure does not arise at all……..... (11)

Section 561A of the Code of Criminal Procedure can not be utilised to quash an investigation work of the police........(12) 

 

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Rajuk Karmachari Bahumukhi Samabaya Samity and another Vs. M/s Al-Razib Traders, 2012, 41 CLC, (HCD)

District Judge not amenable to the High Court Division

No appeal or revision lies against an order passed by the District Judge in an arbitration case as per provision of Arbitration Act, 2001.

Special law prevails over general law

Arbitration act is a special law for adjudication of the dispute between the parties who agreed for holding of arbitration as such it shall prevail over general law.

No civil revision against arbitration

Arbitration Act, 2001 is substantive as well as procedural law, where right of appeal has been specifically provided within the framework of arbitration act and no provision of revision has been created in the arbitration act so no civil revision will lie in the High Court Division….............(16)

High Court not empowered to entertain civil revision regarding arbitration

The statute has given no right to the litigant to file civil revision in the High Court Division and the Arbitration Act does not provide such jurisdiction to the High Court Division to exercise such power under Arbitration Act........ (17)

Remedy prescribed by special law shall prevail over general law

If any legal remedy is ordinarily available under both general law and special law, the remedy prescribed by the special law must be in exclusion of the one available under the general law.......... (18) 

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Monindra Nath Biswas Vs. Kantaram Mondal and others, 2012, 41 CLC (HCD)

Order VII Rule 7 of the Code of Civil Procedure provides that, the plaint shall state specifically the relief which the plaintiff claims either simple or in alternative and it shall not be necessary to ask for general or other relief which is always be given as the Court may think just to the same extent as if it had been asked for........ (23)

Filing of additional written statement

The question of filing additional written statement comes in whenever any new fact is incorporated and a new case is made out and in that case it is essential for the ends of justice to allow the defendant to submit additional written statement and to adduce more evidence........ (34) 

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Dhirendra Nath Mondal Vs. Agrani Bank Ltd and others, 2010, 39 CLC (HCD)

Section5-7 of Artha Rin Adalat Ain, 1990 enjoys immunity from challenge

Sections 5-7 of the Artha Adalat Ain, 1990 provides that, no judgment and decree passed by the Artha Rin Adalat can be challenged in any court of authority excepting filing appeal. ........... (4)

Judgment and Order of Artha Rin Adalat – is it challengeable?

Section 6 of Artha Adalat Ain, 1990 has ousted jurisdiction of all courts and authorities to challenge Judgment and Order of Artha Rin Adalat. But under section 7 of Artha Rin Adalat Ain, 1990 appeal can be preferred against the aforesaid Judgment and order. For preferring appeal 50% of the decretal amount must be deposited. Secondly, by filing application under Order IX Rule 13 of the Civil Procedure Code, the judgment and order of Artha Rin Adalat can be challenged by depositing 50% of the decretal amount. ....... (6)

Writ Jurisdiction can not be invoked

Law is now settled since special provision of appeal has been made against the decree passed by the Artha Rin Adalat. Against such judgment and decree no writ petition lies. ........... (13)

Deposit of 50% of decretal amount

Artha Rin Adalat specifically provides for only two remedies against exparte decree. It is either by an application or by an appeal, but in both the cases deposit of 50% decretal amount is necessary. Invoking of section 151 of the Code of Civil Procedure is not applicable in such a situation.    

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Nazir Vs. State, 2011, 40 CLC (HCD)

No time bar for section 561A

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 proceeding even after the conclusion of trial, if it is necessary to prevent the abuse of the court or otherwise to secure the ends of justice……..... (14)

Trial no bar for invoking 561A to quash proceeding or conviction after trial

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 been based on ‘no evidence’ or otherwise to secure ends of justice..........(14)

Proper use of section 561A

Care should be taken so 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………...... (16)

Judgment and order based on evidence of intersted witness not sustainable

In a case where the informant and investigating officer is the 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…….... (17)

Police officer-cum informant should not be investigation officer

Generally an informant who is a police officer should not be investigating officer to maintain the neutrality and acceptability of the trial of the case…........ (18)

Evidence of police personnel should not be discarded

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........ (18)

Conviction can be awarded on the evidence of a solitary witness

Section 134 of 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............(18)

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……(24) 

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Zeyad Rahman and another Vs. Delta Insurance Company and others, 2011, 40 CLC (HCD)

Delay condonation – an inherent right of the applicant

Section 81 of the Companies Act, 1994 provides that, Statutory Original Jurisdiction of the High Court Division has the power to condone the delay in holding AGMs, which have fallen due. Moreover, High Court Division has to condone the delay in holding AGMs as a matter of course as ex debito justitiae (a remedy which the applicant gets as of right) and no reason for condoning the same needs to be assigned. .............. (50)

Court has power to pass consequential or incidental orders while condoning the delay

Under the provisions of section 81 (2) of the Companies Act, 1994, the Court can pass some other consequential or incidental orders while condoning the delay. The Court, under section 85 (3) of the Companies Act, 1994, also pass consequential or incidental orders, which is deemed expedient for calling, holding and conducting meeting in the event the Court directs to call, hold and conduct the meeting which could not be called in any prescribed manner or which could not be conducted in the manner prescribed in the Articles of Association of the Companies Act, 1994. ............. (51)

Rights in Rom

Under section 71 of the Companies Act, 1994 the legislature has given protection to the rights attached to the shares which says that such rights attached thereto go with the shares, which means if such class of shares are transferred then such rights are also transferred along with the shares and subsequent transferre shall enjoy the said rights. .............. (57)

Rights in Personam

The right which is enshrined in section 76 (1) is not attached to shares. The promoters or sponsors are the original shareholders who floated the company. If the promoters transfer their shares then the transferees do not become promoter or sponsor shareholders. This right is a right in personam. This right can be enjoyed by the promoters so long they remain as member of the company…........... (70)

Sponsor shareholders not eligible to participate in electing directors

Public subscribers shall elect directors representing public subscribers. This means that the right of public subscribers to elect directors is confined to the election of directors representing the public subscribers. The right of public subscribers to elect directors is confined to the election of directors representing the public subscribers. If the legislature had the intention only to debar the sponsor shareholders in participating election of directors representing public subscribers then the legislature would provide in the plain language to that effect stating that in clear language that the sponsor shareholders shall not be eligible to participate in electing directors representing public subscribers. Rule 15B (1) completely attached rights to public subscribers to elect only directors representing public subscribers and also by necessary implications debars the public subscribers to participate in electing sponsor directors and also debars sponsor shareholders in electing public directors. ............... (74)

Classification of shareholder is not restricted or prohibited by Companies Act

There is no provision in law that any person other than member of the company can be eligible to contest election for the office of directors; or that any person who is not member of the company can vote for electing a director of the company; or that election of the director can be held in the meeting of board or any other meeting except general meeting. Article 96 provides that directors representing sponsor directors shall be elected by sponsor-director and director representing public subscribers shall be elected by public subscribers and by way of providing two groups of shareholders. The Companies Act, 1994 does not restrict or prohibit classification of shareholders into different classes……………....... (79)

Classification of shareholders

In the Companies Act, 1994, there is no restriction or prohibition in classifying two groups of shareholders – sponsor shareholders and public subscriber mutually debarring each group from participating in election of directors of other group. If the legislature had otherwise intention, the legislature in plain language would prohibit giving different rights of different groups of shareholder. ................ (82)

No public subscriber has not been given any preferential treatment

Under section 76(2) the directors are to be elected in the manner as prescribed in the Rule. In the Insurance Rules there is no provision of election of directors of sponsor directors, so this silent aspect of Insurance Rules does not invalidate the provisions of Articles of Association for electing directors as any of the provision of the Articles of Association is not inconsistent with Rule 15B of the Insurance Rules. The public subscribers are allowed to elect sponsor directors that will mean a preferential right given to public shareholders but the Articles of Association of the Company has not given any such preferential right to any public subscribers. ......... (84) 

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Kazi Md. Habib Ullah Vs.Bangladesh and others, 2012, 41 CLC (HCD)

Nikah Registrar needs sanction of law to work

According to Rule 6 a Nikah Registrar can perform additional responsibilities for a maximum period of 120 days and in the instant case the said period had also been expired long before filing of the writ petition and obtaining Rule. Without being appointed at any point of time the petitioner managed to obtain the ad-interim order of stay and till one year he has been working as Nikah Registrar………….....(15) 

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Fazlul Haque (Md.) Vs. Bangladesh and others, 2012, 41 CLC (HCD)

Prohibition of sub-delegation of Power

Discretion vested in a particular body or authority can not sub-delegate to some other authority until and unless statute permits such sub-delegation.......... (15) 

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Golam Ambia (Harun) Vs. Bangladesh and others, 2012, 41 CLC (HCD)

Relationship between appellate court and trial court

When an appellate court affirms the judgment of the trial court it becomes binding upon the respondents and they become legally bound to mutate the name of the petitioner as per judgment passed by the courts below………......(8) 

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Abdul Wahab (Md.) Vs. State & another, 2013, 42 CLC (HCD)

Accused shall rebut presumption

Under the provisions of section 27(2) an accused shall have to rebut presumption about the allegation and explain his position regarding the acquisition of properties disclosing sources of income. Mere denial of allegation can not be taken into consideration in the instant proceeding....... (7)

Section 32, Anti Corruption Commission Act, 2004

According to section 32 of Anti-Corruption Commission Act, 2004 sanction is mandatory to be obtained before submission of police report to the Court concerned for taking cognizance.......(8)

Section 32

It has been enunciated in section 32 that no prior sanction of the commission is necessary under section 32 for lodging FIR......... (9)

Rule 10

Anti-Corruption Commission Rules, 2007

Rule 10, which requires submission of police report within a stipulated period of 60 days is directory in nature......(9)

Rule 17

Rule 17 of the Bidhimala, has already empowered a Deputy Director of the Commission to issue an order under section 26 of the Anti-Corruption Commission Act, 2004........ (9) 

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Shamir Chandra Sajwal and others Vs. Government of Bangladesh, 2013, 42 CLC (HCD)

The failure to cross examine the plaintiff’s witness to falsify the case of the plaintiffs or controvert the positive assertion of the witness in his examination-in-chief tantamounts to admission from the side of the defendant. 

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