Confessional statement of an accused can not be sole base for conviction 

Confession of a co-accused is no evidence and that no conviction can be based on it unless there were other evidence on which conviction could be based and that the confession of the co-accused could only be referred as lending assurance to the conclusion in respect of the guilt of the co-accused on the basis of other evidence. Confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of the conviction…………………….(9) 

Certiorari jurisdiction

Court exercising certiorari jurisdiction under Article 102 of the con­stitution is not entitled to take a different view or reverse the finding of the enquiry commit­tee on appreciation or review of the materials afresh as placed before the enquiry officer.

The petitioner though in his explanation named certain persons to be examined by the Enquiry officer but during enquiry he has not requested the enquiry officer to have examined them. Further there was no allegation of parti­ality or bias against the Enquiry Officer….(5 & 6)

Premature application for appeal can not be maintainable

There is an appeal pending before the authorities against the order of dismissal & since an appeal is pending being a remedy available under statutory rules this application under article 102 of the constitution is premature and not maintainable. We however, are inclined to observe that any of our observations as re­gards the merits of the………………….. (7) 

Whether there was direct personal in­volvement by the accused in the process of

adulteration of food-

Mere possession of any alleged adulterated food in any premise by itself will not consti­tute an offence under Section 272 of the Pe­nal Code and Section 25C(a) of the Special Powers Act, unless it is alleged that a par­ticular person or group of persons in question were personally involved in the process of adulteration of food or selling thereof.

Whether the Criminal proceeding pending before the Spe­cial Tribunal under the Special Powers Act is liable to be quashed under section 561A of the Cr. P.C.-

Any offence validly coming within the mischief of the Special Powers Act and any prosecution made pursuant thereto is not liable to be questioned unless and until it is established that no offence at all has been committed un­der Special Powers Act.

If it is otherwise found that an accused person has not com­mitted any offence under the Penal Code or under the Special Powers Act as the case may be, one can always apply for the quashing of such proceeding under section 561A Cr.P.C. Section 29 of the Special Powers Act has clearly provided for the application of the provisions of the Criminal procedure Code so far as they are not inconsistent with the provisions of the Special Powers Act. In the Spe­cial Powers Act there is nothing to show that the provision of Section 561A of the Cr.P.C. is not applicable in connection with any proceeding under the Special Powers Act.

The jurisdiction of the High Court Division under section 561A of Cr.P.C. is an inherent power which cannot be deemed to be otherwise limited or affected and this Court is always empowered to make such order as may be necessary to prevent any abuse of process of any subordinate criminal Court and to secure the ends of jus­tice.

In this connection it may be mentioned that under Section 26 of the Special Powers Act a Special Tribunal is constituted invaria­bly by a Session Judge or an Additional Ses­sion Judge, or an Assistant Sessions Judge or a First Class Magistrate, as the case may be, who are invariably criminal Courts subordi­nate to the High Court having superintending jurisdiction over such Courts………………………(7 & 9) 

No Dismissal of cases summarily without assigning any reason at the cost of dispensation of justice-

The Court is competent to reject an appeal even at the ini­tial stage of its admission but the Court must give its reason for such rejection at the initial stage.

An appeal under section 407 of the Code gives a substantive right to the ap­pellant to be heard on merit and without dis­posing the, appeal on merit it cannot be said that the learned Additional District Magistrate at all applied his judicial mind to the materials on record.

The spirit of second amendment (Ordi­nance No.XXIV of 1982) is to dispose of cases with utmost expedition but the same cannot be meant to be dismissal of cases summarily without assigning any reason at the cost of dispensation of justice. It is true that in the second amendment a time limit has been given for the disposal of appeals but for that reason alone, the Court concerned cannot dis­pose of such appeals in such a perfunctory manner as has been done in the present case…………….(5 & 6) 

Contempt of Court-

The contemner cancelled the bail of one accused Ayub Ali knowing that he was granted bail by the Sess­ions Judge earlier. Although the plea of mis­take is taken by the contemner, but it is diffi­cult to accept such plea because of the fact that the act was done deliberately. There is no doubt that the contemner has shown gross disregard and utter contempt towards the order of the Sessions Judge. Since under the new dispensation of the present Government the Magistracy has been vested with wider responsibility and accountability in the ad­ministration of criminal justice, such reckless act on the part of a 1^st Class Magistrate cannot be treated lightly………………..(2) 

Whether Every Order in a Criminal case is a judgment-

The ex­pression judgment has not been defined in the Code of Criminal Procedure but an exam­ination of the various sections of the Code makes it apparent that 'Judgment' in the Code means a judgment of conviction or acquittal. Every Order in a Criminal case, therefore was not a judgment.

Whether a decision of the High Court Division which is neither an order of conviction nor of acquittal is judgment-

The order of dismissal for default being not a judgment within the meaning of section 369 of the Code of Criminal Proce­dure, the Court has inherent powers to review and restore the Criminal Revision case.

The order dismissed for default when it was neither heard nor disposed of on merits, the petitioner in all fairness and for ends of justice should be afforded an opportunity of being heard in the matter. 

Considering the matter of promotion of employee to the next higher grade-

The employer can assess the value of academic qualification of the candi­dates while considering their promotion from lower grade. Con­sidering all the facts and circumstances it cannot be said that the case of the petitioner was not considered for pro­motion. He has no right to promotion as the senior most man. According to the Rules promotions are given according to seniority-cum-merit or efficiency. In that view, the aca­demic qualification of a candidate is a rele­vant factor in determining his merit while the case of that candidate is considered for promotion. There is no violation of Article 29 of the Constitution in not promoting the petitioner to the next higher grade. In this connection it may be stated that by way of re-examination of the qualifications of the petitioner, his seniority in his present grade or his continuance in the post was never sought to be altered.

It is doubtful whether the authorities can alter or change his position or continuance in the past or grade if anything adverse is found after full examination or investigation into his aca­demic qualifications…………………(5) 

Whether right to pre-emption exists if reconveyance of land comes about before starting of proceed­ing for pre-emption-

If the reconveyance takes place before the starting of the proceeding for pre-emption, the right to pre-emption ceases to exist.

When a land sought to be pre­empted has already gone back to its original owner by way of resale before an application for pre-emption is filed, then the whole matter ends there and no right of pre-emption sub­sists……………..(7) 

Code of Civil Procedure (V of 1908); Section 24,

Artha Rin Adalat Ain (VIII of 2003), 2003; Section 5 (10)

Transfer of the Artha Rin Cases-

Section 24 of the Code of Civil Procedure cannot transfer the case of Artha Rin Adalat violating the provision of section 5(10) of the Artha Rin Adalat Ain, 2003, wherein it has been specifically provided that the Artha Rin Adalat's case should be tried by the learned District Judge under the authority of the said Ain and not by any other law.

There is a specific provision for Transfer of the Artha Rin case since the Artha Rin Adalat is a special law, i.e., Artha Rin Adalat Ain, 2003 and it has been specifically provides that the Artha Rin Adalat dealt with the matter in accordance with the law neither of Artha Rin Adalat Ain, 2003 nor under the any other law. Although the learned District Judge has the jurisdiction to transfer the Artha Cases from one Court to another Court of compe­tent jurisdiction not under the Code of Civil Procedure but under the provisions of Artha Rin Adalat Ain, 2003….........(8) 

Acquirement of jurisdiction of Court

A court acquires jurisdiction only from the statute or the law which has constituted the court and no parties to any litigation can confer such jurisdiction on the court by consent. It is also well settled that even the consenting party cannot be estopped from subsequently maintaining that the court or tribunal had acted without jurisdiction.

Since the Artha Rin Adalat in question does not have jurisdiction to entertain or to Proceed with the application filed by respondent No. 2 under Article 27, the whole proceeding before the Artha Rin Adalat namely the proceeding in Miscellaneous case and Title Execution case entertained and continued before the Adalat without jurisdiction and, as such, the same are nullity in the eye of law……………… (4) 

Article 31 of the Constitution of Bangladesh, 1972

Due Process And Reasonable And Non-Arbitrary Laws And Procedure-

A person may be destructively treated not only by action, but also by inaction and inaction may contravene the Article, when it is arbitrary and unreasonable.

In the instant case, the aforesaid expectation and/or prepared admitted bill of the petitioner cannot be termed or being based on sporadic or casual or random acts of the respondents, or as an unreasonable or illogical or invalid expectation. 

Competency of Sessions Judge to quash Criminal Proceeding-

Sessions Judge has no power to quash a criminal proceeding pending before the Sub-Divisional Magistrate.

If he was of the opinion that a prima face case was made out then he could have referred the case for an order of the High Court Division. It is because the High Court Division exclusively exercises the power of quashing.-

No investigation as to the truth or otherwise of the prosecution case permissible in a proceeding for quashing at the stage the Sub-Divisional Magistrate issued process against the accused. The Court has to accept the prosecution case as it is and has to come to a conclusion that upon the facts alleged no criminal offence has been disclosed-Code of Criminal Procedure…….(7-13) 

Questions formulated for determination:

(a) Whether on the facts and circumstances of the case, the learned Appellate Tribunal, Chittagong Division Bench, Chittagong was correct in law in con­firming the appeal order in regard to assessments in case of deceased under section 84/93/92(1) of the Income Tax Ordinance, 1984 when Assistant Com­missioner of Taxes, Survey Circle-2, Chittagong did not start the proceed­ings before the death of deceased Alhaj Golam Mowla as per provisions of sec­tion 92 of the Income Tax Ordinance, 1984?

(b) Whether Appellate Tribunal, Chitta­gong Bench, Chittagong was correct in law in confirming appeal order regard to assessment under section 84/937 92(1) when services of notices were not served to the applicant before assess­ments?

(c) Whether the Inspector's report dated 12-2-2002, can be the basis of the assessment without affording any opportunity to the applicant for rebuttal and controverting the said report?