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The
Criminal Procedure Code contains a detailed Procedure for
Investigation, Charge and Trial—Requirement of the High Court Division
while Exercising the Inherent Power— It Must use a Proper
Circumspection and Great Care in Exercise of it’s Inherent Jurisdiction—
In the matter of exercising the inherent power by the High Court Division, the requirement is to see whether continuance of the proceeding would be abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed……(45)
Non implicating any person as accused in a proceeding cannot be a ground for quashing the proceeding of the charge-sheeted accused when the prima-facie case had been established against him .......... (47)
Investigation within Stipulated Period—
The provision of completion of the investigation within stipulated period is not mandatory in nature. Non submission of report by the investigating officer within 45 working days cannot be a good ground for quashing the proceedings......... (48)
The settled principle is that while considering of the application under section 561A of the Code the High Court Division will not take into consideration of the defence papers..... (49)
It would be unnecessary delay in holding the trial of the cases, if leave is granted....... (50)
Major General Abdus Salam (Retd) Vs. Bangladesh Election Commission and another, 2015, 44 CLC (AD)
Whether the Election Petitions were Maintainable in Law—
The petitioner being a proposed "candidate" for election as a Member of the Parliament for the Constituency in question, he had every locus standi to file the election petitions and those were maintainable in law......(9)
Rejection of the Election Petition—
Representation of People Order (PO No.155 of 1972; Articles 49, 50, 51, 57(4) and 58
In the RPO, there is no provision of rejection of the election petition. Article 58 of the RPO has provided that the High Court Division shall dismiss an election petition, if the provisions of article 49 or article 50 or article 51 have not been complied with or the petitioner fails to make the further deposit required under clause (4) of article 57, but in the instant case, no complaint was made by the respondent that the election petitions were filed without complying with those provisions of the RPO. However, it is the provisions of Order VII, rule 11 of the Code under which the applications were filed for rejection of the election petitions and that provision of the Code has not contemplated rejection of plaint for addition of a prayer than the law requires. Points, can very well be decided along with the other issues involved in the election petitions at the trial of the election petitions....... (11)
Orascom Telecom Bangladesh Limited Vs. Kalipada Mridha and others, 2015, 44 CLC (AD)
Use of the National Anthem and Protection, Preservation and Maintenance the sanctity of The National Anthem—
The national anthem is the nation's cherished property. We protect the national anthem because it is an important song of national unity. Bangladeshis regard the national anthem with an almost mystical reverence regardless of what sort of social, political or philosophical beliefs they may have. Commercial use of national anthem amounts to its desecration. There is no scope for commercial use of the national anthem. Such commercial use of national anthem shows utter disrespect to the national anthem.
National anthem can be played only at the places and on the occasions specified in the Rules. The restrictions so imposed have been done for protection and preservation and upholding the sanctity of the national anthem............ (17 & 18))
Government of Bangladesh and others Vs. Nurul Amin and anothers, 2012, 41 CLC (AD)
Constitution of Bangladesh, 1972 Article 44(1), 102(1), 102(2)
Compensation is Special Relief not General—
Power of High Court not only be Injunctive but also Remedial— Articles 44(1), 102(1) 102(2)
The power of the High Court Division under Article 102(1) is not only injunctive in ambit but also remedial in scope to provide any relief against a breach of fundamental right already committed which may include the, power to award compensation in appropriate cases.
The power of the High Court Division under Article 102 is very wide and is not fettered by any legal constaints in the enforcement of the fundamental rights inasmuch as the High Court Division powers to issue such directions and orders as may be appropriate for the enforcement of fundamental rights conferred by Part III of the Constitution.
It is only in the exceptional cases that compensation or compensatory cost may be awarded to a victim in a petition properly drawn under Article 102 of the Constitution. The violation must be gross and its magnitude must be such as "to shock the conscience of the Court" and it would be gravely unjust to the person whose fundamental right was violated to require him to go to the civil court for claiming compensation.
In awarding and determination of compensation the High Court Division, in an appropriate case if it deems necessary, may take evidence to clear any disputed question of facts or pass any direction or orders to hold an inquiry by a District Judge for removing any controversy.
Provisions of Article 102 read with Article 44(1) are identical with those of the Article 32 of the Indian Constitution so far as those relate to the enforcement of fundamental rights. The interpretation of Article 102 should be guided by the paramount object and purpose for which the Article has been enacted and its interpretation is inextricably linked with the (i) emergence of Bangladesh and framing of its Constitution, (ii) the Preamble and Article 7, (iii) Fundamental Principles of State Policy, (iv) Fundamental rights and (v) the other provisions of the Constitution....... (38)
Compensation or relief must be specifically prayed for in the writ petition but not in the name of general or other relief.
There was no foundation in the writ petitions or prayer for exemplary, monetary compensation and compensatory costs was ever made in the writ petitions and connected affidavits rather on the prayer of the learned Senior Advocate for the writ petitioners the learned Judges of the High Court Division on mere surmises and conjectures wrongly observed "We being satisfied upon the material on record hold the view that it is a fit case where justice demand an exemplary monetary compensation for the detenue from the Respondent Nos. 1 and 2. "But the learned Judges of the High Court Division failed to refer to any such material on record because there was no such foundation in the writ petitions and connected affidavits and in fact no such material on record was found in the cases. ...... (44)
Observation— Sweeping Remark or Irrelevant Observation
A court shall avoid of making any sweeping remark or irrelevant observation in a case and identify itself to the cause of any of the parties to a case on which it is adjudicating....... (40)
Reasoing before Awarding Cost or Compensation—
The Court should assign a reason in awarding cost or compensation otherwise it may appear to be arbitrary or indiscreet exercise of power or discretion with regard to realization of the same. ......(43)
BOC Bangladesh Ltd Vs. National Board of Revenue and others, 2014, 43 CLC (AD)
Value Added Tax Rules, 1991; Rule Rule 3(3) & Rule 3(7)
Fixing Price, VAT in Special cases by Gazette Notification—
Section 5(7) of the Ain allows the Board to fixing price, VAT in special cases only and that must be done through gazette notification……........(16)
Manufacturer can fix the Actual Price—
The Commissioner may fix the price as per recommendation of base value Review Committee constituted by the Board. The VAT authority cannot fix the base value according to its sweet will and it is only the manufacturer who can fix the actual price. If the price declared by the appellant is supported by the documents and as per law, the VAT authority without verifying the market and conducting any investigation still cannot fix the price…..... (16)
Objection Regarding the Price Declaration should be Provided Within 10 Working Days—Sub-rule (3) of rule 3 provides that VAT authorities are required to intimate in writing to the VAT registered person their objection, if any, regarding the price declaration within 10 working days of receiving the price declaration.......(13)
State Vs. Abdus Salam and others, 2015, 44 CLC (AD)
Jurisdiction
of this Court in dealing with an appeal against an order of acquittal
is circumscribed by the limitation that no interference is to be made
with the order of acquittal unless the approach made by the lower Court
to the consideration of the evidence in the case is vitiated by some
manifest illegality or the conclusion recorded by the court below is
such which could not have been possibly arrived by any court acting
reasonably and judiciously and is, therefore, liable to be characterized
as perverse.......(22)
Aynul Haque (Md.) Vs. Government of Bangladesh, Dhaka, 2014, 43 CLC (HCD)
Amena Meher Vs. Md. Abdul Kader and others, 2014, 43 CLC (HCD)
Advocate Murshedur Rahman Chowdhury Vs. Bangadesh and others, 2012, 41 CLC (HCD)
Singer Bangladesh Ltd Vs. National Board of Bangladesh, 2014, 43 CLC (HCD)
Value Added Tax Act (XXII of 1991); Sections 26(Ka), 35 and 36
The Value Added Tax Act, 1991 is a self-contained Act where provisions are made to accumulate VAT together with the provisions of assessment and others. ...... (27)
Constitution of Bangladesh, 1972; Article 128
Value Added Tax Act (XXII of 1991) Section 55(1)
Set up of Local and Revenue Audit Directorate—
Whether the local audit directorate can authoritatively look into the papers and documents of the NBR—
Local and Revenue Audit Directorate is internally set up by and under the authority of Comptroller and Auditor-General for the purpose of conducting audit as required under Article 128 of the Constitution. The local audit directorate can authoritatively look into the papers and documents of the NBR and do the needful to ascertain whether the thinks are in the right direction or not. Deviation of any kind if could be ascertained by the audit department in the process, the statutory public body (like NBR) would certainly account for that. ......(43)
Issuing of Notices—
The notices shall have to be issued independently following the provisions laid down in the VAT Act. In all the cases where there is a direct demand for depositing the amount or asking for documents or even merely a notice served under section 55(1) of the Act if found to be tainted being done under express direction of Local Audit Directorate, or so to say issued under the flagrant direction of Local audit Directorate, can not legally sustain having curtailing effect on the provisions of Constitution and the Act. The Constitutional mandate and the VAT Act if considered conjunctively do not allow issuing notices of this kind since the fine line between Article 128 of the Constitution and the provisions of VAT Act in this respect is distinct, vivid and well circumscribed. .......... (46)
Moulana Abdul Hakim (Md.) Vs. Government of Bangladesh and others, 2013, 42 CLC (HCD)
Constitution of Bangladesh, 1972; Article 102(1)(2) (a)(ii),
Article 102
Power of High Court Division to Issue Certain Orders Directions—
Article 102(1) comes into play in relation to the infringement of any fundamental right guaranteed under Part III of the Constitution. Article 102(2) presupposes the availability of the various writs that may be appealed to for reviewing actions and operations in the public domain.
When issues of fundamental rights are raised, the sanction under Article 102(1) is clearly of availability of redress against "anyone." or "any authority", inclusive of "any person performing any function in connection with the affairs of the Republic." The reference to government functionaries must accordingly, be seen as an appendage made to the broader category of "anyone" or "any authority" by way of abundant caution….(10-12)
Amirul Islam (Md.) Vs. Commissioner of Customs Chittagong and others, 2014, 43 CLC (HCD)
Customs Duty Assessment (Determination of Value of Import Goods) Rules, 2000
Rules 4, 5 & 7
It is the usual practice that provisional assessment should he followed by final assessment as per Valuation Rules.
The Customs Authority finally assesses the goods and to duly in accordance with Customs Valuation Rules, 2000 after notifying the documents and papers….. (10 & 11)
Yunus (Md.) Vs. State & another, 2014, 43 CLC (HCD)
Inherent Power under Section 561A of the Code
It is pertinent to make a note of that inherent power under section 561A of the Code of Criminal Procedure can be invoked at any stage of the case even after conclusion of trial if it is necessary to prevent the abuse of the Court or otherwise to secure ends of justice…(16)
Contractor as an Agent from Any Department Of The Government is also an Entrustment with Property—
Criminal breach of trust by agent— any contractor is appointed by any department of the Government for construction of any building, the contractor is termed as an agent of the concerned department of the Government. Receiving the work order for construction of a bhaban by the contractor as an agent from any department of the Government is also an entrustment with property. Once the contactor as agent receives the work order for construction of a building, he is under obligation to hand over the same to the authority by constructing the same as per work order.
In the instant case, the accused-petitioner as agent received work order, took some payment against the bills from the Roads and High ways, misappropriated the public money and ultimately failed to handover the bhaban to the authority by constructing the same in time as per work order. Accordingly, failure to perform the work as per work order by the contractor in a way of his business as an agent taking fraudulent mensrea to deceive the Government amounts to an offence of criminal breach of trust which is punishable under section 409 of the Penal Code…......(28)
The hard earned money of the people spent from the public exchequer cannot be misused at the whims and sweet wills of the accused-petitioner and others for their illegal gains and benefits…......(19
Disputed questions of fact cannot be decided invoking the jurisdiction under section 561A of the Code and it is the function of the trial Court which will decide the factual aspects of the case on taking evidence..... (19)
The accused-petitioner is an agent of the Roads and High Ways, since prima-facie, he has committed criminal breach of trust in respect of the property as described in the work order in the way of his business as an agent in misappropriating the public money and in not handing over the bhaban to the authority by constructing the same in time as per work order…(29)
Criminal offence never abates and the proceeding drawn against another accused was quashed, the same have not reached its finality unless the same are finally adjudicated and decided by the higher forum. ...... (32)
Proceeding initiated against the accused-petitioner under section 409 of the Code is maintainable even in the absence of any public servant…...... (36)
Satsang Bangladesh, D. Pakutia Vs. People’s Republic of Bangladesh and others, 2013, 42 CLC (HCD)
Mohoshin Miah (Md.) Vs. State and another, 2014, 43 CLC (HCD)
Bidhimala
came into force on 29 March, 2007 whereas the trap in connection of
this case was made on 10 April, 2007, that is, after 11 days of the
promulgation of the Bidhimala the occurrence of this case was taken
place. The permission either in written or oral was mandatory for the
field officer for laying down a trap and every law and Rule is enacted
in a civilized society to obey it and to serve the best purpose of the
people and not to violate it and if the law enforcing agency who have
been entrusted with the duty to enforce the law and Rules of the country
ignore the same, what is the necessity for the enactment of the law and
the Rules...... (48)
Since there appears no special defence case on behalf of the accused in respect of the trap case that the P.W. 1 who led the trap party had any connivance with Abdus Salam Khokon in order to make a trap, such a defect which might have been taken place for the very new enactment of the Rules and as I have said it earlier that after 11 days of the enactment of the Rules, the occurrence of this case has taken place, so the defect in obtaining the permission from the authority by P.W.1 who led the trap party is curable under section 537 of the Code…......(52)
The Rule itself did not confer any right to the accused to explain his position before the the Commission or Commissioner…....(58)
In
an inquiry against a person on an allegation of corruption, the
commission or any other person on his behalf may ask the person to
explain his position. Inquiry is generally taken place before the filing
of the case. The very nature of the case did not permit and justify to
notify the accused in black and white to explain his position before
the lodging of the FIR……....(56)
A Kader Zilani (Md.) Vs. State and another, 2014, 43 CLC (HCD)
Intention to Misappropriate to be made known when Misappropriation by a Public Servant—
Mere failure to return back any property from the legal custody of a public servant is not misappropriation unless and until it reveals that he had a intention to misappropriate the same for his personal gain...... (51)
Time Limit for The Investigation of the Case is Simply Directory in Nature and Not the Mandatory Provisions of Law— So far the time limit is concerned the Rule prescribes to conclude the investigation within 60 'days in two phases or two tires but in case of failure of the same accused has not been given any premium for the same. But there is the provision for punishing the investigating officer for the failure to follow the provision. So it is the matter of the authority whether the investigation officer will be punished or not but the accused has not given any benefit for the violation of the time limit in respect of investigation of the case……...(55 & 54)
State Vs. Shajahan Bepari and others, 2014, 43 CLC (HCD)
Purpose of Section 339C— Speedy Trial Court—
The whole purpose of un-amended section 339C of the Code was to whip up the prosecution and to make the trial Court more active so as not to delay the trial of a case unnecessarily. The stopping of a case and the release of an accused would rouse the prosecution from its slumber and would necessarily subject it to accountability. The purpose was not to give the accused a right not to be tried any more on the same charge or a clean bill of acquittal, even if he was accused of a heinous crime. Stoppage of the trial did not mean an end of the woes of the accused. A revival would revive his woes. ... (18)
Sayeda Kamrun Jahan Chowdhury Vs. Judge, Artha Rin Adalat No.1, Court Hill, Police Station-Kotwali, District-Chittegong and others, 2013, 42 CLC (HCD)
Setting-Aside Auction Sale on the Ground of Material Irregularity—
The
decree-holder got the plot numbers of the property correct which was
sold in execution of the decree after the confirmation of the sale
which is enough to bring the matter within the mischief of Order XXI,
Rule 90 of the Code for setting-aside auction sale on the ground of
material irregularity.
It
also appears that the judgment-debtor filed an application for
setting-aside the auction sale by misquoting section 33(2) of the Artha
Rin Adalat Ain which should have been filed under Order XXI, rule 90 of
the Code of Civil Procedure as observed by the Adalat....(10)
Ferdous Ara Zainul Vs. Mahmuda Khatun and others, 2014, 43 CLC (HCD)
Abdul Hamid (Ujir) Vs. State and others, 2014, 43 CLC (HCD)
Section 27 transpires that a person who has complaint under the provision of the Nari-o-Shishu Nirjatan Daman Ain, 2000 must go the local police station to lodge the First Information Report in the first phose and if the complainant has been refused by the police/officer-in-charge to receive such FIR in that case the complainant can file her case in the Tribunal provided the complainant has to narrate the story of such refusal in the petition of complaint on oath. But on perusal of the petition of complaint it neither appears that the complainant has earlier been refused by the local police station to accept her FIR nor she stated such story of refusal on oath in her petition of complaint....... (14 & 13)