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Ayesha Khatun (Musammat) Vs. Musammat Jahanara Begum & others, 1990, 19 CLC (AD)
The State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), Section 96
The Registration Act, 1908 (XVI of 1908), Section 47
Whether right to sue i.e. cause of action to file a case for pre-emption arises from the date of execution or registration of the transfer deed under pre-emption - Whether right to defend such a case arises from the date of execution or registration of the transfer deed (which is not under pre-emption) in favour of the pre-emption)
It is a settled principle of law that the cause of action under section 96 of the State Acquisition and Tenancy Act accrues on the date of the registration of the deed of sale (under pre‑emption), when registration is compulsory ‑ This is because the right of pre‑emption arises on the completion of the transfer. It could not be said to have been completed earlier by reason of section 47 of the Registration Act though thereunder the instrument of transfer commences to operate from earlier date of execution............(6)
The appellant's application for pre‑emption though maintainable, she is not entitled to pre‑emption because her right as a contiguous landholder to sue for pre-emption that accrued on 21st July, 1980 had been undermined by respondent's right of co‑sharership by purchase that had accrued earlier on 23rd March, 1979 by virtue of section 47 of the Registration Act.........(7)
Badsha Mia and others Vs. Abdul Latif Majumder and others, 1990, 19 CLC (AD)
Whether evidence is to be recorded in deciding the question of Contempt of Court in the absence of denial of allegations
There being no specific denial of the incident as alleged by the respondents in their petition for issuing a Rule for contempt of Court the learned Judges of the High Court Division correctly found the appellants are guilty of Contempt of' Court.
Power of High Court Division to initiate a contempt proceeding is a special jurisdiction which is inherent in all courts of record and the High Court Division can deal with it summarily and adopt its' own procedure. Normally contempt proceedings are disposed of by affidavits and counter affidavits- the question of taking evidence in the present case would have arisen provided the petitioners would have specifically denied the allegations made in the petition for drawing up a proceeding for contempt.Idris Ali Bhuiyan Vs. Enamul Haque and another, 1990, 19 CLC (AD)
The Constitution of the People's Republic of Bangladesh, 1972, Article 105
Review of judgment when justified
Review
of a judgment can be made where there is an error apparent on the face
of the record or that the attention of this court was not drawn to any
particular statutory provision of law for which an error has crept in
the judgment. Since the vendor of the plaintiff had knowledge of the
impugned document beyond the period of limitation plaintiff’s subsequent
knowledge within the period of limitation is not material. Hence the
High Court Division did not commit any error apparent on the face of the
record in holding that the suit was barred by limitation to justify
review of the same.
Bakul Howlader @ Shamsul Alam Vs. The State, 1990, 19 CLC (AD)
Cancellation of bail
In
view of pending case and counter case the learned Judges of the High
Court Division did not exercise their judicial discretion properly in
cancelling the bail of the appellant when there is no allegation of
tempering with the evidence against him. Moreover state has not produced
any new material to justify cancellation of bail of the
appellant..........(7)
Abdur Rahman Mondal and others Vs. State, 1990, 19 CLC (AD)
The Code of Criminal Procedure, 1898 (V of 1898), Section 423 Whether
an appellate court can order retrial of a criminal case when evidence
on record are sufficient to decide the appeal only to give an
opportunity to adduce further evidence to fill up its lacuna
Abul Quasem (Md) Vs. Md. Lutfur Rahman, 1985, 14 CLC (AD)
The Code of Civil Procedure, 1908 (V of 1908), Order 26, Rule 10
Whether acceptance of the report of an advocate commissioner for local investigation raises presumption of its correctness
The Court is not at all precluded from considering the report of the Commissioner afresh again in the light of fresh materials as may be legally brought in the record by the parties. The Commissioner's report is to be evaluated in the facts of the case on the evidence adduced and the Court has wide discretion in such matter. Mere acceptance of the report should not give rise to any apprehension in the mind of the litigant................(13 & 14)
Abdur Rabban (Md) Vs. Aminul Hoque Sowdagar and another, 1990, 19 CLC (AD)
The Evidence Act, 1872 (I of 1872), Section 17
Whether admission of the defendant in a separate proceeding can be accepted as evidence to hold that he was a tenant under predecessor-in-interest of the plaintiff whose case against the defendant was that of trespass in the suit land
Since
the relationship of landlord and tenant between the parties was never a
fact in issue in the suit the application of the defendant No.1 dated
12.1.1966 and the deposition of defendant No.1 in miscellaneous case
Nos. 66 of 1963 could not be admitted into evidence as an admission
suggesting an inference that he was a tenant in the suit land. But such
application and deposition could be admitted into evidence suggesting an
inference for the purpose of falsifying the claim of the defendant as
to evidence adverse possession because a tenant under a real owner
cannot switch his loyalty so often. Since plaintiff has not taken
delivery of possession as auction purchaser inclusion of such evidence
would be of no benefit to him.
The Code of Civil Procedure, 1908 (V of 1908) Order VI rule 17
The Limitation Act, 1908 (IX of 1908), Article 137 of the First Schedule
Whether Plaintiff can be allowed to amend the plaint to save limitation
There
is no dispute that article 137 of the First Schedule of the Limitation
Act applies in this case for recovery of possession by the auction
purchaser plaintiff which commences from the date of dispossession of
his predecessor-in-interest the judgment-debtor- since defendant No. 1
traces his possession from 1948 and produced documentary evidence of
payment of rent from 1951 his accrual of vested right and limitation
cannot be negatived by such amendment, High Court Division correctly
rejected prayer for amendment.
Abdur Rouf Miah Vs. Fazlur Rahman and others, 1990, 19 CLC (AD)
The Upazila Parishad (Election) Rules, 1983, rules 38-41
Whether Election Commission can direct re-poll in the absence of Rule 68 of the Upazila Parishad (Election) Rules 1983 - Whether election commission can order recounting of votes when there was no objection before the Presiding Officer or Returning Officer before consolidation of results
Election commission has got power to organize, conduct and hold election in a free and fair manner and direct re-poll in an appropriate case to ensure free and fair election but this power is subject to the Election Rules.
Petitioner raised no objection to any of the Presiding Officers to his counting the ballot papers nor any prayer for recounting was made. After Returning Officer consolidated the results and declared the Respondent No.10 elected the petitioners raised objection to the Returning Officer and then to the Election Commission. In such circumstances the Election Commission should not have directed recounting without hearing both the parties. But when election was not held in a free and fair manner Election Commission can direct re-poll.Wajear Rahman Moral (Md) Vs. The State, 1990, 19 CLC (AD)
The Evidence Act, 1872 (I of 1872), Section 137
Whether
contradiction in the evidence of prosecution witnesses entitles the
accused to an order of acquittal when there is his clear confession
admitting his guilt
Statements
elicited from a witness in cross examination, the most effective of all
means ever invented for the discovery of truth and exposing falsehood,
are a part, a very important part, of evidence before Court. Before
drawing any inference from the testimony of a witness the Court,
particularly the Trial Court, must consider the statements made in chief
and those made in cross by putting them in juxtaposition and see
whether that witness has stood the test or supplied his own refutation-
Had the prosecution case been based solely on ocular evidence the
accused would have been acquitted. Since the accused admitted his guilt
in his confessional statement which is voluntary as well as true he is
not entitled to acquittal even if there is contradiction in the evidence
of prosecution witnesses.
The Penal Code, 1860 (XLV of 1860), Section 302
The Code of Criminal Procedure, 1898 (V of 1898), Section 423
Whether death sentence can be consummated to imprisonment for life when the accused suffered agony of death due to long delay in executing death sentence
The death sentence has not been executed after more than four years from the date of confirmation of the sentence by the High Court Division and the appellant has suffered a prolonged agony for laches of others – Hence death sentence is commuted to one of life imprisonment.Tamizul Haque and another Vs. Shamsul Haque and others, 1990, 19 CLC (AD)
When both parties have led all their evidence and the facts involved in the applications for rectification of the share registers are not of complicated nature, the same can be disposed of in a summary proceeding
In the light of the discussion of the cases referred to above and on consideration of the facts and circumstances of the case it is found that the fact involved are not of complicated nature calling for a detailed investigation in a separate forum. As such High Court Division did not commit any illegality in deciding the same in summary proceedings.
The Limitation Act, 1908 (IX of 1908), Art. 181 of the First Schedule
Whether period of limitation under Article 181 applies to a proceeding under section 38 of the Companies Act
Applications
under Art. 181 are restricted to applications under the Civil Procedure
Code and that the application for rectification of a share‑register
under s. 38 is left to be governed by the general principle that it
shall be filed within a reasonable time and not after inordinate delay.
What is a reasonable time or an inordinate delay is left to be
determined by the Court on consideration of facts and circumstances of a
particular case.
State Vs. Abdus Sattar and others, 1990, 19 CLC (AD)
The Code of Criminal Procedure, 1898 (V of 1898), Section 423
When Appellate Division can convert an order of acquittal of the accused persons by the High Court Division agreeing with the decision of the trial court by reviewing the evidence on record
When there is serious defect in the process of reasoning of the High Court Division in arriving at its findings and there has been manifest disregard of the accepted principles of appreciation of evidence occasioning a failure of justice Appellate Division can arrive at its own conclusion after reviewing the entire evidence and can reverse the order of acquittal and convert the same into an order of conviction agreeing with the trial court.Hussain Mohammad Ershad Vs. The State, 1991, 20 CLC (AD)
The Code of Criminal Procedure, 1898 (V of 1898), Section 561A
Whether a criminal proceeding can be quashed on the ground of lodging of F.I.R. by the informant under order of the Home Ministry or on the denial of prosecution allegations by the accused
In a summary proceedings under section 561A of the Code of Criminal Procedure the question whether the proceeding should be quashed or not should be decided on the facts alleged in the FIR and the charge‑sheet. The accused's general denial that the facts disclosed in the FIR are not true will not do. To succeed the accused must show that the facts alleged by the prosecution do not constitute any offence or that the prosecution is otherwise barred by law. A prosecution cannot also be quashed just because it was initiated at the instance of the Home Ministry.
Azima Begum Vs. Yusuf Khan (Md) and others, 1990, 19 CLC (AD)
The Code of Criminal Procedure, 1898 (V of 1898), Section 439
Whether High Court Division correctly exercise its discretion in not granting an order of ad-interim stay
The appellant clearly stated before the High Court Division while obtaining the Rule that she had given birth to a female child barely 5 months ago and that it would be injurious to the health of the baby and the appellant both to be placed under any type of custody at that critical stage. The High Court Division ought to have appreciated that in such circumstances the operation of the impugned order would have spelt disaster to both the baby and the mother - the exercise of discretion in not granting an order of ad‑interim stay was not a judicious and sound exercise of discretion at all.Rahima Khatun (Mst) & others Vs. Daily Rani Dasi, 1990, 19 CLC (AD)
The Bengal Tenancy Act, 1885, Section 103B
Whether entry of a person’s name in the record of right as ‘Dakhalkar’ will mean that for all time to come he will continue as a tenant at will
Ordinarily,
the word "Dakhalkar' in the record of rights is no doubt indicative of a
mere tenant‑at‑will without any transferable or heritable interest, but
the word cannot be limited to a mere tenant‑at‑will under all
circumstances - the subsequent history and attendant circumstances are
relevant facts to be taken into consideration in determining the
character of the possession – Use of the word ‘Dakhalkar’ in the C.S.
Record is not conclusive. The subsequent history of possession of the
suit land and other attendant circumstances admit of an inference that
the tenancy was of a permanent tenure and not a tenant-at-will.
State Vs. Tariqul Islam alias Rinku and 20 others, 2011, 40 CLC (HCD)
It is settled Principle of law that a statement of an accused before a Judicial Magistrate would a confession, if it is in terms of the offence charged or any rate substantially all the facts which constitute the offence charged. If the confessions are considered in the light of the above said Principle the same can not be accepted as confession, as the same were not in terms of the offence charged against them in this case. Therefore the statement of accused shall not have the effect to bind them nor could it be binding an other co-accused, ever if there is any element in the evidence lending assurance to such statements Moreover, the confession of one co-accused can not be used for corroborating the confession of another co-accused as both are tainted evidence.
The Rule of circumstantial evidence is that the chair of circumstances must be knitted together closely so as to lead to irresistible concession that the accused alone had committed the offence, the chair of events must be such that the possibility of innocence of accused is wholly excluded and such facts are incapable of explanation of any other reasonable hype them other them the guilt of the accused. In the case of Rahman Vs. state of up A/R 1972 (SC) 11 held:
“The circumstances forming evidence must be conclusively established and even when so established they must form such a compete chair what is only consistent with the guilt font is inconsistent with any reasonable hypothesis of innocence.” ................... (74)
Law is now well settled that suspicion on or doubt however strong it might be can not take place of evidence or their be slightest doubt as to the involvement of the accused in the crime, he can not be converted.
It is well settled that mere abscondence can not always be circumstance reading to the inference of guilt of the accused mere abscondence can not always be a circumstance which should lead to an inference of guilt to the accused. some times out of fear and self respect and to avoid unnecessary harassment even an innocent person remain absconding for sometime......................(78)
Law is now well settled that suspicions or doubt however strong it might be can not take place of evidence or their be slightest doubt as to the involvement of the accused in the crime, he can not be convicted. .......... (77)
It is well settled that mere abscondence can not always be a circumstance leading to the inference of guilt of the accused. mere abscondence can not always be a circumstance which should read 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.
It is well settled that the conviction of several accused an omnibus statement of prosecution witnesses can not be sustained................. (18)
Credibility of testimony, oral and circumstantial depends considerably an a Judicial evaluation of the totality, not isolated secreting. when dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.
a) The onus of prating everything essential to the establishment of the charge against the accused this on the prosecution.
b) The evidence must be such as to exclude to a moral certainly 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 before that several guilty persons should escape than that one innocent persons suffer.
d) There must be clear and unequivocal proof of the corpus delict.
e) The hypothesis of delinquency should be consistent with all the fact. ……………………………….(82)
Keramat Ali Bhuiyan Vs. Ramizuddin Ahmed Bhuiyan, 1990, 19 CLC (AD)
The Code of Civil Procedure, 1908 (V of 1908) Order IX, Rule 9
Whether there is any necessity to condone the delay when defendant was prevented from information about the date of hearing due to the mistake or default of the court or its officers
When an injury is caused to a party due to any mistake or default committed by a court or its officers there are high authorities laying down that in circumstances of this nature, it is not only the right but the duty of the Court to correct its own mistake.
Nannu Gazi Vs. Awlad Hossain & others, 1990, 19 CLC (AD)
The Code of Criminal Procedure, 1898 (V of 1898), Section 241A
"Groundless"
appearing in both the sections 241A and former section 253 means that
the materials produced before the Magistrate against the accused are
either so frivolous, absurd or insufficient that no useful purpose would
be served by framing a charge against the accused- alibi - mere
submission of some papers in support of alibi is not sufficient. The
papers should be produced in evidence by witness who must face cross
examination on the papers produced.
The State Vs. Mofazzal Hossain Pramanik, 1991, 20 CLC (AD)
Abul Kashem and others Vs. The State, 1990, 19 CLC (AD)
An
Assistant Sessions Judge under the proviso to sub‑section (3) of
section 9 CrPC has the limited power to pass higher sentences except the
sentence of death in those Sessions cases which were not hitherto
triable by an Assistant Sessions Judge but which are now triable by him
by deeming and treating him to be an Additional Sessions Judge,
consequent upon the change brought in section 290 CrPC and the
introduction of section 31 (4) CrPC. He shall not be deemed to be an
Additional Sessions Judge for all purposes under the Code of Criminal
Procedure, namely, for hearing appeals, revisions, references and
reviews if they are made over or transferred to him by the Sessions
Judge.