Present:

 Mr. Justice Md. Nazrul Islam Talukder

           And

  Mr. Justice K.M. Hafizul Alam

CRIMINAL REVISION NO.2792 OF 2016

Mirza Abbas

........ Accused-petitioner. -Versus-

The State and another

....... Opposite -parties.

Mr. Md. Zainul Abedin, Senior Advocate with

Mr. Md. Sagir Hossain, and

Mr. Md. Jahirul Islam (Sumon), Advocates,

....... For the Accused-petitioner. Mr. A.K.M. Amin Uddin, D A.G with

Mrs. Helena Begum (China), A.A.G.

....... For the State-opposite party Mr. Md. Khurshid Alam Khan, Advocate, ....... For Anti-Corruption Commission.

Heard on: 02.01.2019, 17.01.2019, 04.02.2019, 24.02.2019, 26.02.2019, 06.03.2019, 16.04.2019, 17.04.2019, 18.04.2019, 28.04.2019 and judgment on: 13.05.2019.

Md. Nazrul Islam Talukder, J:

On an application under Section 10(1A) of the Criminal Law Amendment Act, 1958, this Rule, at the instance of the accused-petitioner, was issued calling upon the opposite-parties to show cause as to why the impugned order dated 20.10.2016 passed by the learned Special Judge, 4th Court, Dhaka in Special

Case No.22 of 2015 arising out of Shahbagh Police Station Case No.11 dated 06.03.2014 corresponding to A.C.C G.R. No.26 of 2014 framing charge against the accused-petitioner under Sections 409/109 of the Penal Code read with Section 5(2)  of the Prevention of Corruption Act, 1947, now pending in the court of learned Special Judge, Court No.4, Dhaka, should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

The prosecution case, in short,  is that on 06.03.2014, one Jatan Kumer Roy, Deputy Director (inquiry and investigation-1), Anti-Corruption Commission, Head office, Dhaka being informant lodged an FIR with Shahbag Police Station, DMP, Dhaka alleging, inter-alia, that for personal gains and benefits, the FIR named accused, in collusion with each other, leased out 7(seven) acres of government

land to Dhaka Journalist Co-operative Society at the lowest price of Tk.3,38,80,000/- ignoring the market value of Tk.18,91,30,900/- of the same. On an inquiry held  by  Anti-Corruption  Commission  in  connection with Nothi No. it  was  revealed  that  the  former  State  Minister  of Housing  and  Public  Works  Alamgir  Kabir  without receiving  any application from journalists,  literary authors, cultural activists, writers and others sent DO letter dated 16.06.2002 to the then Prime Minister for allocation of land for establishment of their residence. Following  the  same,  the  office  of  the  then  Prime Minister directed the Secretary, Ministry of Housing and Public Works to take necessary steps in this regard in  accordance  with  law.  During  pendency  of  the matter, one Amirul Islam, a so-called journalist of the Daily  Dinkal  submitted  an  application  to  the  State

Minister of the Ministry of Housing and Public Works to lease out some land in favour of the journalists at Pallabi, Mirpur. On receiving the application, on 23.12.2002, the State Minister directed the Chairman of National Housing Authority to take urgent steps for leasing out the land in favour of the Journalists. On 22.02.2004, following an application filed by one M.A. Aziz, Secretary of Dhaka Journalist Co- operative Society, the State Minister also directed the Secretary, Ministry of Housing and Public Works for taking steps for leasing out the land in favour of the journalists. Thereafter, on 31.08.2003, the Secretary of the concerned Ministry directed the Chairman of National Housing Authority to lease out 7.99 acres of land in favour of journalists, literary authors, cultural activists and different artists. Subsequently, on a meeting presided over by the Secretary of the

concerned Ministry, it was decided to cancel the lease and approved scheme of land for the Jhilmil Bohumukhi Co-operative Society. On 30.08.2008, the accused Md. Azharul Haq, former Deputy Director, Land and Property Management, Office of the National Housing Authority leased out the land in question at the rate of Tk. 16,00,000/- per bigha for a total amount of value stood at Tk.3,38,80,000/-. A deed of lease was executed on 15.10.2006 following Rule 5.7.12 of the National Housing Rules, 1993 and thereby fixing the rate of the land. In 2001, the accused leased out the self-same land at the rate of Tk.20,00,000/- per bigha. The ACC collected the chart of the rate of the land from Mirpur Sub-registrar office and found the rate of the same land as Tk. 2,70,187/- per decimal and the value of the land accordingly stands at Tk.(2,70,187 X 700)=18,91,30,900/- but they

leased out the land only at Tk.3,38,80,000/-. By this way, the accused persons embezzled Tk.15,52,50,900/-. The accused did not follow the National Housing Rules. The accused in collaboration with each other sent D.O letter to the then Hon’ble Prime Minister. Subsequently, the lease and scheme of Jhilmil Bohumukhi Co-operative Shamity was cancelled without any reason. The accused persons approved and leased out the same to gain unlawful benefits. On the basis of the said information, the Anti-Corruption Commission initiated Shahbag Police Station Case No.11 dated 06.03.2014 under sections 409/109 of the Penal Code read with Section 5(2) of the Prevention of the Corruption Act,1947 against the accused of the case. Hence, the FIR.

After initiation of the FIR, on 11.02.2015, the Anti-Corruption Commission after holding

investigation having found prima-facie case submitted charge-sheet against the accused-petitioner and others under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947.

The investigation officer after obtaining sanction from the Commission submitted charge- sheet along with sanction before the Court of learned Metropolitan Magistrate, Dhaka, on 16.02.2015.

After submission of the Charge-sheet, the case record was transmitted to the Court of learned Special Judge, Court No. 4, Dhaka and the case was registered as Special Case No.22 of 2015.

It is stated in the supplementary affidavit dated 07.12.2016 that the rate of land in question at Mirpur residential area was  Tk.16,00,000/- per bigha as

per  Notification  under  Memo  No. dated 11.01.1993 which runs as follows:

NZfÐS¡a¿»£ h¡wm¡­cn plL¡l

f§a Ñj¿»Z¡mu

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pÈ¡lL ew-n¡M¡-6/1/Hj-45/84/34  a¡¢lM : 11/01/1993 Cw

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f§a Ñj¿»e¡m­ul A¡Ja¡d£e ¢nÒf J A¡h¡¢pL Hm¡L¡ pj§­ql i ¢¨jl j§mÉ f¤e:

¢edÑ¡l­Zl hÉ¡f¡­l “j§mÉ fkÑ¡­m¡Qe¡ L¢j¢Vl” 20/12/1992 Cw a¡¢l­M Ae¤¢ùa

pi¡l ¢pÜ¡¿¹ ®j¡a¡­hL plL¡l pcu qCu¡ ¢ejÀ ¢m¢Ma S¢jl j§mÉ f¤e: ¢edÑ¡le L¢l­me:-

00 mr

00 mr mr

 mr 0 mr

00 mr

.00 mr

V¡: 40.00 mr

2z f¤el¡­cn e¡ ®cJu¡ fkÑ¿¹ f§aÑ j¿»e¡m­ul A¡Ja¡d£e E­õ¢Ma Hm¡L¡l La«Ñfr La«ÑL ¢edÑ¡¢la q¡­l ØVÉ¡­Çf ¢XE¢V fÐc¡e L¢l­a qC­hz hl¡ŸL«a S¢j c¡e, qÙ¹¡¿¹l L¡­m qÙ¹¡¿¹l L¡l£­L AhnÉC c¡e qÙ¹¡¿¹¢la S¢jl ¢NgV, VÉ¡„ Hhw qÙ¹¡¿¹l ¢g ee ¢lg¡­ähm q¡­ll Ae¤f¡­a fÐc¡e L¢l­a qC­hz AeÉb¡u c¡e qÙ¹¡¿¹l NËqZ­k¡NÉ qC­h e¡z

3z HC A¡­cn 1m¡ S¡e¤u¡l£ 1993 Cw a¡¢lM qC­a L¡kÑLl£ qC­hz

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It is stated in the application that the accused- petitioner  and  others  followed  Rule  5.7.12  of  the National Housing Rules, 1993 and also followed the area  rate  of  the  land  as  per  Notification  No.  n¡M¡- 6/1/Hj-45/84/34  dated  11/01/1993,  approved  and leased  out  the  same  to  the  Dhaka  Journalist  Co- operative  Samity;  the  accused-petitioner  has  no

connection with the alleged occurrence and there are

no ingredients of the offences as alleged against him in

the prosecution materials.

The Rule 5.7.12 of the National Housing Rules,

1993 reads as follows :

“5.7.12 pj¡­Sl ¢ejÀ, jdÉj Hhw EµQ A¡ui¥š² pLm ®nÐZ£l

j¡e¤­ol Nªq¢ejÑ¡Z hÉhÙÛ¡ ¢e¢ÕQa Ll¡l E­Ÿ­nÉ ®hplL¡l£ Nªq ¢ejÑ¡Z pwÙÛ¡ Hhw pjh¡u p¢j¢a…­m¡l LjÑL¡ä­L Evp¡¢qa Ll­a q­hz

a¡­cl­L h¡S¡l c­l ¢h¢iæ p¤¢hd¡SeL ÙÛ¡­e/nq­ll ®L¾cÐ ÙÛ­m plL¡l£

S¢j hl¡Ÿ Ll­a q­h k¡­a a¡l¡ A¡NËq£ ®œ²a¡­cl Q¡¢qc¡ ®jV¡­a prj

quz”

During pendency of the case, the accused-

petitioner submitted an application under Section

241A of the Code of Criminal Procedure for

discharging him from the case stating, inter-alia, that

he is not FIR named accused; the accused-petitioner

has no involvement with the alleged offences; the

allegations do not come under Sections 409/109 of the  penal  Code  read  with  Section  5(2)  of  the Prevention  of  Corruption  Act,  1947  against  the accused-petitioner and others as the accused persons followed Rule 5.7.12 of the National Housing Rule, 1993 and also followed the area rate of the land as per  Notification  No. dated 11.01.1993  and  for  this  reason,  charge  cannot  be framed against him.

Upon hearing the parties and the application for discharge,  the learned Special  Judge, by  an order dated  20.10.2016,  rejected  the  application  and framed  charge  against  the  accused-petitioner  and others under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947.

Being aggrieved by the order of framing charge, the accused-petitioner approached this Court with an application under section 10(1A) of the Criminal Law Amendment Act, 1958 and obtained this Rule along with an order of stay of the impugned proceeding.

At the very outset, Mr. Md. Zainul Abedin, the learned Advocate along with Mr. Md. Sagir Hossain and Mr. Md. Jahirul Islam (Sumon), the learned Advocates appearing on behalf of the accused- petitioner, submits that the Anti-Corruption Commission Act, 2004 being a special law contains a provision of preliminary enquiry prior to lodging the FIR but in the instant case, the complicity of the accused-petitioner was not found during the enquiry as a result of which the name of the accused-petitioner was not mentioned in the FIR but he has been

implicated in this case in the charge-sheet subsequently for which the impugned order of framing charge is liable to be set aside.

He next submits that the name of the accused- petitioner has not been mentioned in the FIR but he has been falsely implicated in the charge-sheet only because of the reason that the accused-petitioner is a political person.

He then submits that the investigating officer during investigation recorded statements of as many as 10 witnesses under Section 161 of the Code of Criminal Procedure, but none of the witnesses implicated the accused-petitioner with the alleged offence brought against him under Sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 and as such, the

impugned order of framing charge is liable to be set aside.

He then points out that at the time of enacting the Anti-Corruption Commission Act, 2004, the legislature had intention that no person should be harassed with a mala fide criminal proceeding and that is why the provision of preliminary enquiry has been kept in the Ain before lodging the FIR and since at the enquiry, the complicity of the accused-petitioner has not been found, the subsequent implication of the accused-petitioner in the charge-sheet is illegal and beyond the scope of law and for this reason, the impugned order of framing charge requires to be interfered with by this court.

He candidly submits that 2 (two) FIR named co- accused Md. Matiur Rahman (FIR named accused No.3) and Md. Munsur Alam (FIR accused No.4) were

discharged from the case by the learned trial judge and the present accused-petitioner having had better footing than that of the co-accused, the order of framing charge against him is liable to be set aside.

He categorically submits that the alleged occurrence took place from 2002 to 2006 and during that period, the accused-petitioner was the Hon’ble Minister of Housing and Public Works and admittedly, he had no involvement in the alleged occurrence since the Deputy Minister of the said Ministry was in charge of the said project and the rate of the land at Mirpur residential area at Mirpur Mouja, was TK.16 crore per bigha as per notification No. n¡M¡-6/1/Hj-45/84/34 dated 11.01.1993 and as such, the accused-petitioner did not commit any offence and for these reasons, the impugned order of framing charge against the accused-petitioner should be set aside.

He further submits that the allegation brought against the accused-petitioner does not come within the purview of the Sections 409/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 and on this landscape, there is no reason to frame charge against the accused-petitioner.

He then submits that at the relevant time, the accused-petitioner being Minister of the then Ministry granted and approved lease in favour of the Dhaka journalist co-operative samity following the rate of the land mentioned in the notification dated 11.01.1993 issued by the Ministry of Housing and Public Works and considering this aspect of the case, the impugned order is liable to be set aside.

He lastly submits that the Ministry of Housing and Public Works granted and approved the lease of land in favour of different organizations on the similar

terms and conditions that have been set out in the lease deed given  in favour of the Dhaka Journalist Co- operative Samity so the lease in question is not the exception to other lease matters that were considered by the Ministry of Housing and Public Works at the contemporary period and considering the aforesaid aspect of the case, the charge should not be framed against the accused-petitioner and as such, the impugned order of framing charge should be set aside.

The learned Advocate for the accused-petitioner, in support of his submissions, has referred to a number of legal decisions taken in the cases of Shamsul Haque Chowdhury vs the State, reported in 39 DLR(HC) (1987)393, Alauddin and others vs the State, reported in 1984 BLD(HC)75, Ruhul Amin Kha vs State, reported in 56 DLR(HC)(2004)632, Khandkar Md. Moniruzzaman vs the State,

reported 14 BLD(HC)(1994)308, The State vs Khondker Md. Moniruzzaman, reported in 17 BLD(AD)(1997)54, Debobrota Baiddya @Debu vs the State, reported in 58 DLR (HC)(2006)71.

In the case of Shamsul Hque Chowdhury vs the State, reported in 39 DLR(HC) (1987)393, it was held that “In order to convict an accused under section 409 of the Penal Code, it is essential that three ingredients of the said section must be proved before convicting an accused. Firstly, the entrustment in question or dominion over the property must be proved by the prosecution; secondly, the person having dominion over or entrustment over the property must dishonestly misappropriate the same for his personal gain or for the gain of somebody else; thirdly, the direction, rule or regulation prescribing the mode in which such trust should be discharged need also to

be violated. Here in the instant case, although the prosecution has proved the first ingredient, namely, entrustment, the second and third ingredients have not been proved or established at all. That the accused dishonestly misappropriated the money for his own gain or for the gain of somebody else has not been proved at all. Thirdly, the prosecution also totally failed in proving that the postal peon in instant case has violated the provision of Postal Manual in any manner. In the absence of fulfilment of the three ingredients of section 409 of Penal Code, the order of conviction and sentence as passed by the learned Special Judge appears to be not sustainable in law. The ingredients of Section 467 Penal Code or for that matter, that of section 5(2) of Act II/1947 have not been proved in any manner.”

In the case of Alauddin and others vs the State, reported in 1984 BLD(HC)75, it was decided that “Breach of trust by a public servant- When a public servant may be charged with such an offence- Mere irregularity in purchasing articles will not attract the some- To bring home such charge the prosecution must prove not only entrustment of or dominion over property but also that the accused either dishonestly misappropriated, converted, used or disposed of that property himself or that he willfully suffered some other person to do so.”

In the case of Ruhul Amin Kha vs the State, reported 56 DLR(HC)(2004)632, it was laid down that “A witness once narrating the occurrence without implicating the appellant with the offence in any manner cannot be permitted to depose for the second

time with a view to implicating the accused and play double standard.”.........

“The Tribunal without considering the facts and circumstances and materials on record and applying its judicial mind to the provisions of Section 265C and 265D of the Code of Criminal Procedure framed charge mechanically. The impugned order framing charges against the accused is thus liable to be set aside.”

In the case of Khandkar Md. Moniruzzaman vs the State, reported in 14BLD(HC)(1994)308, it was decided that “An FIR may not contain the details of the occurrence in all cases. Omission to mention some materials facts in the FIR does not render it false.”......

“Under Section 265C Cr. P. C, it is the duty of the Court of Sessions upon consideration of the

materials on record and after hearing the parties, to discharge those accused persons against whom it appears to the Court that there is no ground for proceeding so that frivolous cases and cases of no evidence do not occupy the time of the Court and innocent persons are subjected to the rigours and expenses of a full-scale trial.”

In the case of State vs Khondker Md. Moniruzzaman, reported in 17BLD(AD)(1997)54, it was laid down that “In the statements of witnesses recorded under Section 161 of the Code, none of the witnesses stated that the accused-respondent was in any way connected with the occurrence and he committed any act of abetment. Under such circumstances, the High Court Division was justified in holding that there was no sufficient ground for proceeding against the accused on the charge of

abetment for murder and rightly discharged the accused.”

In the case of Debobrota Baiddya @Debu vs

the State, reported in 58 DLR (HC)(2006)71, it was decided that “The provisions of Section 265C and 265D are mandatory. A  duty is cast upon the court to scrutinise the record and the document submitted there before discharging or framing a charge in a case as the case may be. Just because name of a particular person

is mentioned in the FIR or charge-sheet is not sufficient to frame charge against him or frame charge        mechanically so that innocent person may not be harassed on false and vexatious allegations.”

On the other hand, Mr. Md. Khurshid Alam Khan, the learned Advocate for the Anti-Corruption Commission has submitted counter affidavit denying

the statements and grounds taken by the accused-

petitioner and annexing a paper containing the price of one decimal of land as Tk. 2,70,187/- at Senpara, Porbota, Mirpur in the year of 2005, which was also submitted before the Special Judge, Court No. 4 in Special  Case  No.  22  of  2015  in  connection  with Memo No. 28650 dated 23.10.2013. The aforesaid chart of the value of land runs as follows:

c:ew-302 a¡w 21/4/19 25/4/19 25/4/19 25/4/19

­j¡L¡j: ¢h­no SS A¡c¡ma ew-4, Y¡L¡

¢h­no j¡jm¡ ew-22/15

p¡h-­l¢S¢ØVÌA¢g­pl 2005 p­el ®l¢S¢ØVLÌ «a c¢m­ml ®j±S¡Ju¡l£

na¡wn ¢qp¡­h h¡S¡l j§mÉ a¡¢mL¡ pq 2006 Cw p­el SeÉ fЭk¡SÉx

­X¡h¡/f¤L¥l fø

ø

ø

0

0

00

ø

-x ®Sm¡ f¢loc J CE¢eue f¢lo­cl A¡Ja¡i¥š²x-

­X¡h¡/f¤L¥l 0

900 0

0

0 Øfø 00

h¡S¡l j§mÉ ¢edÑ¡le L¢j¢V La«ÑL Ae¤­j¡¢ca

ü¡rl p£m Af¡WÉ  ü¡rl p£m Af¡WÉ  ü¡rl p£m Af¡WÉ 06/11/05

Anyway,  Mr.  Md.  Khurshid  Alam  Khan,  the learned  Advocate  appearing  on  behalf  of  the  Anti- Corruption Commission, vehemently opposes the Rule and categorically submits that a prima facie case has been made out against the accused-petitioner in the prosecution materials particularly in the charge-sheet submitted  on  the  basis  of  verbal  and  documentary

materials and the learned trial judge following the charge-sheet rightly framed charge against the accused-petitioner and others under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 and as such, there is no reason  at all to interfere with the order of framing charge by this Court at this stage.

He next submits that question of misappropriation of money or the question of mala fide intention or the question about abetment as per Sections 107/109 of the Penal Code are highly disputed questions of fact which can be decided only on taking evidence from the witnesses of the respective parties during trial of this case and as such, the learned trial judge rightly framed charge since a prima facie has been disclosed against the accused- petitioner in the charge-sheet submitted by the Anti-

Corruption Commission and considering this scenario, the impugned order should not be set aside.

He next submits that the rate of the land as well as allegation brought against the accused-petitioner are bundle of facts which can only be decided on taking evidence before the trial Court and that this Court invoking jurisdiction under section 10(1A) of the Criminal Law Amendment Act, 1958 cannot decide bundle of facts involved in this case and for these reasons, the Rule should be discharged.

He then submits that ingredients of Sections 409/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 have been made out in the prosecution materials and as such, the learned trial judge rightly framed charge against the accused-petitioner and for this reason, the order of

framing charge should not be set aside for ends of justice.

Mr. Md. Khursid Alam Khan, the learned Advocate for the ACC with reference to “annexure-X” to the counter-affidavit, submits that at the relevant time of occurrence, the rate of the land in question at Mirpur residential area was Tk.2,70,187/- per decimal and in that view of the matter, the total value of 7 acres of land stands at (Tk.2,70,187/- X 700= Tk.18,91,30,900/-) but the accused-petitioner being in a charge of the concerned Ministry abusing the official power and misusing the authority granted lease at the rate of Tk.16 lac per bigha for which the total value of the same stood at Tk.3,38,80,000/-  as a result of which loss of Tk.15,52,50,900/- occurred in the government fund; since this picture of the rate has been disclosed in the FIR after thorough investigation

by the Anti-Corruption Commission and this issue being contradictory to the rate of the land in question by the accused-petitioner has become a disputed question of fact which cannot be decided before this Court and this fact can only be decided before the trial Court on taking evidence and as such, the learned trial judge following the charge sheet rightly framed charge and for this reason, the Rule should be discharged.

Mr. Md. Khurshid Alam Khan, the learned Advocate for the Anti-Corruption Commission, in support of his submissions, has referred to a number of legal decisions taken in the cases of Mr. Moudud Ahmed vs the State, reported in 16 BLD(AD)(1996)27, Taher Hossain Rushdi vs the State, reported in 7 BLC (AD) (2002)45, Shariful Islam vs Billal Hossain and another, reported in 45 DLR(HC)(1993)722, Pulin Behari Banic and others

vs the State,  reported in 1987 BLD(HC)123, Nazrul Islam Khan vs the State, reported in 50 DLR(HC) (1998)103, Forhad Hossain (Md) and others vs the State, reported in 50DLR(HC)(1998)337.

In the case of Mr. Moudud Ahmed vs the State, reported in 16 BLD (AD) (1996)27, it was held that “In framing charge the trial court will only see if on the basis of materials collected by the prosecution a prima facie case to go for the trial has been made out against the accused. The existence of a prima facie case to go for trial justifies the framing of charges.

In the case of Taher Hossain Rushdi vs the State, reported in 7 BLC (AD) (2002)45, it was laid down that “The High Court Division has found that the learned judge was of the opinion that the accused

petitioner committed the offence as there was sufficient materials to frame charge against the accused-petitioners including the petitioner. The High Court Division on detailed discussion of the materials on record rightly arrived at the view that there was no infirmity in the order of the learned Special Judge rejecting the petition filed under section 265C of the Code of Criminal Procedure and framing charge under different sections of the Penal Code read with section 5(1) of the Act II of 1947.

In the case of Shariful Islam vs Billal Hossain and another, reported in 45 DLR(HC) (1993)722, it was held that “The trial court has a wide power to frame charges and this cannot be interfered with by the Revisional Court by way of giving direction for altering a charge or framing a charge.

In the case of Pulin Behari Banic and others vs the State, reported in 1987 BLD(HC)123, it was held that it should be borne in mind that the powers of revisional jurisdiction has to be exercised sparingly and only when grave injustice is likely to be caused or where there has been a clear miscarriage of justice or when impugned order is found to be illegal and perverse. Revisional jurisdiction of the High Court does not create any right in any party but only conserves the power of the High Court to see that justice is done in accordance with recognised rules of criminal jurisprudence. In the instant case the Sessions Judges’s observation in respect of allowing a chance to the complainant party to examine Investigation Officer and Medical Officer aims at doing justice to the party. By no stretch of imagination it can be said that

impugned observation of the learned Sessions Judge is

manifestly illegal or against legal principle.

In the case of eSl¦m Cpm¡j he¡j l¡øÌ, reported in

50 DLR(HC) (1998)103, it was decided that “A¢i­k¡N

NWe ¢ho­u öe¡e£l pju A¡p¡j£l c¡¢Mm£ fÐj¡e ab¡ c¢mm fœ ¢h­hQe¡ Ll¡ k¡u e¡ Hhw a¡l ¢i¢š­a A¡p¡j£l ¢hl¦­Ü j¡jm¡ h¡¢am

Ll¡ k¡u e¡z”.........

“A¡p¡j£fr ®b­L j¡jm¡ AhÉ¡q¢a ®cu¡l SeÉ ®L¡e clM¡Ù¹

®cu¡ ®q¡L h¡ e¡ ®q¡L A¡p¡j£l ¢hl¦­Ü A¢i­k¡N NWe Ll¡ q­h ¢Le¡ ®p pÇf­LÑ 265 ¢p J 265 ¢X d¡l¡l ¢hd¡e Ae¤k¡u£ c¡ul¡ A¡c¡ma ab¡

®k ®L¡e VÊ¡Ch¤e¡­ml c¡¢uaÅ q­µR Ef­l¡š² ¢hou ¢h­hQe¡ L­l Hhw fr­cl hš²hÉ ö­e p¢WL ¢pÜ¡­¿¹ Efe£a qJu¡z öd¤j¡œ HS¡q¡­l e¡j

E­õM b¡L­m Hhw A¡p¡j£l ¢hl¦­Ü f¤¢mn A¢i­k¡Nfœ c¡¢Mm Ll­m h¡ A¢i­k¡­Nl clM¡­Ù¹ A¡p¡j£l e¡j E­õM b¡L­mC a¡l ¢hl¦­Ü k¡¢¿»Li¡­h A¢i­k¡N NWe Ll¡ p¢jQ£e euz”

In the case of Forhad Hossain (Md) and others

vs the State, reported in 50DLR(HC)(1998)337, it

was held that “Trial court has a wide power regarding framing of charge. This cannot be interfered with lightly either by the revisional court or the appellate court.”.......

 “To frame a charge or to consider an application of the accused person that the charge brought against him is groundless trial court is not obliged to consider the statements of any witness recorded under Section 164 CrPC.”

Mr. A.K.M. Amin Uddin, the learned Deputy Attorney-General appearing for the State, submits that a prima-facie case has been disclosed against the accused-petitioner in the charge-sheet, so there is no illegality in the charge framing order and this reason, the Rule should be discharged.

He next submits that the accused-petitioner was the Minister at the relevant time of occurrence and for

this reason, he cannot deny the responsibility and liability of the occurrence and in that view of the matter, the learned trial judge rightly framed charge.

He lastly submits that the submissions of the learned Advocate for the accused-petitioner are with regard to facts which require to be proved before the trial court on taking evidence from the witnesses of the respective parties and considering this aspect of the case, the Rule should be discharged.

Before coming to a decision in this Rule, we want to discuss about the revisional powers, functions and objects of the High Court Division vested in it by Section 439 read with Section 435 of the Code of Criminal Procedure with reference to some legal decisions taken in a number of cases.

It is pertinent to note that the revisional powers of the High Court Division vested in it by

section 439 read with section 435, do not create any right in the litigant, but only conserve the power of the High Court Division to see that justice is done in accordance with the recognized rules of criminal jurisdiction and that subordinate courts do not exceed their jurisdiction or abuse their powers vested in them by the Code. In hearing and determining cases under section 439 of the Code the High Court Division discharges its statutory function of supervising the

administration of justice on the criminal side.

The object of revisional jurisdiction is to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction. And the idea is to correct miscarriage of justice which may arise from various causes, viz.—

(i)             misconception of law,

(ii)          irregularity of procedure,

(iii)       neglect of proper precautions, or

(iv)        apparent harsh treatment.

This miscarriage of justice has a two-fold effect, namely—

(a)  it has caused injury to the maintenance of law and order; and

(b)  it has caused undeserved hardship to individuals. In this context the High Court Division has to consider in revision if substantial justice has been done or not.

The revisional jurisdiction can be exercised only in exceptional cases where the interest of public justice requires interference for the correction of the manifest illegality or the prevention of gross miscarriage of justice. The jurisdiction is not ordinarily invoked or used merely because the trial court has taken a wrong

view of the law or misappropriated the evidence on record. The High Court Division would be justified in interfering—

(1)  where the trial court had wrongly shut out evidence;

(2)  where the appeal court had wrongly held evidence admitted by the trial court to be inadmissible;

(3)  where material evidence has been overlooked by the trial court or the court of appeal;

(4)  where the acquittal had been based on a compounding of the offence not permitted by law;

(5)  where there is any incorrectness, illegality or impropriety of any finding, sentence or order recorded or passed by the courts below and/or irregularity of any

proceeding pending before the inferior courts.

Reading sections 439 and 435 of the Code together, it is evident that the High Court Division can interfere in all cases of incorrectness, illegality or impropriety of any finding, sentence or order, of the irregularity of any proceeding of the inferior courts by taking such measures or passing such orders as could be passed by an appellate court. The powers of the High Court Division under section 439 are very wide and are not limited to the powers mentioned in sub- section (1) which merely describes some of the reliefs which the High Court may grant in exercising its revisional powers, but it is not exhaustive. At the hearing of an application in revision admitted on the ground of sentence only, a judge is competent to interfere with both

the conviction and sentence. His powers under section 439 cannot be in any way fettered by the provisions of section 435 under which the records have been called for.

By dint of revisional power, the High Court Division may interfere either by calling for the record under section 435 or when the case otherwise comes to its knowledge. The High Court Division may interfere in revision upon information in whatever way received. Revisional jurisdiction can be exercised by the High Court Division by being moved either by the accused/convicted person himself or by any other person or suo motu on the basis of its own knowledge derived from any source whatsoever without being moved by any person at all. All that is necessary to bring the High Court’s power

of revision into operation is such information as

makes the High Court Division think that an order made by a subordinate court is fit for exercise of its powers of revision. Where the record of a case is before the high Court in an appeal which is incompetent, it can be said that the case comes to the knowledge of the High Court Division within the meaning of this section.

Although the court has power under section 439 of the Code to call for cases not only on judicial information but also to deal with a case which otherwise comes to its knowledge. Yet in most circumstances it is a right practice that the judge should be moved in open court.

The High Court Division may exercise its power of revision upon the petition of a private person occupying the position of a complainant

in the case in which revision is sought. When an order of discharge of an accused person has the effect of operating to the detriment of a third person, such person has the right to apply in revision.

The High Court Division can exercise its revisional power even when the petitioner has not filed the certified copy of the impugned order. A revision cannot be dismissed on procedural technicalities.

The High Court Division may also exercise its power on its own initiative. The revisional jurisdiction of the High Court Division can be exercised suo motu even though the accused dos not desire it.

It may be noted that the High Court Division will not interfere in revision unless it is

satisfied that it is necessary to do so to prevent an otherwise irreparable injustice. The High Court Division will not always interfere even though the order of the court below is wrong in law or merely irregular if no prejudice is shown to have resulted to the accused. But it would not hesitate to disturb a legal order in revision if it were unjust. It is not the practice of the High Court Division to entertain applications in revision where the decision of the trial court involves some point of law. The discretion under sections 439 and 435 ought only to be exercised in order to prevent substantial injustice, or where it involved a point of law of general importance which may govern other cases. The High Court Division will not interfere unless the error in law has led to a failure of justice. It is not the duty of the court to correct mere mistakes in law which have no more

effect than mistakes in grammar or spelling. The power of interference is to be exercised only for the purpose of correcting injustice, not mere illegality. The High Court Division’s revisional jurisdiction is normally to be exercised only in exceptional cases, when there is a glaring defect in the procedure or there is a manifest error of point of law and consequential flagrant miscarriage of justice.

In a revisional matter, the High Court Division does not take a technical view and interfere in every case where an order has been made irregularly or even improperly. Where the trial court has given inadequate reasons for passing a particular order, but the order has been rightly made, the High Court Division will not interfere.

The mere fact that the High Court Division sitting as a court of appeal might have come to a different conclusion on facts from what the Special Judge arrived at is not a sufficient ground for an application in revision.

Section 439 of the Code of Criminal Procedure must be read along with and subject to the provision of section 435 of the Code. In respect of special cases under the Criminal Law Amendment Act 1958, the revisional power deals with section 10(1A) of the Criminal Law Amendment Act, 1958. The object is to confer a kind of paternal and supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law irregularity of procedure, neglect of proper precautions and

apparent harshness of treatment. The revisional Jurisdiction of High Court Division is very extensive. The Jurisdiction under Section 10(1A) of the Act which is very wide may be exercised to test the correctness, legality or even the propriety of the finding sentence or order of the subordinate court or for satisfying itself as to the legality of their proceeding.

The propriety or legality of the charge as framed against the accused-petitioner cannot be scrutinised and interfered with under section 10(1A) of the Criminal Law Amendment Act, 1958 as the trial Court is the sole authority to frame charge against any accused having a prima facie case against him and the High Court Division in exercise of its revisional jurisdiction

under section 10(1A) of the Act does not generally go into facts but in certain circumstances this Court for rectification of injustice may also go into facts, if in the determination of any question of facts, onus is wrongly placed upon any party or an incorrect principle has been applied in determining the question of fact or any material piece of evidence has been ignored by the court below. This court having paternal and supervisory jurisdiction can certainly, in the interest of justice, scrutinise and go into facts and examine the propriety of the impugned order of finding in question.

The revisional powers are not limited to the powers mentioned in section 10(1A) of the Criminal Law Amendment Act, 1958 which

merely describes some of the relief’s which the High Court Division may grant. But it is not exhaustive. It has all the powers of an appellate Court and more it can enhance sentence. The revisional power though very wide is purely discretionary to be fairly exercised according to the exigencies of each case. It is an extra-ordinary power which must be exercised with due regard to the circumstances of each particular case. A private party who has no right of appeal, can come in revision where the Durnity Daman Commission/Government fails to exercise the right of appeal.

Under section 10(1A) of the Criminal Law Amendment Act, 1958 and under section 439 of the Code of Criminal Procedure the High Court

Division may also suo motu call for the record of the Courts subordinate to it and set aside any order passed by such Courts in any legal proceeding which has caused miscarriage of justice. Even there is no prescribed period of limitation either in the Code of Criminal Procedure or in the Limitation Act, 1908 for filing revision. As a matter of longstanding practice, 60 (sixty) days limitation for preferring criminal revision before High Court Division as provided under Article 155 of the First Schedule of the Limitation Act for appeal is being followed for revision. But in the interest of justice, there is no legal bar to entertain the revisional application even after the period of 60 (sixty) days. Moreover in the absence of any limitation prescribed for

revision under the law, it cannot also be properly said that the application filed beyond 60 (sixty) days is barred by limitation. The revisional Court is to look into the question whether there has been gross negligence on the part of the petitioner or an inordinate delay in moving such revisional application.

Now we want to discuss about the provisions of law with regard to framing charge and discharging accused from the case along with some legal decisions relating to framing charge and discharging the accused from the case.

Sub-section (3) of the Section 6 of the Criminal Law Amendment Act, 1958 provides that the provision of Chapter XX of the Code

Criminal Procedure, 1898, shall apply to trial of cases under the Act, in so far as they are not inconsistent with the provisions of the Act. Chapter XX of the Code of Criminal Procedure deals with the trial of cases by the Magistrates. Section 241A Cr. P.C. deals with discharge and Section 242 Cr. PC. deals with when charge to be framed.

241A of the Code of Criminal Procedure: When accused shall be discharged— When the accused appears or is brought before the Special Judge and if the Special Judge upon consideration of the record of the case and the documents submitted therewith and making such examination, if any, of the accused as the Special Judge thinks necessary and after giving

the prosecution and the accused an opportunity of being heard, considers the charge to be groundless, he shall discharge the accused and record his reasons for so doing.

The procedure prescribed by the section should be strictly followed. An order of discharge can be made only according to the words of the section that no case has been made out. The Special Judge should first take into consideration the prosecution case as given in FIR, charge- sheet, statements of witnesses recorded by the investigating officer of the Durnity Daman Commission and the documents produced and also hear the defence and then apply the law to the criminal acts to find whether there is prima-

facie case and the Special Judge can discharge the accused if no case has been made out.

In the case of Moudud Ahmed Vs. The State reported in 16 BLD (AD) 27, it has been held that in framing charge the trial Court will only see if on the basis of the materials collected by the prosecution a prima facie case to go for the trial has been made out against the accused. The existence of a prima facie case to go for trial justifies the framing of charges.