1
Present:
Mr. Justice M. Enayetur Rahim
And
Mr. Justice Md. Mostafizur Rahman
Criminal Miscellaneous Case No.46782 of 2019
Md. Asaduzzaman
-------- Petitioner
-Vs-
The State
---- Opposite Party Mr. Farhad Ahmed, Advocate with
Mr. S.S. Arefin Junnun, Advocate
---For the Petitioner
Mr. Md. Sarwar Hossain, DAG with Ms. Moududa Begum, AAG
Ms. Hasina Momtaz, AAG and
Ms. Shahana Parveen, AAG
--- For the State
Mr. Mansurul Haque Chowdhury, Advocate Mr. S.M. Shahjahan, Advocate
Mr. A.M. Amin Uddin, Advocate
(Appeared to assist the Court) Heard & Judgment on 29.08.2019
M. Enayetur Rahim,J:
On an application under section 498 of the Code of Criminal Procedure filed by the accused petitioner this Rule was issued calling upon the opposite party to show cause as to why the accused petitioner should not be enlarged on bail in Bandar Police Station Case No.24 dated 08.03.2018 corresponding to G.R. No.154 of 2018 under Table 9(Kha) of section 19(1) and 25 of the Madok Drabbaya Niyantran Ain,1990, now pending in the Court of Chief Judicial Magistrate, Narayangonj and/ or pass such other or further order or orders as to this Court may seem fit and proper.
At the instance of Md. Masud Rana, S.I.
District Detective Brance, Narayhangonj Bandar Police Station Case No.24 dated 08.03.2018 under section 19(1) Table 9(Kha)/24 of the Madok Drabbaya Niyantron Ain,1990 has been started against 04(four) persons.
In the FIR it is alleged that on a secret information the informant party raided the house of one Kamrul Islam at Rupali Residential Area under Bandar Police Station, Narayangonj and apprehended accused Alam Sarwardi @ Rubel and Sabina Yeasmin alias Runu and recovered in total 49,000 pieces of yeaba tablets and Tk.4,95,000/-. On quizzing the said accused disclosed the names of their two accomplices as Abdur Rahman and Riyad who fled away the scene.
After investigation police submitted charge sheet against 12 persons under section 19(1) table 9(Kha)25 of the Madok Drabbaya Niyantran Ain,1990.
The present accused petitioner having failed to obtain bail from the court below moved this court by filing an application under section 498 of the Code of Criminal Procedure and obtained the instant Rule.
Having considered the allegation made against the accused petitioner in the charge sheet as well as the confessional statements made by him and other accused under section 164 of the Code of Criminal Procedure, we are not inclined to enlarge the accused petitioner on bail at this stage.
Accordingly, the prayer for bail of accused- petitioner Md. Asaduzzaman is rejected.
It is pertinent to note here that at the time of issuance of the Rule the investigating officer of the case was directed to appear before this Court to explain in writing as to why Kamrul Islam, Officer-in-Charge of Narayangonj Sadar Police Station was not sent up in the case though two accused in their respective statement under section 164 of the Code of Criminal Procedure made before the Magistrate concerned disclosed the name of said Kamrul Islam implicating him in the commission of the alleged offence.
In compliance of the Court’s order the investigating officer of the case has appeared before the Court with a written explanation.
We have gone through the written explanation
furnished by the investigating officer of the case
wherein it is stated that though accused Alam
Sarwardi @ Rubel and accused Asaduzzaman disclosed
in their respective statement under section 164 of
the Code of Criminal Procedure made before the
concerned Magistrate that at the instance of OC
Kamrul accused Sabina Akter Runu was freed but
during investigation he (I.O) did not find any corroboration of the said assertions of the two co-
accused and thus, he did not make the Officer-in-
Charge, Kamrul Islam an accused in the charge
sheet.
This leads us to take stock of the confessional statements made by the aforesaid two
accused to see for ourselves as to how and in what
manner they have implicated the relevant officer-
in-charge, Kamrul Islam in the alleged crime of the
instant case.
Accused Alam Sarwardi @ Rubel in his statement
under section 164 of the Code of Criminal Procedure
has stated as follows:
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And accused Md. Asaduzzaman in his statement
under section 164 has stated to the effect:
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Ges iæby I †mvivIqv`©x‡K ‡MÖdZvi K‡i‡Q| GB Avgvi Revbew›`|Ó [underlines supplied]
In the instant case the moot question which
has come up for our consideration is that when two
of the accused have disclosed the name of Officer- in-Charge, Kamrul Islam in their respective statement under section 164 of the Code of Criminal Procedure implicating him in the commission of the
offence in that event whether there is any legal
scope on the part of the relevant I.O. to exclude
his name from the charge sheet taking the plea of
non availability of sufficient corroborative evidence.
On this issue we seek opinion from Mr.
Monsurul Haque Chowdhury and Mr. S.M. Shahjahan,
two senior members of the Bar.
Referring to sections 170/171/172 of the Code
of Criminal Procedure both of the learned Advocates
have submitted that the duty of an investigating
officer is to collect evidence and he has got no
such power to adjudicate on the credibility of the witnesses or to judge the veracity of the collected
evidence and further that in the instant case the explanation filed by the investigation office is
not proper and legal.
Mr. A. M. Amin Uddin, another senior Member of the Bar, present in the Court has also come forward to assist the Court on the issue. Though he find it difficult to refute the legal submissions made by Mr. Chowdhury and Mr. Shahjahan, yet he has submitted that the said two accused out of grudge have mentioned the name of OC Kamrul Islam in their respective statement, who is an honest police officer.
In investigation process the main task of an investigating officer is as follows:
In the case of Mr. Mosharraf Hossain and another Vs. The State, reported in 30 DLR (1978) page-112 our Appellate Division has held that:
“The investigation by the police is for the purpose of collection of evidence in support of the offence or offences alleged to have been committed on a certain date by a certain person or persons. Under the code of criminal procedure the word “Investigation” generally consists of the following steps:
In the case of Abdur Rouf and others vs. Jalaluddin and another, reported in 51 DLR(AD), page 22, the Appellate Division has held that section 169 of the Code of Criminal Procedure has not given the police officer any power to judge the credibity of the witnesses.
In the case of Syed Abdul Hannan vs. The State, reported in 1983 BLD(AD), page 156 it has been held that:
“It has caused us considerable surprise to see that the investigating Officer having himself observed in his report that there were no independent witnesses in either case, he found it possible to submit charge sheet in one case and a final report in the other. Further reasons he gave for submitting final report were that the informant petitioner had instituted the case subsequently in order to make out a defense for himself and that they have managed to procure medical certificates somehow. We cannot help observe that it was none of the business of the Investigating officer to decide the case for himself when two sides came up with contradictory versions of the same occurrence, the quality of evidence being same in each case and apparently there were injuries caused to either side. It is in the fitness of things that in a case like this both the versions should be placed before a court of law so that truth can be found out upon receiving evidence from both sides and justice done to the parties.”
In the instant case, OC Kamrul was left out of indictment by the investigating officer as he did not find any corroborative evidence of the statements under section 164 of the Code of Criminal Procedure made by the two accused.
In the case of The State vs. Monwara Begum, reported in 1998 BLD, page-102, the High Court Division held that:
“We have noticed earlier that the name of P.W.2 was disclosed by accused Samad Sheikh in his statement under Section 164 of the Code wherein he stated that after the victim was dead due to knife injuries, Sadek asked Monwara to bring pitchers for drawing the dead body of Majeda in the beel and accordingly Monwara brought pitchers from the house of Sadek and then Sadek and others carried the dead body to the beel and drowned it by tethering the pitchers with the dead body. Now as regards the statements of accused Samad, PW-2 Sadek Ali stated that he deposed in a case in a Munsif Court against Samad and for that reason he was falsely implicated by Samad in his statement under section 164 of the Code of Criminal Procedure but PW-2 could not show any papers of that case in which he claimed to have deposed against accused Samad. Moreover, the I.O. said that PW-2 did not say to him that accused Samad falsely implicated him in his statement under section 164 of the Code because he deposed in a case in the Munsif Court against Samad. Under the above circumstances, we find no reason on the part of the I.O. for recommending
164 of the Code of Criminal Procedure.” It is by now well settled proposition that confession of a co-accused cannot be resorted to under any guise as substantial evidence to convict another but may be used as a relevant fact only to lend assurance to any other evidence.
But at the investigation stage the investigation officer has no authority to adjudicate on the propriety or credibility of a statement made by an accused under section 164 of the Code of Criminal Procedure. It has to be taken into consideration by the investigating officer as it is. It is the duty of the trial judge to examine and asses the truth, veracity and voluntariness of a statement under section 164 of the Code of Criminal Procedure made by an accused. An investigating officer cannot steps into the shoes of a trial judge.
Having considered and discussed as above, we have no hesitation to hold that the investigation officer most erronesly and improperly excluded OC Kamrul Islam from the charge sheet.
Thus, we are of the view that, further investigation is required to be done in the instant case in light of the observations made in the body of the judgment.
Accordingly, the Rule is discharged with the above observations and direction.
Additional Inspector General of Police, CID is directed to appoint a new investigating officer for further investigation of the case not below the rank of Additional Superintend of Police.
Communicate a copy of this judgment and order to the court concerned at once as well to the Additional Inspector General of Police, CID, Malibag, Dhaka.
Md. Mostafizur Rahman,J:
I agree.