IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(Criminal Miscellaneous Jurisdiction)

Present

Mr. Justice Md. Salim

And

Mr. Justice Shahed Nuruddin

CRIMINAL MISCELLANEOUS CASE NO.4235 OF 2022

Md. Jamal Howlader and others

............Accused-Petitioners. -VERSUS-

The State

.....Opposite Party. No one appears

------- For both the parties.

Mr. B.M. Abdur Rafell, D.A.G. with

Mr. Binoy Kumar Ghosh, AAG

Mr. A.T.M. Aminur Rahman (Milon), AAG

Ms. Lily Rani Saha, AAG              .......For the State.

Heard and Judgment on: 24.01.2024 Shahed Nuruddin,J:

By this Rule, the accused-petitioner by filing an application

under Section 561A of the Code of Criminal Procedure sought for quashing the proceedings of Sessions Case No.102 of 2019 arising out of  Sirajdikhan  Police  Station  Case  No.  18  dated  19.11.2017 corresponding to G.R. Case No.256 of 2017 under Sections 304/34 of the  Penal  Code,  now  pending  before  the  learned  Senior  Sessions Judge, Munshigonj.

Material facts leading to this Rule are that the allegation brought  against  the  accused  petitioner  is  punishable  under Sections 304/34 of the Penal Code 1860. 

The learned Magistrate took cognizance of the offence and later charge was framed. The case is now pending for trial.

Feeling aggrieved the accused petitioner preferred the instant application and obtained the present Rule on 09.01.2022.

Heard the learned Deputy Attorney General and perused the

record.

On exploration of the materials on record it transpires that the complainant categorically narrated the manner of crime committed by the  accused.  The  learned  Magistrate  after  considering  the  entire materials on record rightly framed charge under same section against the  accused.  Moreso,  in  defence  the  accused  denied  the  entire allegations. So, when there is such denial, the question of innocence does not arise with this regard reliance has been placed in the case of Abdur  Rahim  alias  A.N.M  Abdur  Rahman  Vs.  Enamul  Haq  and another  reported  in  43  DLR  (AD)  173.  We  have  meticulously examined the allegations made by the complainant and we find that the  offence  punishable  under  the  above  offence  has  been  clearly disclosed  in  the  instant  case  against  the  accused.  We  have  gone through the grounds taken in the application under Section 561A of the Code of Criminal Procedure and we find that such grounds are

absolutely  the  disputed  question  of  facts  and  the  same  should  be decided at the trial. The pleas of the petitioners are nothing but the defence plea. Be that as it may the proposition of law is now well settled that on the basis of defence plea or materials the criminal proceedings should not be stifled before trial; when there is a prima- facie case for going for trial. In view of such facts, the grounds taken in the petition of Misc. case are not the correct exposition of law. Moreso  interruption  of  the  course  of  Justice  will  set  up  a  wrong precedent by which the course of justice instead of being advanced readily been stifled inasmuch as the grounds advanced before us are not correct or legal exposition of law. Therefore we hold that there are sufficient grounds for proceeding against the accused for going for trial under the same section. To that end in view we are at one with learned Judge of the Court below regarding framing of charge against the accused. In view of the above we failed to discover any merit in this Rule. Thus the Rule having no merit fails.

Since the ground taken by the petitioner is disputed question of fact  and  all  the  submissions  are  settled  principle  by  the  Hon’ble Appellate Division.

 In the light of discussions made above and the preponderant judicial views emerging out of the authorities refer to above we are of the  view  that  the  impugned  proceedings  suffers  from  no  legal infirmities which calls for no interference by this Court.

In view  of foregoing narrative the  Rule is discharged. The order of stay granted earlier stands vacated.

The office is directed to communicate the judgment at once.

MD. SALIM, J.

I agree

Hanif/Bo