In The Supreme Court of Bangladesh

  High Court Division

  (Criminal Miscellaneous Jurisdiction)

PRESENT:

         MR. JUSTICE ABU TAHER MD. SAIFUR RAHMAN

AND

     MR. JUSTICE MD. ATABULLAH

CRIMINAL MISCELLANEOUS CASE NO. 23133 OF 2019

Shamsur Rahman.......….…...Accused petitioner 

-Versus-

The State and another….….....Opposite parties

Mr. Nur Muhammad Azami, Advocate

... .........For the accused petitioner Mr. Rezaul Karim, Advocate

.......For the opposite party No. 2

Mr. K.M. Masud Rumy, DAG with

Mr. Mehadi Hasan (Milon), AAG and

Ms. Aleya Khandker, AAG

........For the state

Heard on: 12.05.2024

Judgment on: The 20th of May, 2024 ABU TAHER MD. SAIFUR RAHMAN, J.

This Rule was issued on an application filed by the accused  petitioner  under  section  561A  of  the  Code  of Criminal  Procedure,  calling  upon  the  opposite  parties  to show  cause  as  to  why  the  judgment  and  order  dated 15.11.2018  passed  by  the  learned  Metropolitan  Sessions Judge, Chattogram in Criminal Revision No. 950 of 2018 summarily rejecting the revision and thereby affirming the order  dated  31.07.2018  passed  by  the  learned  Additional Chief Metropolitan Magistrate, Chattogram in C.R. Case No.

193 of 2017 (Khulshi) under sections 467/468/471/420/109 of  the  Penal  Code,  1860,  send  back  the  case  to  the cognizance  Court  along  with  direction  to  hold  a  further inquiry regarding the involvement of the accused petitioner in the alleged offence should not be set aside/quashed so far as  relates  to  the  accused  petitioner  and/or  such  other  or further order or orders passed as to this Court may seem fit and proper.

At the time of issuance of the Rule, the Court was pleased  to  stay  all  further  operation  of  the  aforesaid judgment and order dated 15.11.2018 passed in Criminal Revision  No.  950  of  2018  as  well  as  the  order  dated 31.07.2018 passed in C.R. Case No. 193 of 2017 (Khulshi) for 6 (six) months from the date so far as it relates to the accused-petitioner which was time to time extended by the Court.

For disposal of the Rule, the relevant facts may briefly be stated as follows:

That the opposite party No. 2, Md. S.M.A. Hakim as a complainant filed a C.R. Case No. 193 of 2017 against the accused  petitioner  and  others  alleging  inter  alia  that regarding the waqf estate in question, the accused No. 1 claiming himself as motuwalli and filed an application to the Waqf Administrator for enrolment the waqf property along with  some  forged  documents.  In  pursuance  of  the  said application, the Waqf Administrator enrolled the property as waqf estate (wherein a Masjid has been established) and also appointed the accused No. 1 as motuwalli. Thereafter, on behalf of the Masjid committee, the opposite party No. 2 as complainant filed a petition of complaint against the accused petitioner and others under sections 467/468/471/420/109 of the Penal Code. After examination of the complainant, the learned Magistrate sent the matter to the PBI for inquiry. After having an inquiry, the PBI submitted an inquiry report before the learned Court below. After receiving the inquiry report,  the  learned  Magistrate  transferred  the  case  to  the Additional  Chief  Metropolitan  Magistrate  for  trial. Thereafter,  the  trial  Court  took  cognizance  of  the  case against the 6 (six) accused persons apart from the accused petitioner. Since there is a specific allegation against the accused petitioner in the petition of complaint, the learned Magistrate sent back the case to the cognizance Court for further inquiry so far as relates to the accused petitioner vide its  order  dated  31.07.2018.  Being  aggrieved,  the  accused petitioner preferred a Criminal Revision No. 950 of 2018 before  the  Metropolitan  Sessions  Judge  which  was summarily rejected vide its order dated 15.11.2018. Being aggrieved,  the  petitioner  preferred  this  application  before this  Court  under  section  561A  of  the  Code  of  Criminal Procedure  for  quashing  the  impugned  order  dated

Mr. Nur Muhammad Azami, the learned Advocate for the accused petitioner submits that the alleged forgery in connection with the waqf deed is not determined by any competent Court and there is also no expert opinion as to whether the waqf deed is forged or not, and as such the impugned judgment and order dated 15.11.2018 passed in Criminal  Revision  No.  950  of  2018  and  the  order  dated 31.07.2018 passed in C.R. Case No. 193 of 2017 are liable to be quashed.

As  against  this,  Mr.  Rezaul  Karim,  the  learned Advocate for opposite party No. 2 submits that since there is a specific allegation against the accused petitioner, both the Court below rightly passed the order which does not call for any  interference  by  this  Court  under  the  jurisdiction  of section 561A of the Code of Criminal Procedure.

 Heard the submissions of the learned Advocates of both sides and perused the materials on record thoroughly.

The only issue for determination of this Rule is to see whether the trial Court has any jurisdiction to hold a further inquiry  regarding  the  allegation  against  the  accused petitioner is concerned. It is well well-settled principle of law that the Court is not bound to accept the inquiry report. At the time of taking cognizance or framing of charge, the Court  has  to  consider  all  the  materials  on  record  very carefully. Nothing shall be deemed to preclude to holding a further investigation if the Court is not satisfied with the inquiry report. In the instant case, the name of the accused petitioner was not sent up in the PBI report as he was out of the country during the commission of the alleged offence. Not being satisfied with the aforesaid inquiry report, the trial Court rightly sent back the case to the cognizance Court along with a direction to hold a further inquiry so far as relates to the accused petitioner is concerned which does not call for any interference by this Court under the jurisdiction of  section  561A  of  the  Code  of  Criminal  Procedure. Moreover, the accused petitioner has nothing to be aggrieved with  the  impugned  order,  since  no  cognizance  has  been taken against the accused petitioner as yet.

Under the given facts and circumstances of the case and  the  reasons  as  stated  above,  we  do  not  find  any substance of this Rule.

As a result, the Rule is discharged.

The  order  of  stay  granted  earlier  by  this  Court  is hereby stand vacated.

Communicate this judgment and order at once.

Md. Atabullah, J:

I agree