In The Supreme Court of Bangladesh

  High Court Division

  (Criminal Miscellaneous Jurisdiction)

PRESENT:

         MR. JUSTICE ABU TAHER MD. SAIFUR RAHMAN

AND

              MR. JUSTICE KHANDAKER DILIRUZZAMAN

CRIMINAL MISCELLANEOUS CASE NO. 32249 OF 2018

Emdadul Huq Akan and another .....Accused petitioners 

-Versus-

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

Mr. Tapan Kumar Bepary, Advocate

.........For the accused petitioners Mr. Md. Mostafa Kamal, Advocate

....…For the opposite party No. 2 Mr. Imran Ahmed Bhuiyan, DAG with

Mr. Mehadi Hasan (Milon), AAG and

Ms. Aleya Khandker, AAG

........For the state

Heard and Judgment on: The 9th of August, 2023 ABU TAHER MD. SAIFUR RAHMAN, J.

This Rule was issued on an application filed by the accused  petitioners  under  section  561A  of  the  Code  of Criminal Procedure, 1898 calling upon the opposite parties to show cause as to why the impugned judgment and order dated 10.09.2017 passed by the learned Additional Sessions Judge,  Pirojpur  in  Criminal  Revision  No.  59  of  2015 dismissing the revision and thereby affirming the order No. 15 dated 03.03.2015 passed by the learned Chief Judicial Magistrate, Pirojpur framing the charge against the accused-

petitioners under sections 465/468 of the Penal Code in G.R. Case  No.  113  of  2013  (Moth),  arising  out  of  Mothbaria Police Station Case No. 04 dated 02.03.2013 now pending in the Court of Chief Judicial Magistrate, Pirojpur should not be  quashed  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, this Court was pleased to stay the aforesaid proceedings of G.R. Case No. 113 of 2013 for 6 (six) months from date 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 as informant lodged an FIR with the local police station alleging inter alia that the informant along with others have purchased the case land vide  several  registered  deeds  on  several  dates  and accordingly  their  names  have  been  recorded  in  the  S.A. record.  In  order  to  grave  the  case  land,  the  accused petitioners in collusion with each other created a forged deed dated  15.02.2012.  Hence,  the  aforesaid  case  was  filed against  the  accused  petitioners  under  sections 465/468/471/420/114  of  the  Penal  Code.  Thereafter,  the accused  petitioners  appeared  before  the  Court  below  and obtained bail. Later on, the charge was framed against the accused  petitioners  under  sections  465/468  of  the  Penal Code.  As  against  the  said  order,  the  accused  petitioners preferred a Criminal Revision No. 59 of 2015 before the Court  of  Learned  Sessions  Judge,  Pirojpur  which  was discharged vide its order dated 10.09.2019. Being aggrieved, the accused petitioners have preferred this application before this  Court  under  section  561A  of  the  Code  of  Criminal Procedure for quashing the impugned judgment and order dated 10.09.2017 and obtained the instant Rule and stay.

Mr. Tapan Kumar Bepary, the learned Advocate for the accused petitioners submits that regarding the case land, a Title Suit No. 291 of 2012 filed by the accused petitioners is pending before the Court of Assistant Judge, Mothbaria, Pirojpur  and  as  such  the  impugned  proceeding  is  not maintainable.

He further contended that the nature of allegation as stated in the FIR does not constitute any criminal offence under sections 465/468/471/420/114 of the Penal Code and as such the impugned proceeding is liable to be quashed.

Mr. Md. Mostafa Kamal, the learned Advocate for the opposite party No. 2 submits that in the instance case, there is a specific allegation against the accused petitioners and as such the accused petitioners have no ground to invoke the provision  of  section  561A  of  the  Code  of  Criminal Procedure  and  therefore  the  instant  Rule  is  liable  to  be discharged.

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

On perusal of the petitioners’ applications, it transpires that regarding the case land, a Title Suit No. 291 of 2012 is pending between the parties. It is well settled principal of law is that a pending of a civil suit cannot bar the proceeding of  a  criminal  case  for  a  criminal  offence.  Moreover,  the contention as raised by the accused petitioners is absolutely a matter of fact which cannot be decided at this stage under section 561A of the Code of Criminal Procedure.

In such view of the aforesaid legal position, we do not find any substances of this Rule.

As a result, the Rule is discharged.

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

Communicate the judgment and order at once.

Khandaker Diliruzzaman, J:

I agree