In The Supreme Court of Bangladesh

  High Court Division

  (Criminal Miscellaneous Jurisdiction)

PRESENT:

         MR. JUSTICE ABU TAHER MD. SAIFUR RAHMAN

AND

    MR. JUSTICE MD. BASHIR ULLAH

CRIMINAL MISCELLANEOUS CASE NO. 33135 OF 2023

Main Uddin.............…...Informant petitioner 

-Versus-

The State and others...........Opposite parties

Mr. M. Mainul Islam, Advocate

.....For the informant petitioner Mr. Muhammad Shajadul Islam Bhuiyan, Advocate

...For the opposite party Nos. 3 to 6

Heard on: 03.12.2023 and 04.12.2023

Judgment on: The 28th of January, 2024 ABU TAHER MD. SAIFUR RAHMAN, J.

This Rule was issued on an application filed by the informant  petitioner  under  section  561A  of  the  Code  of Criminal Procedure, 1898 calling upon the opposite parties to  show  cause  as  to  why  the  judgment  and  order  dated 30.06.2022 passed by the learned Additional Sessions Judge, Feni in Criminal Revision No. 117 of 2021 disallowing the revision and thereby affirming the order dated 13.09.2021 passed by the learned Judicial Magistrate, 4th Court, Feni in G.R. Case No. 94 of 2017 rejecting the application filed by the petitioner for addition of charge under section 379 of the Penal  Code,  1860  now  pending  in  the  Court  of  Judicial

Magistrate, 4th Court, Feni should not be quashed and/or such other or further order or orders passed as to this Court may seem fit and proper.

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

That the petitioner as an informant lodged an FIR with the local police station against the accused opposite party Nos. 2 to 6 under sections 143 /447 /448 /323 /307 /379/ 380/  427  /354  /506(2)  of  the  Penal  Code  which  was registered as a Dagonbhuiyan Police Station Case No. 02 dated  01.05.2017  alleging  inter  alia  that  on  the  date  of occurrence  dated  27.04.2017,  the  accused  opposite  party Nos. 2 to along with other unknown persons in a group entered the informant's place and cut down 3 (three) mango trees,  4  (four)  kathal  trees,  2  (two)  gob  trees,  4  (four) mehagoni trees and stole the trees worth of Tk. 1,20,000/-. The  90  (ninety)  feet  long  boundary  wall  next  to  the informant’s house was broken by the accused Nos. 1 and 2 and caused damage amounting to Tk. 2,00,000/-. Hence, the aforesaid case was filed. Thereafter, the accused opposite parties appeared before the Court below and obtained bail. After investigation, police submitted a charge sheet against the accused opposite parties under sections 143 /447 /448/ 323 /307 /379 /380/ 427/ 354 /506(2) of the Penal Code. Later  on,  the  charge  was  framed  against  the  accused opposite parties under sections 143 /447 /448/ 323/ 307/ 379/ 380/ 427 /354 /506(2) of the Penal Code. During the trial, the prosecution examined as many as 10 (ten) witnesses. After the conclusion of evidence, the next date was fixed on 13.09.2021 for examination of the accused's under section 342  of  the  Code  of  Criminal  Procedure  as  well  as  for argument. At this stage, the informant petitioner filed an application for addition of charge under section 379 of the Penal Code which was rejected by the trial Court vide its order  dated  13.09.2021.  As  against  the  said  order,  the informant petitioner preferred a Criminal Revision No. 117 of 2021 before the learned Sessions Judge, Feni which was rejected vide its order dated 30.06.2022. Being aggrieved, the informant petitioner preferred this application before this Court under section 561A of the Code of Criminal Procedure for quashing the impugned order dated 30.06.2022 passed by the revisional Court and obtained the instant Rule and stay.

Mr. M. Mainul Islam, the learned Advocate for the informant petitioner submits that as per provision of section 227 of the Code of Criminal Procedure, the Court may alter or add to any charge at any stage before the judgment is pronounced but both the Court below failed to appreciate the aforesaid legal aspects and thereby committed an error of law by passing the impugned order which is liable to be quashed. 

Mr. Muhammad Shajadul Islam Bhuiyan, the learned Advocate for the opposite party Nos. 3 to 6 submits that at the stage of argument, the petitioner filed this application under section 561A of the Code of Criminal Procedure for quashing the impugned order which is not maintainable and as such the instant Rule is liable to be discharged.

Heard the submissions of the learned Advocates of both sides and perused the instant application along with the materials on record thoroughly.

On perusal of the petitioner’s application along with the impugned order, it transpires that the trial has already been concluded and the case is now pending for argument as evident from order No. 48 dated 13.09.2021 passed by the Trial  Court.  At  the  stage  of  argument,  the  informant petitioner filed this application under section 561A of the Code  of  Criminal  Procedure  for  quashing  the  impugned order dated 30.06.2022 passed in Criminal Revision No. 117 of 2021, arising out of G.R. Case No. 94 of 2017 under sections 143 /447 /448 /323 /307 /379/ 380/ 427/ 354/506(2) of the Penal Code. When the trial has been concluded and the case is pending for argument at this stage, the application for quashing the proceeding or any order is not entertainable.

Our this view gets support from the decision in the case of Golam Mohammad and another as reported in 19 BLT (AD), page 239.

In such view of the aforesaid legal position, we are in view  that  the  learned  Additional  Sessions  Judge  rightly passed the impugned order dated 30.06.2022 in Criminal Revision No. 117 of 2021, arising out of G.R. Case No. 94 of 2018 which does not call for any interference by this Court under the jurisdiction of section 561A of the Code of Criminal Procedure.

As a result, the Rule is discharged.

The Trial Court below is hereby directed to proceed with the case expeditiously preferably within the period of 6 (six)  months  from  the  date  of  receipt  of  a  copy  of  this judgment and order in accordance with law. 

Communicate this judgment and order at once.

Md. Bashir Ullah, J:

I agree