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. 36084 OF 2023

Md. Abul Khayer Sarder..….…...Accused Petitioner 

-Versus-

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

Mr. Md. Zobaidur Rahman, Advocate

.........For the accused petitioner Mr. Md. Humayun Kabir Manju, Advocate

.…For the opposite party No. 2 Mr. Md. Ahsan Ullah, AAG with

Mr. Mehadi Hasan (Milon), AAG and

Ms. Aleya Khandker, AAG

........For the state

Heard on: 10.08.2023 and 13.08.2023

Judgment on: The 15h of October, 2023 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 08.02.2023 passed by the learned Sessions Judge, Joypurhat in  Criminal  Revision  No.  163  of  2022  rejecting  the revisional application and thereby affirming the order dated 06.09.2022 and 02.11.2022 passed by the learned Additional Chief Judicial Magistrate, Joypurhat in C.R. Case No. 160 of

2022 under sections 420/467/468/465/109 of the Penal Code rejecting the application filed by the petitioner for staying the proceedings of the said case now pending in the Court of learned  Additional  Chief  Judicial  Magistrate,  Joypurhat 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 opposite party No. 2 as complainant filed a C.R. Case No. 160 of 2022 against the accused petitioner and others under sections 420 /467 /468 /465/ 109 of the Penal Code alleging inter alia that the complainant is the owner  of  the  deep  tube  well  which  is  situated  on  the scheduled land. The complainant set up the aforesaid deep tube well for the purpose of irrigation in 1991. Subsequently, the accused petitioner claimed ownership of the said deep tube  well  on  the  basis  of  an  affidavit  of  sale  which  is claimed to be a forged document. Hence, the aforesaid case was  filed  against  the  accused  petitioner.  Thereafter,  the accused petitioner duly appeared before this Court below and obtained bail. At the time of the framing charge, the accused petitioner filed an application for discharge under section 241A of the Code of Criminal Procedure which was rejected vide its order dated 06.09.2022 and thereby framed a  charge  against  the  accused  petitioner  under  sections 420/467/468/465/109 of the Penal Code. Subsequently, the accused petitioner filed an application for stay the aforesaid proceeding  which  was  also  rejected  vide  its  order  dated 02.11.2022.  Being  aggrieved,  the  accused  petitioner preferred a criminal revision against the aforesaid impugned order  dated  06.09.2022  along  with  the  order  dated 02.11.2022  which  was  also  rejected  vide  its  order  dated 08.02.2023 and thereby affirming the order of the trial Court below. Being aggrieved, the accused petitioner preferred this application  before  this  Court  under  section  561A  for quashing the impugned order passed in Criminal Revision No. 163 of 2022 and obtained the instant Rule and stay.

Mr. Md. Zobaidur Rahman, the learned Advocate for the  accused  petitioner  mainly  submits  that  regarding  the ownership of the deep tube well in question, the complainant earlier filed an Other Class Suit No. 126 of 2020 before the Court  of  Assistant  Judge,  Kalai,  Joypurhat  against  the accused  petitioner  for  declaration  of  title  which  is  still pending. Due to the pendency of the aforesaid civil suit, the instant proceeding is barred by law under section 195(1)(C) of the Code of Criminal Procedure, and as such the instant proceeding is liable to be quashed.

As against this, Mr. Md. Humayun Kabir Manju, the learned Advocate for the opposite party No. 2 submits that as  per  materials  on  record,  both  the  Court  below  rightly passed the impugned orders which does not call for  any interference by this Court under the jurisdiction of section 561A of the Code of Criminal Procedure and as such the instant Rule is liable to be discharged. 

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

On perusal of the petition of complaint, it transpires that regarding the same matter (deep tube well in question) the complainant earlier filed an Other Class Suit No. 126 of 2020 for declaration of title against the accused petitioner as evident  from  Annexure-‘D’  to  the  application.  We  have noticed that the complainant did not mention anything about the aforesaid civil suit in his petition of complaint which is amounts to suppression of facts.

The  accused  petitioner  contended  that  the  impugned proceeding is barred by law under section 195(1)(C) of the Code of Criminal Procedure. In order to appreciate the contention of the learned Advocate for the accused petitioner it is necessary to examine the relevant provision of section 195(1)(C) of the Code of Criminal Procedure which reads as follows:

“195(1) No Court shall take cognizance (a)......................................

(b)......................................

(c) of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code,  when  such  offence  is  alleged  to  have  been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate”.

On perusal of the aforesaid provision of law, it transpires that  section  195(1)(C)  of  the  Code  of  Criminal  Procedure provides  a  bar  against  initiation  of  private  complaint  on  the allegation of forgery of a document which is the subject matter of a suit or case in any civil, criminal or revision Court.

In the case of Md. Takumuddin Par Vs. State as reported in  4  BLT  (AD)  84,  wherein  their  Lordship  in  the  Hon’ble Appellate Division held that-

“Section  195(1)(C)  of  the  Code  of  Criminal Procedure provides that in case where the alleged forged  deeds  have  been  produced  or  given  in evidence in any Court, the initiation of the criminal

case is barred on the basis of a private complaint.” Now  the  question  arises  whether  the  offence  under sections  467  and  468  of  the  Penal  Code  is  covered  by  the provision  of  section  195(1)(C)  of  the  Code  of  Criminal Procedure  to  attract  the  restriction  as  provided  by  the  said section.

In the case of Nur Ahmed Vs. Kalimuddin as reported in 1987 BCR (AD), 152 their Lordship in the Appellate Division while deciding this question held as under:

“Clause (C) of section 195(1)(C) of the Code of Criminal  Procedure  will  apply  to  offence  under sections 467 and 468 of the Penal Code as there are both offences described in section 463 of the said Code.”

In view of the aforesaid provisions of law, now let us examine to see whether the impugned proceeding is liable to be quashed.

As per provision of section 195(1)(C) of the Code of Criminal  Procedure,  a  case  covering  the  offences  under sections 467/468/471 of the Penal Code can only be initiated by the concerned Court or by its formal direction who finds the document as forged and until and unless a document is proved to be forged by a competent Court, the initiation of a case  by  an  individual  private  person  questioning  the genuinity  of  the  said  document  bypassing  the  mandatory provision of section 195(1)(C) of the Code is nothing but an abuse  of  the  process  of  Court.  We  have  noticed  that regarding the same matter, the complainant earlier filed an Other Class Suit No. 126 of 2020 for declaration of title against the accused petitioner which is still pending before the  Court  of  Assistant  Judge,  Kalai,  District-Joypurhat. Since  the  aforesaid  civil  suit  is  pending,  it  is  for  the concerned  Court  to  lodge  any  complainant  before  the criminal Court if it finds the forgery relating to the alleged document. Since the proceeding of C.R. Case No. 160 of 2022  has  been  initiated  on  private  complaint,  the  same cannot  continue  in  view  of  the  provision  of  section 195(1)(C) of the Code of Criminal Procedure, and as such the proceeding of C.R. Case No. 160 of 2022 under sections 420/467/468/465/109 of the Penal Code is found to be an abuse  of  the  process  of  the  Court  and  is  liable  to  be interfered  with  by  this  Court  in  its  inherent  jurisdiction. However,  both  the  Courts  below  failed  to  appreciate  the aforesaid legal aspects as involved in the instant case and thereby committed an error of law which is liable to be quashed.

Under the given facts and circumstances of the case and the reasons as stated above, we find the substance of this Rule.

As a result, the Rule is made absolute.

The proceedings of C.R. Case No. 160 of 2022 under sections  420/467/468/465/109  of  the  Penal  Code  now pending in the Court of learned Additional Chief Judicial Magistrate, Joypurhat is hereby quashed.

Communicate this judgment to the concerned Court below at once.

Khandaker Diliruzzaman, J:

I agree