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. 39036 OF 2018

Md. Amjad Ali........….…...Accused petitioner 

-Versus-

The State.….....Opposite party

None appears.........For the accused petitioner Ms. Salina Akter Chowdhury, 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 10th of August, 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, 1898 calling upon the opposite parties to  show  cause  as  to  why  the  judgment  and  order  dated 29.11.2017  passed  by  the  learned  Metropolitan  Sessions Judge, Chattogram in Criminal Revision No. 294 of 2017 rejecting the same and thereby affirming the order  dated 21.03.2017  passed  by  the  learned  Chief  Metropolitan Magistrate,  Chattogram  in  C.R.  Case  No.  1808  of  2012 framing  of  charge  against  the  accused  petitioner  under

sections 420 /467 /468/ 469/ 471/ 109 of the Penal Code now pending  in  the  Court  of  learned  Chief  Metropolitan Magistrate, Chattogram 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, the Court was pleased to stay all further proceedings of the aforesaid C.R. Case No. 1808 of 2012 for 6 (six) months from the 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 complainant filed a C.R. Case No. 1808 of 2012 against the accused petitioner and others under sections 420 /467 /468 /469 /471 /109 of the Penal Code alleging inter alia that the scheduled property is a waqf estate created by his grandfather late Kudrat Ali vide  a  registered  deed  No.  3028  dated  26.11.1942.  The accused petitioners were also heirs of said Kudrat Ali. The accused petitioner claimed that he has been appointed as Motuwalli  by  the  waqf  administrator.  After  that,  the complainant's opposite party filed an application before the waqf administrator for cancellation of the appointment of said Motuwalli under section 32 of the Waqf Act. During the hearing  of  the  said  application,  the  accused  petitioner submitted a waqf deed which is claimed to be as forged deed. Hence, the aforesaid case was filed against the accused petitioner under sections 420 /467 /468 /469/ 471/ 109 of the Penal Code. Thereafter, the accused petitioner duly appeared before the Court below and obtained bail. Subsequently, the charge was framed against the accused petitioner vide its order  dated  21.03.2017.  As  against  the  said  order,  the accused petitioner preferred a Criminal Revision No. 294 of 2017 which was rejected vide its judgment and order dated 29.11.2017  and  thereby  affirming  the  order  of  framing charge  passed  by  the  trial  Court.  Being  aggrieved,  the accused petitioner has preferred this application before this Court under section 561A of the Code of Criminal Procedure for  quashing  the  impugned  judgment  and  order  dated 29.11.2017 passed in Criminal Revision No. 294 of 2017 and obtained the instant Rule and stay.

No one appears for the accused petitioner to support the Rule. However, the accused petitioner has stated in his application that earlier the complainant opposite party No. 2 as plaintiff filed a suit for declaration of title being Title Suit No. 132 of 2012 regarding the waqf estate in question which is still pending in the Court of Joint District Judge, 2nd Court, Chattogram and as such the instant proceeding is barred by law  under  section  195(1)(C)  of  the  Code  of  Criminal Procedure.

Ms. Salina Akter Chowdhury, the learned Advocate for the opposite party No. 2 submits that in the petition of complaint, there is a specific allegation against the accused petitioner, and as such the petitioner has no ground to invoke the  provision  of  section  561A  of  the  Code  of  Criminal Procedure  for  quashing  the  impugned  proceeding  and  as such the instant Rule is liable to be discharged.

Heard the submissions of the learned Advocate for the opposite party No. 2 and perused the materials on record thoroughly.

The only issue for determination of this Rule is to see whether the impugned proceeding of C.R. Case No. 1808 of 2012  under  sections  420/467/468/469/471/109  against  the accused petitioner is liable to be quashed. 

On perusal of the petition of complaint, it transpires that admittedly the scheduled property is the waqf estate created by his grandfather, late Kudrat Ali vide registered deed  No.  3028  dated  26.11.1942.  The  accused  petitioner claimed that he has been appointed as Motuwalli of said waqf  estate  by  the  waqf  administrator  which  has  been challenged by the complainant's opposite party before the waqf administrator. At the time of the hearing, the accused petitioner filed a certified copy of the waqf deed No. 3028 dated 26.11.1942 which is claimed to be as forged deed, and hence the aforesaid C.R. case was filed against the accused petitioner under sections 420 /467 /468/ 469/ 471/ 109 of the Penal Code.

 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.

In the instant case, we have noticed that the alleged forgery document (the certified copy of the waqf deed No. 3028  dated  26.11.1942)  was  produced  before  the  Waqf Administrator.  We  have  to  keep  in  mind  that  the administrator of waqf acts as a civil Court regarding the removal of motuwalli.

Our this view gets support from the decision in the case of Showkat Ali Vs. Administrator of Waqf as reported in 29 DLR (SC), 276.

In view of the above provision of law and the decision of the apex Court, we are of the view that since the alleged forged  document  has  been  filed  before  the  Waqf Administrator which is deemed to be a civil Court, it is for the concerned Waqf Administrator to lodge any complaint before the criminal Court if it finds the forgery relating to the said document. Since the impugned proceeding of C.R. Case  No.  1808  of  2012  under  sections 420/467/468/469/471/109 has been initiated on the 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 impugned proceeding now pending in the Court of Chief Metropolitan Magistrate, Chattogram as C.R. Case No. 1808 of 2012 under sections 420/467/468/469/471/109 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.

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

As a result, the Rule is made absolute.

The proceeding of C.R. Case No. 1808 of 2012 under sections 420/467/468/469/471/109 of the Penal Code now pending  in  the  Court  of  Chief  Metropolitan  Magistrate, Chattogram is hereby quashed.

Let  a  copy  of  this  judgment  to  send  down  to  the concerned Court below at once.

Khandaker Diliruzzaman, J:

I agree