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. 4659 OF 2000

Md. Abdul Wahid.....….…...Accused petitioner 

-Versus-

The State….….....Opposite party

None appears............For the accused petitioner Mr. Imran Ahmed Bhuiyan, DAG with

Mr. Mehadi Hasan (Milon), AAG and

Ms. Aleya Khandker, AAG

........For the state 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 party to show cause as to why the proceedings of special Case No. 07 of 1999, arising out of Chittagong Bander P.S. Case No. 32 dated 31.05.1989 under sections 419 /420 /406 /467/ 468/ 471/ 109 of the Penal Code read with section 23 of  the Foreign Exchange Regulation Act, 1947 now pending in the Court  of  learned  Additional  Mohanagar  Sessions  Judge, Chittagong  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  all  further  proceedings  of  the  aforesaid Special Case No. 07 of 1999.

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

That  one  Md.  Tofazzal  Hossain,  Inspector,  District Anti-Corruption Officer as an informant lodged an FIR with the local police station alleging inter alia that the accused petitioner  was  a  owner  of  M/S.  Surma  Enterprise,  who opened  an  LC  with  a  false  intend  in  the  IFIC  bank, Moulvibazar  for  import  of  some  smoke  requisite. Subsequently, it was discovered that the petitioner imported cement  instead  of  smoke  requisite  and  thereby misappropriated  the  foreign  exchange  worth  of  Tk. 5,77,500/- (Taka Five lac, Seventy-seven thousand and Five hundred) and thereby committed an offence under sections 419/420/406/467/468/471/109 of the Penal Code read with section 23 of the Foreign Exchange Regulation Act, 1947. Hence,  the  aforesaid  case  was  filed  against  the  accused petitioner. Thereafter, the accused petitioner duly appeared before the Court below and obtained bail. Later on at the time of the framing charge, the accused petitioner filed an application  under  section  241A  of  the  Code  of  Criminal Procedure for discharging the accused petitioner from the aforesaid case which was rejected and thereby framing a

charge against the accused petitioner vide its order dated 02.07.2000.  Being  aggrieved,  the  accused  petitioner preferred  this  application  before  this Court  under  section 561A of the Code of Criminal Procedure for quashing the impugned proceeding 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 in the instant case, no prima facie case has been disclosed in the FIR against the accused petitioner, and as such the impugned proceeding is liable to be quashed.

Mr.  Imran  Ahmed  Bhuiyan,  the  learned  Deputy Attorney  General  for  the  opposite  party  submits  that  the contention  as  raised  by  the  accused  petitioner  in  his application is absolutely a matter of fact which needs to be decided at the time of trial and as such the instant Rule is liable to be discharged.

Heard the submissions of the learned Advocate for the opposite  party  and  perused  the  materials  on  record thoroughly.

In  the  instant  case,  the  accused  petitioner  has challenged the impugned proceeding on the ground that no criminal offence has been disclosed in the FIR of the instant case. On perusal of the FIR, it transpires that there is a prima facie  case  against  the  accused  petitioner.  Moreover,  the contention  as  raised  by  the  accused  petitioner  in  his application is a matter of fact which cannot be decided at this stage under the jurisdiction of section 561A of the Code of Criminal Procedure.

Having regard to the facts and circumstances of the case and the reasons as stated above, we do not find any substances of the Rule. 

As a result, the Rule is discharged.

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

The trial Court is hereby directed to proceed with the case expeditiously in accordance with law.

Communicate this judgment and order at once.

Khandaker Diliruzzaman, J:

I agree