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Microsoft Word - Crl. P. No.2769 of 2023 (Dis. of)

IN THE SUPREME COURT OF BANGLADESH

Appellate Division

PRESENT

         Mr. Justice M. Enayetur Rahim

                  Mr. Justice Md. Abu Zafor Siddique, 

          Mr. Justice Md. Shahinur Islam,

CRIMINAL PETITION FOR LEAVE TO APPEAL NO.2769 OF 2023

(From the judgment and order dated the 3rd day of August, 2023 passed by the High Court Division in Criminal Appeal No.248 of 2023).

Debdulal Basu  :                  ..............Petitioner

-Versus-

The  State,  represented  by  the  :                   ..............Respondents Deputy Commissioner Dhaka and

another


For the Petitioner For Respondent No.1


:      Mr. Dewan Abdul Naser, Advocate,

 instructed by Mr. Md. Shafiqul Islam

Chowdhury, Advocate-on-Record

:      Mr.  A.M.  Amin  Uddin,  Attorney General with Mr. Sayeem Mohammad Murad,  Assistant  Attorney  General appeared with the leave of the Court. 


For Respondent No.2  :  Mr. Sukumar Kumar Biswas, Advocate

with  Mr.  Sree  Probir  Kumar  Ghosh, Advocate,  instructed  by  Mr.  Haridas Paul, Advocate-on-Record

Date of hearing and judgment  :  The 3rd day of June, 2024

JUDGMENT

M. Enayetur Rahim, J: This criminal petition for leave to appeal  is  directed  against  the  judgement  and  order  dated

03.08.2023  passed  by  a  Division  Bench  of  the  High  Court Division  in  Criminal  Appeal  No.248  of  2023  dismissing  the appeal.

The facts, relevant for disposal of the instant criminal petition  for  leave  to  appeal,  are  that,  present  victim, respondent  No.  2,  Shila  Halder  being  complainant  filed  a


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complaint before the Nari-O-Shishu Nirjatan Daman Tribunal No.8, Dhaka, against the present accused-appellant-petitioner under Section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (amended in 2003) alleging inter-alia that the accused- petitioner on 23.12.2017 upon showing respect to Hindu religious idol and claiming married her started conjugal life with the complainant in a rented house at Mirpur. Thereafter, while she asked the accused-petitioner to take her into his village home, the accused-petitioner refused to do so. The complainant then came to know that the accused-petitioner is a married person having another wife and child. On 05.01.2022 at about 10:00 p.m. the accused-petitioner lastly caused physical relation with the complainant. The complainant to that end went to the Mirpur Model Police Station for filing a case against him, but the police refused to register the case and advised her to file the case before the Court, then she was compelled to file the petition of complaint being No. 118 of 2022 before the Nari-O-Shishu Nirjatan Daman Tribunal No. 8, Dhaka, on 28.07.2022.

The learned Judge of the Tribunal upon recording the statement of the victim-complainant had directed the Police Bureau of Investigation (PBI), Metro. (North), Dhaka to inquire into the matter and to submit a report thereto.

Upon inquiry, the PBI submitted a detail report on 13.11.2022. Upon receiving the said inquiry report the learned Judge of the Tribunal took cognizance of the offence against the accused-petitioner under section 9(1)of the Nari- O-Shishu Nirjatan Daman Ain, 2000 (Amended in 2003).

Then, the accused-petitioner filed an application for anticipatory bail before the High Court Division and the High Court Division enlarged him on anticipatory bail and after obtaining bail the accused-petitioner filed an application under section 265(C)of the Code of Criminal Procedure before the Tribunal for his discharge from the case. However, the Tribunal rejecting the said application vide its order dated 02.01.2023 framed charge against him under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.

Being aggrieved by the said refusal order, the accused- petitioner filed Criminal Appeal No.248 of 2023 before the High Court Division, which  was admitted on 31.01.2023 and after hearing the Appeal the High Court Division dismissed the Appeal by the impugned judgment and order. Hence, the accused has filed the instant criminal petition for leave to appeal.

Mr. Dewan Abdul Naser, learned Advocate appearing for the accused-petitioner submits that the inquiry report prepared by the inquiry officer though it was mentioned that prima facie case was found against the accused-petitioner under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000, but in fact nothing was found on inquiry to the effect that the accused petitioner raped her within the meaning of section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000(as amended in 2003). 

Learned Advocate also submits that the High Court Division failed to consider that after examining the complainant doctor prepared a report wherein the doctor opined that “considering physical examination findings and microbiological report, I am of the opinion that the victim named ‘Shila Halder’ has no sign of forceful sexual intercourse found on her body”,  and as such judgment and

order passed by the High court Division is liable to be set aside. He further submits that the High Court Division failed to consider that the sexual intercourse with the consent of the  adult  woman  does  not  constitute  offence  of  rape  under section  9(1)  of  the  Nari-O-Shishu  Nirjatan  Damon  Ain,  2000 (as amended 2003). 

Learned Advocate finally submits that the Nari-O-Shishu Nirajtan Tribunal illegally took cognizance of the offence on the  basis  of  inquiry  report  submitted  by  PBI  which  is  not permitted  as  per  section  27(1  Ka)  of  the  Nari-O-Shishu Nirjatan  Daman Ain,  and,  as  such  the  judgment  and  order passed by the High Court Division is liable to be set aside.

Mr. A.M. Amin Uddin, learned Attorney General appearing for  respondent  No.  1  made  submissions  in  support  of  the impugned judgment and order of the High Court Division.

Mr.  Sukumar  Biswas,  learned  Advocate  appearing  for  the complainant-respondent No. 2 also made submissions supporting the impugned judgment and order of the High Court Division. He further added that since the medical examination was held long after the date of occurrence and, as such, recent sign of rape may not be  there, but the medical report itself shows that  the  hymen  of  the  victim  was  found  ruptured  and  there have  been  multiple  old  tears  present  and,  therefore,  those materials  on  record  shows  that  the  accused  petitioner  upon giving  false  assurance  as  of  marrying  the  victim,  has committed rape on her for several times and as such, in the medical  report  the  above  material  symptoms  were  detected. Learned  Advocate  for  the  complainant-respondent  further argued that in the case of rape, only relying upon a part of medical  examination  report,  even  without  taking  other material evidence on record, relying on the defence plea cannot claim to be discharged.

Learned Advocate thus seeking dismissal of the leave petition submits that since charge has already been framed upon finding prima-facie materials and, as such, at this stage only upon relying on the defence plea a case of committing rape under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (Amended in 2003) cannot be brushed away and the order of charge cannot be set aside without taking evidence, at the trial, as per the settled decision of our Apex Court. 

We have considered the submissions of the learned Advocates appearing for the respective parties, perused the petition of complaint, the impugned judgement, relevant laws and other materials as placed before us. 

In the instant case it is admitted position that the learned Judge of the Tribunal having found prima facie case against the accused petitioner framed charge against him under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2003 having considered the facts and circumstances of the case and materials on record. We find substance in the submission of the learned Advocate for the complainant- respondent that at this stage there is no scope to discharge the accused-petitioner from the charge brought against him relying on any defence plea or materials, if any. 

The learned Advocate for the petitioner having referred to the words ""mšÍó nB‡j Awf‡hvMwU AbymÜv‡bi i (nquiry ) Rb¨ †Kvb g¨vwR‡÷ªU wKsev Ab¨ †Kvb e¨w³‡K wb‡`©k cÖ`vb Kwi‡eb Ges..................Ó as contemplated in section 27(1)

(Ka) has tried to convince us that Police Bureau of Investigation (PBI) will not come within the meaning of "Ab¨ †Kvb e¨w³Õ and PBI being one of the unit of Police is not permitted

to make any inquiry under the Nari-O-Shishu Nirjatan Daman Ain, 2000 and thus the inquiry on the allegation of the present case by PBI is without jurisdiction and illegal, and on the basis of such inquiry report proceeding of the present case is also illegal and without jurisdiction. In support of his contention, he relied on the case of Mohammad Khorshed Alam alias Md. Khorshed Alam vs The state and another,17 SCOB(2023)AD 61, wherein it has been held that:

“Having considered and discussed above, we are of the view that the Tribunal did not commit any illegality in entertaining the complaint filed by respondent No. 2. Section 27 (1 Ka) clearly speaks that if the learned Judge of the Tribunal is satisfied as to the filing of the complaint he can direct the Magistrate or any other person to make an inquiry with regard to the allegation. The expression ‘ Ab¨ †Kvb e¨w³’ (any other person) does not include any police officer but, it includes any public officer or any private individual or any other responsible person of the locality upon whom the Tribunal may have confidence to conduct the inquiry in respect of the complaint logged before it.

In the instant case the learned Judge of the Tribunal acted illegally in directing the Officer-in-Charge of Pahartoli Police Station to make an inquiry in respect of the complaint and, thereafter, taking cognizance on the basis of such inquiry report has vitiated the entire proceeding.” (Underlines supplied).

To address the above issue let us examine section 27 of the Nari-O-Shishu Nirjatan Daman Ain, 2000, which runs as follows:

Ò27| UvªBey¨bv‡j i GLwZqvi| -(1) mve-B݇c±i c`ghv©`vi wb‡¤œ b‡nb Ggb †Kvb cwyj k Kg©KZ©v ev

GZ`y‡Ï‡k¨ miKv‡ii wbKU nB‡Z mvaviY ev we‡kl Av‡`k Øviv ÿgZvcÖvß †Kvb e¨w³i wjwLZ wi‡cvU© e¨wZ‡i‡K †Kvb UvªBey¨bvj †Kvb Aciva wePviv_© MÖnY Kwi‡eb bv|

(1K) †Kvb Awf‡hvMKvix Dc-aviv (1) Gi Aaxb †Kvb cywjk Kg©KZ©v‡K ev ÿgZvcÖvß e¨w³‡K †Kvb Aciv‡ai Awf‡hvM MÖnY Kwievi Rb¨ Ab‡ yiva Kwiqv e¨_© nBqv‡Qb g‡g© njdbvgv mnKv‡i UªvBey¨bv‡ji wbKU Awf‡hvM `vwLj Kwi‡j UªvBey¨bvj Awf‡hvMKvix‡K cixÿv Kwiqv-

  1. mš‘ó nB‡j Awf‡hvMwU AbymÜv‡bi i (nquiry ) Rb¨ †Kvb g¨vwR‡÷ªU wKsev ‡Kvb e¨w³‡K

wb‡`©k cÖ`vb Kwi‡eb Ges AbymÜv‡bi Rb¨ wb‡`©kcÖvß e¨w³ Awf‡hvMwU AbymÜvb Kwiqv mZ Kvh© w`e‡mi g‡a¨ UªvBey¨bv‡j i wbKU wi‡cvU© c`Övb Kwi‡eb;

  1. mš‘ó bv nB‡j Awf‡hvMwU mivmwi bvKP Kwi‡eb|

(1L) Dc-aviv (1K) Gi Aaxb wi‡cvU ©cÖvwßi ci †Kvb UªvBey¨bvj hw` GB g‡g© mšó‘ nq †h,

  1. Awf‡hvMKvix Dc-aviv (1) Gi Aaxb †Kvb cwyj k KgK©Z©v‡K ev ÿgZvcvÖß e¨w³ ‡K †Kvb

Aciv‡ai Awf‡hvM MnÖY Kwievi Rb¨ Aby‡iva Kwiqv e¨_© nBqv‡Qb Ges Awf‡hvM mg_‡ ©b cÖv_wgK

mvÿ¨ cgÖvY Av‡Q †mB †ÿ‡Î UªvBe¨ybvj D³ wi‡cvU© I Awf‡hv‡Mi wfwˇZ AcivawU wePviv_© MÖnY

Kwi‡eb;

  1.   Awf‡hvMKvix Dc-aviv (1) Gi Aaxb †Kvb cywjk Kg©KZ©v‡K ev ÿgZvcÖvß e¨w³‡K †Kvb

Aciv‡ai Awf‡hvM MnÖY Kwievi Rb¨ Aby‡iva Kwiqv e¨_© nBqv‡Qb g‡g© cÖgvY cvIqv hvq bvB

wKsev  Awf‡hv‡Mi  mg_©‡b  †Kvb  cÖv_wgK  mvÿ¨  cÖgvY  cvIqv  hvq  bvB  †mB  †ÿ‡Î  UªvBe¨ybvj

Awf‡hvMwU bvKP Kwi‡eb;

(1M) Dc-aviv (1) Ges (1K) Gi Aaxb cÖvß wi‡cvU ©†Kvb e¨w³ i weiæ‡× Aciva msNU‡bi Awf‡hvM ev

Zrm¤ú‡K© Kvh©µg MÖn‡Yi mycvwik bv _vKv m‡Ë¡I UªvBey¨bvj, h_vh_ Ges b¨vqwePv‡ii ¯^v‡_‡ © q cvR Öbxq g‡b

Kwi‡j , KviY D‡j øLc~eK© D³ e¨w³ i e¨vcv‡i mswkøó Aciva wePviv_© MÖnY Kwi‡Z cvwi‡eb| Ó

On a careful examination of section 27(1 ka) coupled with

sub-section (ka) it becomes crystal clear that on receipt of

a  complaint  supported  by  an  affidavit  if  the  Tribunal  is

satisfied  upon  examining  the  complainant  that  after  being

refused  by  the  concerned  police  officer  or  the  authorized

person he/she directly came to the Tribunal in that event an

order for holding inquiry on the complaint can be made.

In the case in hand, the complainant filed the petition of

complaint  before  the  Tribunal  supported  by  an  affidavit

stating that statements made in the complaint is true. And in

the  complaint  it  was  asserted  that  she  went  to  the  police

station  but  the  police  refused  to  accept  her  complaint  and

the concerned Tribunal being satisfied about the same, upon

examining  the  complainant,  directed  the  PBI  to  hold  an

inquiry into the allegation.

The intention of Section 27 (1 ka) is that before filing

of  the  complaint  before  the  Tribunal,  the  complaint  should

approach to the concerned police station first, and if he/she

is refused in that event he/she can file the complaint before

the Tribunal with an affidavit in regard to his/her refusal

by the police. This provision of law will come into operation

when  the  concerned  police  officer  of  a  particular  Police

Station refused to accept or lodge the complainant.

In the earlier case as cited by the learned Advocate for

the  accused-petitioner,  the  Tribunal  directed  for  holding

inquiry to the Officer-in-Charge of the same Police Station,

which  refused  to  lodge  the  FIR.  But  in  the  instant  case

Tribunal directed PBI to hold an enquiry on the allegation.

PBI  is  an  independent  investigating  agency/unit  of  police. Officer-in-Charge of a Police Station has no authority on the

PBI inquiry/investigation process. PBI acts on the basis of

PBI Regulations 2016 (cywjk ey¨‡iv Ae Bb‡fw÷‡Mkb wewagvjv, 2016)I |n  Bidhi 2(9)

it has been stipulated that  " wcweAvB m`m¨Õ A_© wcweAvB G wb‡qvwRZ ‡Kvb cywjk m`m¨' | Bidhi 4 clearly speaks that  "wcweAvB Gi †nW‡Kvqv©Uv©m XvKvq _vwK‡e|Õ

So, PBI has an independent and separate identity.

It is true that the word ‘Ab¨ †Kvb e¨w³’ has not been defined

in the Nari-O-Shishu Nirjatan Daman Ain, 2000. Thus, we can

take aid of General Clauses Act 1897, where the word person

(e¨w³) has been defined as under:

Person-“person” shall include any company or association or body

of individuals, whether incorporated or not: (underline supplied)

If we consider the definition of ‘person’ (e¨w³) as defined in the General Clauses Act coupled with the fact that the PBI is an independent body/organization/unit of police, which acts by its own Regulations thus, we have no hesitation to hold that PBI, is an independent body i.e. body of individuals and it will come within the meaning/definition of ‘Ab¨ †Kvb e¨w³’ as contemplated in section 27(Ka) of the Nari-O- Shishu Nirjatan Daman Ain, 2003. Thus, the inquiry held by the PBI in this particular case is within the ambit of the law, and there is no scope to say that PBI or any other independent law enforcing agency is not authorized to hold any inquiry or investigation on the allegations made under the Nari-O-Shishu Nirjatan Daman Ain, 2000. Thus, the submission made by the learned Advocate for the petitioner has no leg to stand.    

Further, we have to understand the intention of the legislature. If we read section 27(1) and 1(Ka) of the Ain together, then it will be clear that intention of the legislature is that the police officer who refused to accept the complaint/FIR he should not be directed again to make inquire/investigation for fair and impartial inquiry/investigation and the enquiry or investigation should be done by any other person (Ab¨ †Kvb e¨w³) other than the said police officer or any officer of the same Police Station. This provision has been made for the interest of the complainant/victim, and an accused or offender is not entitled to get benefit of it. 


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The facts of the cited case is quite distinguishable from the facts of the present case and it will not help the present accused petitioner in anyway.

Having discussed and considered as above, the instant criminal petition for leave to appeal is dismissed.

J. J. J.

B.S./B.R./*Words-2,512*