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