Bench

Mr. Justice Bhishmadev Chakrabortty and

Mr. Justice A.K.M. Zahirul Huq

Criminal Miscellaneous Case No.25564 of 2024

Md. Abdul Wadud Akanda

                                                                   .....accused-petitioner

-Versus-

The State and another      ....opposite parties

Mr. Md. Anowarul Islam (Shaheen) with Mr. Md. Sagir Hossain, Advocates

                           .... for the petitioner

Mr. Mintu Kumar Mondal, Advocate

                      .... for opposite party 2

Judgment on 05.09.2024.

Bhishmadev Chakrabortty, J:

In this Rule opposite parties were called upon to show cause as to why the proceedings of CR Case No.737 of 2023 (Madaripur Sadar) under section 3 of ‘ (the Ain, 2018) now pending in the Court of Chief Judicial Magistrate, Madaripur should not be quashed and/or such other or further order or orders passed to this Court may seem fit and proper.

At the time of issuing the Rule all further proceedings of the aforesaid case was stayed for a limited period which still subsists.

The material facts for disposal of the Rule, in brief, are that opposite party 2, Zarin Rafa Neelanti filed a petition of complaint in the Court of Chief Judicial Magistrate, Madaripur stating,  inter  alia,  that  she  was  given  in  marriage  with  the accused  on  17.04.2019  according  to  Muslim  Law  at  dower money of Taka 3.00 lac. The accused is an Assistant Secretary in the Ministry of Foreign Affairs. After marriage the accused left for his work place at Switzerland. After 3 (three) months the  complainant went there. In Switzerland she found some changes  in  the  behavior  of  the  accused.  There  the  accused started  torturing  her  physically  and  mentally  disclosing  his status as an officer of foreign cadre service. He used to abuse her  with  filthy  languages.  In  the  meantime,  she  became pregnant  and  the  accused  drove  her  away  to  Bangladesh. However, in this country she gave birth to a female child on 27.06.2020. After giving birth to the female child, the accused increased his bad behavior with her. Thereafter, the accused was  transferred  to  Delhi  in  India  as  consular  and  the complainant with her mother and child went there. The accused abused her there for giving birth to a female child and claimed Taka 40.00 lac and a plot containing 5 katha from her and sent her to this Country. After return to this Country the complainant and  her  parents  in  one  occasion  on  07.10.2022  went  to  a relative’s house situated at Madaripur. The accused then made a phone call to her and wanted to know the reason for her visit there. In the moment of her reply the accused started abusing her and demanded Taka 40.00 lac and a plot of 5 katha as dowry from her. She switched on the speaker of her phone and all the  witnesses  present  there  heard  the  fact  of demanding dowry. The accused told her that if she fails to arrange the dowry, he will divorce her. Hence the petition of complaint under section 3 of the Ain, 2018.

Learned Judicial Magistrate, Cognizance Court, Sadar, Madaripur examined the complainant under section 200 of the Code of Criminal Procedure (the Code), took cognizance of offence under the aforesaid section of the Ain, 2018 and issued summons  upon  the  accused.  The  accused-petitioner  then voluntarily  surrendered  before  the  learned  Magistrate  and prayed for bail which was rejected but subsequently he was granted bail by the Chief Judicial Magistrate.

At this stage, the accused approached this Court with this application under section 561A of the Code upon which the Rule was issued and interim order of stay of the proceedings was passed. 

Mr.  Md.  Anowarul  Islam,  learned  Advocate  for  the petitioner taking us through the materials on record submits that the allegations against the petitioner is preposterous and do not disclose any offence under the aforesaid section of the Ain, 2018. He then submits that the case has been filed against the petitioner  only  to  harass  and  humiliate  him  after  sending divorce notice to her. In the petition of complaint although she stated that the petitioner claimed dowry from her through a mobile phone call but no phone number is cited/noted there. Therefore, no offence has been disclosed under section 3 of the Ain, 2018 and as such the proceedings against the petitioner is an abuse of the process of the Court and would be quashed. Mr. Islam finally submits that from the materials on record it is clear that since the petitioner is a member of foreign cadre and now  posted  as  consular  in  Bangladesh  High  Commission situated at New Delhi, India he has been implicated in this fancy criminal case just to harass and humiliate him and as such the proceedings would be quashed to secure the ends of justice. 

Mr. Mintu Kumar Mondal, learned Advocate for opposite party 2 on the other hand opposes the Rule and submits that the charge against the petitioner is yet to be framed and as such this application for quashing the proceedings is prematured one. He then submits that earlier the petitioner filed a miscellaneous case  under  section  526  of  the  Code  in  this  division  for transferring the case from the Magistracy of Madaripur to any other nearby district and during pending of the aforesaid Rule he  has  obtained  this  Rule  which  cannot  be  maintained.  He further submits that the grounds taken in this application are disputed question of facts which is to be decided in the trial of the case. Since prima facie case under section 3 the Ain, 2018 is  found  against  the  petitioner  in  the  complaint  petition, therefore,  the  proceedings  cannot  be  quashed.  Mr.  Mondal finally submits that the claim of the petitioner that ‘on receipt divorce notice the complainant has filed this petition case’ is a defence material which cannot be considered at this stage to quash the proceedings of the case. In the aforesaid premises, this Rule having no merit would be discharged.

We have considered the submissions of both the sides and gone through the materials on record. It is admitted fact that the complainant was given in marriage with the petitioner on 17.04.2019 at dower money of Taka 3.00 lac. It is also admitted fact that the petitioner is an officer of foreign cadre and that earlier he was posted in Switzerland now as a consular at New Delhi  in  India.  Opposite  party  2  brought  allegation  in  the complaint that after few months of her marriage, the petitioner started misbehaving with her which increased after giving birth to  a  female  child.  Lastly  while  she  was  at  Madaripur  on 07.10.2022  with  her  parents,  the  petitioner  claimed  the aforesaid dowry from her and the witnesses heard the demand because she switched on the speaker of her mobile phone.

It  is  found  that  in  the  petition  of  complaint  the complainant did not cite her mobile phone number and that of the accused through which the offence alleged to have been committed.  In  the  case of Major  General  (Retd) Mahmudul Hasan vs. the State, 52 DLR 612 it has been held that since the identity of caller cannot be proved and as such the continuation of the proceedings shall be abuse of the process of the Court. In the case in hand since there is no phone number in the petition of complaint, we find no reason to proceed with the case. Even the statements made in the petition of complaint is considered as  true  there  could  be  no  reason  of  success  in  the  case  if evidence is taken.

In the complaint petition, we find that the address of the complainant  and  petitioner  have  been  shown  in  Dhaka  and Mymensingh respectively but the complaint case has been filed in the Court of Judicial Magistrate, Madaripur stating only that while  the  accused  demanded  dowry  through  phone  call  the complainant  was  in  the  house  of  one  of  her  relative  at Madaripur. In paragraph 8 of this Rule petition, the petitioner made  out  a  specific  case  of  filing  the  complaint  case  at Madaripur to take undue advantage against the accused. The case as narrated in the aforesaid paragraph (not to be written here)  is  found  correct  because  in  such  a  case  the  learned Magistrate had rejected  the  petitioner’s prayer for bail  as it evident from the order passed on 24.08.2023 (annexure-B). The order passed by the Chief Judicial Magistrate, Madaripur on the same day granting bail to the petitioner on condition to revoke the divorce notice dated 17.05.2023 proves the statements made in the aforesaid paragraph true.

In the supplementary affidavit, the petitioner annexed the certificate  of  divorce  annexure-F  issued  by  the  competent authority.  It  appears  in  the  aforesaid  annexure  that  this petitioner divorced opposite  party  2  on 14.05.2023 (sent  on 17.05.2023) which was ultimately registered in the kazi office on  22.08.2023.  The  petition  of  complaint  was  filed  on 05.08.2023,  i.e.,  after  service  of  divorce  notice  upon  the complainant. Mr. Mondal, learned Advocate for opposite party 2 did not disown the authenticity of the aforesaid certificate but he  argued  that  this  is  a  defence  material  and  relying  such document this case cannot be quashed. We do not accept his submission because this is a public document and it appears that the complaint case has been filed in Madaripur after service of divorce notice upon her only to harass and humiliate the petitioner. Opposite party 2 received the above divorce notice duly which is found in the order dated 24.08.2023 passed by the Chief  Judicial  Magistrate  that  the  petitioner  undertook  to revoke  the  divorce notice  dated  17.05.2023  and the learned Advocate for the complainant did not oppose the application for bail  for  such  undertaking.  When  the  materials  on  record  is sufficient to hold that the complainant received divorce notice and thereafter filed the complaint case against the petitioner, the proceedings cannot be run on the plea that it is defence material

The proceedings of a complaint case may be quashed at the very initial stage, if it is found that it do not disclose any offence as alleged or even the fact stated therein is considered to be true and trial is held the result would be fruitless. In this case since the allegation is found preposterous and brought with malafide intent only to harass and humiliate the petitioner and that the relationship of husband and wife was ceased before filing of the case and the complaint does not disclose any office of section 3 of the Ain, 2018, we are inclined to quash the proceedings of the case. On the basis of materials on record, we have no hesitation to hold  that the instant  proceeding  is an abuse of the process of the Court and is to be quashed to secure the ends of justice to protect the petitioner from unnecessary harassment. In this regard we can safely rely on the principles of quashing a proceedings as enunciated in  the  case of Ali Akkas  vs.  Enayat  Hossain and others,  17 BLD (AD) 44  in which the criterion for quashing of proceedings laid in the case of Abdul Quader Chowdhury and others vs. the State, 28 DLR (AD) 38 and Bangladesh vs. Tan Khang Hock, 31 DLR (AD) 69 has been relied upon. In the premises above, we find merit in this Rule.

Accordingly, the Rule is made absolute. The proceedings against the petitioner in CR Case No.737 of 2023 (Madaripur Sadar) now pending in the Court of Chief Judicial Magistrate, Madaripur is hereby quashed.

Communicate  the  judgment  and  order  to  the  Court concerned.

A.K.M. Zahirul Huq, J:

I agree.