Present:

                 Mr. Justice A.K.M. Asaduzzaman

And

                  Mr. Justice Syed Enayet Hossain

         Criminal Misc. Case No. 14258 of 2008

Tarique Rahman

       ……………Petitioner. -Versus-

                            The State

……….Opposite party.

Mr. A.M. Mahbub Uddin, Senior Advocate with Mr. Kayser Kamal, Advocate with

Mr. Md. Zakir Hossain Bhuiyan, Advocate with Mr. Md. Moniruzzaman Asad, Advocate with Mr. Gazi Kamrul Islam, Advocate with

Mr. Md. Shahiduzzaman, Advocate with

Mr. Md. Mahmudul Arefin, Advocate with

Mr. Maksud Ullah, Advocate with

Mr. K.R. Khan Pathan, Advocate with

Mr. Md. Roqonuzzaman, Advocate with

Mr. H.M. Shanjid Siddique, Advocate with

Mr. Khan Md. Moinul Hasan, Advocate with Ms. Tamanna Khanam Irin, Advocate and

Mr. M. Sabbir Ahmed, Advocate and

Mr. Manabendrey Roy Mondo, Advocate and Mr. Tariqul Islam, Advocate and 

Mr. M. Mahbubur Rahman Khan, Advocate

…….For the petitioner.

Mr. Md. Jasim Sarker, D.A.G. with

Mr. Rasel Ahmmad, D.A.G. with

Mr. Md. Geas Uddin Gazi, A.A.G. with

Mrs. Shamima Akhter Banu, A.A.G. and

Mrs. Laboni Akter, A.A.G.

.. ... For the state.

Heard and judgment on 23rd October, 2024. A.K.M. Asaduzzaman,J.

This Rule was issued calling upon the opposite party to

show cause as to why the proceedings of G.R. Case No. 240 of  2007  arising  out  of  Gulshan  P.S.  Case  No.  103  dated 27.03.2007  under  section  385/386/387  of  the  Penal  Code pending in the Court of Chief Metropolitan Magistrate, Dhaka should not be quashed.

Facts  relevant  for  disposal  of  this  rule  are  that  on 27.03.2007 one Khan Md. Aftab Uddin as informant lodged an FIR with Gulshan Police Station being Gulshan P.S. Case No.103 dated 27.03.2007 under section 385/386/387 of the Penal Code implicating the 7 accused persons including one Mota Tareque stating,  inter  alia,  that  the  informant  has  a  construction  firm

namely  Roza  and  other  business.  On  23.06.2005  they  got  a package  work  permit  combined  with  MBEL  of  Tk. 18,57,95,346.50/-  for  road  construction  under  LGED  and thereafter on 24.06.2005 accused Gias Uddin Al Mamun friend of the petitioner named Tarique Zia demanded 10% subscription of the said work and threatened him to pay the same as early as possible.  The  informant  became  scared  and  on  25.06.2005  at about 12.30 the informant paid Tk. 1,32,00,000/- by a cheque being  Cheque  No.  492872  from  the  OSOD  account  of  Dhaka Bank Ltd. of Banani Branch, Dhaka. On 26.06.2005 the accuseds ultimately took the subscription by putting him in fear of death. Thereafter the informant lodged the FIR.

Thereafter the said case was initiated as Gulshan P.S. Case No. 34 of 2007 under section 4 of the Ain Srinkhola Bighnakari Aporadh  Druto  Bichar  Ain,  2002  and  on  21.04.2007  the Investigation  Officer  prayed  for  shown  arrest  to  implicate  the petitioner in the aforesaid case, which was accepted by the Chief Metropolitan Magistrate and also allowed the prayer for 7 days remand.

After  hearing  both  the  parties  the  Chief  Metropolitan Magistrate, Dhaka allowed the prayer for interrogation in front of Jail gate. But during the remand no information was recovered from the petitioner regarding the case.

The said case against the petitioner has been included under Rule 19 Eo(1)(5) of the Emergency Powers Rules, 2007 in the name of public interest vide approval order No. üxjx(BCe-1)S¢h- 1/2007/199 dated 16.04.2007 issued by the Additional Secretary, Ministry of Home Affairs, Law section-1.

The  petitioner  was  arrested  from  his  residence  on 08.03.2007. Thereafter the petitioner obtained bail from the High Court  Division  in  a  Writ  Petition  No.  10339  of  2007  on 04.03.2008 and then he filed this Misc. Case under section 561A of the Code of Criminal Procedure and obtained the instant Rule.

Mr. A.M. Mahbub Uddin, the learned Advocate appearing for the petitioner in support of the rule submits that from the plain reading of the entire FIR it will appear that neither the petitioner was  named  in  the  FIR  as  an  accused  nor  any  offence  was disclosed against him in the FIR and as such the proceedings against the petitioner is nothing but an abuse of the process of the court. Drawing our attention to the decision of the case of The State Vs. Md. Shahjahan Ali and ors. reported in 19 MLR(AD) 2014 submits that in the similar case the Appellate Division has held  that  the  inordinate  delay  in  lodging  of  the  F.I.R.  giving political  colour  created  the  prosecution  story  doubtful  and unbelievable.

In that view of the matter when the occurrence was shown in the instant case on 24.06.2005 and thereafter case was initiated after long delay on 27.03.2007 having no explanation, got the reliance of the decision referred to above in the instant case. Since it was a colourful exercise of power while initiate the proceedings, it is nothing but an abuse of process of the court, which is liable to be  quashed.  The  learned  advocate  further  submits  that  upon perusal of the instant FIR it will be evident that the petitioner was implicated with alleged occurrence out of political animosity with the direction of a vested quarter as such the story of FIR is false, fabricated and concocted and as such the proceedings is liable to be quashed.

He further submits that from the plain reading of the FIR it will further appear that the petitioner was neither been shown to have asked for any subscription or directed to anybody to receive the money or have received the money by himself and accordingly there is no ingredients of offence under section 385/386/387 of the Penal Code, the impugned criminal proceedings does not stands against  him,  which  is  unbelievable  and  preposterous  and  it  is liable to be quashed.

Mr. Md. Jasim Sarker, the learned Deputy Attorney General on the other hand although opposes the rule but find it difficult to oppose the submission  as  been  made  by  the  learned  advocate appearing for the petitioner.

Heard  the  learned  Advocate  and  perused  the  documents annexed to the application and the judgment cited by the learned advocate appearing for the petitioner.

It appears that in the instant case petitioner although was not been named in the FIR but one Mota Tareque was shown to be accused as serial No.7 in the FIR. Upon perusal of the FIR it will appear that in the instant case the accused persons were shown to be committed an offence of taking ransom from the informant, wherein the occurrence was shown to be happened on 24.06.2005 but  the  case  was  shown  to  be  initiated  long  thereafter  on 27.03.2007 having no explanation of causing delay. The aforesaid inordinate delay in lodging the FIR obviously create some doubt about  the  commission  of  any  offence  if  at  all  been  there  as narrated in the FIR.

In that view of the matter our Appellate Division in the cited case namely in the case of the State Vs. Md. Shahjahan Ali and ors. reported in 19 MLR(AD) 2014 has opined that:

“the inordinate delay in lodging of the F.I.R. giving political colour created the prosecution story doubtful and unbelievable.”

Regard being had to the above law, fact and circumstances of  the  case  together  with  the  decision  cited  above,  we  find substances  in  the  submission  of  the  learned  advocate  for  the petitioner.

The impugned criminal proceedings, which was initiated on 27.03.2007  showing  the  date  of  occurrence  on  24.06.2005 contents smells of sufficient doubtful thereby causing the story very  shaky,  unbelievable  and  preposterous  accordingly  the proceedings is liable to be declared as abuse of the process of court, and is quashed.

Moreover upon going through the fact narrated in the FIR we also find substance in the submission of the learned advocate for the petitioner that if the story is taken to be true it contains no ingredients of an offence under section 385/386/387 of the Penal Code at least as against the petitioner.

In  all  view  of  the  matter,  we  find  substances  in  the submission of the learned advocate for the petitioner.

In  the  result,  the  Rule is  made  absolute.  The  impugned criminal proceedings as has been initiated against the petitioner which is lying before the Court of Chief Metropolitan Magistrate, Dhaka  under  section  385/386/387  of  the  Penal  Code  and subsequently included under Rule 19 Eo(1)(5) of the Emergency Powers  Rules,  2007  giving  the  approval  by  the Additional Secretary,  Ministry  of  Home  Affairs,  Law  Section-1  through

order No.üxjx(BCe-1)S¢h-1/2007/199 dated 16.04.2007 are hereby quashed.

The order of  stay  granted  earlier is hereby  recalled and vacated.

Communicate the judgment at once.

Syed Enayet Hossain, J:

I agree.