IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION
(CRIMINAL MISCELLANEOUS REVISIONAL)

Present

Mr. Justice Md. Salim

And

Mr. Justice Shahed Nuruddin

CRIMINAL MISCELLANEOUS CASE NO. 7304 OF 2014 Md. Anower Hossain

............Accused-Petitioner. -VERSUS-

The State                                  .....Opposite Parties.

Mrs. Sagorica, Advocate

------- For the petitioner.

Non appears                         … for the opposite party No.2 Mr. B.M. Abdur Rafell, D.A.G. with

Mr. Binoy Kumar Ghosh, AAG

Mr. A.T.M. Aminur Rahman (Milon), AAG

Ms. Lily Rani Saha, AAG 

                                                ..............For the State.

Heard and judgment on 04.01.2024.

 Shahed Nuruddin, J:

By  this  Rule,  the  accused-petitioners  by  filing  an  application

under  Section  561A  of  the  Code  of  Criminal  Procedure  sought  for quashing the proceedings of Special Sessions Case No. 148 of 2012 arising out of Gulshan P.S. Case No.59 dated 29.03.2012 under Sections 35(2)/55(7) of the Tele Communication Ain, 2001, now pending before the learned Special Judge, Court No.1, Dhaka.

Material facts leading to this Rule are that the allegation brought against the accused-petitioner is punishable under Sections 35(2)/55(7) of the Tele Communication Ain, 2001.

The learned Magistrate took cognizance of the offence and later charge was framed. The case is now pending for trial.

Feeling aggrieved the accused  petitioners  preferred  the instant application and obtained the present Rule on 24.02.2014.

Mrs. Sagorica, the learned Counsel appearing for the petitioner submits that the complaint case was filed by misreading of the Sections 35(2)/55(7) of the Tele Communication Ain,  2001  because the proceeding of the alleged Criminal case as arising from the Gulshan P.S. Case No.59 dated 29.03.2012 under Sections 35(2)/55(7) of the Tele Communication Ain, 2001 is bad in law and fact as well as procedure and as such the same is liable to be made absolute.

Heard the learned Advocate for the petitioner and the learned Deputy Attorney General and perused the record.

On exploration of the materials on record it transpires that the complainant categorically narrated the manner of crime committed by the accused. The learned Special Sessions Judge, Court No.1, Dhaka after considering the entire materials on record rightly framed charge

under same section against the accused. Moreso, in defence the accused denied the entire allegations. So, when there is such denial, the question of innocence does not arise with this regard reliance has been placed in the case of Abdur Rahim alias A.N.M Abdur Rahman Vs. Enamul Haq and  another  reported  in  43  DLR  (AD)  173.  In  the  instant  case  the accused stand indicted for offence punishable under the same section.  We  have  meticulously  examined  the  allegations  made  by  the complainant and we find that the offence punishable under the above offence has been clearly disclosed in the instant case against the accused. We  have  gone  through  the  grounds  taken  in  the  application  under Section 561A of the Code of Criminal Procedure and we find that such grounds  are  absolutely  the  disputed  question  of  facts  and  the  same should be decided at the trial. The pleas of the petitioners are nothing but the defence plea. Be that as it may the proposition of law is now well settled  that  on  the  basis  of  defence  plea  or  materials  the  criminal proceedings should not be stifled before trial; when there is a prima-facie case for going for trial. In view of such facts, the grounds taken in the petition of Misc. case are not the correct exposition of law. Moreso interruption of the course of Justice will set up a wrong precedent by which the course of justice instead of being advanced readily been stifled inasmuch as the grounds advanced before us are not correct or legal exposition of law. Therefore we hold that there are sufficient grounds for proceeding against the accused for going for trial under the same section.

To that end in view we are at one with learned Judge of the Court below regarding framing of charge against the accused. In view of the above we failed to discover any merit in this Rule. Thus the Rule having no merit fails.

Since the ground taken by the petitioner is disputed question of fact  and  all  the  submissions  are  settled  principle  by  the  Hon’ble Appellate Division.

 In  the  light  of  discussions  made  above  and  the  preponderant judicial views emerging out of the authorities refer to above we are of the view that the impugned proceedings suffers from no legal infirmities which calls for no interference by this Court.

In view of foregoing narrative the Rule is discharged. The order of stay granted earlier stands vacated.

The office is directed to communicate the judgment at once.

MD. SALIM, J:

I agree

Hanif/BO