Judgment : Appellate Division
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Case Number Parties Short Description
1
The State, represented by the Deputy Commissioner, Chattogram
Vs.
Md. Mir Ibrahim @ Md. Ibrahim @ Md. Ibrahim Mir
Whenever an application for bail is made to a court, the first question that it has to decide is whether the offence for which the accused is being prosecuted is bailable or otherwise. If the offence is bailable, bail will be granted under section 496 of the Code of Criminal Procedure without more ado, but if the offence is non- bailable further consideration will arise and the court will decide the question of bail in light of those consideration such as nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tempered with, the larger interest of the public or the state and similar other considerations. It is true that under section 498 of the Code of Criminal Procedure, the power of the High Court Division in the matter of granting bail is very wide, even though the offence is non-bailable, but various considerations as mentioned above have to be taken into consideration before bail is granted in a non-bailable offence. .....
the present case is not a case where discretion should have been exercised infavour of the accused- respondent because of the seriousness and gravity of the offence which is obviously connected with the safety and security of the State, as such we are not inclined to allow the bail
2
Bangladesh, represented by the Cabinet Secretary, Bangladesh Secretariat, Dhaka vs. Md. Abdul Alim and others
The employer is legally authorized to assess the competency of an employee during the period of probation. Simultaneously, the employer is entitled to terminate the service of the employee during the probation period due to unsatisfactory performance. We are also of the view that whether a termination order is simpliciter or stigmatic will be ascertained based on the factual matrix of each case. On plain reading of the termination order of the respondents it appears that the same is ex-facie not stigmatic. It simply terminates the service of the respondents as their service was found not satisfactory. The respondents could not bring any materials on record from which it could be manifested that there was allegation of misconduct against them and an inquiry was held behind their back in pursuant to which they had been terminated from service during the probation period. Therefore, we are of the view that the Election Commission Secretariat was in right stand to arrange for a suitability test during the probation period of the respondents and on being unsuccessful in the suitability test the respondents had been terminated from service which we hold to termination simpliciter not stigmatic.
3
Mirza Abbas Uddin Ahmed, son of late Abdur Razzak vs. The State and another
Section 26 of the Anti-Corruption Commission Act, 2004 envisages the provision for issuance of notice, holding preliminary inquiry by the Anti-Corruption Commission in order to ascertain the wealth of a person while Section 27(1) of the ACC Act, 2004 lays down the provision regarding the commission of offence where the wealth of a person is found not in proportionate to his known sources of income. On the other hand, the Income Tax Ordinance, 1984 is enacted for realization of income tax and to prevent the evasion of income tax. Sections 165 and 166 of the Income Tax Ordinance, 1984 are penal sections in respect of making false statement in any verification in any return or any other document and concealment of income. The offences under Sections 26 and 27(1) of the ACC Act, 2004 and Sections 165 and 166 of the Income Tax Ordinance, 1984 are completely separate and distinct and one is not dependant on others. Therefore, the present case under Sections 26 and 27(1) of the ACC Act, 2004 shall proceed independently. Although the petitioner was earlier acquitted in a case under Sections 165 and 166 of the Income Tax Ordinance, 1984 it will not put any embargo on the trial of the present case.
4
Md. Helal Uddin
Vs.
The State
It is now well settled that the remand orders are not to be made as a matter of course. The High court Division as a revisional court is required to appreciate properly the relevance of the evidence on record before making such order of remand....
The High Court Division as a revisional court ought to have disposed of the criminal revision on the basis of the evidence already on record. The order of rehearing by the appellate court below is found to be uncalled for, particularly after a decade.
5
Most. Tahmina Khatun
Vs.
Md. Lutfor Rahman Mollah and others.
It is the settled principle of law laid down by the Apex Court of Various Jurisdictions including this Division by a long line of decisions that the question of jurisdiction cannot be conferred to a court if it is found that the court has no jurisdiction to try the suit/case as the case may be.
6
Sadharan Bima Corporation and another Vs Md. Rafiqul Islam and others
If the authority thinks to impose major penalty on a delinquent employee then the authority at first shall frame charge under Sub-Probidhan (1)(Ka) of Probidhan 41 of Sadharan Bima Corporation Karmachari Probidhanmala, 1992 against the delinquent employee stating the allegations and the facts or information on the basis of which such allegations were brought and the copy of charge as well as other documents shall be supplied to the delinquent employee. It is palpably transparent from record of the case in hand that in taking action against the writ petitioner-respondent No.1 inflicting major punishment the authority issued show cause notice to him on 24.08.1999, but charge was framed on 28.11.1999, which is in clear violation of Probidhan 41 of Probidhanmala, 1992 which vitiates the entire enquiry proceeding against the writ petitioner. It also divulges from the record that the writ petitioner has also not been supplied with the copy of charge. From the inquiry report it is seen that no oral evidence was recorded by the Inquiry Officer to prove the allegations brought against the respondent No.1, eventually no question of cross-examination of the prosecution witnesses by the writ petitioner-respondent No.1 has arisen at all. Thus, the inquiry proceeding in the case in hand has not been held in compliance with the provisions laid down in Probidhan 42 of Probidhanmala, 1992. In the aforesaid backdrop the impugned dismissal order of the respondent No.1 backed by flawed departmental proceeding cannot be sustainable in the eye of law.
7
Moslehuddin Ahmed
=vs=
Abdul Gafur being dead his heirs :1(a) Nuruzzaman (Rotan)and others
We have anxiously thought as regard the application of Article 104 of the Constitution, as prayed by the learned Advocate for the respondents, nevertheless, we are unable to apply this article because of legal impediment as it appears in this matter. We have already viewed that the decree holder in filing both the execution cases admittedly were delayed due to his own fault. Therefore, other side appellant has accrued a valuable right in accordance with law due to fault and latches of the decree holder the predecessors of the respondent No.1(a)-1(g) in not executing the decree in time according to law. However, the plea taken by the decree holder according to us unsuccessful.
Therefore, our considered view is that in violation of the specific provision of law, one side cannot get the complete justice depriving the other side from his valuable right obtained under the law.
8
Bhadu Pramanik, son of Late Badal Pramanik being dead his legal heirs are-1.Md. Paran Ali Pramanik and others
=vs=
Md. Abbas Ali Pramanik
It is a settled principle of law that the plaintiff if attempts to establish assert, claim or plead something who must prove it appropriately. The same cannot be assumed from the defects or lacking of the defendant side. Here, in this case the plaintiff-respondent must prove his case solely and wholly and he is not allowed to stand to have a decree upon the lacuna of the defendant-appellant.
High Court Division committed error of law in disturbing the concurrent findings of facts arrived at by both the Courts below and on misreading of the evidence on record.
9
Mrs. Rahima Begum
=vs=
Md. Zahidul Islam being dead his heirs:-1(a) Kazi Tamjidul Islam and others
It is true that a practice has been grown up specially by the landed property-owners that after even prior to the constructing of super markets in urban areas, without executing proper deeds, they use to realize a significant sum of currency from the traders as advance/salami/possession sale and evict them after expiry of the tenure and sometimes enhance the monthly rent, though such process and transactions are unauthorized and unlawful.
These advance or salami/possession sale is nothing but `premium’. Under the Registration Act, 1908, the transfer of possessory right is required to be registered. High Court Division committed significant legal error of law by declaring possessory right of Defendant Respondent in the suit shop without any registered sale deed or Contract and any proper suit to that effect in a suit for eviction of tenant.
The question as to whether the Defendant have paid the money for the consideration of purchase of the possessory right cannot be determined devoid of appreciating the fact without a suit for eviction.
10
Government of Bangladesh, Represented by the Deputy Commissioner, Natore and others
=vs=
Most. Majeda Beowa and others
As the L.A. case records are public documents, mere the facts that they were not submitted and exhibited in the courts below that cannot be a ground for defeating public interest and justice.
mere record of rights does not create a title. As such, merely entries of the predecessors of the plaintiffs in the S.A and R.S. Khatians without any documents of title or ownership did not create of the respondents-plaintiffs title over the suit land. And the mere presumption arisen in its support, by the said S.A. and R.S. record of rights fails as its correctness is successfully impugned by the presence of the L.A. case records.
11
Shahin Mia
=vs=
Parul Begum and others
It is curtail principle of law that only in revisional jurisdiction, the High Court Division can interfere, if it is found that the Court of appeal below committed any error of law or procedural mistake and such errors have affected the merit of the case. The plaintiffs must prove his plaint case to succeed in the suit. The weakness of the defence’s case cannot be the ground to succeed or to prove the plaint case.
12
The Government of Bangladesh
=vs=
Sree Kazal Chandra Sutradhar
According to section 6 of the Police Officer (Special provisions) Ordinance, 1976, we are of the view that the provisions of the said Ordinance does not contemplate formal inquiry to be held before imposing penalty under the said Ordinance save and except follow the provisions as expressly provides in the said Police Ordinance.
The procedure of enquiry against the police officer should be conducted according to the provisions of the Ordinance, 1976 (Special Provisions), the Administrative Tribunal and Administrative Appellate Tribunal will not sit as a Court of appeal against domestic enquiry unless its decision is tainted with illegality, malafide and it acted without jurisdiction.
13
Bangladesh Gayan-O-Srijonshil Prokashak Samity
=vs=
Bangladesh Publisher and Book Seller Association and others
As the concerned notices were not published in any national daily newspapers recognized by persons of ordinary prudence and the aforesaid objection was not considered, these vitiated the whole process of licensing. Because, here licensing authority did not comply with the procedure established by law, did not act in accordance with the provisions of law, acted malafide and violated principles of natural justice. If it’s so, then established principle of law is that even if there is a ouster/non-obstante clause in any law, yet court has ample jurisdiction to review judicially whether the authority followed established principle of law or not.
14
The Thana Nirbahi Officer, Kaukhali Thana, Police Station-Kaukhali, District-Pirojpur and others
=vs=
Maulana A.B.M. Mahiuddin
A service holder may suspend for alleged allegation, however, such order of suspension cannot continue for unlimited period. The concerned authority must conclude the inquiry within stipulated time as per the concerned law.
Impugned suspension order was passed by one Mr Sudhangsu Shekhar Bishwas as the UNO of Kawkhali, Pirojpur, not as Ex-officio Chairman of the Madrasa. Law does not confer adequate power to one or any UNO as his/her original designation to issue such orders. Only Chairman of the Madrasa Managing Committee can do so.
15
People’s Republic of Bangladesh represented by the Deputy Commissioner, Gazipur and others
=vs=
Md. Idris Ali and others
After passing the standing order High Court Division became functus officio, as such, cannot recall its order lawfully.
Though there was nothing legally incorrect in the impugned judgments and orders of both of the Divisions of the Supreme Court of Bangladesh, nevertheless, it is easily understandable that justice has been defeated in this whole process...we decide to condone the delay of 11 days and consider the Civil Petition for Leave to Appeal at least for doing complete justice in exercise of its power under Article 104 of the Constitution. The earlier judgment of Appellate Division is reviewed.
16
Government of Bangladesh, represented by the Deputy Commissioner, Chittagong and others
=vs=
Abdul Salam Chowdhury being dead his heirs:1)(a) Fatema Begum and others
The High Court Division as well as this Division inaccurately decided that after the enforcement of the State Acquisition of Tenancy Act, 1950, there established a land lord and tenant relationship between the Government and the plaintiffs. For the establishment of a land lord and tenant nexus linking the Government and the ancestor of the plaintiffs there should exists a lawful affiliation between them prior to the enactment. In our opinion the plaintiffs’ side was not able to set up such a tie.
17
Md. Mortuz Ali Karar (In both the cases)
vs
Khatiza Banu and others (In both the cases)
As in the present case both the recitals and the operative part are clear, but they are inconsistent with each other, hence, the operative part is to be preferred.
18
Md. Mustafizur RahmanMohibur Rab Chowdhury and others
Wherefrom it is apparent that the same property has already been leased out for 99 years to the appellant of this civil appeal. However, the High Court Division in its judgment without passing any order in respect of the above memo directed the concerned authority to dispose of the petition which was filed by the writ petitioner-respondent, rather, passed the impugned order which is glaring instance of misuse of the judicial review. Such judgment, therefore, cannot be upheld by this Division, rather, such direction should be scraped for future safety of the acquired landed property.
19
Terab Ali and others
Vs
Syed Ullah and others
Case laws of any jurisdiction is applicable in our jurisdiction subject to the provisions of Article 111 read with Article 149 of the Constitution of Bangladesh, 1972 only and anything beyond that periphery, specially from Subordinate Judiciary, could be termed as judicial adventurism. Case laws declared by any superior court other than Bangladesh including Pakistan after 25 th March, 1971 (that is after independence of Bangladesh) and that of India after 13 th August, 1947 (that is after partition of Pakistan) are not applicable in our jurisdiction as binding precedents. They may have some sort of persuasive efficacy in our legal arena and can be used to assist or guide Bangladesh Supreme Court in unaling decisions on new facts. Hence, both the Division of the Supreme Court of Bangladesh can discuss and cite foreign case laws in reaching any decision on some points of law applicable in Bangladesh. However, no reliance ipso facto could be placed upon those precedents in any way as was relied upon by the learned Senior Assistant Judge, Sylhet. Moreover, as the Judges of Sub-ordinate Judiciary, as a whole, are not empowered to interpret laws or making a precedent, rather, are bound to apply “existing laws” as it is, it is better for them only to cite or rely on the existing laws and case laws applicable in our jurisdiction and at the same time refrain from relying on foreign case law, not covered under the constitutional scheme framed through Article 111 and Article 149 of the Constitution of Bangladesh as discussed above. Moreover, as per the provisions of the Law Reports Act, 1875 and practices of the Court, using of reference books other than recognized law reports, is not appropriate.
20
The State
-Vs-
Md. Ramizuddin and another
From the judgment and order dated the 5th August,2009 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No.7970 of 2007.
21
Manager, Bhawal Raj Court of Wards Estate Vs Nahar Haider Nannu being dead his legal heirs: Aisha Akhter Parvin and others
22
Probashi Kallyan Bank, represented by its Managing Director, Dhaka
Vs.
Md. Bazlur Rashid and others
Admittedly, the respondents herein as Interne Officers are serving in the Bank for a long period. It also appears that though the respondents initially appointed as an Interne Officers for 03(three) months but the Bank authority retained them after expiry of the Interne period. The petitioners are working as Interne Officers till now. The Bank through its conduct assured the petitioners that they would be regularized/absorbed in the regular setup of the Bank which creates a legitimate expectation that they would be made permanent in the Bank.
23
The State
Vs
Omit Hasan @ Azmir
“…an order of stay takes effect from the moment it is passed and the knowledge of the court or others concerned is immaterial. However, the information of the existence of such a prohibiting order must be communicated in any way to the courts below for the purpose of proceedings to be taken against any person for contempt of the authority of the higher Court. But the operation of the order is not in any way postponed till it has been communicated to the Subordinate Court or the party intended to be affected by it.
The court may receive knowledge either on receipt of an order of stay from the court that passed it or through one party or the other supported by an affidavit or in any other way such as lawyer’s certificate with affidavits. In the case of a stay order, it prohibits courts below from proceeding further, as soon as the court has knowledge of the order it is bound to obey it and if it does not, it not only acts illegally, and all proceedings taken after the knowledge of the order but also all proceedings taken even without knowledge too would be a nullity in toto.
As Officer of the Court it is the foremost duty of the learned Counsel engaged to inform the same in the courts below each and every occasion needed.
Before passing any order it is the duty of the High Court Division by applying its ordinary prudence to enquire from the learned Counsels concerned, whether there pending any prohibitory order from the Apex Court in the matters concerned. As Officer of the Court, the learned Advocates pressing the petition too is duty bound to communicate any such information before the Court and be restrained themselves from lodging or hearing any such petitions.”
“It is a general Rule of custom or usage practiced in the Appellate Division of the Supreme Court of Bangladesh and followed through the years that in any pending petition, if any application filed within stipulated time for extension of order of stay passed by the learned Judge-in-Chamber, be regarded as continuation of the stay order passed earlier. It was recognized in view of the long standing convention and judicial discipline and maintained as good as a legal provision unfailingly by all concerned. The same view was postulated and enshrined through a written Office Order of the Appellate Division of the Supreme Court of Bangladesh bearing Memo No.এফ-১-৪৭/০৫ এসসি(এডি) dated 17-10-2006.” “There is a concept in the arena of customary international law which is known as “opinio juris” (Latin) means “opinion that an act is necessary by rule of law” which requires that the custom or practice be accepted as law or followed from a sense of legal obligation. This element is necessary to establish a legally binding practice or custom. “Opinio juris” denotes a subjective obligation, a sense on behalf of a state that it is bound to the law in question. If any such customs or usages or practices pass the test of “opinio juris” for a reasonable time then it is recognized as a legal provision. The same test and standard too are applied in the laws of the states since immemorial in countless ramifications. Regarding the above mentioned practice or custom it is evident that a sense on behalf of the stakeholders established that they are bound to the law in question. Hence, it could easily be said that it passed the test of “opinio juris” in its arena, as such, attained the strength of law.”
24
Azizul Haque Sarker alias Azizul being dead his heirs, I(a) Koduanu Khatun and others
-vs-
Md. Wazed Ali @ Wazed Ali and others
In the instant case the respondents were not heard by the Additional Deputy Commissioner (Revenue) Sirajgonj before cancellation of registered settlement deeds and there was no prove that by practicing fraud the respondents managed to get the lease deed and they have violated the terms and conditions of the lease deed. Further, the ADC (Revenue) had no authority to cancel the registered settlement deed duly executed by the Deputy Commissioner.
25
Barrister Muhammad Jamiruddin Sircar vs The State and another
 It is unerringly transparent that the appellant had no mens rea in providing approval to the medical bill submitted by the then Chief Whip and as such the appellant cannot be prosecuted.  In compliance with the letter dated 13th March, 2013 under memo No.10.00.0000.128.002.06.2013-355 issued by the Law and Justice Division of the Ministry of Law, Justice and Parliamentary Affairs the Chief Justice of Bangladesh framed Guidelines for Supreme Court Judges for Claiming Medical Expenses Incurred Home and Abroad, 2015 which was adopted in the Full Court Meeting and thus the said guideline has got force of law. All the Judges of the Supreme Court and all other concerned of the State functionaries are bound to follow this guideline in respect of payment of medical expenses incurred at Home and Abroad.  The Speaker being head of the Legislature is also no exception in enjoying approval of the medical expenses abroad vis-à-vis other two heads of organs that is the Executive and Judiciary. To that end we are of the view that the government may consider to delegate the power to the Speaker of approval of reimbursement of the foreign medical expenses for the Speaker, Deputy Speaker, Chief Whip and Whip to the Speaker of the Jatiya Sangsad.
26
The State vs Md. Kabir Biswas
o It depicts explicitly that the High Court Division considered the anticipatory bail of the respondents mechanically, whimsically and capriciously, flouting settled legal propositions. It has come to our notice that some of the benches of the High Court Division are exercising the power of granting anticipatory bail indiscriminately without adherence to law. In doing so the High Court Division travelled beyond its periphery. Such act of the High Court Division is deprecated seriously. Discretion the High Court Division exercised in granting anticipatory bail cannot be termed fair and intending to secure justice. Rather, such orders were capricious causing adverse impact upon the criminal justice system. o It is pertinent to mention here that the latitude given to the High Court Division while exercising the discretionary power of granting anticipatory bail must be guided by the principles laid down by the Appellate Division. But the High Court Division passed the impugned orders overstepping its limits. We have given our anxious consideration to such unwarranted attitude of the High Court Division. Such derogatory trend of the High Court Division shall leave an adverse impression upon the criminal to get an upper hand through the hands of law. In such backdrop, our considered view is that the High Court Division and all other courts are bound to follow the law and propositions enunciated by this Division in the case of State vs. Professor Dr. Morshed Hasan Khan and others (supra). We also direct the High Court Division to refrain from unscrupulous exercise of the power of granting anticipatory bail.
27
Hasina Akhter
The State
Vs
Amena Begum and others
The High Court Division committed serious error in considering the evidence of P.W-1 and medical report in exercising the power under section 561A of the Code of Criminal Procedure at this stage when the prosecution yet not completed to adduce its evidence. The High Court Division has not been empowered to usurp the jurisdiction of the trial Court invoking section 561A of the Code of Criminal Procedure.
28
Bangladesh and others vs Bangladesh Paribesh Andolon (BAPA) and another
The Department of Architecture is concerned with the architectural value of the National Assembly Complex and in the present case the government has not unilaterally and with arbitrary manner taken the decision of construction of the present construction work rather the same is done with the approval of the Department of Architecture and in the way the government complied with the legal requirement, but the High Court Division could not take the matter into consideration, therefore, committed illegality in making the Rule absolute. On examination of Section 3 of the Government Building Act, 1899 it appears that the said construction of residences of the Speaker and the Deputy Speaker being for the public purpose in the government land is exempted from complying with provisions of other municipal laws. Therefore, the Town Improvement Act, 1953 and the Building Construction Act, 1952 have no relevance with the construction of the residences for the Speaker and the Deputy Speaker which are being constructed on Government’s own land after obtaining clearances from the Department of Architecture and on approval of the Prime Minister, the Chief Executive of the Government as per approved plan.
29
Md. Abdul Karim
........Appellant
Vs.
Mohammad Musa Kazem and others
........Respondents
Time and again this Division disproved summary disposal of a writ petition or revisional application under section 115 of the Code of Civil Procedure giving whole relief to the petitioner without issuing Rule and thus giving no opportunity to the other side of being heard.
We strongly disprove and deprecate this sort of decision by the writ-respondents. If the writ- petitioner is not qualified under Rule 6 of the Rules, 1975 his application should be disallowed/rejected for lack of requisite qualification.
30
Syed Jobayer Hossain and others
-Vs-
Judge, Artha Rin Adalat No.1, Dhaka and others
Having discussed and considered as above, we have no hesitation to hold that the Miscellaneous Case under order 21 Rule 100 of the Code of Civil Procedure filed by the appellant of Civil Appeal No.471 of 2017 was not maintainable as the said appellant has stepped into the shoes of the mortgagor/judgment-debtor and he was not in possession on his own account or other than the mortgagor.
31
Gias and others vs. The State
Non-disclosure of the name of the accused in the deposition of eyewitnesses result in acquittal.
32
Ashkar and others
Abul Khayer and others
It is undeniable fact that in the above certified copy of the deed, in the column of executants’ name of Kashem Ali has not been mentioned though his signature has been appeared. Exhibit No.10 is a certified copy of the alleged deed, which is secondary evidence. The defendants have claimed that said deed was forged one as Kashem Ali never executed the said deed. The plaintiff did not take any steps to prove the said secondary evidence by recalling the original ‘balam book’ (volume) from the concerned Registrar’s Office in order to prove the execution of the deed by Kashem Ali and thus, the High Court Division as well as the court of appeal below committed error of law holding that by virtue of said deed the plaintiff’s predecessor had acquired right, title and interest in the suit property, and that in the deed being No.5567 dated 24.06.1970, exhibit-5 executed by Provat Ranjan in favour of the plaintiff the plot Nos. have wrongly been written as 25 and 26 instead of 925 and 926.
33
Abdus Sattar Miah
Vs.
Bangladesh and others
It is admitted fact that the judgment-debtor did not mortgage any property to the bank rather than the present appellant mortgaged his property as a guarantor and thus, no illegality has been committed in putting the auction of the mortgaged property of the present appellant.
34
Md. Nazrul Islam, son of late Abul Hasem Vs. Government of Bangladesh, represented by the Secretary, Ministry of Home Affairs, Dhaka and others.
o The allegation against the appellant was that he did not deposit the money earned from schedule sale to the Government exchequer in due time, but at a belated period for which the appellant sought exoneration and the appellant was not charged with misappropriation of the government money, which usually does not call for major punishment. o As per record it appears that the appellant was appointed in the government service on 09.08.1986 and he has no stigma throughout his twenty four year’s service except the present allegation. Therefore, it is unnatural to impose major penalty i.e. compulsory retirement to the appellant for such minor offence.
35
Government of the People’s Republic of Bangladesh, represented by the Secretary, Local Government Division, Ministry of Local Government, Rural Development and Co-operatives, Bangladesh Secretariat, Dhaka
Vs.
Md. Nurul Islam Khan and others
The High Court Division under Article 102 of the Constitution can pass certain orders and directions as enumerated in the Article but the High Court Division under Article 102 cannot pass any order or direction in a matter of administrative policy of the Government or any policy decision matter. Upgradation of a post described in the Rules, 1992 is a policy decision of the Government. Similarly, promotion is an administrative decision rests upon the higher administrative authority of the concerned department based on requisite qualification and satisfactory service record of the candidates. In view of the above, we hold that justice would be best served if the impugned judgment and order passed by the High Court Division is modified in the following manner: “Therefore, the respondents are directed to amend the Organogram of ‘A’, ’B’ and ‘C’ category Pourashava creating the post of ‘Chief Assessor’ in light of column 4 under the heading ‘Assessment Section’ of the Rules, 1992.” Remaining portion of the direction issued in the impugned judgment and order “upgrade the scale of Assessor and so that they may be promoted as they are qualified Assessors to the post of Chief Assessor preferably within 6(six) month from the date of receipt of this judgment” are expunged.
36
Md. Abdus Daiyan Khan @ Babul
Vs.
Md. Abdur Rouf Bhuiyan being dead his hears:
1(a) Musammat Umma Habiba Begum and others
By now it is settled that when a finding of fact is based on consideration of the materials on record, those findings are immune from interference by the revisional court except there is non-consideration or misreading of the materials evidence on record. It has now been conclusively settled that the third court cannot entertain an appeal upon question as to the soundness of findings of fact by the second court. If there is evidence to be considered, the decision of the second court, however unsatisfactory it might be if examined, must stand final.
37
Sultana Zahid Parvin and others
Vs.
S.M. Fazlul Karim and others
It is settled law that the power of review cannot be confused with appellate power which enables a superior Court to correct all errors committed by a subordinate Court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudication. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases. .....
It is well settled that a party is not entitled to seek a review of a judgment delivered by this Division merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by this Division is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. .....
From Clause 3 of Rule 4 and Clause 1 of Rule 5 of the Rules of 2005 it is evident that the seniority of the employees absorbed in the revenue set up from development project is to be counted from the date of regularization of their service in the revenue set up and this regularization depends on the recommendation of Public Service Commission or departmental promotion or selection committee, as the case may be. This recommendation of Public Service Commission, undisputedly, is not given within any timeframe. In many cases, it takes a long time, sometimes several years, to give its recommendation/opinion for regularization of the employees absorbed in the revenue set up from development project and the delay affects seniority of the employees who were absorbed in the revenue set up from development 17 project to the employees who were directly appointed in the Government service long after absorption in the revenue set up. Thus, this aspect should be addressed by the respondents in order to create equal opportunity for all.
38
Md. Hamiduzzaman
Vs.
Joint District Judge and Artha Rin Adalat, Faridpur and others
Law has given a protection to a purchaser in a execution process. Right, title and interest conferred upon the purchaser for value cannot be called in question. If any illegality or irregularity is found in process of sell, the judgment debtor may claim compensation from the decree holder-Bank.
39
Dr. Miah Md. Mohiuddin and others
Vs.
The State and others
A confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. The act of recording a confession is a very solemn act and section 164 of the Code of Criminal Procedure lays down certain precautionary rules to be followed by the Magistrate recording a confession to ensure the voluntariness of the confession. In such a case, the accused being placed in a situation free from the influence of the Police is expected to speak out the truth being remorseful of what he has committed. A confession can be acted upon if that passes two tests in the assessment of the court. The first test is its voluntariness. If a confessional statement fails to pass the first test, the second test is immaterial. If he does not disclose his complicity in an alleged crime voluntarily, court cannot take into consideration the confessional statement so recorded, no matter how truthful an accused is.
It appears that the confessional statements were recorded in the language of the confessing accused. Articles seized by the Investigating Officer from the body of the victim and the room of the appellant Zahangir situated on the ground floor of the house of the victim pointed out that the confessional statements are true. Moreover, the recovery of the dead body from the backyard of the house as stated in the confessional statements clearly shows that the confessional statements are the narration of a true account of the offence, which took place on 01.02.2006 at about 10 PM inside the victim’s house.
It appears to us that the confessional statements pertaining to assault by knife substantially fit the medical evidence. It is only when the medical evidence totally makes the ocular evidence improbable, then the court starts suspecting the veracity of the evidence and not otherwise. That the mare fact that doctor said that injury No.1 was an “incised looking injury”, not “incised injury”, is too trifling aspect and there is no noticeable variance. The opinion of the doctor cannot be said to be the last word on what he deposes or meant for implicit acceptance.
The Investigating Officer of a case has the power to require the attendance of a person before him who appears to be acquainted with the circumstances of the case. When appellant Zahangir Alam was taken to the police station the facts of the killing of Professor Taher were still unfolding and nobody knew who did what. Appellant Zahangir Alam, being the caretaker of the house of the victim, was the best person to demystify and clear many questions about the occurrence posing inside the mind of the Investigating Officer. He was thought to be a vital person who could shed light on many unsolved questions and could help the prosecution to understand what actually happened there. But when from the circumstances it appeared unmistakably that Zahangir Alam must be one of the perpetrators of the killing of victim Professor Taher, he was then arrested on 04.02.2006 and was produced before the Magistrate on the next day, i.e., within 24 hours of his arrest as required by Article 33 (2) of the Constitution. So, the police did nothing wrong in arresting appellant Zahangir Alam after being sure about his complicity with the offence and producing him before the Magistrate within 24 hours of his arrest and for that reason, the defence objection does not sustain.
40
Secretary, Posts and Telecommunications Division, Ministry of Posts and another Vs Shudangshu Shekhar Bhadra and others
 Administrative tribunal has the exclusive jurisdiction to deal with the matters when a person in the service of the Republic is aggrieved by any order or decision in respect of the terms and conditions of his service including pension rights or by any action taken in relation to him as a person in the service of the Republic. In the present case, the writ-petitioner-respondent No.1 is a person in the service of the Republic as per the provision of section 4(3) of the Administrative Tribunal Act, 1980 and as such the Tribunal has the exclusive jurisdiction to deal with the matter regarding the terms and conditions of the service of the writ petitioner-respondent No.1.  What is the meaning of per incuriam? Per incuriam, literally translated as “through lack of care” is a device within the common law system of judicial precedent. A finding of per incuriam means that a previous Court judgment has failed to pay attention to relevant statutory provision or precedents. The significance of a judgment having been decided per incuriam is that it need not be followed by any equivalent Court. Ordinarily, the rationes of a judgment is binding upon all sub-ordinate Courts in similar cases. However, any Court equivalent to the Court which pronounced the judgment per incuriam is free to depart from a decision of that Court where that earlier judgment was decided per incuriam.  It is the duty of the Court to make it very clear that if any judgment passed by the Court of co-equal jurisdiction has been passed on carelessness, or due to non-consideration of any statutory provision or previous judgment it must rectify the error. In the jurisdiction of UK in many cases it has been observed that per incuriam judgment should not be followed by any equal Court even by the subordinate Court. We are unable to accept this proposition in toto. As per provision of Article 111 of the Constitution the law declared by the Appellate Division is binding upon the High Court Division and all other subordinate Courts and the law declared by the High Court Division is binding upon all the subordinate Courts.
41
Durnity Daman Commission
Md. Ashraful Haque and others
If we meticulously examine the above two provisions i.e., section 19 of the Act,2004 and 20 of Rules, 2007, coupled with rule 8 and 11 of the above Rules, then we have no hesitation to hold that those provisions have been made for the interest and benefit of a person(s) against whom an inquiry or investigation is going on as he is giving opportunity to defend himself in inquiry or investigation stage. Thus, there is no room to say that issuance of such notice by the Commission or its authorized officer is harassing, malafide and prejudiced to the concerned person(s).
42
Agrani Bank Limited
Md. Hanif Sheikh and others
It is true, in the order of punishment besides withholding of one increment it has been mentioned to transfer the respondent. But there is no scope to hold the said order of transfer is a punishment. It is an Administrative order which cannot be challenged and cannot be treated as a punishment.
43
Md. Ismail Hossain Babu
Sonaddi alias Sonaruddi alias Sonardi alias Md. Sonaddi alias Somaruddi
In view of the above proposition we have no hesitation to hold that in this particular case there is no corroborative evidence to lend support of the confessional statement of condemned prisoner-Tariqul in finding the guilt of two other condemned prisoners, namely Md. Ismail Hossain Babu and Sonaruddi.
44
Professor Jahangir Chowdhury and another
Vs.
Rtn. Ruhela Khan Chowdhury, PHF and others
In the matter of dispute relating to clubs, ordinarily civil Court do not interfere and the disputes should be left to be adjudicated upon by the internal mechanism provided by the by-laws/constitution of the clubs. Considering all aspects, we are of the view that in this regard a request can be made to the General Secretary of the Rotary International or someone appointed by the General Secretary for this purpose, to appoint a mediator who is the member of the Rotary International and who has appropriate mediation skills and experience in the arbitration of election dispute. In the event of a request for arbitration, each party shall appoint an arbitrator and the arbitrators shall appoint an umpire. Only a member of a Rotary Club may be appointed as umpire or arbitrator.
45
Government of Bangladesh, represented by the Secretary, Internal Resources Division, Ministry of Finance, Secretariat Building, Ramna, Dhaka and others
Vs
Radiant Pharmaceuticals Ltd., represented by its Managing Director, Masrur Ahmed, son of Late Mohbub Uddin Ahmed, House No. 22, Road No. 2, Dhanmondi, Dhaka
Constitution of Bangladesh, article 128 and Income Tax Ordinance, 1984 section 120 and 163 (3) Whether audit report has any bearing upon the subjective opinion of assessing officer:
The Audit Department has been invested with the authority to inspect the accounts of Revenue Department. The Comptroller and Auditor General is authorized to direct any of his officers to conduct audit of tax receipts or refunds under section 163 (3)(g) of the Income Tax Ordinance. The High Court Division has opined that the CAG has got no jurisdiction to check the merit or demerit of subjective opinions of the assessing officers with regard to allowing or disallowing a particular claim of the concerned assessee. This view of the High Court Division is erroneous inasmuch as if the audit report does not have any bearing in the subjective opinion of the assessing officer, the very purpose of auditing pursuant to article 128 of the constitution is to be frustrated. If no action can be taken against any irregularities detected through auditing of accounts, auditing itself becomes unnecessary. In the instant case, for example, concerned DCT has allowed financial expenses of an amount of Tk. 575,49,249/- as demanded by the assessee which was not supported by annual report etc. and the audit report has detected this irregularity. If this irregularity as detected by the audit report does not trigger any proceeding under section 120 of the Income Tax Ordinance, 1984, the power conferred to the CAG under section 163(3)(g) of the same Ordinance becomes fruitless.
46
Abdul Gaffar being dead his heirs:1(a)Md. Sohel Mia and others
Vs
Md. Abdul Miah and others
No remand Order can however be made to facilitate a party to fill up the lacuna in his case
It is now well settled that the remand orders are not to be made as a matter of course. The Courts is required to properly appreciate the relevance of the evidence on record before making such Order of remand.
47
Delwar Hossain Majhi alais Dulal Majhi and others.
Vs.
Al-haj Mokhlesur Rahman Bepari Son of late Master Tamijuddin Bepari and others.
In a suit for specific performance, it is incumbent upon the plaintiff to prove the existence of a concluded contract between the parties and that the plaintiff is ready and willing at all material dates to perform its part of the contract. The plaintiff has failed to prove the same. From the date of deed of agreement, exhibit-‘A’, and the date of refusal as stipulated in the averments of the plaint it is evident that the suit is barred by limitation under Article 113 of the Limitation Act.
48
Most. Nazma Begum and others
vs
Muksed Ali being dead his heirs:(1)Most Lutfun Nahar and others
It has been settled in the famous case of Srimati Bibhabati Devi Vs. Ramendra Narayan Roy and Others (AIR 1947 PC 19) {Popularly known as Bhawal Raja’s case} citing cases of Umrao Begum V. Irshad Husain (1894) L.R. 21 I.A.163; Kunwar Sanwal Singh V. Rani Satrupa Kunwar (1905) L.R. 33 I.A.53, 54 and Rani Srimati V. Khajendra Narayan Singh (1904) L.R. 31 I.A. 127, 131 Privy Council the then highest Court of appeal opined that if the appellants failed to show any miscarriage of justice, or the violation of any principle of law or procedure, therefore, see no reason for departing from the usual practice of this Board of declining to interfere with two concurrent findings on pure questions of fact.
As the successor of the highest Court this Division still maintains this principle in both civil as well as criminal jurisdiction.
49
Government of the People’s Republic of Bangladesh, represented by the Secretary, Ministry of Planning, Planning Division, Sher-E-Bangla Nagar, Dhaka and another
Vs
Sayed Mahabubul Karim
It is unambiguous from the phraseology of the rule 34 of the Bangladesh Service Rules (BSR) that when continuous absence from work exceeds five years, be the absence with or without leave; the service of a Government servant will come to an end. Yet, the Government and only the Government may make a diverse conclusion upon taking into consideration any special state of affairs.
Consequently, this mechanical ceasing of the service is subject to the ability of the Government to take a different decision in the light of out of the ordinary situation. True that in such situation, theoretically, the Government might make a different conclusion upon taking into consideration any special circumstances.
The Administrative Appellate Tribunal miserably failed to notice that in the instant case there found no application of the said “special circumstances of the case” by the Government. Rather the then Director General applied the said “special circumstances of the case’ concerning the unauthorized leave of absence of the respondent for 07 years and 07 months and 24 days from his work. As the Director General was not empowered to act under rule 34, his alleged application of the said “special circumstances of the case’ was not only without lawful authority but also void ab intio. What is void ab initio, that cannot be validated later in any way.
Doctrine of estoppels, waiver and acquiescence is not applicable against statutory provisions.
50
Md. Anwar Sheikh
vs
The State
Though there is no uncertainty that the appellant has committed a repulsive crime, even so for this we believe that internment for life will serve as sufficient punishment and penitence for his actions. We believe that there is hope for reformation, rehabilitation.
Hence, we are inclined to impose imprisonment for life instead of capital punishment.
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