Home : Supreme Court of Bangladesh

151

Civil Petition /2018
(From the judgment and order dated 09.05.2018 passed by the High Court Division in Writ Petition No.6473 of 2014)

অনুবাদ (Google)
Uploaded on : 27-SEP-22
From : COURT NO. 2

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.

152

Civil Appeal /2008
(From the judgment and order dated 26.07.2006 passed by the High Court Division in First Appeal No.377 of 1998.)

অনুবাদ (Google)
Uploaded on : 27-SEP-22
From : COURT NO. 2

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.

153

Civil Appeal /2018
(CIVIL APPEAL NOs.234-238 OF 2018
From the judgment and order dated 15.11.2018 passed by this Division in Civil Review Petition Nos.338-342 of 2016.)

অনুবাদ (Google)
Uploaded on : 21-SEP-22
From : JUDGE-IN-CHAMBER

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.

154

Civil Appeal /2015
((From the judgment and order dated the 20th January, 2011 passed by a Division Bench of the High Court Division in Writ Petition No.8197 of 2010))

অনুবাদ (Google)
Uploaded on : 15-SEP-22
From : COURT NO. 1

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.

155

Criminal Appeal(A) /2013
(with
Criminal Appeal No.108 of 2013
Criminal Petition Nos.257, 260 of 2022 and 322-323 of 2019
Jail Petition Nos.27-28 of 2014.
From the judgment and order dated 15.04.2013, 16.04.2013, 17.04.2013, 18.04.2013 and 21.04.2013 passed by the High Court Division in Death Reference No.57 of 2008 with Criminal Appeal Nos.3455, 4058 of 2008
Jail Appeal Nos.631-634 of 2008)

অনুবাদ (Google)
Uploaded on : 15-SEP-22
From : COURT NO. 1

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.

156

Civil Petition /2022
(Per incuriam)

অনুবাদ (Google)
Uploaded on : 12-SEP-22
From : COURT NO. 3

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.

157

Civil Review Petition /2020
(CIVIL REVIEW PETITION NO.08 OF 2020 (Arising out of Civil Petition for Leave to Appeal No.971 of 2014) (From the order dated the 24th day of November,2016 passed by a Division Bench of the High Court Division in Civil Petition No.971 of 2014)/)

অনুবাদ (Google)
Uploaded on : 11-SEP-22
From : COURT NO. 1

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).

158

Civil Petition /2022
(CIVIL PETITION FOR LEAVE TO APPEAL NO.1849 of 2022.
From the judgment and order dated 29.05.2022 passed by the High Court Division in Civil Order No.2477 of 2022.
With
CIVIL PETITION FOR LEAVE TO APPEAL NO.1909 of 2022.
From the judgment and order dated 17.11.2021 passed by the High Court Division in Civil Revision No.1146 of 2021.)

অনুবাদ (Google)
Uploaded on : 07-SEP-22
From : JUDGE-IN-CHAMBER

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.

159

Criminal Appeal(A) /2015
(CRIMINAL APPEAL NO.47 OF 2015 WITH CRIMINAL APPEAL NO.15 OF 2015 AND JAIL APPEAL NO.24 OF 2014 (From the judgment and order dated the 13th day of March, 2014 passed by a High Court Division Bench in Death Reference No.74 of 2008 heard along with Criminal Appeal No.5357 of 2008, Criminal Appeal No.5865 of 2008 and Jail Appeal Nos.821-823 of 2008))

অনুবাদ (Google)
Uploaded on : 07-SEP-22
From : COURT NO. 1

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.

160

Civil Petition /2018
(CIVIL PETITION FOR LEAVE TO APPAL NO.2465 OF 2018 (From the judgment and order dated the 14th day of November,2017 passed by the Administrative Appellate Tribunal, Dhaka in Administrative Appellate Tribunal Case No.09 of 2016))

অনুবাদ (Google)
Uploaded on : 07-SEP-22
From : COURT NO. 1

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.

161

Civil Appeal /2014
(From the judgment and order dated 18.01.2011 passed by the Administrative Appellate Tribunal in A.A.T. Appeal No. 83 of 2009)

অনুবাদ (Google)
Uploaded on : 01-SEP-22
From : JUDGE-IN-CHAMBER

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.

162

Criminal Petition /2022
(From the order dated 25.01.2022 passed by the High Court Division in Criminal Appeal No.9295 of 2021)

অনুবাদ (Google)
Uploaded on : 01-SEP-22
From : JUDGE-IN-CHAMBER

Durnity Daman Commission
Vs
Dr. Khandaker Mosharraf Hossain and another

From the careful reading of the provision of section 540 of the Code it is apparent that the provision of section can apply only to examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.
As per section 8 of the Criminal Law Amendment Act, 1958 (Act No. XL OF 1958) there is a statutory Bar on trial de novo. A Special Judge, unless he otherwise decides, shall not be bound to recall or rehear any witness, whose evidence has already been recorded, or to re-open proceedings already held, but may act on the evidence already produced or recorded and continue the trial from the stage which the case has reached.

163

Civil Appeal /2008
(From the judgment and order dated 06.07.2006 passed by the High Court Division in Civil Revision No.1113 of 2003)

অনুবাদ (Google)
Uploaded on : 01-SEP-22
From : JUDGE-IN-CHAMBER

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.

164

Civil Appeal /2008
(From the judgment and order dated 10th July, 2006 passed by the High Court Division in Civil Revision No.738 of 2003)

অনুবাদ (Google)
Uploaded on : 01-SEP-22
From : JUDGE-IN-CHAMBER

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.

165

Criminal Appeal(A) /2013
(From the judgment and order dated 21.04.2013 passed by the High Court Division in Death Reference No.10 of 2008 with Criminal Appeal No.915 of 2008 and Jail Appeal No.175 of 2008)

অনুবাদ (Google)
Uploaded on : 01-SEP-22
From : JUDGE-IN-CHAMBER

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.

166

Civil Petition /2020
(From the judgment and order dated 28.08.2019 passed by the High Court Division in Writ Petition No.14303 of 2018)

অনুবাদ (Google)
Uploaded on : 01-SEP-22
From : JUDGE-IN-CHAMBER

National Board of Revenue represented by its Chairman and others
vs
BSRM Steels Limited, represented by it’s Managing Director

Subordinate legislation must not be directly or indirectly in conflict with the provisions of the enabling law.
In addition, it is a revenue generating issue of the state. Public and higher State interest cannot be defeated for the sake of misleading subordinate legislation and procedural glitches. If these are the situations, as the highest court of the land, we opine that the Appellate Division should invoke its mandate under article 104 of the Constitution of Bangladesh for doing complete justice for the national interest.

167

Civil Appeal /2019
(From the judgment and order dated 10.08.2016 passed by the High Court Division in Civil Revision No.624 of 2004)

অনুবাদ (Google)
Uploaded on : 01-SEP-22
From : JUDGE-IN-CHAMBER

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.

168

Civil Petition /2020
(CIVIL PETITION FOR LEAVE TO APPEAL NO.2365 of 2020
From the judgment and order dated 10.03.2016 passed by the High Court Division in Writ Petition No.5151 of 2015)

অনুবাদ (Google)
Uploaded on : 01-SEP-22
From : JUDGE-IN-CHAMBER

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.

169

Civil Petition /2017
(With Civil Petition 3924/2017
Civil Petition 3927/2017
Civil Petition 3928/2017
From the judgment and order dated 29.03.2017 passed by the High Court Division in Writ Petition Nos.9988 of 2015, 9987 of 2015, 6628 of 2016)

অনুবাদ (Google)
Uploaded on : 30-AUG-22
From : COURT NO. 1

Md. Rabiul Karim and others
Vs.
Golam Morshed Khan and others

It appears from words used in the order of the High Court Division that the Administrative Tribunal by its decision directed the concerned authority to take steps by amending respective 11 “Bidhimala” for giving promotion of the writ petitioners in the post of Kanungo/ Sub- Assistant Settlement Officer. In fact, by the impugned order, the Administrative Tribunal directed to amend the law in giving positive relief of the writ petitioners which cannot be allowed. The Administrative Tribunal cannot direct the Government to amend the law as well as it cannot direct the Government to give promotion of the writ petitioners in the post of Kanungo/ Sub- Assistant Settlement Officer because the promotion is not a right.

170

Civil Appeal /2014
(Civil Appeal 20/2014
From the judgment and order dated 19.08.2010 passed by the High Court Division in Civil Revision No.185 of 2010)

অনুবাদ (Google)
Uploaded on : 30-AUG-22
From : COURT NO. 1

Sonali Bank Limited
Vs
Mosammat Salma Begum and others

This Court earlier refused to entertain such prayer of the respondent No.1 treating her prayer as an application under section 32 of the Ain. Now, she 6 has adopted the instant procedure claiming her prayer as an application under Order XXI Rule 58 of the Code of Civil Procedure. Under the aforesaid provision, an application has to be filed where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court, shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant objector, and in all respects, as if he was a party to the suit. Rule 59 provides that claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in or was possessed of, the property attached. The aforesaid provisions contemplated an inquiry into questions including questions relating to right, title or interest in the property attached. It seems to us, having regard to the relevant provisions, that the stage at which a claim is to be preferred under Order XXI Rule 58 is intended to be a stage before the sale has actually been held and the attachment is pending. It is open to the Court under sub-rule(2), Rule 58 to postpone the sale pending investigation of the claim. In 7 the instant case auction has already been held at the instance of the bank itself after getting certificate under section 33(5) of the Ain. The High Court Division acted in excess of its authority in allowing claim petition preferred under Order XXI Rule 58 of the Code of Civil Procedure after the property attached was sold.

171

Civil Appeal /2006
(Civil Appeal 129/2006)

অনুবাদ (Google)
Uploaded on : 30-AUG-22
From : COURT NO. 1

Deputy Commissioner, Railway Land and Buildings, Bangladesh Railway, Dhaka -Vs- Abdul Huq, Proprietor, Haq`s Bay and another

If we consider the above notification coupled with the provision of section 5 of Ordinance No.24 of 1970 then we have no hesitation to hold that the Divisional Estate Officer of Bangladesh Railway has been empowered by the Government to perform the function of the Deputy Commissioner under the said Ordinance.

172

Criminal Appeal(A) /2013
(From the judgment and order dated 13.05.2008 and 14.05.2008 passed by the High Court Division in Death Reference No.172 of 2004 with Criminal Appeal No. 61 of 2005)

অনুবাদ (Google)
Uploaded on : 29-AUG-22
From : COURT NO. 1

Md. Anowar Hossain
Vs
The State

From the testimonies of the PWs. 3, 5, 6, 9 and 13 it appears that they are the eye witnesses of the occurrence. All of them stated that the appellant Anwar Hossain inflicted ‘ramda’ blow targeting the head of the victim Monira which had caused severe cut injury on the right jaw of the victim. She died in the spot. We do not find any earthly reason to disbelieve the testimonies of P.Ws.3, 5, 6, 9 and 13 who are natural witnesses of the occurrence. Of them, P.W.3 Shamsunnahar is an injured witness, who in her testimony stated that accused person at first assaulted her and thereafter killed the victim Monira. Learned Advocate for the appellant submits that there are contradictions and discrepancies in the evidence of prosecution witness but we do not find any contradiction in the evidence adduced by the prosecution in which witnesses testified that victim Monira was assaulted by the appellant Anowar Hossain and his ‘ramda’ blow caused fatal injury in the right jaw of the victim leading to her instantaneous death. It is true that PW-3, 5 and 6 are siblings of the deceased victim Monira and PW-13 is her grandmother. They are close relatives of each other. But at the same 11 time, they are the most natural witnesses of the occurrence as the place of occurrence was only about 150 yards away from their homestead as per charge sheet. Mere close relationship among the victims and witnesses cannot render the testimonies of them untrustworthy when it appears that they are the most natural witnesses and their testimonies are supported by the medical evidence.

173

Criminal Appeal(A) /2013
(With
Criminal Appeal Nos.69 of 2013
Criminal Appeal Nos.70 of 2013
Criminal Appeal No.64 of 2013
From the judgment and order dated 21.01.2013, 22.01.2013, 23.01.2013 passed by the High Court Division in Death Reference No. 25 of 2007 with Criminal Appeal No. 2529 of 2007, Criminal Appeal No. 4263 of 2007, Criminal Appeal No. 2018 of 2007, Criminal Appeal No. 1913 of 2007, Criminal Appeal No. 2244 of 2011 and Jail Appeal Nos. 274-275 of 2007)

অনুবাদ (Google)
Uploaded on : 29-AUG-22
From : COURT NO. 1

Mujib Ali
Lachu Miah alias Kamal Ahmed
Abdul Bari
Vs.
The State

Conviction can be recorded on the basis of the statement of a single eyewitness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is convinced that he is a truthful witness. Where there are no such exceptional reasons operating it becomes the duty of the court to convict, if it is satisfied that testimony of a single witness is entirely reliable.

174

Criminal Appeal(A) /2012
(From the judgment and order dated 08.07.2012 passed by the High Court Division in Death Reference No.21 of 2008 with Criminal Appeal Nos.1294, 1297 and 1309 of 2008 with Jail Appeal Nos.288, 290 and 289 of 2008.)

অনুবাদ (Google)
Uploaded on : 29-AUG-22
From : COURT NO. 1

Md. Mizanur Rahman Mizan
-Vs-
The State

1. CRIMINAL APPEAL NO.77 OF 2012. (From the judgment and order dated 08.07.2012 passed by the High Court Division in Death Reference No.21 of 2008 with Criminal Appeal Nos.1294, 1297 and 1309 of 2008 with Jail Appeal Nos.288, 290 and 289 of 2008.) Md. Mizanur Rahman Mizan Vs. The State It is settled principle that before recording confession caution must be administered to the person who is going to confess. It is the duty of the Magistrate to ascertain whether the same is to be made voluntarily and uninfluenced from any external factor. It is also required to explain to the accused that he was not bound to make a confession and if he does so, it might be used against him. The Magistrate must satisfy himself that no pressure or force was used on the accused who makes the confession. From the confessional statement of the appellant and evidence adduced by the recording Magistrate P.W.19 we are of the view that the confession of the appellant was voluntarily made and the same was not a result of any duress or coercion by Police and the same was recorded after due warning and giving sufficient time for reflection. The Magistrate recorded a memorandum from which it transpired that the confession was made voluntarily. We do not find any material on record relying upon which it can be said that those were not voluntarily made and from facts, circumstances and other evidence on record it appears to us that the contents of the same were true.

175

Civil Review Petition /2018
(with
Civil Review Petition 184/2018
Civil Petition 949/2019
Civil Petition 1997/2018)

অনুবাদ (Google)
Uploaded on : 29-AUG-22
From : COURT NO. 1

Deputy Commissioner, Brahmanbaria and others
Vs.
Chand Miah, being dead his heirs (a) Most. Hosne Ara Begum and others

From the order-sheet of Title Suit No.59 of 1994, it appears that there is no endorsement in the same that notice upon the pro-forma defendant No.6, Deputy Commissioner, Brahmonbaria was duly served. It further appears from the Order No.17 dated 29.11.1995 that there was an endorsement that defendant Nos.4 and 6 had filed hajira. Both the trial Court and First Revisional Court upon appreciation of the materials on record held that notice upon the Government was not at all served and that the plaintiff obtained ex-parte decree by practising fraud upon the Court. Since the service of notice upon the defendant No.6 has not been proved and court of facts upon appreciation of the materials on record held so, we are of the view that the High Court Division is in second revision erroneously disturbed the findings of facts. A decree obtained by practising fraud is non-existent and cannot be allowed to stand.

176

Criminal Appeal(A) /2015
(WITH JAIL PETITION NO.08 OF 2015
From the judgment and order dated 14.09.2014, 15.09.2014 and 16.09.2014 passed by the High Court Division in Death Reference No.57 of 2009, Criminal Appeal No.6013 of 2009 and Jail Appeal No.566 of 2009.)

অনুবাদ (Google)
Uploaded on : 29-AUG-22
From : COURT NO. 1

Md. Akbar Ali alias Jelhaque Mondal
Vs
The State and another

Usually in the matter of this nature, testimony of the injured is sufficient to prove the case of the prosecution. An injured witness would not allow the real culprit to escape from rigors of law and falsely implicate her innocent husband. Evidence of injured witness has evidentiary value and unless compelling reasons exist, his/her evidence is not to be discarded 8 lightly. Section 134 of the Evidence Act has categorically laid it down that “no particular number of witnesses shall in any case be required for the proof of any fact.” Testimony of a solitary witness can be made the basis of conviction. So long as the single eye-witness is a wholly reliable witness the Courts have no difficulty in basing conviction on his/her testimony alone. The credibility of the witness requires to be tested with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the Court as natural, wholly truthful and so convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony.

177

Criminal Appeal(A) /2012
(With
Criminal Appeal Nos. 60-63 of 2012
Criminal Appeal Nos. 55, 57-59 of 2012
Jail Petition No.29 of 2013.
From the judgment and order dated 19.10.2008 and 20.10.2008 passed by the High Court Division in Death Reference No.176 of 2004 with Criminal Appeal Nos.19 of 2005, 4752 of 2004, 4773 of 2004, 112 of 2005, 141 of 2005, 378 of 2005 and Jail Appeal Nos.294 of 2006, 1338 of 2004.)

অনুবাদ (Google)
Uploaded on : 29-AUG-22
From : COURT NO. 1

The State and others
Vs.
Md. Jamal @ Karati Jamal and others

While sitting in judgment over the acquittal it is required to seek an answer to the question whether the findings are palpably wrong, manifestly erroneous or demonstrably unsustainable. An order of acquittal can be set aside if the Appellate Court is satisfied that reasons in support of acquittal recorded are perverse, non existent, extraneous and order of acquittal palpably wrong or ill founded or demonstrably unsustainable. If the answers are found to be negative the order of acquittal is not to be disturbed. Conversely, if it is found that the order of acquittal cannot at all be sustained in view of the infirmities, the appraisal of the evidence is called for. The paramount consideration of the Court is to ensure that miscarriage of justice is to be prevented. It is the duty of the Court to scrutinize probative material by the weighty thought before upsetting order of acquittal. Generally, the order of acquittal shall not be interfered with because the presumption of 16 innocence of the accused is further strengthened by acquittal.

178

Criminal Appeal(A) /2014
(with Criminal Appeal(A) 113/2014
CRIMINAL PETITION FOR LEAVE TO APPEAL NO.924 OF 2021
JAIL PETITION NO.20 OF 2014.
From the judgment and order dated 04.05.2014 passed by the High Court Division in Death Reference No.125 of 2008 with Criminal Appeal No.8229 of 2008 with J.A.Nos.1126, 1127 and 1128 of 2008.)

অনুবাদ (Google)
Uploaded on : 29-AUG-22
From : COURT NO. 1

Md. Raju, Son of Md. Abdur Rouf
Vs
The State and others

From the evidence as stated above, it appears that P.W.1 Most. Rukshana Bewa, P.W.2 Most. Razia Begum, injured witness P.W.3 Arfan, P.W.4 Md. Anwar Hossain, P.W.5 Md. Jamal Uddin, P.W.6 Md. Labu Hossain @ Ziauddin, P.W.7 Md. Moinul Huq, P.W.8 Md. Sonahar and P.W.9 Munsur Ali consistently, in their testimonies, stated that the appellant Younus at first inflicted dagger blow to victim Sujan and, thereafter, to victim Alamgir. Friend Raju inflicted dagger blow to victim Nur Nabi. We do not find any material contradictions and discrepancies in the testimonies of those eye witnesses of the occurrence. Post-mortem reports show that the victims died receiving the stated dagger and ‘shabol’ blows. A critical examination of the evidence of the P.Ws.1,2,3,4,5,6,7,8 and 9 shows that their presence at the time of incident cannot be doubted. The evidence of these eye witnesses has been broadly corroborated by the medical evidence in respect of the deceaseds as well as the injuries sustained by them. The learned Advocates for the appellants failed to satisfy us showing any material contradictions and discrepancies of the testimonies of those eye witnesses. The eye witnesses in their testimonies stated that the accused persons were previously known to them and they inflicted dagger blows mercilessly towards the victims one after another. It further appears that appellant Md. Younus @ Yousuf ordered friend Raju to kill Nur Nabi @ Nabin so that he could not give evidence against them. Pursuant to that order, friend Raju dealt dagger blow on the person of victim Nur Nabi @ Nabin. Consequently, he died on 06.02.2004. Learned Advocate for the petitioner brother Raju has submitted that there is no specific allegation against brother Raju that he had committed any murder or he had any active participation in the offence, therefore, the learned Courts below ought to have acquitted petitioner brother Raju. But scanning the evidence we find that PW-1 stated in her testimony that brother Raju had a dagger in his hand and he had given it to friend Raju who handed over that dagger to Younus and Younus inflicted fatal blows with that dagger to deceased Sujan and Alamgir. This statement was supported by PW-4. Again, PW-6, 8 and 9 stated that brother Raju had a dagger in his hand. Besides, PW-1 stated in her examination-in-chief that brother Raju had dealt a shabol blow to her husband victim Alamgir. In view of the evidence recorded above, we do not find any illegality or irregularity in the conclusion arrived at by the trial Court as well as the High Court Division.

179

Criminal Appeal(A) /2014
(With
Criminal Appeal No.108 of 2014
J.P.No.07 of 2018
Jail Appeal No.3(a) of 2018
Criminal Petition for Leave to Appeal No.424 of 2014.

From the judgment and order dated 18.02.2014 passed by the High Court Division in Death Reference No.79 of 2008 with Criminal Appeal No.5610 of 2008, 5837 of 2008 and 4164 0f 2009 with J.A.Nos.788-790 of 2008.)

অনুবাদ (Google)
Uploaded on : 29-AUG-22
From : COURT NO. 1

Md. Dawlat Fakir and others
Vs.
The State

P.Ws.3,4,5,6,10 and 14. They are the most natural witnesses to whom dying declaration was made by the victim. The doctor, who held autopsy of the deadbody of the victim in his crossexamination has said, “উল্লিখিত জখমের পর রুগী কথা বলিতে পারে।” Such evidence makes the dying declaration credible and the conviction based on the same cannot be faulted. Once the Court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as rule requiring corroboration is not a rule of law but only a rule of prudence.......
On perusal of Section 30 of the Evidence Act it appears that where confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. The provision of Section 30 is not conclusive for the reason that only if the Court feels the confession is corroborated with other materials on record, then that can be used against the co-accused and in that situation section 30 of the Evidence Act will come into play. The word ‘may’ in this section is very important to interpret the presence of this term indicates that such a confession can not be said to be ‘evidence’ in its technical sense and thus can only support a conviction. The confession of 15 the co-accused is not the substantive piece of evidence and that it can only be used to confirm the conclusion drawn from other evidence in a criminal trial.

180

Criminal Appeal(A) /2012
(Criminal Appeal(A) 29, 19 and 37/2012,
From the judgment and order dated 29.02.2012 passed by the High Court Division in Death Reference No.38 of 2006 with Criminal Appeal Nos.1772 of 2006, 1775 of 2006 and 1812 of 2006 and Jail Appeal Nos.359, 360 and 361 of 2006)

অনুবাদ (Google)
Uploaded on : 29-AUG-22
From : COURT NO. 1

Nur Alam Howlader alias Pachu alias Sumon alias Nurul Alam and others
-Vs-
The State

A real and abiding concern for the dignity of human life is required to be kept in mind by the courts while considering the confirmation of the sentence of death but a coldblooded and pre-planned brutal murder without any provocation, after committing rape on an innocent and defenceless young girl of 18 years certainly makes this case a rarest of rare cases which calls for no punishment other than capital punishment. Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The Courts must not only keep in the view 21 the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment. ....... In the instant case the appellants committed rape upon a defenseless innocent college student and brutally murdered her in her way to college. The atrocity committed by them as evident from their confessional statements is extremely shocking and that reflects such mental depravity of the appellants that they deserve no other punishment than death in order to meet the society’s cry for justice.

181

Civil Review Petition /2019
(With
Civil Review Petition 07 of 2020
Civil Review Petition 30 of 2020
Civil Review Petition 42 of 2020
Civil Review Petition 62 of 2020)

অনুবাদ (Google)
Uploaded on : 29-AUG-22
From : COURT NO. 1

Government of Bangladesh represented by the Senior Secretary, Ministry of Public Administration, Secretariat Building, Ramna, Dhaka and others
Vs
Md. Saiful Islam and others

Work-charged employees have not only been deprived of their due emoluments during the period they served on less salary but have also been deprived from the pensionary benefits as if services had not been rendered by them though the Government has been benefitted by the services rendered by them. The concept of work-charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. The concept of equality as envisaged in the constitution is a positive concept which cannot be enforced in a negative manner. Therefore, the service rendered by work-charged employees for a considerable period, like 20 years or more, may be considered to be permanent employees and they may be qualified for grant of pensionary benefit, inasmuch as, pension is not a charity, rather, it is the deferred portion of compensation for past service...........
After receiving continuous service for 20 years from a work-charged employee without break, if he is left in uncertainty over his future, that is wholly denying socio-economic justice and completely contrary to Fundamental Principles of State Policy as enumerated in part II of our Constitution. The Government should formulate a policy instrument for giving pensionary and other benefits to the work-charged employees who have served without break for a considerable period of time i.e for 20 years or more. All the authorities should take immediate appropriate action in that behalf.

182

Civil Appeal /2012
(From the judgment and decree dated 01.08.2010 passed by the High Court Division in Civil Revision No.3082 of 2008)

অনুবাদ (Google)
Uploaded on : 28-AUG-22
From : COURT NO. 1

Ahmed Ali Noor and others
Vs
Nigar Hossain and others

The uniform view of this court is that if section 9 of the Specific Relief Act is utilised the plaintiff need not prove title and title of the defendant does not avail him. Section 9 gives a speedy remedy to a person who has without his consent been dispossessed of immovable property, otherwise, in due course of law, for recovery of possession without establishing title provided that his suit is brought within six months of the date of dispossession. A proceeding under section 9 is intended to be a summary proceeding the object of which is to afford an immediate remedy to an aggrieved party to reclaim possession of which he may have been unjustly denied by an illegal act of dispossession. In our jurisprudence governed by rule of law even an unautahorised occupant can be ejected only in the manner provided by law. The object is to check the tendency of recovery of possession of property by taking law in hand. Even a trespasser in settled possession cannot be dispossessed without recourse to law.

183

Criminal Petition /2017
(From the judgment and order dated 12.04.2017 passed by the High Court Division in Criminal Miscellaneous Case No.4397 of 2008)

অনুবাদ (Google)
Uploaded on : 24-AUG-22
From : COURT NO. 1

Dr. Zubaida Rahman, wife of Mr. Tarique Rahman
Vs.
The State and another

It appears that the High Court Division discharged the Rule on the findings that: (i) no cognizance had yet been taken against the petitioner as per section 4(1) of the Criminal Law Amendment Act, 1958 (ii) the allegations brought against are not preposterous rather there are specific allegations in the FIR and the charge sheet and truthfulness thereof can only be determined by taking evidence in the trial and (iii) investigation report (charge sheet) having already been submitted recommending prosecution of the petitioner and the matter is at the stage of taking cognizance, it would not be just to interfere with the proceedings by exercising power vested in section 561A at this stage. We are in conformity with the reasonings of the High Court Division in discharging the Rule. But we failed to understand that how a Division Bench of the High Court Division entertained the application under section 561A of the Code of Criminal Procedure by issuing Rule and granting order of stay at the stage when even cognizance was not taken against the petitioner and the petitioner did not surrender before the competent court of law. From paragraph no.6 of the application under section 561A of the Code of Criminal Procedure the petitioner stated that ‘on 31.03.2008 vide a memo being no.4563 dated 27.03.2008 of the Head Office of the Anti-Corruption Commission a charge sheet was submitted under section 109 of the Penal code against the petitioner.’ It is further stated that ‘the learned Additional Chief Metropolitan Magistrate kept the matter for further order on 07.04.2008 as is evident from the order dated 05.03.2008.’ From the above it is obvious that no cognizance of the offence against the petitioner was taken. It may be mentioned here that the Additional Chief Metropolitan Magistrate is not competent to take cognizance of an offence under section 109 of the Penal Code which is exclusive jurisdiction of a Special Judge under section 4(1) of the Criminal Law Amendment Act, 1958. Before the case records alongwith charge sheet could be forwarded to the Special Judge, the petitioner moved the High Court Division under section 561A of the Code of Criminal Procedure and Rule was issued staying proceedings of the case. The High Court Division interfered in this case purporting to exercise its inherent power under section 561A of the Code of Criminal Procedure at the stage when only charge sheet was submitted by the Dudak, and from the records it does not appear nor is it the case of the petitioner that the case records has been sent to the Special Judge or cognizance of the offence has been taken against the petitioner. It is settled Principal of law that initiation of a criminal proceedings starts after taking cognizance of offence. Submission of charge sheet cannot be treated as finality of investigation until cognizance of the offence is taken by the appropriate court...... Furthermore, the Rule issuing Bench of the High Court Division overstepped in its jurisdiction in not considering that the petitioner filed the application under section 561A of the Code of Criminal Procedure without surrendering to the jurisdiction of the appropriate court and thus illegally entertained the application under section 561A and stayed further proceedings of the case. It is well settled that when a person seeks remedy from a court of law either in writ jurisdiction or criminal appellate, revisional or miscellaneous jurisdiction under section 561A of the Code of Criminal Procedure, he/she ought to submit to due process of justice. The Court would not Act in aid of an accused person who is a fugitive from law and justice.

184

Civil Appeal /2008
(From the judgment and order dated 07.04.1997 passed by the High Court Division in Writ Petition No.784 of 1991)

অনুবাদ (Google)
Uploaded on : 24-AUG-22
From : COURT NO. 1

Chariman, Court of Settlement and another
Vs.
Moulavi Syed Karim

Admittedly neither in the Court of Settlement nor in the High Court Division the present appellants filed any written statement or affidavit-in-opposition, not even a scrap of paper in support of their contention. Leave was granted on 09.07.2008 and consequently instant Civil Appeal arose. The appellants by swearing affidavit filed additional paper book on 27.08.2020 annexing some papers and documents such as notice issued by the Ministry of Works dated 29.12.1985, application of Salma Khatun filed before the Court of 3rd Sub-Judge, Dhaka, praying for succession certificate and copy of succession certificate issued to her dated 17.06.1981 and 17.08.1981 respectively, applications filed by the present respondent before the Court of Settlement dated 09.08.1986 and 20.01.1987. None of these documents were before the Court of Settlement or the High Court Division. The appellants by filing these documents on 27.08.2020 before this Division now trying to take an attempt for introducing ‘de novo trial’ on the issues raised for the first time without any pleadings in their concise statement. This civil appeal has been filed under Article 103 of the Constitution. No doubt there are some limitations under Article 103 unlike Article 104 of the Constitution. Both are dissimilar or different from each other. The distinction between the two Articles must be maintained. Under Article 103 we cannot turn this Division into a trial court for some extraneous plea in appeal on a matter of certiorari. When the documents were not produced either in the trial court or in the High Court Division the principle of estoppel will preclude the appellant from asserting something contrary to what is implied by a previous judicial statement or actions.

185

Civil Appeal /2020
(From the judgment and order dated 09.12.2019 passed by the High Court Division in Writ Petition No.10506 of 2019)

অনুবাদ (Google)
Uploaded on : 24-AUG-22
From : COURT NO. 1

The Secretary, Bangladesh Bar Council, Dhaka
Vs.
Maksuda Parvin and others

It seems that the petitioners filed the writ petition on behest of the Prime University to regularize the wrong done by the university. In other words it is a test case by the Prime University to cover their wrong done and legalize other more than 1300 law students who completed LL.B (pass) course from the said University in violation of the undertaking by the university. This cannot be allowed.

186

Civil Petition /2017
(From the judgment and order dated 28.07.2016 passed by the High Court Division in Writ Petition No.5452 of 2015)

অনুবাদ (Google)
Uploaded on : 24-AUG-22
From : COURT NO. 1

Md. Montaj Uddin
Vs.
Ministry of Public Administration and others

The high handedness of the respondent nos.6 and 7 is reflected from the investigation report submitted by the Chief Judicial Magistrate as well as High Powered Committee formed by the Ministry of Education. The High Powered Committee submitted its report on 04.05.2015 and the High Court Division passed the impugned judgment and order with the observation on 28.07.2016. Thereafter, almost 6 years have been elapsed but no action has been taken as per recommendation of the High Powered Committee as well as observation of the High Court Division. It appears that the inquiry held by the High Powered Committee by the Ministry of Education found prima-facie truthfulness of the allegation. We are of the view that the Government may proceed on the basis of that investigation report without further delay. Accordingly the civil petition for leave to appeal is disposed of with the above observation.

187

Civil Review Petition /2019
(CIVIL REVIEW PETITION NOs. 277-282 of 2019
From the judgment and order dated 15.04.2019 passed by this Division in Civil Petition for Leave to Appeal Nos.3696, 3694, 3700, 3703, 3698 and 3692 of 2018)

অনুবাদ (Google)
Uploaded on : 24-AUG-22
From : COURT NO. 1

Md. Gaisuddin Bhuiyan and others
Vs.
The Secretary, Security Services Division, Ministry of Home Affairs, Bangladesh Secretariat, Dhaka and others.

By now it is settled that though the appointing authority has right to amend/alter the Service Rules to suit the need of time but not to the detriment to the rights or privileges that existed at the relevant time when an employee of such appointing authority entered into its service.

188

Civil Petition /2021
(From the judgment and order dated 01.06.2017 passed by the High Court Division in Writ Petition No.822 of 2015)

অনুবাদ (Google)
Uploaded on : 24-AUG-22
From : COURT NO. 1

The Government of the People’s Republic of Bangladesh, represented by the Secretary, Ministry of Finance, Internal Resources Division, Segunbagicha, Ramna, Dhaka and others.
Vs
Moazzam Hossain, Proprietor of M/s. Abdullah Traders, 12, Madan Pal Lane, Nawabpur Road, Dhaka.

Customs Act, Section 83A: By now it is settled by the pronouncement of the apex court that a show cause notice is required to be served upon the notice receiver. Accordingly section 83A(2) provides that if the demand has the effect of imposing a fresh liability or enhancing an existing liability, a demand notice in writing shall be given by the officer of Customs to the person liable for the payment of additional duty and section 83A(3) mandates that unless otherwise specified in this Act, the due date for payment against the aforesaid demand notice shall be 30(thirty) working days from the date of issuance of such a demand notice by the officer of Customs.....It is apparent that though the petitioner was afforded an opportunity to reply and hearing but the petitioner without availing the opportunity invoke the writ jurisdiction impugning the demand notice. The High Court Division without considering paragraph-4 of the demand notice erroneously declared issuance of demand notice without lawful authority and made the Rule absolute referring section 32(3) of the Customs Act. Section 32 relates to untrue statement, error, etc. .......It appears that the High Court Division made the Rule absolute by taking an erroneous view without interpreting section 83A of the Customs Act in its true perspective. Accordingly, the civil petition for leave to appeal is disposed of with the above observation. Impugned judgment and order dated 01.06.2017 passed by the High Court Division in Writ Petition No.822 of 2015 is set aside.

189

Criminal Appeal(A) /2014
(CRIMINAL APPEAL NO. 58 of 2014)

অনুবাদ (Google)
Uploaded on : 23-AUG-22
From : COURT NO. 1

Ariful Islam Shimul
Vs.
The State.

On perusal of the deposition of the witnesses it is found that there are minor discrepancies in the statement of the witnesses but those minor discrepancies do not affect the core of the prosecution case and cannot be the ground to disbelieve the evidence adduced by the prosecution.
The submissions of the learned Advocate that the prosecution failed to prove its case because of inability to bring independent witnesses do not merit consideration. Submission of the learned Advocate for the appellant regarding delay of 1(one) year in recording the statements of witness no.5 by the investigating officer cannot be a ground to discard the evidence. In the instant case as many as 3(three) different Police Officers investigated the case for cogent reason and it is apparent that the change of investigating officers contributed to the delay in examining the witness. Under such circumstances, any delay in examining the witness under section 161 of the Cr.P.C. will not prejudice the prosecution case.

190

Civil Petition /2018
(CIVIL PETITION FOR LEAVE TO APPEAL NO.2310 of 2018.)

অনুবাদ (Google)
Uploaded on : 23-AUG-22
From : COURT NO. 1

The Government of the People’s Republic of Bangladesh, represented by the Secretary, Ministry of Land, Bangladesh Secretariat, Ramna, Dhaka
Vs.
Md. Abdul Hye and others

Observations made by the High Court Division, in our opinion, are not warranted in the context of the issue before court. The High Court Division ought to have kept in mind that it was the legislative decision of the State which was the subject matter of dispute before it, while the High Court Division undoubtedly has the jurisdiction to determine the constitutionality of the ‘law’, the motives behind the law and the wisdom of the legislative body are not amenable to the judicial review.
The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted. However, ordinarily the court will not exercise the power of the statutory authorities. It will at the first instance allow the statutory authorities to perform their own functions and would not usher the said jurisdiction itself.
Our considered view is that a writ of mandamus cannot be issued to the legislature to enact a particular legislation. Same is true as regards the executive when it exercises the power to make Rules, which are in the nature of sub-ordinate legislation. There is no statutory compulsion, on the part of the Government to enact a law in respect of properties which are vested to the Government and where institution have already been developed to be named after the name of the original owner.
It appears that the Government enacted a law, Act of 2001 (Amended in 2013), to dealt with the vested properties fairly and reasonably in accordance with the law. As such, there is no necessity to issue directions upon the Government regarding the vested properties.

191

Civil Petition /2022
((From the judgment and order dated 05th day of April, 2018 passed by the High Court Division in Writ Petition No.7545 of 2015))

অনুবাদ (Google)
Uploaded on : 14-AUG-22
From : COURT NO. 1

Government and Bangladesh represented by the Senior Secretary, Ministry of Land and others Vs. Md. Selim Khan and others

The High Court Division cannot assume the power and jurisdiction of a particular authority conferred by a specific law/statute in exercising power under Article 102 of the Constitution of the People’s Republic of Bangladesh and thus, the High Court cannot declare a particular area as `Balumahal` making a particular law i.e. Ain 2010 nugatory or redundant. Thus, in this particular case the High Court Division has traveled beyond its jurisdiction declaring the mouzas in question as `Balumahal`.

192

Civil Petition /2022
((From the order dated the 9 th day of June, 2022 passed by a Division Bench of the High Court Division in Writ Petition No.7045 of 2022))

অনুবাদ (Google)
Uploaded on : 04-AUG-22
From : JUDGE-IN-CHAMBER

Government of Bangladesh and others
Vs
Syed Fazle Elahi Obhi and others

When a Judicial Officer passed an order within the ambit of a particular law i.e. under the Code of Criminal Procedure said order cannot be interfered with under Article 102 of the Constitution of the Peoples Republic of Bangladesh unless said order is without jurisdiction or suffers from quorum non-judice.

193

Civil Appeal /2004
(From the judgment and order dated the 8th day of July, 2002 passed by a Division Bench of the High Court Division in Writ Petition No.5722 of 2001)

অনুবাদ (Google)
Uploaded on : 31-JUL-22
From : COURT NO. 1

Imam Sirajul Hoque and another
Vs
Director General Land Record and Survey Tejgaon Dhaka and others

Upon perusal of the above rule it is clear that the Director of Land Records and Surveys has been vested with the power to discharge all functions of a Revenue Officer and shall have all powers of Settlement Officer under rule 42A along with some other rules in respect of all operation under chapter XVII of the State Acquisition and Tenancy Act.

194

Criminal Appeal(A) /2014
(CRIMINAL APPEAL NO.59 OF 2014 WITH JAIL PETITION NO.19 OF 2015. (From the judgment and order dated 06.03.2014 passed by the High Court Division in Death Reference No.113 of 2008, Criminal Appeal No.7397 of 2008 and Jail Appeal No.1090 of 2008.))

অনুবাদ (Google)
Uploaded on : 20-JUL-22
From : JUDGE-IN-CHAMBER

Mohammad Ali @ Sakil
Vs
The State

During recording of his confessional statement under section 164 of the Code of Criminal Procedure, the condemned-appellant Mohammad Ali @ Shakil stated that he was aged about 21 years. Having considered the evidence on record, the confessional statement as well as the statement recorded under section 342 of the Code of Criminal Procedure, we are of the view that the condemned-appellant was not a minor at the time of commission of the offence. Therefore, he was not entitled to get the privilege under the Children Act, 1974 so far as those relate to youthful offenders.

195

Civil Appeal /2007
(CIVIL APPEAL NO.08 OF 2007 (From the judgment and order dated 10.12.2002 passed by the High Court Division in Writ Petition No.5588 of 2000).)

অনুবাদ (Google)
Uploaded on : 20-JUL-22
From : JUDGE-IN-CHAMBER

Bangladesh and Others
Vs
Ocean Containers Limited

From the SRO 354 dated 02.12.1999 it appears that the gazette notification was not operated by giving retrospective effect as such applications seeking exemption by the petitioner company were rejected justly and correctly by the NBR inasmuch as the ‘container terminal’ of the petitioner company was not entitled to get tax exemption before publication of gazette notification dated 02.12.1999. As the ‘container terminal’ in question was not within the purview of physical infrastructure facility when the petitioner company filed application seeking tax exemption and thus the NBR justly and legally rejected the application for exemption and also correctly rejected the review application dated 31.01.2000 seeking review of earlier order dated 18.10.1999 since there left no scope to review of that application by the NBR. Accordingly, we hold that the SRO No.354-Ain/99 dated 02.12.1999 having effect from the date of its publication left no scope to allow tax exemption to the ‘Unit-2’ of the respondent company and the NBR justly and legally rejected the applications filed by the respondent company.

196

Civil Petition /2020
(CIVIL PETITION FOR LEAVE TO APPEAL NO.2408 of 2020. (arising out of Writ Petition No.5718 of 2016) With CIVIL PETITION FOR LEAVE TO APPEAL NO.2432 of 2020 (arising out of Writ Petition No.5770 of 2016) With CIVIL PETITION FOR LEAVE TO APPEAL NO.2443 of 2020. (arising out of Writ Petition No.9277 of 2016) And CIVIL PETITION FOR LEAVE TO APPEAL NO. 04 of 2021 (arising out of Writ Petition No.5333 of 2016))

অনুবাদ (Google)
Uploaded on : 20-JUL-22
From : JUDGE-IN-CHAMBER

Bangladesh and Others
Vs
Pragati Insurance Limited and others

It is apparent that budget speech by the Finance Minister is not enactment of Parliament but only financial proposals. The law is enacted when it is legislated by the Parliament and assented by the President of the Republic....
It is cardinal principle of construction that every statute is primafacie prospective unless it is expressly or by necessary implication made to have a retrospective operation.....
Admittedly, in the cases in hand competent VAT authority issued demand cum show cause notice upon the respondent-companies under section 55(1) of the VAT Act. Respondent companies prayed time for reply on the plea of pending representation of their Association to the NBR regarding explanation on the issue of charging VAT on “Insurance Commission Agent”. Waiting for few months, VAT authority issued notice fixing date of hearing. But the respondents without appearing in the hearing invoked the writ jurisdiction under Article 102 of the Constitution. From the demand cum show cause notice it is apparent that an adjudication process was initiated and the respondents sought time in writing to reply and thus the process awaiting adjudication. Against the adjudication order, forum of appeal is prescribed in the VAT Act. At this juncture, the writ petitions filed by the respondents as petitioners are not maintainable.

197

Civil Petition /2018
(Arising out of C.M.P. No.1161 of 2018)

অনুবাদ (Google)
Uploaded on : 30-JUN-22
From : JUDGE-IN-CHAMBER

Government and others
Vs
Md. Mainul Haque and others

As per the relevant Nitimala there is no scope to give MPO to a teacher who has been appointed out of pattern and the writ petitioners having been appointed as a non-MPO post against the section teacher and their claimed of MPO benefit by avoiding the said ‘Nitimala’ cannot be enforced.

198

Criminal Petition /2017
(High Court Division :
Death Reference No.34 of 2009,
Criminal Appeal No.3258 of 2009
Jail Appeal No.287 of 2009
Criminal Appeal No.4631 of 2009
Jail Appeal No.286 of 2009)

অনুবাদ (Google)
Uploaded on : 29-JUN-22
From : JUDGE-IN-CHAMBER

Hazrat Ali
Vs
The State, represented by the Deputy Commissioner, Dhaka

Evidence on a point is to be judged not by the number of witnesses produced but by its inherent truth.

199

Criminal Appeal(A) /2014
(From the judgment and order dated 06-07-2014 and 07-07-2014 passed by the High Court Division in death Reference no. 93 of 2008 with Criminal Appeal no. 6318 of 2008 with Criminal Appeal No. 6303 of 2008 with jail Appeal Nos. 866, 867 and 868 0f 2008)

অনুবাদ (Google)
Uploaded on : 27-JUN-22
From : JUDGE-IN-CHAMBER

Rafiqul Islam Sheikh,
Md. Mohon Khalifa,
Md. Mohon Khalifa and others.
Vs
The State.

In the instant case there is some inconsistency between confessional statements and postmortem report of the victim regarding the manner of killing. But this inconsistence does not create any doubt for the prosecution to prove its case as because the surrounding circumstances couple with confessional statements made by the condemned prisoners made them guilty in this case, thus, the inconsistency between postmortem report and confessional statements will not make any hindrance to establish this case for the prosecution.

200

Civil Appeal /2006
((From the order dated the 13th June, 2004 passed by a Division Bench of the High Court Division in Writ Petition No.2716 of 2004 against the order dated 17.04.2004))

অনুবাদ (Google)
Uploaded on : 20-JUN-22
From : COURT NO. 1

Ahsan Shorfun Nur
Vs
The Administrator of Waqfs and others

We have no hesitation to hold that the Administrator of Waqf has got no jurisdiction to appoint a Mutawalli in a proceeding under section 32 of the Waqfs Ordinance, in particular appointing Joint Mutawalli along with the existing Mutawalli beyond the terms of deed of Waqf.