The prosecution case cannot be shaken only because the eye witnesses belong to the same family because in a case of dacoity the eye witnesses of the occurrence are always the inmates of the house in which the dacoity is committed.

Admittedly there is no eye witnesses of the occurrence and the appellant is a nephew of the deceased having some enmity with him. Although it has been alleged that before death Shafiqul narrated the incident to some of the witnesses but that cannot be treated as dying declaration as it was not properly recorded. The witnesses to whom it has been alleged that the deceased mentioned the name of the appellant are all closely related to the deceased. In the present case we do not find any dying declaration of the deceased and it is evident from record that the deceased told about the occurrence by the appellant committed on him in the operation theater, which is not free from all doubt. Most of the witnesses deposed that they have heard from P.W.5 Md. Jabed but P.W.5 is not an eye witness and in his deposition he did not make any such statement as to connect the appellant directly.

As there is no express or implied provision within the four corners of the Act of 2012 debarring or prohibiting the Metropolitan or Judicial Magistracy from entertaining and dealing with any application for bail or remand at the pre-trial stage, the Magistracy is well-authorized to entertain and deal therewith in accordance with the above-mentioned provisions of the Code. From the date of lodgment of the FIR with the concerned Police Station till taking cognizance of the offence by the Senior Special Judge under section 4(2) of the Criminal Law (Amendment) Act, 1958, the Judicial or Metropolitan Magistracy is empowered to entertain, deal with and dispose of any application for bail of an accused in a case under the Act of 2012 under section 497 of the Code of Criminal Procedure. Similarly at the pre-trial stage, in the absence of any express or implied prohibition in any other special law, the Metropolitan or Judicial Magistracy may entertain, deal with and dispose of any application for bail of an accused under section 497 of the Code.

The intention of the lawmakers in respect of provision of service of notice upon the drawer is to inform him with a demand of the cheque money (dishonoured) by serving a notice by the petitioner. On this ground a criminal proceedings under section 138 of the Negotiable Instrument Act cannot be quashed.

If we examine the impugned letter dated 28.05.2007 coupled with the above provisions of law then we have no hesitation to hold that by issuing the same the Supreme Court authority had flouted the above provisions of law and that the opinion expressed in the letter that it would not be proper (mgxwPb n‡e bv) to take any action against respondent No.3 is nothing but an attempt to create obstacle in the process of inquiry against said respondent. The Supreme Court administration in issuing the impugned letter having considered some extraneous and irrelevant facts has abused its discretionary power vested in it. The opinion in guise of direction expressed in the impugned letter was not the upshot of any judicial determination. Such a mere administrative letter although issued as per the verbal instruction of the Hon’ble Chief Justice, patently impinges upon the rights and lawful authority of the Commission to go on with the inquiry into an allegation of corruption. The impugned letter is amenable to judicial review as it was issued by the office of the Appellate Division under its administrative capacity and therefore, the Rule is quiet maintainable; The impugned letter is a mere official communication made by the office of the Appellate Division under its administrative capacity and in no way it can be regarded as the opinion of the Supreme Court; The impugned letter though tends to give a massage that a retired judge of the Supreme Court it immune from criminal prosecution but, in fact, no one is immune as such except the Hon’ble President and that too during his term of office;

If any executive action is taken, which we consider, in light of facts and circumstances, to be unreasonable we take the view that such action was beyond authority because the executives are not authorized to act unreasonably. We are inclined to hold that the amendment made through Clause 3 of the order dated 09.03.2006 was ‘whimsical’’. This cannot be permitted to remain in force. However, if there is an executive order which results in continuous wrong, as in this case, we take the view that mere delay in filing the writ petition should not affect their relief. No doubt the petitioners filed the petition after a long time but that, in the given circumstances should not defeat their entitlement because the wrong done by the executive is ‘continuous’. Executives can employ for temporary period but if they permit the period to extend, either expressly or by conduct, after certain time, the employee can legitimately expect to be absorbed.

It appears that none of the three local witnesses were eye witnesses rather they were asked to sign as witness, which is absolutely derogatory to the norms of law and the BDR and the local police for inflicting penalty upon the accused petitioners resorted to such activity which is seriously deplorable. Every citizen has a right to free movement within Bangladesh and to do any business or profession subject to restriction imposed by law.

The relevant provisions in our Income Tax Ordinance, 1984 are still like pre-enactment of Indian Income Tax Act, 1961. That means, the precondition of having definite information which has to come into the possession of the Deputy Commissioner of Taxes after completion of original assessment is still very much intact under sub-section (2) of Section 93 of the said Ordinance. Therefore, we fully agree with the submissions of Mr. Noor that, the DCT must have fresh information in his possession which has come to his possession after completion of original assessment and, only on such happening, the DCT is entitled to reopen the completed assessment of a particular assessee. When a particular issue has been categorically addressed by the DCT in the original assessment order and there is no allegation that the assessee has not disclosed any particular fact or materials at the time of original assessment and when the DCT completed such assessment on the basis of the materials disclosed by the assessee taking a particular view on a particular amount, change of such view subsequently by the concerned DCT, for whatever reason, cannot not justify reopening of assessment. This position of law has been categorically affirmed by various higher Courts in India in the above referred cases. Since it is apparent from the facts and circumstances of the case that, the impugned reassessment was in fact initiated not because of any fresh information having come to the possession of the concerned DCT, rather the same was the result of subsequent change of opinion or change of mind of the DCT being influenced by a report of local office of CAG, such change of opinion is not permitted to be the ground for reopening the assessment.

Mere declaration of the seizure list witnesses as hostile in no way cured the defect of the prosecution case. When the witnesses did not support the recovery of the arms from the possession of the convict appellant or on his showing and when the charge sheeted witnesses did not support the prosecution case and prosecution witnesses are withheld by the prosecution without any explanation, it raises adverse presumption against the genuineness of the prosecution case and the appellant entitled to get benefit of doubt under section 114 (g) of the Evidence Act.

It is well settled that the executing court can not go beyond the decree nor can it question its legality or correctness, but there is one exception to this general Rule i.e. the executing court can adjust the amount with the decree paid by the Judgment Debtors during pendency of the execution proceeding if certified by the Decree Holder. In the present case admittedly the Judgment Debtors made payment of Tk.62,50,000/- to the Decree Holder during pendency of the Suit which has not been adjusted by the Decree Holder at the time of filing of the execution proceeding. In this situation the executing court is legally entitled to adjust the aforesaid amount with the decretal amount not the amount paid before filing of the suit. It must take the decree according to its tenor but in the instant case the executing court travelled beyond the decree and as such the Impugned Order passed by the executing court is not in accordance with law.

It is a settled principle of law that in order to construe the actual meaning and intention of a statute it must be read as a whole and not in part or in an isolated manner. The provisions of the criminal law do not contemplate or consider the sustainability or maintainability of an isolated proceeding or case under Section 98 of the Code of Criminal Procedure. ... (Para 17) The law as it exists does not provide any scope to file or initiate a separate case or proceeding in an isolated manner in under Section 98 in the absence of a pending case or proceeding filed in pursuance of an F.I.R or complaint whatsoever under any of the provisions of the Penal Code. ... (Para 19) Section 98 only confers power upon Magistrate, empowered in this behalf to act in a particular manner to act according to the necessity appertaining to the facts and circumstances arising out of a particular case before the concerned Court arising out of an F.I.R or a complaint as the case may be. Hence a Magistrate, either Executive or Judicial as the case may be, to be able to act in accordance with the provisions of Section 98 being empowered in this behalf, can only proceed under the Section in a pending case and not in the absence of a case or proceeding and the existence of a case or proceeding is a sine qua non that is, an essential condition for resorting to the provisions of Section 98 of the Code. ... (Para 20) It is true that in the case we are dealing with at present, the issue of the property not being ‘stolen’ or ‘forged’ etc. has arisen and the petitioner contended that hence the case does not fall within the mischief of Section 98 of the Code. We do not disagree with the point raised by the learned Advocate for the petitioner given that the property in dispute, that is the car not being a ‘stolen’ property cannot be recovered by resorting to the procedures laid down in Section 98 of the Code. Rather, in the event of a proper case being filed, the appropriate court could have passed an appropriate order in 11 SCOB [2019] HCD Alhaj Md. Mahtab Hossain Molla Vs. State & anr. (Kashefa Hussain, J) 103 respect of the property under Section 516A of the Code as deemed fit pending conclusion of the inquiry or trial or it could pass an appropriate order under Section 517 of the Code. ... (Para 23) An application under Section 98 of the Code of Criminal Procedure not being isolatedly entertainable or lawfully maintainable at all, therefore in this case the application filed under Section 98 of the Code of Criminal Procedure before the Magistrate Court is not maintainable and is liable to be dismissed not being sustainable in the eye of law. ... (Para 26)

It is settled proposition that Record of Right alone does not confer title but it has got presumptive value in favour of the person in whose name Record is prepared but again the presumption can be rebutted by showing cogent evidence and proof. As such any person can take recourse of law ventilating his grievance. If somebody’s name is erroneously not inserted in the record, he can take recourse to the Court of law for appropriate declaration but his claim cannot be stifled taking aid of Section 52A of the Registration Act or 53C of the Transfer of Property Act. A plaint can be rejected by taking recourse of Section 151 of the Code of Civil Procedure. In the instant case the plaintiff has been able to made out distinct cause which should be adjudicated by the Court of law without having buried it at its inception and hence, inherent jurisdiction cannot be invoked here.

It also appears from the record that at the time of framing charge petitioner No.1 M.N. Kamal Hossain remained absent but charge was framed accordingly and warrant of arrest was issued. By suppressing the said fact of issuance of warrant of arrest, he moved before this Court in Criminal Miscellaneous Case No.8151 of 2008 and on 08.06.2008 obtained Rule and interim order of anticipatory bail for a limited period. The said interim order was not extended. Ultimately the Rule was discharged on 21.12.2011 and the concerned Court was directed to take necessary steps to secure his arrest. In view of the above petitioner No.1 M.N. Kamal Hossain is a fugitive from justice. He is not entitled to file this application before this Court and to get any order on it.