Home : Supreme Court of Bangladesh

Serial No.	Name of the Parties, Citation and Key Words	Summary of the case	Key Ratio
1.	Spice Television Private Ltd Vs. Bangladesh & ors (Md. Ashfaqul Islam, J) 16 SCOB [2022] HCD 1 Key Words: Article 102(2)(a)(i) of the Constitution of the People’s Republic of Bangladesh; writ mandamus; Legitimate expectation; section 55 and 56 (8) of the Bangladesh Telecommunication Act, 2001;	The petitioner after obtaining permission from Ministry of Information for running a Satellite Television Channel made an application to the Bangladesh Telecommunication Regulatory Commission (BTRC) praying for allocating frequency for running the Television Channel under the name and style Spice TV. BTRC upon receiving the application from the petitioner, issued letters requesting (a) the Ministry of Home Affairs (b) the Director General, DGFI and (c) the Director General, NSI to furnish their opinion/clearance. The Director General, DGFI and the Director General, NSI provided their clearances. But Ministry of Home Affairs did not provide the same. As a result, BTRC did not allocate frequency to the petitioner on a permanent basis but allowed it to import transmission equipments and also allocated frequency of 6 Megahertz from 5.850-6.425 Gigahertz, on a temporary basis. It is at this stage the petitioner filed the instant writ petition and obtained the Rule and order of direction. The argument of the petitioner was that under section 55 of the Bangladesh Telecommunication Act, 2001, allocation of frequency is under the exclusive authority of Bangladesh Telecommunication Regulatory Commission and in section 56(8) of the said Act a prescribed time limit has been provided within which the Commission shall dispose of an application for license or frequency or a technical acceptance certificate. The High Court Division accepted the argument and held that BTRC was absolutely in a position to take a decision in the matter in question. The Court also found that this particular case is guided by the principle of reasonableness so far legitimate expectation is concerned and directed BTRC to do the needful in terms of the Rule in accordance with law.	Section 55 and 56(8) of বাংলাদেশ টেলিযোগাযোগ নিয়ন্ত্রণ আইন, ২০০১, authority of Bangladesh Telecommunication Regulatory Commission (BTRC) in granting license: What we have seen in the instant case that from the very beginning though the respondent No. 3 (Bangladesh Telecommunication Regulatory Commission (BTRC)) tried its best to do the needful for obtaining clearance from the three agencies, two of which had already given their clearance but the added respondent No. 4, Ministry of Home Affairs did not accord any clearance though there was repeated request by the respondent No. 3. There is no denying that respondent No. 3 had all along the good intention in this regard....On a plain reading of the laws we have found that respondent No. 3 was absolutely in a position to take a decision in the matter in question.
2.	Md Mahboob Murshed Vs. Bangladesh & ors (Zubayer Rahman Chowdhury, J) 16 SCOB [2022] HCD 7 Key Words: Article 102 of the Constitution of the People’s Republic of Bangladesh; ultra vires; Rule 300 of the Bangladesh Service Rules, Part I; the due process; resignation; forfeiture; doctrine of severability	The constitutional validity of Rule 300 of the Bangladesh Service Rules, Part I was challenged in the instant Writ Petition by a former Additional District Judge, who had tendered his resignation from service. Having completed nineteen years of service as a Judicial Officer, the petitioner applied for his pension and other benefits, which was approved by the Ministry of Law, Justice and Parliamentary Affairs. But the office of the Comptroller and Auditor General, Bangladesh issued a Memo stating that the petitioner was not entitled to receive any pension since his service stood forfeited by dint of Rule 300(a) of the Bangladesh Service Rules, Part I. The petitioner sought relief under the Writ jurisdiction of the High Court Division. The High Court Division held that the Rule 300(a) of the Bangladesh Service Rules, Part I, so far as it relates to “forfeiture of pension in the event of resignation from service” is ultra vires to the Constitution on the ground that an employee with an unblemished service record cannot be treated on the same scale as an employee who has been found guilty of some misdemeanour and therefore dismissed from service. Two different categories of persons cannot be subjected to the same treatment, although there is a gross distinction between ‘resignation’ and ‘dismissal’. However, the Court found that the remaining part of Rule 300 (a) and Rule 300 (b) are valid.	A person who tenders resignation from service, should also be entitled to receive pension, depending on the length of his/her service: Although the maximum tenure of service required for being entitled to full pension is 25 years or more, depending on the person’s age at the time of entry into Government service, nevertheless, a sliding scale is provided for the person who retires before completing 25 years of service. By the same corollary, a person who resigns from service before reaching the age of superannuation should also be entitled to receive pension depending on the number of years of service rendered by such person. Although ‘retirement’ and ‘resignation’ are two distinct nomenclatures, in reality, they achieve the same purpose by bringing to an end the long standing, formal relationship between an employer and an employee ; in the former case, through operation of law and in the latter case, upon one’s own volition. On a similar note, a person who tenders resignation from service, should also be entitled to receive pension, depending on the length of his/her service. Rule 300(a) of the Bangladesh Service Rules, Part I, so far as it only relates to “forfeiture of pension in the event of resignation from service” is declared to be ultravires the Constitution. However, the remaining part of Rule 300 (a) and Rule 300 (b) remains unaffected and valid.
3.	SHOHOZ-SYNESIS-VINCEN JV Vs. CPTU & ors (Farah Mahbub, J) 16 SCOB [2022] HCD 25 Key Words: Article 102 of the Constitution of the People’s Republic of Bangladesh ; Rules 8, 36(3) 56, 57, 60, 98, 102 of the Public Procurement Rules, 2008; Sections 29, 30 of the Public Procurement Act, 2006	A tender was floated for Bangladesh Railway for design, develop, supply, install, commission, operate, maintain and transfer of technology of online based Bangladesh Railway Integrated Ticketing System (BRITS). SHOHOZ-SYNESIS-VINCEN JV a joint venture participated in the tender. The Tender Evaluation Committee (TEC) declared 5(five) tenderers as technically responsive including the present petitioner as well as respondent No.09. Subsequently, the TEC after evaluation of the financial proposals of the technically responsive 5(five) tenderers declared the petitioner as the final responsive tenderer. Accordingly, notification of award was issued. In the meanwhile, the respondent No.9 filed a complaint before the authority concerned under Rule 57(1) and (2) of the Public Procurement Rules, 2008 alleging irregularities and illegalities in the process of evaluation of tender by the TEC. Later, the respondent No.9 filed a complaint before the Review Panel-2 under Rule 57(12) of the same Rules. The petitioner as well as the respondents concerned appeared and contested the said complaint of the respondent No.9. However, upon hearing the respective contending parties the Review Panel 2 allowed Review Petition and recommended for re-tender. The petitioner challenged the decision of the Review Panel-2 before the High Court Division. The High Court Division held that the respondent no. 9 did not bring the complaint within the time prescribed by law and as such the complaint is barred by limitation. It also found that the Review Panel- 2 did not provide any finding as to the point of limitation in its decision which is not maintainable.	Section 29 and 30 of the Public Procurement Act, 2006 read with Rules 56 and 57 of the Public Procurement Rules, 2008: Section 29 of the Act, 2006 (Act No.24 of 2006), however, provides the right to file complaint to the authority concerned (mswkøó µqKvix cªkvmwbK KZ„©c‡¶i wbKU) under Section 30 of the said Act on the context as prescribed under Rule 56 of the Rules, 2008. In view of Rule 57(1) of the Rules of 2008 said complaint has to be filed/made within the period as stipulated in Schedule 2 of the said Rules i.e., within 7(seven) calendar days of receipt of knowledge of the complaint which gives rise to the cause of action. In other words, the complainant in his petition of complaint has to disclose the date of cause of action in order to compute the period of limitation.
4.	Abedun Nessa Vs. Jaher Sheikh and others (Md. Rezaul Hasan, J) 16 SCOB [2022] HCD 37 Key Words: Cancellation of a deed; Requirements in case of execution of a deed; Section 102 of the Evidence Act; Custom; Section 18 of the Limitation Act, 1908	This is a suit for cancellation of deed in which the main contentions of the plaintiffs are that, the disputed Nadabinama deed was not executed within the knowledge of the plaintiff No. 3 who was minor at the time of execution of the said deed and he did not go to the concerned Sub-Registrar’s office for execution or registration of the deed. Further, before obtaining signature of the plaintiff Nos. 1 and 2 in the said Nadabinama, it was not read out, nor explained to them. Their signatures were obtained by misleading them about the contents of the deed saying that it was a deed for partition, to be prepared on amicable settlement of their respective share in the suit property. The trial court dismissed the suit but the appellate court allowing the appeal, reversed the judgment and decree of the trial court. The defendant-respondent, as the petitioner, preferred civil revision before the High Court Division. High Court Division on assessment of evidence of DW-3 held that the disputed deed was not read out to the plaintiffs who were illiterate rural people before receiving their signatures on it as the executants. It also held that the requirement to read out a document to the executants before execution is a usage and custom having the force of law. High Court Division also found that the findings of the appellate Court relating to limitation and burden of proof are correct and as such it discharged the Rule.	Reading out a document to the executants before execution, is an usage and custom having the force of law: The requirement to read out a document to the executants before execution, is an usage and custom followed from the time immemorial. This custom, having the force of law, requires to record the fact in a deed, that the same was read out and explained to the executants, so that it can be inferred that they have executed the deed voluntarily and having understood the contents of the same. Unless a deed is read out to the executants, it cannot be said that they had understood its contents and had voluntary executed the same. However, there might be exception to this Rule and this might not be fatal in each case and the application of this Rule will depend upon the facts and circumstances peculiar to each case.
5.	The State and others Vs. Md. Shaheb Ali and others (Krishna Debnath, J) 16 SCOB [2022] HCD 45 Key Words: Recording of confessional statement u/s 164 of the Code of Criminal Procedure; “¢nö BCe, 2013”; Sections 4,34,102(2)(kha) of “¢nö BCe, 2013” ;The Childrens Act, 1974; Sections 2,6(1),6(2),51,52 of the Childrens Act, 1974; Confessional statement of a co-accused	In this case a boy of class VI was murdered and another boy of 8 years old witnessed it from a hiding place. Two of the accused made confessional statements which were not properly recorded by the concerned Magistrate. He did not alert them that they would not be remanded to Police custody if they failed to confess. He did not fill up the relevant columns properly. Furthermore, he did not make any certificate in column 8 of the confessional statement. The High Court Division held that when an eye witness categorically narrated the occurrence corroborating the confessional statements and other evidence on record, these types of omissions while recording confessions cannot be considered as fatal defects. High Court Division also modified the sentence of the convicts on consideration of their tender age.	When an eyewitness corroborates the occurrence, some omission in recording confessional statements cannot be considered as fatal defects: It is true that learned Magistrate P.W-11 Kazi Abed Hossen did not record the confessional statement under Section 164 of the Code of condemned-prisoner Sumon properly. He did not alert him that he would not be remanded to Police custody if he failed to confess or he did not fill up the relevant columns properly. Furthermore he did not make any certificate in column 8 of the confessional statement but we think this type of omission cannot be considered as fatal defect in this particular case when P.W-6 Md.Shakil the only eye witness of the case categorically narrated the occurrence and this statement was not challenged by defence. Moreover, P.W-6’s statement corroborated the statements of P.W-5, 9, 13, 14 and 15 who stated that in their presence condemned-prisoner Sumon detected the dead body of deceased Injamul from place of occurrence.
6.	Sadrul Huq being dead his heirs & ors. Vs. Farhana Firdousi & anr (Sheikh Hassan Arif, J) 16 SCOB [2022] HCD 62 Key Words: Family Court Ordinance 1985; The Muslim Family Laws Ordinance 1961: Section 17A and 17B of Registration Act 1908; Transfer of Property of Act 1882; dower	Respondent No.1 as plaintiff filed a suit for partition claiming her unpaid dower on the basis of the nikahnama in column 16 of which her father-in-law transferred .09 acre of land as dower on behalf of his son. The trial Court decreed the suit in favour of the plaintiff and gave her saham of the said .09 decimal land. On appeal, the High Court Division considered, among others, whether such transfer of land by the father of the husband as against dower or portion of dower, as made at Clause 16 of the nikahnama, may be effected and enforced under the Muslim Law and the law of the land? Examining the relevant provisions of the Family Court Ordinance 1985, the Muslim Family Laws Ordinance 1961, Registration Act 1908 and Transfer of Property of Act 1882 and considering the opinions of the amici curiae the High Court Division held that landed property in question was rightly taken to be a form of portion of dower to be transferred in favour of the plaintiff and the father of the husband was allowed under the Islamic law to undertake or to transfer the said land in lieu of certain portion of the said dower money in favour of his daughter-in- law but such transfer cannot be effected in view of provisions of sections 17A and 17B of the Registration Act, 1908. The only way open to the plaintiff is to file a suit for dower in the Family Court. Thereafter, the High Court Division set aside the judgment of the trial court but allowed the plaintiff to withdraw the suit from the appellate stage with a permission to file the same before the correct forum, namely the Family Court established under the Family Court Ordinance, 1985.	Form of dower and who may undertake to pay the dower in Islamic law: From the above opinion of the said islamic scholars, it appears that the landed property, being a valid property under Islam, may take the form of dower under Islamic principles, and anyone, including the father of the husband, may undertake to pay or transfer such dower. Therefore, it appears that the landed property in question was rightly taken to be a form of portion of dower to be transferred in favour of the plaintiff and that the father of the husband, namely defendant No.1, was allowed under the Islamic law to undertake or to transfer the said land in lieu of certain portion of the said dower money in favour of his daughter-in- law.
7.	Md. Atiqur Rahman & anr Vs. Bangladesh & ors (Md. Nazrul Islam Talukder, J) 16 SCOB [2022] HCD 70 Key Words: Sections 19 and 20 of the Anti-Corruption Commission Act, 2004 and Rule 20 of the Anti-Corruption Commission Rules, 2007 read with Section 160 of the Code of Criminal Procedure; mala fide; abuse of discretionary power; Rule 3(5) of the Anti-Corruption Commission Rules, 2007; Evasion of registration fees	The writ petitioners purchased the case land through the court by way of sale certificate and the learned judge of the Execution Court handed over possession of the land to the petitioners by way of writ for delivery of possession. Challenging the said sale, several writ petitions and leave petitions were filed and ultimately all of them were discharged and dismissed. The writ petitioners as auction purchasers having failed to mutate their names against their purchased property filed a Writ Petition against RAJUK and the said Rule was made absolute. Then RAJUK filed a Civil Petition for Leave to Appeal before the Appellate Division against the said judgment of the High Court Division and the same was dismissed with a finding that the writ petitioners have legally purchased the case property through Court and their title has become unassailable. Thereafter, ACC issued notices against the writ petitioners under sections 19 and 20 of the Anti-Corruption Commission Act, 2004 and Rule 20 of the Anti-Corruption Commission Rules, 2007 read with Section 160 of the Code of Criminal Procedure for their alleged evasion of registration fees and other duties for registering the deed of sale. The writ petitioners have challenged the legality of the said notices in the instant writ petition. The High Court Division examining relevant laws and rules and considering the facts of the case found that there was no evasion of registration fees in this case and allegation of evasion of registration fees and other duties for registering a deed of sale does not come within the schedule offences of the Anti-Corruption Commission Act, 2004 and therefore impugned notices have been issued with mala fide intention and in exercise of abuse of discretionary power which have been made/issued without lawful authority and are of no legal effect.	Evasion of registration fees and other duties for registering a deed of sale does not come within the schedule offences of the Anti-Corruption Commission Act, 2004: With reference to the legal decision taken in the case of Sonali Jute Mills Ltd Vs. ACC reported in 22 BLC (AD) 147, the submission of the learned Advocate for the ACC is that sub-section(1) and (2) of section-19 have given wide jurisdiction to the Commission to inquire into and investigate any allegations whatsoever as covered in its schedule and in doing so, the ACC may direct any authority, public or private to produce relevant documents. But the allegation under the instant inquiry which is admittedly initiated on the allegation as stated in the application dated 11.12.2018 (Annexure-N) filed by the Respondent No.05 with regard to taking possession of RAJUK plot unlawfully creating forged documents and evasion of registration fees and other duties for registering a deed of sale does not come within the schedule offences of the Anti-Corruption Commission Act, 2004 rather it may come under the purview of Section 63A of the Registration Act, 1908 and under the provision of Stamp Act, 1899 and thus the said case law is not applicable to the case of the petitioners. It appears from the annexures of the writ petition that the subsequent sale between the petitioners and the Respondent No.4 was also held by a Court of law pursuant to a decree of specific performance of contract and thus there is no scope of taking possession of RAJUK plot unlawfully creating forged documents and evasion of registration fees and stamp fees at all.
8.	মোহাম্মদ জহিরুল ইসলাম বনাম বাংলাদেশ সরকার ও অন্যান্য (বিচারপতি মোঃ আশরাফুল কামাল) 16 SCOB [2022] HCD 84 Key Words: অনুচ্ছেদ ৩২, বাংলাদেশ সংবিধান; ক্ষতি পূরণ; কঠিন দায়; Strict liability; Vicarious Liability; Ahqm¡ (Negligence)	নির্ধারিত সময়ের পরে বিকাল ৪.০০ ঘটিকায় ১৯৮ জন যাত্রী নিয়ে বিগত ইংরেজী ০২.০৪.২০১৭ তারিখে বাংলাদেশ অভ্যন্তরীণ নৌ পরিবহন কর্তৃপক্ষের মালিকানাধীন জাহাজ “ভাষা শহীদ সালাম”, যাত্রীসহ কুমিরা ঘাট থেকে সন্দীপের গুপ্তছড়া ঘাটের উদ্দেশ্যে যাত্রা শুরু করে এবং সন্ধ্যা ৬.১০ মিনিটে গুপ্তছড়া ঘাটে নোঙ্গর করে। ঘাটের কাছে সাগরের গভীরতা কম থাকায় জাহাজ জেটিতে ভিড়তে পারে না। তাই ঘাটে নামতে লাল বোটে উঠতে হয় যাত্রীদের। তখন সন্ধ্যা হয়ে গেছে। দুটি লাল বোটের সাহায্যে যাত্রী নামানোর পর তৃতীয় বোট যাত্রী নিয়ে যাওয়ার পথে প্রচন্ড ঢেউয়ে বোট ডুবে ১৮ জন যাত্রী মৃত্যুবরণ করে। এই ঘটনায় প্রতিপক্ষগণের দায়িত্বে অবহেলার কারণে ক্ষতিগ্রস্ত পরিবারসমূহকে যথাযথ ক্ষতিপূরণ প্রদানের নির্দেশনা প্রার্থনায় এই রীট পিটিশনটি দাখিল করা হয়। শুনানী অন্তে হাইকোর্ট বিভাগ মত প্রদান করে যে, সংবিধানের ৩২ অনুচ্ছেদে প্রদত্ত বেঁচে থাকার অধিকারের প্রমাণিত হরণ হলে সাংবিধানিক আদালত ক্ষতিপূরণ প্রদান করতে পারে যা প্রাইভেট আইনে দাবী আদায়ের অতিরিক্ত হিসাবে গণ্য হবে। সাংবিধানিক আইনে সরকার বা সরকারী কর্তৃপক্ষ তাদের অধীনস্ত কর্মকর্তা বা কর্মচারীদের দায়িত্বে গাফিলতির জন্য ক্ষতিপূরণ দিতে বাধ্য। তবে সরকার এই সমপরিমাণ টাকা দায়িত্বে গাফিলতির জন্য দায়ী সংশ্লিষ্ট কর্মকর্তা, কর্মচারী এবং ঠিকাদারদের কাছ থেকে আইনগত পদ্ধতিতে আদায় করে সরকারী কোষাগারে জমা দিবেন। হাইকোর্ট বিভাগ এছাড়াও মত প্রকাশ করে যে, ক্ষতিপূরণের আদেশ দেয়ার পরে প্রায়ই দেখা যায় যে, প্রতিবাদীগণ ক্ষতিপূরণের টাকা দিতে কালক্ষেপন করেন। সেজন্য ক্ষতিপূরণের মামলায় ব্যাংক রেট হারে ক্ষতিপূরণের সাথে সুদ প্রদানের বাধ্যবাধকতা থাকা প্রয়োজন। অতপর হাইকোর্ট বিভাগ ৯ দফা নির্দেশনাসহ ১৮টি পরিবারের প্রতিটি পরিবারকে ১৫ লক্ষ টাকা করে ক্ষতিপূরণএবং ক্ষতিপূরণের অতিরিক্ত হিসেবে মামলা দায়েরের তারিখ থেকে শুরু করে ক্ষতিগ্রস্তদের একাউন্টে ক্ষতিপূরণের টাকা জমা হওয়া পর্যন্ত প্রচলিত ব্যাংক রেট তথা ৮% হারে সুদ পরিশোধের জন্য প্রতবিাদীগণকে নির্দেশনা প্রদান করেন।	১। সংবিধানের অনুচ্ছেদ ৩২ মোতাবেক প্রদত্ত মৌলিক অধিকার তথা বেঁচে থাকার অধিকারের প্রমাণিত হরণ (Proved infringement ) হলে সাংবিধানিক আদালত তথা হাইকোর্ট বিভাগ সংবিধানের অনুচ্ছেদ ১০২ এর আওতায় ক্ষতিপূরণ প্রদান করতে এখতিয়ারসম্পন্ন। ২। সাংবিধানিক আদালত তথা হাইকোর্ট বিভাগ কর্তৃক সংবিধানের অনুচ্ছেদ ১০২ এর আওতায় এ অধিকার প্রাইভেট আইন (Private Law)-এ প্রদত্ত ক্ষতিপূরণের দাবী আদায়ের অধিকারের অতিরিক্ত হিসেবে গণ্য হবে। ৩। সরকারী কর্মকর্তা-কর্মচারীগণ কর্তৃক কিংবা রাষ্ট্রের প্রতিষ্ঠান বা প্রতিষ্ঠানসমূহ কর্তৃক পূরণযোগ্য ক্ষতির অপরাধ সংগঠিত হলে ভিকটিম তথা মৃত ব্যক্তির পরিবারের যেকোন সদস্য অথবা তাহাদের পক্ষে যেকোন ব্যক্তি জনস্বার্থে হাইকোর্ট বিভাগে সংবিধানের অনুচ্ছেদ ১০২ এর আওতায় ক্ষতিপূরণ চেয়ে মামলা দায়ের করতে হকদার। ৪। সরকারী কর্মকর্তা-কর্মচারীগণ কর্তৃক কিংবা রাষ্ট্রের প্রতিষ্ঠান বা প্রতিষ্ঠানসমূহ কর্তৃক পূরণযোগ্য ক্ষতির অপরাধ সংশ্লিষ্ট কর্মকর্তা-কর্মচারী কিংবা রাষ্ট্রের প্রতিষ্ঠান বা প্রতিষ্ঠান সমূহের কঠিন দায়বদ্ধতা (Strict liability)। ৫। ১৮টি পরিবারের প্রতিটি পরিবারকে ১৫ লক্ষ টাকা করে মোট ১৮ × ১৫,০০,০০০ = ২,৭০,০০,০০০/= (দুই কোটি ৭০ লক্ষ টাকা মাত্র) টাকা যার অর্ধেক BIWTC (৮নং প্রতিবাদী) এবং অর্ধেক CDC যা ৯নং প্রতিবাদী চেকের মাধ্যমে ক্ষতিগ্রস্থ পরিবারের কাছে অত্র রায় প্রাপ্তির ৩০ কর্মদিবসের মাধ্যমে হস্তান্তর করবে এবং ক্ষতিপূরণের অতিরিক্ত হিসেবে মামলা দায়েরের তারিখ থেকে শুরু করে ক্ষতিগ্রস্থদের একাউন্টে ক্ষতিপূরণের টাকা জমা পর্যন্ত প্রচলিত ব্যাংক রেট তথা ৮% হারে সুদ প্রতিবাদীগণ পরিশোধ করবে। ৬। দরখাস্তকারী মোঃ জহিরুল ইসলাম এবং বিজ্ঞ এ্যাডভোকেট আব্দুল হালিমকে ক্ষতিগ্রস্ত ব্যক্তিগণের পক্ষে জনস্বার্থে অত্র মামলা দায়েরের জন্য বিশেষ ধন্যবাদ জ্ঞাপন করা হলো। ৭। অত্র রায় ও আদেশের অনুলিপি বাংলাদেশের সকল পাবলিক ও প্রাইভেট বিশ্ববিদ্যালয়ের আইন বিভাগের চেয়ারম্যান বরাবরে ই-মেইলে এর মাধ্যমে প্রেরণের জন্য নির্দেশ প্রদান করা হলো। ৮। অত্র রায় ও আদেশের অনুলিপি অধস্তন আদালতের সকল বিচারককে ই-মেইল এর মাধ্যমে পাঠানোর জন্য সুপ্রীম কোর্টের রেজিষ্ট্রার জেনারেলকে নির্দেশ প্রদান করা হলো। ৯। অত্র রায় ও আদেশের অনুলিপি Judicial Administration Training Institute (JATI)-তে পাঠানোর জন্য সুপ্রীম কোর্টের রেজিষ্ট্রার জেনারেলকে নির্দেশ প্রদান করা হলো।
9.	M Nazim Uddin & anr Vs. Bangladesh & ors (Md. Mozibur Rahman Miah, J) 16 SCOB [2022] HCD 128 Key Words: Custody of minor children; visitation right; Section 25 and 17 of Guardian and Wards Act, 1890; Article 102 of the Constitution of the People’s Republic of Bangladesh;	The petitioners, paternal grandparents of the minor children, filed this Writ petition after death of their son (father of the minors), seeking a direction to produce them before the Court so that the High Court Division can be satisfied that the minors are not being held in their mother’s custody without lawful authority. Mother of the minor children contested the Rule and it transpired that between the parties suit for custody of the minor children is pending in Family Court in which Family Court issued various orders providing visitation right to the petitioners. But the claim of the petitioners was that even after such orders by the Court the mother of the minors did not let them to visit the minor children and therefore they were compelled to file the Writ Petition. The High Court Division talking with the minor children found that the minor children enjoy the company of their mother and have very cold relationship with the petitioner no.1. The High Court Division held that in deciding such cases “welfare of the minor” has to be given paramount importance and consequently decided that welfare of the minor children will be best served in the custody of their mother until disposal of the suit for custody pending in the Family Court. But petitioners can visit her house on mutual consent and understanding with the mother of the children and can meet them at any place, date and time on agreement but having no binding effect on the mother. It also directed the Family Court to complete the trial of the family suit expeditiously.	Section 25 and 17 of Guardian and Wards Act, 1890: In this aspect, we have also meticulously gone through the provision employed in section 25 of Guardian and Wards Act, 1890. The essence of such provision also denotes the welfare of a minor child in case of giving custody of his/her person or property. Section 17(2) of the Act ibid also reiterates the factors to be considered by the court in appointing guardian where in sub-section (3) has vested right upon the court to consider the issue of custody in case the minor is old enough to form an intelligent preference to stay. And that preference is to be assumed by the court considering surrounding circumstance. In both sections only “welfare of the minor” has been given paramount importance.
10.	The State & ors Vs. Md. Rafiqul Islam & ors (Mohammad Ullah, J) 16 SCOB [2022] HCD 138 Key Words: Section 302/34 of Penal Code; Section 342 of Code of Criminal Procedure; Time, place and manner; sufficiency of circumstantial evidence; motive;	In the instant case the dead body of the victim was recovered with a scarf around his neck. 3/4 days earlier a misunderstanding took place between the victim and a local female member and her husband centering their daughter which subsequently took a grave form. A death threat was openly given to the deceased by the accused persons. The informant suspected that the murder was the result of that dispute. The prosecution relied upon the circumstantial evidence. The trial Court found the accused guilty and accordingly sentenced them. The High Court Division, however, found that the prosecution had failed to prove the time, place and manner of and motive for the occurrence and adduced circumstantial evidence could not point to the guilt of the accused beyond any reasonable doubt. Consequently accused persons secured acquittal.	The rule as regards sufficiency of circumstantial evidence: The rule as regards sufficiency of circumstantial evidence to be the basis of conviction is that the facts proved must be incompatible with the innocence of the accused and incapable of explanation by any other reasonable hypothesis than that of his guilt. If the circumstances are not proved beyond reasonable doubt by reliable and sufficient evidence and if at all proved but the same cumulatively do not lead to the inevitable conclusion or hypothesis of the guilt of the accused alone but to any other reasonable hypothesis compatible with the innocence of the accused then it will be a case of no evidence and the accused should be given benefit of doubt. If there is any missing link in the chain of circumstances, the prosecution case is bound to fail. In a case based on circumstantial evidence, before any hypothesis of guilt can be drawn on the basis of circumstances, the legal requirement is that the circumstances themselves have to be proved like any other fact beyond a reasonable doubt. If the witness examined to prove the circumstances are found to be unreliable or their evidence is found to be unacceptable for any other reason the circumstances cannot be said to have been proved and therefore there will be no occasion to make any inference of guilt against the accused. Circumstantial evidence required a high degree of probability, from which a prudent man must consider the fact that the life and liberty of the accused person depend upon his decision. All facts forming the chain of evidence must point conclusively to the guilt of the accused and must not be capable of being explained on any other reasonable hypothesis. Where all the evidence is circumstantial it is necessary that cumulatively its effect should be to exclude the reasonable hypothesis of the innocence of the accused.
11.	Md. Shahbuddin Alam Vs. Bangladesh Bank & ors (Muhammad Khurshid Alam Sarkar, J) 16 SCOB [2022] HCD 151 Key Words: Section 17(8) of the Banking Companies Act, 1991; Section 43 of the Companies Act, 1994; Section 3, 5 and 6 of the Artharin Adalat Ain 2003; Bangladesh Bank Rescheduling Guidelines; Directorship; guarantor; borrower	The petitioner is the Managing Director and shareholder of a Borrower-Company, which borrowed money from a lender Bank. But due to failure of regular payment of the loan money by the Borrower-Company, it accrued a huge amount of loan liability. For rescheduling, the petitioner agreed to deposit a certain amount of money as down payment but did not deposit it fully. In view of such situation, the lender Bank issued a letter to the Borrower-Company represented by petitioner requesting him to deposit rest of the down payment as per Bangladesh Bank requirement contained in Bangladesh Bank Rescheduling Guidelines. But the petitioner did not take any positive step regarding payment of the said down payment. Under such circumstances, the Bangladesh Bank served a notice upon the petitioner asking him to repay the loan availed by the Borrower-Company mentioned in the said notice by and within 2 (two) months with a threat that, in default, the post of the petitioner as a Director of the Mercantile Bank would stand vacated as per Section 17 of the Banking Companies Act. The petitioner then filed an application under section 17(8) of the Banking Companies Act, 1991 read with section 43 of the Companies Act, 1994 in respect of his directorship and shares in the Mercantile Bank Ltd and challenged the propriety and legality of termination of his directorship in the said Bank. The High Court Division after elaborate discussion of the relevant provisions of the Banking Companies Act, 1991 and the Artharin Adalat Ain, 2003 dismissed the petition stating that the directorship of any scheduled bank shall vacant when a director takes loan for himself or stands as a guarantor of another borrower. The court also differentiated between the provisions of Section 17 of the Banking Companies Act and of Section 5 of the Artharin Adalat Ain. The court imposed an exemplary cost for abusing the process of the Court upon the petitioner.	Section 17 of the Banking Companies Act: It is to be noticed from the language employed in sub-Sections 1, 2 & 3 of Section 17 of the Banking Companies Act that vacancy of directorship occurs the moment any of the events enumerated in clauses (a) to (c) of sub-Section 1 of Section 17 of the Banking Companies Act takes place, for, neither any of the sub-Sections of Section 17 of the Banking Companies Act nor any other provisions of the Banking Companies Act seek to halt the proceedings under Section 17 of the Banking Companies Act on the plea of filing a representation to the lender Bank or to the Bangladesh Bank or to any other authority. The submissions advanced by the learned Advocate for the petitioner that the petitioner being not the loanee, that is to say that the petitioner being merely a guarantor of the loanee, his directorship in a scheduled Bank should not be taken away by invoking the provisions of Section 17 of the Banking Companies Act, is completely misconceived. The laws herald very stoutly that a Director of any scheduled Bank whenever would be found to be either as the ‘defaulter loanee’ or as the ‘defaulter guarantor’, proceedings against the aforesaid Director under Section 17 of the Banking Companies Act would be initiated.
12.	The State Vs. Rasu Kha (Shahidul Karim, J) 16 SCOB [2022] HCD 161 Key Words: Section 302 of Penal Code; strangulation; drowning; confessional statement; prolonged police custody; time, place, manner; impartial arbiter	In the instant case trial Court handed down death penalty to the accused on the basis of his confessional statement. High Court Division, on the other hand, found the confessional statement untrue inasmuch as medico-legal evidence runs counter to the manner of commission of offence described in confessional statement. High Court Division also found that the learned trial judge had based his findings on some hypotheses not established by evidence on record and contrary to the findings of the post mortem report. Therefore, the High Court Division rejected the death reference and acquitted the accused.	In a criminal case time, place and manner of occurrence are required to be strictly proved beyond reasonable doubt: It is to be noted that in a criminal case time, place and manner of occurrence are the 3(three) basic pillars upon which the foundation of the case stand on and the same are required to be strictly proved beyond reasonable doubt by the prosecution in a bid to ensure punishment for an offender charged with an offence. If in a given case any one of the above 3(three) pillars is found lacking or proved to be untrue then it will adversely react upon the entire prosecution story. The same thing has happened in the instant case inasmuch as according to the prosecution story the deceased woman was killed by drowning, whereas as per medico-legal evidence furnished by P.W.11 Dr. Habibur Rahman, the victim was killed by strangulation and thereafter her dead body was abandoned in the water. The inquest-report also does bear out the aforesaid cause of death of the victim woman. Therefore, it is clear like anything that the prosecution has miserably failed to prove the manner of occurrence of the incident. Viewing from this angle there is no hesitation in saying that the confession alleged to have been made by accused Rasu Kha is not true so far as it relates to the manner of occurrence of the incident in concerned.
13.	Abdul Hye & anr Vs. The State & anr (Zafar Ahmed, J) 16 SCOB [2022] HCD 178 Key Words: Section 463, 464, 466, 471 and 109 of Penal Code; forgery; abetment; Section 237 and 238 of Code of Criminal Procedure, 1898	The trial Court found the petitioners guilty under section 466, 468, 471, 420 read with Section 34 of the Penal Code and sentenced them to suffer imprisonment of various length with fine. Appellate Court affirmed the conviction and sentence. On revision, a single Bench of the High Court Division found the petitioners not guilty of forgery but guilty of abetting forgery under section 466/109 of the Penal Code. Charge was not framed against the petitioners under section 466/109 of Penal Code. The High Court Division explaining section 237 and 238 of the Code of Criminal Procedure held that these two sections are exceptions to the general rule that an accused cannot be convicted of an offence in the absence of a specific charge. Under Section 237 an accused may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made. Moreover, the High Court Division found the petitioners guilty under section 471 of the Penal Code but on a different reasoning than that of Courts below. It held that the petitioners used the forged document in Writ Petition No. 9008 of 2005 as Annexure-C which is evident from the judgment passed by the Appellate Division in Civil Appeal No. 163 of 2009 (reported in 24 BLT (AD) 340) and as such had committed offence punishable under section 471 of the Penal Code. However, the High Court Division found the petitioners not guilty under sections 468 and 420 of Penal Code. Consequently the Rule was discharged with modification of sentences of the petitioners.	Section 466 read with Section 109 of the Penal Code: In the case in hand, the prosecution though failed to prove that the petitioners made the forged government memo, but facts and circumstances clearly point out that they are instrumental in getting the false memo. In such a situation, there is nothing in law to prevent them from being guilty of abetting the offence of making the forged government memo (exhibit-4). Hence, they should be convicted under Section 466 read with Section 109 of the Penal Code, not under Section 466 alone Sections 237 and 238 of the Code of Criminal Procedure: The petitioners were not charged with abetting the offence. Sections 237 and 238 of the Cr.P.C. are exceptions to the general rule that an accused cannot be convicted of an offence in the absence of a specific charge. Under Section 237 an accused may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made. Accordingly, this Court takes the view that the petitioners are guilty for abetting the offence of making forged government memo.
14.	State & anr Vs. Md. Mostafa Sarder & anr (Bhishmadev Chakrabortty, J) 16 SCOB [2022] HCD 188 Key Words: Strangulation; hanging; protrusion of tongue; haematoma; ligature mark; Section 45 of the Evidence Act, 1872	In the instant case the conviction was wholly based on medical evidence, i.e., on the experts’ opinion. But the High Court Division found that the medico-legal evidence (autopsy report) was inconsistent with the homicidal death and the report differs from the opinion of renowned authors of forensic experts. High Court Division held that the necropsy report and the evidence of doctor are not a gospel of truth or sacrosanct. These may be scrutinized and rejected by the Court, if found contradictory with the symptoms found on the dead body and oral evidence of witnesses. In the result, it set aside the judgment and order of the trial Court and acquitted the accused.	The prosecution case that the victim was made senseless on torture or murdered earlier and thereafter her body was suspended at the place and in the manner to screen the offence is not at all believable because it is not based on rationality: As per inquest the height between the suspended point and the wooden ceiling was 4½ (four and a half) feet and the victim was 5 (five) feet tall. A rafter (l¦u¡) of a tin shed house is one of a series of slopped wooden structural members that extend from the ridge or hip to the wall plate, downslope perimeter or eave and that are designed to support the roof shingles, roof dock and its associated load. As per sketch map, the lower part of the rafters of the occurrence house were slopping and down to the wall plate to fix roof of tin on it which is common in this country. Therefore, in case of self hanging from the rafter, it was possible for the victim to receive a strike/blow on her head from it resulting haematoma and intracranial haemorrhage which has been found in the autopsy. It may be noted here that no other external injury was found on the person of the deceased. If the condemned-prisoner assaulted the victim or strangulated her by force, there could have been some marks of violence or other injuries such as scratch mark on the throat or other parts of the body. It was almost impossible for the condemned-prisoner to take the victim’s body on the entresol of the house through a ladder or stair generally used in such a tin shed house after making her senseless. Therefore, the prosecution case that the victim was made senseless on torture or murdered earlier and thereafter her body was suspended at the place and in the manner to screen the offence is not at all believable. It may further be noted here that the doctor found one of the cause of victim’s death by strangulation and it was antemortem. If she was hanged after her death as stated in the FIR and found by the trial Judge, the ligature mark found around the neck would be of postmortem, it would not in any case be antemortem.
15.	The State Vs. Md. Shohag Howlader & anr (SM Kuddus Zaman, J) 16 SCOB [2022] HCD 206 Key Words: Post Mortem Report; Inquest Report; Section 164 of the Code of Criminal Procedure; Section 302 of Penal Code; Confessional statement	In this death reference there was no eyewitness. Prosecution case relied upon two confessional statements made by two accused. In the confessional statements accused claimed that they had caused the death of the victim by strangulation. But the Inquest Report and the Post Mortem Report, though supportive of each other, did not support the statement of the confessing accused. In accordance with the post mortem report the cause of death was hemorrhagic shock. The High Court Division thus believing the confessional statements to be untrue and considering the other evidence adduced against the accused to be insufficient to prove their guilt beyond reasonable doubt, acquitted the accused.	Section 164 of the Code of Criminal Procedure, 1898: It is the duty of the Judicial Magistrate to ensure that the confessional statement is made voluntarily, truthfulness will be determined by the trial Court: While recording a confessional statement a Judicial Magistrate is not required to investigate as to the truthfulness or correctness of the statement being made before him by the accused. It is the duty of the Judicial Magistrate to ensure that the confessional statement is made voluntarily free from any form of coercion or undue influence. Determination of truthfulness or correctness of confessional statement of an accused is the duty of the learned judge of the trial court. The trial Court shall perform above duty by examining the confessional statement in the light of facts and circumstances of the case and by comparing the same with other legal evidence on record. When more than one accused person of a case give separate confessional statements the trial Court shall also examine if above statements are mutually supportive or those suffer from material contradictions.
16.	City Bank Ltd Vs. Court of 1st JDJ & Artha Rin Adalat & anr (Md. Zakir Hossain, J) 16 SCOB [2022] HCD 217 Key Words: Section 33(1) and 33 (4) of the Artha Rin Adalat Ain, 2003; mortgage property; auction sale; functus officio; stare decisis; per incuriam; Section 20, 33(7), 57 of the Artha Rin Adalat Ain, 2003; Right of redemption; foreclosure	After obtaining decree in an Artha Rin case the petitioner- decree holder Bank got a certificate of ownership in respect of mortgaged property issued by the Executing Court. After registration of the certificate of ownership the executing Court disposed of the execution case. Thereafter, the judgment-debtor filed an application to get back the property by depositing the outstanding dues of the decretal amount. Upon hearing, the Executing Court allowed the petition. Challenging the legality and propriety of the said order, the petitioner-decree holder-Bank moved the High Court Division and obtained the Rule. The main argument for petitioner was that after disposing of the execution case the Executing Court has become functus officio and therefore, allowing the application submitted by the judgment-debtor to get back his property was an illegality. The High Court Division found that the execution case was not legally disposed of, as possession of the mortgaged property had not been made over to the decree holder, therefore, the Court had not become functus officio in entertaining the application filed by the judgment-debtor. Moreover, the petitioner-Bank did not file any mortgage suit to foreclose down the right of redemption of the mortgagor. In such case right of redemption exists unless the mortgaged property is sold on auction or that right is barred by limitation. In the instant case, auction was not held in accordance with law and the mortgaged property was not sold on auction, therefore, the right of redemption of the judgment-debtor was not extinguished. Thereafter, giving twelve points direction the High Court Division discharged the Rule.	Section 20, 33(7), 57 of the Artha Rin Adalat Ain, 2003: The contention of the learned Advocate of the petitioner that upon issuance of the certificate under section 33(7) of the Ain, 2003, the Executing Court has nothing to do but to dispose of the execution case finally is not based on any rationality. For the sake of argument, if the Court becomes functus officio, how later on the Court will entertain another execution case or any other application for handing over possession if it remains with the judgment-debtor. The Court may correct its own mistakes by invoking, the umbrella provision, embodied under section 57 of the Ain, 2003 to do justice and to undo injustice despite the provisions of section 20 of the Ain, 2003. It has to remember that the provisions of section 20 of the Ain, 2003 is neither absolute nor sacrosanct nor untouchable. The parties to the suit cannot and should not suffer for the mistake committed by the Court itself. On perusal of the entire edifice of the Ain, 2003, it becomes visible to us that the Code of Civil Procedure, 1908 shall be applicable subject to not being inconsistent with the provisions of the Ain, 2003. The Adalat may review its own order by invoking section 57 of the Ain, 2003 with extreme circumspection in an exceptional case.