Judgment : Appellate Division Full List
 
Case Type
Case/Tender Number
Year
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Short Description
 

Case Number Parties Short Description
101
The Government of Bangladesh
=vs=
Sree Kazal Chandra Sutradhar
According to section 6 of the Police Officer (Special provisions) Ordinance, 1976, we are of the view that the provisions of the said Ordinance does not contemplate formal inquiry to be held before imposing penalty under the said Ordinance save and except follow the provisions as expressly provides in the said Police Ordinance.
The procedure of enquiry against the police officer should be conducted according to the provisions of the Ordinance, 1976 (Special Provisions), the Administrative Tribunal and Administrative Appellate Tribunal will not sit as a Court of appeal against domestic enquiry unless its decision is tainted with illegality, malafide and it acted without jurisdiction.
102
Bhadu Pramanik, son of Late Badal Pramanik being dead his legal heirs are-1.Md. Paran Ali Pramanik and others
=vs=
Md. Abbas Ali Pramanik
It is a settled principle of law that the plaintiff if attempts to establish assert, claim or plead something who must prove it appropriately. The same cannot be assumed from the defects or lacking of the defendant side. Here, in this case the plaintiff-respondent must prove his case solely and wholly and he is not allowed to stand to have a decree upon the lacuna of the defendant-appellant.
High Court Division committed error of law in disturbing the concurrent findings of facts arrived at by both the Courts below and on misreading of the evidence on record.
103
Bangladesh Gayan-O-Srijonshil Prokashak Samity
=vs=
Bangladesh Publisher and Book Seller Association and others
As the concerned notices were not published in any national daily newspapers recognized by persons of ordinary prudence and the aforesaid objection was not considered, these vitiated the whole process of licensing. Because, here licensing authority did not comply with the procedure established by law, did not act in accordance with the provisions of law, acted malafide and violated principles of natural justice. If it’s so, then established principle of law is that even if there is a ouster/non-obstante clause in any law, yet court has ample jurisdiction to review judicially whether the authority followed established principle of law or not.
104
Government of Bangladesh, represented by the Deputy Commissioner, Chittagong and others
=vs=
Abdul Salam Chowdhury being dead his heirs:1)(a) Fatema Begum and others
The High Court Division as well as this Division inaccurately decided that after the enforcement of the State Acquisition of Tenancy Act, 1950, there established a land lord and tenant relationship between the Government and the plaintiffs. For the establishment of a land lord and tenant nexus linking the Government and the ancestor of the plaintiffs there should exists a lawful affiliation between them prior to the enactment. In our opinion the plaintiffs’ side was not able to set up such a tie.
105
Md. Mustafizur RahmanMohibur Rab Chowdhury and others
Wherefrom it is apparent that the same property has already been leased out for 99 years to the appellant of this civil appeal. However, the High Court Division in its judgment without passing any order in respect of the above memo directed the concerned authority to dispose of the petition which was filed by the writ petitioner-respondent, rather, passed the impugned order which is glaring instance of misuse of the judicial review. Such judgment, therefore, cannot be upheld by this Division, rather, such direction should be scraped for future safety of the acquired landed property.
106
Shahin Mia
=vs=
Parul Begum and others
It is curtail principle of law that only in revisional jurisdiction, the High Court Division can interfere, if it is found that the Court of appeal below committed any error of law or procedural mistake and such errors have affected the merit of the case. The plaintiffs must prove his plaint case to succeed in the suit. The weakness of the defence’s case cannot be the ground to succeed or to prove the plaint case.
107
People’s Republic of Bangladesh represented by the Deputy Commissioner, Gazipur and others
=vs=
Md. Idris Ali and others
After passing the standing order High Court Division became functus officio, as such, cannot recall its order lawfully.
Though there was nothing legally incorrect in the impugned judgments and orders of both of the Divisions of the Supreme Court of Bangladesh, nevertheless, it is easily understandable that justice has been defeated in this whole process...we decide to condone the delay of 11 days and consider the Civil Petition for Leave to Appeal at least for doing complete justice in exercise of its power under Article 104 of the Constitution. The earlier judgment of Appellate Division is reviewed.
108
Md. Mortuz Ali Karar (In both the cases)
vs
Khatiza Banu and others (In both the cases)
As in the present case both the recitals and the operative part are clear, but they are inconsistent with each other, hence, the operative part is to be preferred.
109
Sadharan Bima Corporation and another Vs Md. Rafiqul Islam and others
If the authority thinks to impose major penalty on a delinquent employee then the authority at first shall frame charge under Sub-Probidhan (1)(Ka) of Probidhan 41 of Sadharan Bima Corporation Karmachari Probidhanmala, 1992 against the delinquent employee stating the allegations and the facts or information on the basis of which such allegations were brought and the copy of charge as well as other documents shall be supplied to the delinquent employee. It is palpably transparent from record of the case in hand that in taking action against the writ petitioner-respondent No.1 inflicting major punishment the authority issued show cause notice to him on 24.08.1999, but charge was framed on 28.11.1999, which is in clear violation of Probidhan 41 of Probidhanmala, 1992 which vitiates the entire enquiry proceeding against the writ petitioner. It also divulges from the record that the writ petitioner has also not been supplied with the copy of charge. From the inquiry report it is seen that no oral evidence was recorded by the Inquiry Officer to prove the allegations brought against the respondent No.1, eventually no question of cross-examination of the prosecution witnesses by the writ petitioner-respondent No.1 has arisen at all. Thus, the inquiry proceeding in the case in hand has not been held in compliance with the provisions laid down in Probidhan 42 of Probidhanmala, 1992. In the aforesaid backdrop the impugned dismissal order of the respondent No.1 backed by flawed departmental proceeding cannot be sustainable in the eye of law.
110
Terab Ali and others
Vs
Syed Ullah and others
Case laws of any jurisdiction is applicable in our jurisdiction subject to the provisions of Article 111 read with Article 149 of the Constitution of Bangladesh, 1972 only and anything beyond that periphery, specially from Subordinate Judiciary, could be termed as judicial adventurism. Case laws declared by any superior court other than Bangladesh including Pakistan after 25 th March, 1971 (that is after independence of Bangladesh) and that of India after 13 th August, 1947 (that is after partition of Pakistan) are not applicable in our jurisdiction as binding precedents. They may have some sort of persuasive efficacy in our legal arena and can be used to assist or guide Bangladesh Supreme Court in unaling decisions on new facts. Hence, both the Division of the Supreme Court of Bangladesh can discuss and cite foreign case laws in reaching any decision on some points of law applicable in Bangladesh. However, no reliance ipso facto could be placed upon those precedents in any way as was relied upon by the learned Senior Assistant Judge, Sylhet. Moreover, as the Judges of Sub-ordinate Judiciary, as a whole, are not empowered to interpret laws or making a precedent, rather, are bound to apply “existing laws” as it is, it is better for them only to cite or rely on the existing laws and case laws applicable in our jurisdiction and at the same time refrain from relying on foreign case law, not covered under the constitutional scheme framed through Article 111 and Article 149 of the Constitution of Bangladesh as discussed above. Moreover, as per the provisions of the Law Reports Act, 1875 and practices of the Court, using of reference books other than recognized law reports, is not appropriate.
111
The State
-Vs-
Md. Ramizuddin and another
From the judgment and order dated the 5th August,2009 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No.7970 of 2007.
112
Manager, Bhawal Raj Court of Wards Estate Vs Nahar Haider Nannu being dead his legal heirs: Aisha Akhter Parvin and others
113
Probashi Kallyan Bank, represented by its Managing Director, Dhaka
Vs.
Md. Bazlur Rashid and others
Admittedly, the respondents herein as Interne Officers are serving in the Bank for a long period. It also appears that though the respondents initially appointed as an Interne Officers for 03(three) months but the Bank authority retained them after expiry of the Interne period. The petitioners are working as Interne Officers till now. The Bank through its conduct assured the petitioners that they would be regularized/absorbed in the regular setup of the Bank which creates a legitimate expectation that they would be made permanent in the Bank.
114
The State
Vs
Omit Hasan @ Azmir
“…an order of stay takes effect from the moment it is passed and the knowledge of the court or others concerned is immaterial. However, the information of the existence of such a prohibiting order must be communicated in any way to the courts below for the purpose of proceedings to be taken against any person for contempt of the authority of the higher Court. But the operation of the order is not in any way postponed till it has been communicated to the Subordinate Court or the party intended to be affected by it.
The court may receive knowledge either on receipt of an order of stay from the court that passed it or through one party or the other supported by an affidavit or in any other way such as lawyer’s certificate with affidavits. In the case of a stay order, it prohibits courts below from proceeding further, as soon as the court has knowledge of the order it is bound to obey it and if it does not, it not only acts illegally, and all proceedings taken after the knowledge of the order but also all proceedings taken even without knowledge too would be a nullity in toto.
As Officer of the Court it is the foremost duty of the learned Counsel engaged to inform the same in the courts below each and every occasion needed.
Before passing any order it is the duty of the High Court Division by applying its ordinary prudence to enquire from the learned Counsels concerned, whether there pending any prohibitory order from the Apex Court in the matters concerned. As Officer of the Court, the learned Advocates pressing the petition too is duty bound to communicate any such information before the Court and be restrained themselves from lodging or hearing any such petitions.”
“It is a general Rule of custom or usage practiced in the Appellate Division of the Supreme Court of Bangladesh and followed through the years that in any pending petition, if any application filed within stipulated time for extension of order of stay passed by the learned Judge-in-Chamber, be regarded as continuation of the stay order passed earlier. It was recognized in view of the long standing convention and judicial discipline and maintained as good as a legal provision unfailingly by all concerned. The same view was postulated and enshrined through a written Office Order of the Appellate Division of the Supreme Court of Bangladesh bearing Memo No.এফ-১-৪৭/০৫ এসসি(এডি) dated 17-10-2006.” “There is a concept in the arena of customary international law which is known as “opinio juris” (Latin) means “opinion that an act is necessary by rule of law” which requires that the custom or practice be accepted as law or followed from a sense of legal obligation. This element is necessary to establish a legally binding practice or custom. “Opinio juris” denotes a subjective obligation, a sense on behalf of a state that it is bound to the law in question. If any such customs or usages or practices pass the test of “opinio juris” for a reasonable time then it is recognized as a legal provision. The same test and standard too are applied in the laws of the states since immemorial in countless ramifications. Regarding the above mentioned practice or custom it is evident that a sense on behalf of the stakeholders established that they are bound to the law in question. Hence, it could easily be said that it passed the test of “opinio juris” in its arena, as such, attained the strength of law.”
115
Azizul Haque Sarker alias Azizul being dead his heirs, I(a) Koduanu Khatun and others
-vs-
Md. Wazed Ali @ Wazed Ali and others
In the instant case the respondents were not heard by the Additional Deputy Commissioner (Revenue) Sirajgonj before cancellation of registered settlement deeds and there was no prove that by practicing fraud the respondents managed to get the lease deed and they have violated the terms and conditions of the lease deed. Further, the ADC (Revenue) had no authority to cancel the registered settlement deed duly executed by the Deputy Commissioner.
116
Barrister Muhammad Jamiruddin Sircar vs The State and another
 It is unerringly transparent that the appellant had no mens rea in providing approval to the medical bill submitted by the then Chief Whip and as such the appellant cannot be prosecuted.  In compliance with the letter dated 13th March, 2013 under memo No.10.00.0000.128.002.06.2013-355 issued by the Law and Justice Division of the Ministry of Law, Justice and Parliamentary Affairs the Chief Justice of Bangladesh framed Guidelines for Supreme Court Judges for Claiming Medical Expenses Incurred Home and Abroad, 2015 which was adopted in the Full Court Meeting and thus the said guideline has got force of law. All the Judges of the Supreme Court and all other concerned of the State functionaries are bound to follow this guideline in respect of payment of medical expenses incurred at Home and Abroad.  The Speaker being head of the Legislature is also no exception in enjoying approval of the medical expenses abroad vis-à-vis other two heads of organs that is the Executive and Judiciary. To that end we are of the view that the government may consider to delegate the power to the Speaker of approval of reimbursement of the foreign medical expenses for the Speaker, Deputy Speaker, Chief Whip and Whip to the Speaker of the Jatiya Sangsad.
117
The State vs Md. Kabir Biswas
o It depicts explicitly that the High Court Division considered the anticipatory bail of the respondents mechanically, whimsically and capriciously, flouting settled legal propositions. It has come to our notice that some of the benches of the High Court Division are exercising the power of granting anticipatory bail indiscriminately without adherence to law. In doing so the High Court Division travelled beyond its periphery. Such act of the High Court Division is deprecated seriously. Discretion the High Court Division exercised in granting anticipatory bail cannot be termed fair and intending to secure justice. Rather, such orders were capricious causing adverse impact upon the criminal justice system. o It is pertinent to mention here that the latitude given to the High Court Division while exercising the discretionary power of granting anticipatory bail must be guided by the principles laid down by the Appellate Division. But the High Court Division passed the impugned orders overstepping its limits. We have given our anxious consideration to such unwarranted attitude of the High Court Division. Such derogatory trend of the High Court Division shall leave an adverse impression upon the criminal to get an upper hand through the hands of law. In such backdrop, our considered view is that the High Court Division and all other courts are bound to follow the law and propositions enunciated by this Division in the case of State vs. Professor Dr. Morshed Hasan Khan and others (supra). We also direct the High Court Division to refrain from unscrupulous exercise of the power of granting anticipatory bail.
118
Hasina Akhter
The State
Vs
Amena Begum and others
The High Court Division committed serious error in considering the evidence of P.W-1 and medical report in exercising the power under section 561A of the Code of Criminal Procedure at this stage when the prosecution yet not completed to adduce its evidence. The High Court Division has not been empowered to usurp the jurisdiction of the trial Court invoking section 561A of the Code of Criminal Procedure.
119
Bangladesh and others vs Bangladesh Paribesh Andolon (BAPA) and another
The Department of Architecture is concerned with the architectural value of the National Assembly Complex and in the present case the government has not unilaterally and with arbitrary manner taken the decision of construction of the present construction work rather the same is done with the approval of the Department of Architecture and in the way the government complied with the legal requirement, but the High Court Division could not take the matter into consideration, therefore, committed illegality in making the Rule absolute. On examination of Section 3 of the Government Building Act, 1899 it appears that the said construction of residences of the Speaker and the Deputy Speaker being for the public purpose in the government land is exempted from complying with provisions of other municipal laws. Therefore, the Town Improvement Act, 1953 and the Building Construction Act, 1952 have no relevance with the construction of the residences for the Speaker and the Deputy Speaker which are being constructed on Government’s own land after obtaining clearances from the Department of Architecture and on approval of the Prime Minister, the Chief Executive of the Government as per approved plan.
120
Md. Abdul Karim
........Appellant
Vs.
Mohammad Musa Kazem and others
........Respondents
Time and again this Division disproved summary disposal of a writ petition or revisional application under section 115 of the Code of Civil Procedure giving whole relief to the petitioner without issuing Rule and thus giving no opportunity to the other side of being heard.
We strongly disprove and deprecate this sort of decision by the writ-respondents. If the writ- petitioner is not qualified under Rule 6 of the Rules, 1975 his application should be disallowed/rejected for lack of requisite qualification.
121
Syed Jobayer Hossain and others
-Vs-
Judge, Artha Rin Adalat No.1, Dhaka and others
Having discussed and considered as above, we have no hesitation to hold that the Miscellaneous Case under order 21 Rule 100 of the Code of Civil Procedure filed by the appellant of Civil Appeal No.471 of 2017 was not maintainable as the said appellant has stepped into the shoes of the mortgagor/judgment-debtor and he was not in possession on his own account or other than the mortgagor.
122
Gias and others vs. The State
Non-disclosure of the name of the accused in the deposition of eyewitnesses result in acquittal.
123
Abdus Sattar Miah
Vs.
Bangladesh and others
It is admitted fact that the judgment-debtor did not mortgage any property to the bank rather than the present appellant mortgaged his property as a guarantor and thus, no illegality has been committed in putting the auction of the mortgaged property of the present appellant.
124
Ashkar and others
Abul Khayer and others
It is undeniable fact that in the above certified copy of the deed, in the column of executants’ name of Kashem Ali has not been mentioned though his signature has been appeared. Exhibit No.10 is a certified copy of the alleged deed, which is secondary evidence. The defendants have claimed that said deed was forged one as Kashem Ali never executed the said deed. The plaintiff did not take any steps to prove the said secondary evidence by recalling the original ‘balam book’ (volume) from the concerned Registrar’s Office in order to prove the execution of the deed by Kashem Ali and thus, the High Court Division as well as the court of appeal below committed error of law holding that by virtue of said deed the plaintiff’s predecessor had acquired right, title and interest in the suit property, and that in the deed being No.5567 dated 24.06.1970, exhibit-5 executed by Provat Ranjan in favour of the plaintiff the plot Nos. have wrongly been written as 25 and 26 instead of 925 and 926.
125
Md. Nazrul Islam, son of late Abul Hasem Vs. Government of Bangladesh, represented by the Secretary, Ministry of Home Affairs, Dhaka and others.
o The allegation against the appellant was that he did not deposit the money earned from schedule sale to the Government exchequer in due time, but at a belated period for which the appellant sought exoneration and the appellant was not charged with misappropriation of the government money, which usually does not call for major punishment. o As per record it appears that the appellant was appointed in the government service on 09.08.1986 and he has no stigma throughout his twenty four year’s service except the present allegation. Therefore, it is unnatural to impose major penalty i.e. compulsory retirement to the appellant for such minor offence.
126
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.
127
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.
128
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.
129
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.
130
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.
131
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.
132
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).
133
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.
134
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.
135
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.
136
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.
137
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.
138
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.
139
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.
140
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.
141
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.
142
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.
143
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.
144
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.
145
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.
146
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.
147
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.
148
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.
149
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.
150
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.
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