Judgment : High Court Division
 
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Case Number Parties Short Description
1
Professor Zaheer Al-Amin -vs-Bangladesh represented by the Secretary, Ministry of Health and Family Welfare, Government of Peoples Republic of Bangladesh, Secretariat Bhaban, Ramna, Dhaka-1000
The legal position is well settled that power of judicial review under Article 102 of the Constitution of the People’s Republic of Bangladesh in cases of imposition of punishment of the delinquent person is not on merits of the impugned decision. Moreso, while exercising this power it is not open to this court to reappreciate and reappraise the documents led before the inquiry committee and examining the findings recorded by the said committee as a court of appeal. This court is to see whether there was non-observance of the principle of natural justice, denial of reasonable opportunity or the punishment so has been imposed is totally or shockingly disproportionate to the proven context. As observed earlier, prior to issuance of the impugned order of suspension the petitioner was asked to give reply on the allegations on two occasions; one, immediate after receipt of complaint i.e. on 03.06.2020 (Annexure-C) and another, on 29.09.2021 (Annexure-D) before the Disciplinary Committee. Later, vide show cause notice dated 31.10.2022 (Annexure-E) he was again given opportunity to give reply to the allegations so brought against, in order to defend his part of the case. In the given facts and circumstances, absence of service of notice at the stage of investigation does not go to negate the admitted fact that the petitioner did conduct surgery on the right parotid gland without taking written consent and again conducted surgery on the left parotid gland on the same date. It also cannot dislodge the fact that for non-compliance of service of notice at investigation stage the patient did not suffer. Considering the context of the case and position of law we have no manner of doubt to find that raising the plea of non-service of notice during the course of investigation and thereby claimed to have been prejudiced for having been deprived of getting reasonable opportunity to defend his case, falls through. Moreover, in view of the facts and circumstances of the instant case the impugned punishment of suspension of registration cannot be termed as shockingly disproportionate to the findings of the authority concerned. In view of the above, it is accordingly found that prior to issuance of the impugned order of suspension dated 16.11.2022 there was due observance of the basic principle of natural justice with reasonable opportunity so has been provided to the petitioner to defend his case.
2
Md. Kashem Sharif @ Abul Kashem Sharif and others Vs. Md. Abul Hossain and others
Sub-rule (3) of rule (2) of Order II of the Code of Civil Procedure gives the plaintiff an opportunity to claim more than one relief after institution of the suit with leave of the Court. Rule (12) of Order xx of the Code empowers the Court to pass a decree of recovery of possession of property with relief of mesne profits or rent. Such claim of rent or mesne profits, if omitted, at the time of institution of the suit, the plaintiff as per sub-rule 2(3) of Order II of the Code may introduce such claim after institution of the suit with the leave of the Court.

In Abdul Karim Meah vs Arch Bishop Christian Missionaries and another 36 DLR (AD) 38 it has been held, “ for realisation of the omitted claim, the plaintiff will be debarred from filing a subsequent suit, but there is no prohibition to the realisation of the omitted claim in the suit by amending the claim.
3
Government of the People’s Republic of Bangladesh, represented by the Deputy Commissioner, Jashore and others. vs Md. Abdul Karim and others
In the above cited cases the Appellate Division stated as to how delay causes by the Government functionaries in preferring a revisions before the higher Courts due to some official formalities as well as dilatory tactics or negligent activities on the part of the Government officials. If the revisional applications brought by the Government are lost for such default, no person would be individually affected but public interest would be affected. Accordingly, the Apex Court took a lenient view in condoning the delay in filing revisional application by the Government.
4
The State Vs. Most. Rahima Sultana Rumi
A confession is an admission to guilt. The confession must disclose the commission of an offence and secondly the maker of the confession must implicate himself or herself in any way in the commission of above offence. In her statement under section 164 of the Code of Criminal Procedure accused Most. Rahima did not confess that she pushed above injection to her husband. None can introduce a new word or a change any word in above statement of accused Most. Rahima made under section 164 of the Code of Criminal Procedure on the basis of perception. Above statement of accused Rahima made under section 164 of the Code of Criminal Procedure cannot be designated as a confession. As such the questions of using above statement as a legal evidence against co-accused Misty or Ria does not arise at all.
5
S.M. Nurul Haque Vs. The State and another
6
হিউম্যান রাইটস এন্ড পিস ফর বাংলাদেশ (এইচআরপিবি) ও অন্য বনাম বাংলাদেশ সরকার ও অন্যান্য
7
মো: কামরুজ্জামান সরকার বনাম রাষ্ট্র ও অন্য
8
Md. Nurul Hakim VS The State and another
চেক dishonour এর উপর গুরুত্বপূর্ণ মামলার রায়
9
The State Vs. Md. Monir Howlader alias Monir Hossain.
A Confessional statement if not made by accused under inducement, threat or promise, is admissible in evidence. If the confession made by the accused is voluntary and truthful and relates to the accused himself, then no further corroboration is necessary and a conviction of the accused can be solely based on it. Such confessional statement is admissible as a substantive piece of evidence. (Ref: Md. Kamal Hossain and another vs. The State, 19 ADC 455).

By now it is well settled that ordinarily the accused has no obligation to account for the death for which he is placed for trial. If a murder is taken place while the accused has been living with his wife in the same house, then the accused husband, under section 106 of the Evidence Act, is under obligation to explain how his wife had met with her death. In absence of any explanation coming from his side it seems, none other than the accused husband was responsible for causing her death. [Ref: State vs. Aynul Huq, 9 MLR 393; Gauranga Kumar Saha vs. State, 2 BLC (AD) 126; Abdul Mutaleb Howlader vs. State, 5 MLR (AD) 362; Abdus Salam vs. The State, 19 BLD (1999) 98; Abu Sayed (Saked) vs. The State, 12 MLR (AD) 101; Dipok Kumar Sarker vs. State, 40 DLR (AD) 139; Sudhir Kumar Das alias Khudi vs. State, 60 DLR 261; Mamun @ Mamun Ar Rashid vs. State, 74 DLR (AD) 36].
10
Salim Dewan Vs. The state
11
Md. Elias Ali Vs. The State and another
12
Md. Mamun Chowdhury alias Mamun vs. Md. Sohel Rana, Chief Judicial Magistrate, Cumilla
By now it is settled by our Apex Court that in a proceeding under contempt there cannot be both justification and an apology. An apology usually mitigates the offence and if it is unreserved, the Court may accept it. On the other hand, an apology with an attempt to justify the act complained of is no apology at all and if the apology is qualified, hesitating and sought to be used as a device to escape the consequences of the contemner’s action, it must be rejected.

The Judicial Officer’s Protection Act, 1850 only protects a judicial officer from the liabilities of any act done or ordered to be done by him in the discharge of his judicial duties in good faith. The said Act cannot protect him from the offence of contempt of this Court because this Court is empowered to deal with contempt matter by itself under Article 108 of the Constitution and this constitutional power of this Court cannot be obstructed or taken away by any other law of the country.


The contemner, it appears from record, committed serious contempt of this Court by his several acts and orders, as referred to above. He ought to have thrown himself at the mercy of this Court as soon as he was directed to explain his position before issuance of contempt Rule. He did not feel to do so even in the written statement submitted by him after the issuance of this Rule. He rather justified his conduct and judged himself that he committed a minor offence by violating the order of this Court for which he should not be imposed with major punishment by us. Moreover, by justifying his conduct in the affidavit tendering apology the contemner stated that ‘in spite of proceeding with the case and pursuant to the orders passed by him the accused petitioner was neither suffered nor prejudiced’. In the aforesaid way he has directly questioned the authority and dignity of this Court and interfered with proper and unfettered administration of this Court. This is an example of worst type of contempt of this Court. Thus the apology tendered by the contemner cannot be considered as an act of contrition or repentance but the same is very much qualified, hesitating and sought to be used as a device to escape the consequences of his actions and as such, the prayer of apology is rejected.
13
Mirza Fakhrul Islam Alamgir VS The State
There are prima facie allegations against the accused petitioner in the First Information Report. After the 5 investigation, police submitted a Police Report against the accused petitioner along with others. We have also found that the charge was framed by the learned Metropolitan Magistrate in total compliance with the provision so enumerated in section 221 / 222 / 223 of the Code of Criminal Procedure., having no scope to interfere with the order.
14
Wadud Bhuiyan Vs The State and another
Disqualifications of a Member of Parliament under Article 66(2)(d) of the Constitution of the People’s Republic of Bangladesh and consequences of suspension of conviction and sentence. There is no scope to suspend the conviction of the appellants on the ground to facilitate them to participate in the election of Parliament since as per provisions of Article 66(2)(d) of the Constitution of the People’s Republic of Bangladesh, the appellants are disqualified to contest or participate in the election of Parliament.
15
Nashreen Siddiqua Lina Vs. Government of Bangladesh and others
16
Md. Abu Sayeed Miah and others -Vs-Bangladesh Election Commission, represented by the Chief Election Commissioner and others
Nowhere within the four corners of Section 6(3), the Legislature has bound the Election Commission to endorse the “proposed change of areas” while inviting the inhabitants of the respective constituency to raise objection or place their opinion in support thereof. The requirement of law under Section 6(3) is to endorse “proposed area” to be included in the respective territorial constituency. Moreso, with the use of the words “ কমিশন, তদ্‌কর্তৃক প্রাপ্ত আপত্তি এবং পরামর্শ, যদি থাকে, শুনানি গ্রহণ করিয়া এবং ক্ষেত্রমত, বিবেচনা করিয়া উপযুক্ত মনে করিলে উপ-ধারা (৩) এর অধীন প্রকাশিত প্রাথমিক তালিকায় প্রয়োজনীয় সংশোধন করিয়া,, ................” in Section 6(4), the intention of the Legislature becomes abundantly clear that change of area, if so requires, is to be endorsed by the Election Commission only after hearing the objection/receiving opinion and considering other required documents on administrative convenience, upon making necessary amendment of the preliminary list published under Section 6(3) of the Act, 2021.
17
Sheikh Saeem Ferdous -Vs-Bangladesh, represented by the Secretary, Rural Development and Co-operatives Division, Ministry of Local Government, Rural Development and Cooperatives, Bangladesh of the Peoples Republic of Bangladesh, Bangladesh Secretariat, Dhaka and others.
Considering the facts and circumstances of the case and the observations so made above it is categorically found that: (a) While giving promotion to respondent Nos.5-9 vide the impugned order dated 06.08.2019 (Annexure-D) the Academy did not supersede the petitioner; (b) Admitting the fact that the petitioner is senior to respondent Nos. 5-9, but considering his service record including ACR the Academy did not consider his promotion; (c) Considering outstanding performance and 15 (fifteen) years work experience in the respective field of the Academy respondent No.5 was appointed in the post of Deputy Director relaxing his age bar vide clause (4) of the circular dated 22.10.2011 (Annexure-3); hence is found lawful; (d) Giving promotion to respondent No.6 to the post of Joint Director having served 5 (five) years in the post of Deputy Director with more than 5 (five) years service experience while giving appointment in the post of Deputy Director, in total, having 10 years service period, is found lawful; and (e) Last but not the least, since adverse remarks so made against the petitioner in his ACR for the year 2017 and 2018 respectively, were not done in due compliance of the respective Rules and regulation and now, are withdrawn; hence, the petitioner is now entitled to be considered for promotion to the post of Joint Director in due compliance of law.
18
মোঃ বজলুর রশিদ বনাম রাষ্ট্র ও অন্য
19
Brandwin Trading Corporation Ltd. Vs Bangladesh Chemical Industries Corporation and another
20
মো: মফিজুল হক ও অন্যান্য বনাম রাষ্ট্র
21
Professor Muhammad Yunus alias Professor Dr. Muhammad Yunus and others VS The State and another
A rule issued under section 561A of the Code of Criminal Procedure the framing of charge
22
Md. Abdur Rahim Bhuaya-vs-The Government of the Peoples Republic of Bangladesh, represented by the Secretary, Ministry of Local Government and Rural Development, Bangladesh Secretariat, Ramna, Dhaka and others.
The petitioner having failed to show violation of any provision of law being allegedly committed by the Election Appellate Tribunal, Jamalpur while passing the impugned judgment and order dated 24.08.2022 as such, he is not entitled to seek equitable relief under Article 102 of the Constitution on the issue of contradiction in counting votes by the Election Tribunal and Election Appellate Tribunal concerned respectively, for being based squarely on disputed question of facts.
23
Md. Raju Hossen-vs-Bangladesh Securities and Exchange Commission (BSEC) and others
Since Main Market Platform and SME Platform, created by the Commission upon framing respective Rules, are based upon materials and having substantial difference with reasonable relations between the objects and the persons dealt with and the objectives sought to be achieved, said classification is found reasonable. That being so, imposition of restriction by the Commission in the SME Platform in exercise of power as provided under Section 20A of the Ordinance, 1969 cannot be said to have offended Articles 27 and 29 of the Constitution. Moreover, in view of the assertions of the Commission and also, considering the context of the impugned notification being issued for the greater interest of the general qualified investors, question of violation of Articles 40 and 42 of the Constitution does not arise at all. Hence, we do not find any reason requiring interference in the impugned restriction while exercising power under Article 102 of the Constitution.
Further, fixing “Floor Price” for the Main Market vide order dated 28.07.2022 (Annexure-C) was on temporary basis considering extranuating circumstances. Moreover, giving open “Floor Price” for SME Platform is the absolute discretion of the Commission being exercised under Section 20A of the Ordinance, 1969. As such, seeking direction by the petitioner in the form of mandamus for open “Floor Price” for SME Platform on the context that “Floor Price” is imposed in the Main Trading Platform (Main Market ) vide order dated 28.07.2022 (Annexure-C) upon the movement of share price, is not maintainable.
24
M/S Barnali Printers Ltd.-vs-Commissioner (current charge), Customs, Excise and VAT Commissionerate, Dhaka and others.
25
Arif Hossain-vs-Commissioner of Customs, Customs House, P.S.-Bandar, Chattogram and others.
It is the settled principle of law that the remedy given under writ jurisdiction is equitable; hence, the applicant must come with clean hands. In view of the decision of our apex Court in Oriental Bank vs. A B Siddiq (2008) 13 BLC (AD) -144 the improper conduct with regard to the matter in controversy may disentitle him to get equitable relief.
In the present case, proceeding under Section 83A of the Act, 1969 was initiated with the issuance of show cause notice on 15.01.2018 within 6(six) months of assessment; the petitioner with intention did not respond to the same. Said improper conduct of the petitioner disentitles him from taking the plea of limitation in order to strike down the reminder notice issued upon him subsequently on 10.10.2020 (Annexure-C).
26
Md. Hasan Patwary-vs-The Chief Election Commissioner and others.
In view of the above findings, since concealment of facts of disqualification of the petitioner tantamounts to fraud as such, it vitiates everything. In that view of the matter, seeking equitable relief by the petitioner for a declaration that publication of subsequent gazette notification dated 06.01.22 by the respondent No.1 excluding the name of the petitioner as elected Member, is not maintainable in the eye of law.
Before we part, it is pertinent to observe that every election process involves huge finance involving public money and with the publication of election schedule the officers concerned are deputed in the respective fields to discharge their respective official designated duties faithfully with proper application of mind. But when they fail, miscarriage of justice occurs by causing injury to the concerned affected persons. Present case is a glaring instance of failure of professional duties of the respondent No.4, which in the given context is unfortunate and hence, deprecated.
27
Md. Arifuzzaman Sarker-vs-Government of People’s Republic of Bangladesh, represented by Secretary Ministry of Education, Bangladesh Secretariat, Ramna, Dhaka and others.
Since the impugned order dated 15.01.2020 has been issued without the recommendation of the Selection Committee hence, we have no manner of doubt to find that it has no mandate of law. Rather, said order is a glaring instance of abuse of the administrative power of the respondent No.2. Moreover, because of issuance of the said questionable impugned order the petitioner has been deprived of his right to be considered for promotion.
In view of the above findings that the impugned order of promotion has been issued by the respondent No.2 unlawfully hence, taking the plea that said order having not been acted upon with the approval of the Board and as such, is premature, is nothing but a device being resorted to by the said respondent to cover up the said questionable order which is under challenge in the instant Rule. Accordingly, the submissions so made by the respondents concerned to that effect, falls through.
28
Aman Ullah Aman and another vs The State and another
29
Chairman Rajdhani Unnayan Kartipakkha (RAJUK) Vs. Amena Khatun and others
30
Md. Motahar Hossain Khan Vs. The State and another
31
Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku vs The State and another
32
আবুল কাশেম এর মৃত্যুতে তার ওয়ারিশ; ১(ক) মোছা: ফজিলা বেগম ও অন্যান্য বনাম শ্রী প্রমথ কুমার বসাক এর মৃত্যুতে তার ওয়ারিশ; ১(ক) শ্রী প্রনথ কুমার বসাক ও অন্যান্য
33
Md. Rahman vs The State
Mere filing of General Diary (GD) against an accused alleging that he made threat to the informant party and starting of NGR case by the Magistrate on the basis of Non-FIR prosecution report submitted by the police against the accused cannot be taken as proven misuse of the privilege of bail unless such allegation is proved by evidence at trial of the NGR case.

It is to be born in mind that rejection of bail in a non-bailable case at the initial stage and cancellation of bail already granted have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted.
34
Md. Saiful Islam Roni (Jamal) and others vs.The State and another
On the face of it, section 4 of the Criminal Law Amendment Act does not create any bar to lodge a complaint by a private individual before the Special Judge on the allegation of committing corruption by any person. Though sub-rule (3) of rule 13 of Anti-Corruption Commission Rules, 2007 made an embargo that a complaint cannot be received directly by the Special Judge but such provision can not override the provision under section 4 of the Criminal Law Amendment Act, 1958 against the settled principle of law that in case of any conflict between the Act and Rules, the provisions of the Act will prevail.
35
মোঃ জালাল উদ্দিন মিয়া ও অন্য বনাম আলহাজ আবদুল আওয়াল ও অনান্য
36
মো: ফজলুর রহমান সোয়েব বনাম রাষ্ট্র ও অন্য
37
A.H. Ershadul Haque, Advocate vs The State and another
38
Gulshan Youth Club Limited -Versus- Government of the People’s Republic of Bangladesh represented by the Secretary, Ministry of Housing
39
Dr. David Rintu Das and others -Versus- Bangladesh, represented by the Secretary, Ministry of Fisheries and Livestock, Bangladesh Secretariat, Dhaka and others
40
City Edible Oil Limited and others vs Government of Bangladesh represented by it’s Secretary, Ministry of Finance, Internal Resource Division, Bangladesh Secretariate, Ramna, Dhaka and others.
Prior to taking decision by the respondent-government under Section 44(4)(b) of the Ordinance, 1984 consultation with and clearance of BEZA, constituted under the Act No.42 of 2010, was essentially required in order to exclude special privileges given to those companies who are situated and have started commercial operations in the respective economic zone. Pursuant to the independent decision of the respondent No.1 impugned S.R.O. No.104 dated 25.03.2020 has been issued under Section 44(4)(b) of the Ordinance, 1984. Not only that, vide the said impugned S.R.O. No.104 the respondent-government has picked up only those companies situated in the economic zone who are producing 7(seven) different categories of products, for the purpose of excluding them from getting the benefit of tax exemption without expressing a single reason whatsoever for taking the said impugned decision. At the same time vide the said S.R.O. No.104 the respondent-government has retained the privilege of tax exemption for all other companies situated in the said zone. Said act of the respondent-government is a glaring instance of pick and choose as well as executive highhandedness and arbitrariness; hence, it cannot sustain in the eye of law.
41
Perfetti Van Melle Bangladesh Pvt. Ltd. vs Customs, Excise and VAT Appellate Tribunal and others
When an appeal is preferred before the Tribunal under Section 196A and or receipt thereof a date is fixed for statutory deposit as per requirement of Section 194(1) subject to giving notice to the appellant it shall pass necessary order either dismissing the appeal without affording further time, or may extend time for the said deposit before substantive hearing of the appeal or even dispense with such deposit under the second proviso to Section 194(1) either conditionally or subject to such conditions as it may deem fit to impose. Prior to passing such order the Tribunal cannot hear and dispose of the appeal on merit.
42
Md. Abdul Hye Akhanda vs Secretary, Ministry of Local Government, Rural Development and Co-operatives, Bangladsh Secretariat, Shahbagh, Dhaka and others
Since proceeding under Section 13Ka of the Ain, 1998 does not empower the respondent-government to suspend to the petitioner under Section 13Kha as such, in the absence any proceeding initiated under Section 13 and consequently, without having any materials before the government on the date of passing the order of suspension, to form an opinion to that effect render issuance of the impugned order of suspension by the respondent No.1 dated 13.04.2021 (Annexure-K to the supplementary affidavit) nugatory in the eye of law.
43
Rowshan Sheikh and another VS The State and another
এই সেই জাজমেন্ট যাহা, কিছু আইনজীবি আদালতের আদেশ প্রদানের আগেই নিম্ন আদালতের মামলার কার্যক্রম স্থগিত রাখার জন্য আবেদন করেন, যাহা 44 DLR, আপীল বিভাগ, পাতা ২১৯ এবং সংবিধানের ১১১ ধারার পরিপস্থি। - এই বিষয় সংক্রান্ত।
44
Md. Imran Hossain vs Customs, Excise and VAT Appellate Tribunal others.
45
Kazi Md. Kamrul Islam vs The Registrar, Department of Patents, Designs and Trade Marks and others.
It is the established principles of law that under special law when time period has been prescribed for preferring appeal Section 5 of the Limitation Act, 1908 cannot be applied unless incorporated by the Legislature in express terms. Trade Mark Act, 2009 being a special law and having prescribed specific period for preferring appeal before the High Court Division as such, in the absence of incorporation of Section 5 of the Limitation Act, 1908 it shall have no manner of application for condoning delay in preferring appeal under Section 100(2) of the Act, 2009.
46
Delta Life Insurance Company Limited VS Bangladesh, represented by the Secretary, Ministry of Finance
47
Md. Abdul Aziz and others vs Bangladesh, represented by the Secretary, Cabinet Division, Government of the People’s Republic of Bangladesh Secretariat, Ramna Dhaka and others
The process of removal of Chairman, Vice Chairman or any Member of the Upazilla Parishad as provided under Section 13Ka of the Ain, 1998 is a unique feature of the Ain, 1998 giving prerogative to the elected members of the Upazilla Parishads with required number of endorsement to initiate proposal or “Motion of no confidence” against the person concerned, should he failed to discharge his respective duties and functions, by adopting due process of law, as prescribed under the statute. Taking into consideration of the context of Section 13Ka and position of law the assertion of the Chairmen and other Members of the Upazilla Parishads as to being impeached and removed by the unelected person, is not maintainable in the eye of law;

Empowerment of the government to suspend the Chairman, Vice Chairman or the Member of Upazilla Parishad under Section 13Kha in a pending proceeding initiated under Section 13 is subject to formation of opinion based on the materials gathered by the enquiry officer following the procedures as provided under Rules 3 and 4 of the Rules, 2016;
48
Harun-Or-Rashid Howlader and others Vs Government of Peoples Republic of Bangladesh, represented by the Secretary, Cabinet Division, Bangladesh Secretariat, Ramna, Dhaka and others
Vide the impugned amendment of Section 33 of the Ain, 1993 the Parliament has given the UNOs to administer all administrative and financial powers of the Upazilla Parishads without making them accountable to the respective Upazilla Parishad, which is composed of the elected representatives and is the product of Articles 59 and 60 of the Constitution; hence, comes in direct conflict with Articles 59 and 60 of the Constitution as well as the overall scheme of the Ain, 1998. Accordingly, Section 33(as amended vide Act No. 21 of 2011) is void in view of Article 7(2) of the Constitution;
49
Alhaj Md. Mahtab Hossain Molla Versus. The State and another
section 98 of the Code of Criminal Procedure
50
A.H.M. Salim Vs. Government of the People`s Republic of Bangladesh represented by the Secretary, Ministry of Works, Bangladesh Secretariat, Ramna, Dhaka and others
এই সাইটটি প্রদর্শিত হয়েছে :