Code Of Criminal Procedure, 1898
Section 200—Taking cognizance of a fresh case without examining the complainant under section 200 of the Code of Criminal Procedure is illegal.
When the naraji does not contain allegation of any offence but is more a protest petition it does not take the nature of a complaint and there is no question of examining the complainant and taking fresh cognizance of any offence. Abu Bakar vs State 47 DLR 527.
Section 200–The Tribunal disposed of the final report not on merit, but mechanically. It is now well established that naraji petition is nothing but a petition of complaint under section 200 of the Code of Criminal Procedure, On receipt of such Naraji petition, the Tribunal may take cognisance against the accused if it is found reasonable and proper or direct further investigation by higher authority or by another agency of investigation. Abdul Halim Aid vs State bo DLR 393.
Section 200—If the naraji petition is filed before an order of discharge has been passed, the Magistrate can take cognizance without examining the complainant if the intention of the appellant appears only to draw the attention of the Magistrate by way of protest, or the Magistrate may treat it as a complaint and examine the complainant, as he thinks fit. Abu Bakar vs State 47 DLR 527.
Section 200–Naraji petition—-Naraji petition is nothing but a petition of complaint under section 200 of the Code and on receipt of such petition Magistrate may take cognizance against accused persons or may direct further investigation by the Police. The Magistrate is not bound by the final report and may take cognizance against the accused persons on consideration of materials on record or may direct further investigation on his own motion also, Shahjahan Ali Mondal vs Belayet Hossain 47 DLR 478.
Section 200—There is no question of prejudice to the accused-petitioner due to the irregularity of non-examination of the complainant by the Magistrate udder this section before he transferred the case for judicial enquiry. Kazi Rashidur Rahman vs Md Giasuddin 48 DLR 299.
Section 200–A second prosecution of the same accused is permissible if his order of discharge was not passed earlier on merits. Nurul Hoque vs Bazal Ahmed 48 DLR 327.
Section 200–1f cognizance is taken on the basis of a fresh complaint there can be no objection to the proceedings at all and in a proper case an application for revival also may amount to a fresh complaint. Nurul Hoque vs Bazal Ahmed 48 DLR 327.
Section 200—A Naraji petition is a fresh complaint and a Magistrate is competent to take cognizance on the basis of a naraji petition by complying with the requirements of the Code.
By passing the order of discharge of the accused-petitioner from custody at the instance of the police the Magistrate did not become functus officio and his order of discharge of the accused-petitioner from the custody at the instance of the police cannot operate as a bar to take cognizance against the accused-petitioner, Nurul Hoque vs Bazal Ahmed 48 DLR 327
Section 200—Since there is no requirement of law to record reasons for taking cognizance we find no illegality in those orders on that count. Shinepukur Holding Ltd vs Security Exchange Commission 50 DLR 291.
Section 200—Use of the word “report” in this section in contradiction to the word “complaint” used in section 200 of the Code appears to be significant. The word “report” presupposes enquiry or investigation and without making enquiry or investigation a report cannot be prepared and submitted. Shinepukur Holding Ltd vs Security Exchange Commission 50 DLR 291.
Section 200—Both the Magistrate and the Sessions Judge committed error of law resulting in miscarriage of justice by rejecting the Naraji petition and discharging the accused opposite parties on the basis of the police report. The Magistrate ought to have held an inquiry on the Naraji petition before rejecting the case. Jalaluddin Bhuiyan vs Abdur Rouf 51 DLR 408.
Sections 200 and 190—An enquiry or investigation can be directed by the Magistrate under section 202 of the Code in order to ascertain the nature of the allegation and to decide whether cognizance of the offence should be taken because till then he is in seisin of the case. It is wrong to say that simply because the case was started on a petition of complaint, the Special Tribunal constituted under the Special Powers Act would have no jurisdiction to try the case, if it is otherwise triable under the Act. Golam Rahman vs Md Bazlur Rahman (Babu) 53 DLR 566.
Sections 200 & 202–Judicial inquiry held after police report and upon a naraji petition is permissible under provision of section 202 of the Code and it does not amount to reopening of a case.
After receiving the petition of complaint the learned Magistrate proceeded under section 202 of the Code of Criminal Procedure and himself held the judicial inquiry and in that inquiry as the complainant was examined, the action of the learned Magistrate has not vitiated the proceedings in any way for not examining the complainant immediately after filing of Naraji petition. In view of our discussion above, we therefore find no merit in this Rule. Dilu alias Delwar Hossain vs State, represented by the Deputy Commissioner, 48 DLR 529.
Sections 200 and 202—Either there must be some information before police officer about commission of a cognizable offence or there must be a formal complaint before a Magistrate for starting or holding investigation in a case of cognizable offence. Mohammad Hossain, Advocate vs Quamrul Islam Siddique 54 DLR 88.
Sections 200 & 202— In order to bring home the charge under section 420, it is necessary for the prosecution to prove beyond reasonable doubt that the representation made by the accused was known to him to be false and that acting on that false representation, the complainant purchased the land in question. Abul Kashem vs State 59 DLR 1.
Sections 200 & 202— In the judicial enquiry the complainant was examined and thereafter, having found a prima facie case against the petitioner, the Magistrate took cognisance. In such a position the Magistrate committed no illegality in taking cognisance against the petitioner without examining the complainant under section 200 of the Code. Nirode Baran Barua vs Mrinal Kanti Das 59 DLR 456
Sections 200, 202 & 561A—when a naraji petition was filed the same petition should have been treated as petition of complaint and the learned Magistrate was required to act in accordance with provisions laid down in section Zoo or 202 of the CrPC. Abul Hossain vs State 52 DLR 222.
Sections 200, 202, 204 and 205C–Jurisdiction of the Magistrate in cases exclusively triable by a Court of Session. whether the Sessions Judge has jurisdiction to direct the Magistrate to send the case to him after its dismissal by the Magistrate. Bangladesh vs Yakub Sardar 40 DLR (AD) 246
Sections 200 & 204 (IA) & 1(B)— From the language of sub-section (IA) and (IB) of section 204 of the Code it is clear that taking of cognizance under section 200 of the Code will not be illegal if list of witnesses and copy of the complaint are not filed before issuance of the process of warrant of arrest or summons. Shinepukur Holding Ltd vs Security Exchange Commission 50 DLR 291.
Sections 200 & 561A—The purpose of examination of the complainant under section 200 CrPC is • to see whether is sufficient ground for proceeding and not whether there here is sufficient ground for. conviction. whether the evidence is . adequate for supporting conviction can only be determined at the trial and not at the stage of enquiry. Allegations made in the petition of complaint having made out a prima facie case of cheating against the accused-appellant, it is not a fit case to quash the proceeding at the present stage. SA Sultan vs State 44 DLR (AD) 139.
Section 200(1)(a)—In case of an oral complaint, the Court is bound to examine the complainant on oath and to record his statement and to take his signature thereon. The purpose of such examination is to enable the court to have a recorded picture of the allegations so as to decide whether to proceed with the case or not. Abdul Jabbar Sarker vs State (Criminal) 64 DLR 103
Section 200(1)(a)—In case of a written complaint, the Court, as per clause (a) of the proviso to section 200(1) is not bound to examine the complainant on oath or his witnesses, before transferring the case under section 192 (to another court). The reason is simple, namely unlike an oral complaint, the court has before it a written document to consider and to decide whether or not tea proceed with the Case. Abdul Jabbar Sarker vs State (Criminal) 64 DLR 103
Section 202—If the prosecution failed to prove that the accused killed the victim on account of dowry, the trial of the accused by the Bishesh Adalat would be without jurisdiction and the proper course would be to send the case back on remand for fresh trial under the general law. State vs Md Abu Taher 56 DLR 556
Sections 202 and 241A—Before framing charge, a Magistrate is required to hear the parties and consider documents submitted along with the record of the case by the prosecution. Abul Kalam Azad vs State 52 DLR 583.
Sections 202(1), (2A)—Under section 202(1) and proviso to section 202(2A) of the Code of Criminal Procedure in a case exclusively triable by the Court of Sessions, a Magistrate for the purpose of ascertaining the truth or falsehood of the complaint is to consider the evidence in order to find whether prima facie case is made out or not, but he cannot assess the evidence as if in a trial. Syed Ahmed vs Habibur Rahman 42 DLR 240.
Sections 202 and 561A—The Sessions Judge had no jurisdiction to direct the Magistrate for taking cognizance. Even he could not make observation that there was evidence against the petitioner. Basiran Bewa vs State 56 DLR 553.
Sections 202(2B), 241A & 265C–Discharge under the provisions of these sections is of different character than the discharge of the accused under subsection (2B) of section 202 where discharge is made before taking of the cognizance.
In our view there is no scope for making further enquiry after discharge if the accused under sections 241A or 265C of the Code as the same is made after taking cognizance. Moreover at the time of hearing under section 241A or under section 265C the Court considers the record of the case, the documents submitted therewith and the submissions made by both parties. So, all necessary materials are before the Court and as the order is passed on consideration of all such materials, there is no scope for passing any order for holding further inquiry. But there js scope for further enquiry when accused is discharged under the provision of sub-section (2B) of section 202 of the Code as the said order is made before taking of the cognizance. Abdul Hai vs State 50 DLR 551.
Section 203–Complaint filed for prosecution of defamation against a party who made such statement in a judicial proceeding—Complaint dismissed under section 203 of the Code of Criminal procedure without either admitting the complaint petition or examining the complainant. AY Mashiuzzaman vs Shah Alam 41 DLR 180.
Sections 203 and 439A–whether the Sessions Judge has got power under section 439A, Criminal Procedure Code or any other provision of the Code to direct a Magistrate to send the case to him for trial when the Magistrate dismissed the complaint under section 203 of the Code. Bangladesh vs Yakub Sardar 40 DLR (AD) 246
Sections 203, 204(3) & 436 —The order of dismissal of the complaint passed under sections 203 and 204 (3) CrPC does not amount to discharge. So for a further enquiry in such a case no notice to the accused is necessary.
The principle, that an order prejudicial to an accused should not be made, without giving him an opportunity to be heard, has no application where the accused is not discharged. A revisional application before the learned Sessions Judge at the instance of an aggrieved complainant against an order of dismissal of a complaint by the Magistrate can be gone into without notice to the accused. Sirajudullah vs State 48 DLR 76
Sections 203, 205(1) & 436—Neither the Sessions Judge nor the High Court Division is invested with any power to direct any Magistrate to take cognizance of a case.
Their power is strictly limited to directing a further enquiry into the petition of complaint. It will be for the Magistrate concerned to take or not to take cognizance after the result of further enquiry. After the dismissal of the petition of complaint under section 203 CrPC the informant respondent’s remedy was to approach the higher Court under section 436 CrPC for further enquiry into his petition of complaint. The penultimate order of the High Court Division in directing the Chief Metropolitan Magistrate to take cognizance of the offence and to issue process in accordance with section 205(1) CrPC is not sustainable. Yusuf A Hossain vs KM Rezaul Ferdous 48 DLR (AD) 53.
Sections 203 and 241A—A decision regarding framing of charge cannot be made without considering the inquiry report. Abul Kalam Azad vs State 52 DLR 583.
Sections 203, 204 and 436—Since the Magistrate accepted the final reports and discharged the accused person as per provisions of law and since specific remedies have been provided in the Code against such discharge, the Magistrate has become functus officio and has no power to revive the proceeding. Rasharaj Sarker vs State 52 DLR 598.
Sections 203, 205(1), 436 and 561A—Sessions Judge cannot direct the Magistrate to take cognizance of a case. The power of Sessions Judge is limited to directing a further enquiry into it. It will be for the Magistrate concerned to take or not to take cognizance after the further enquiry. A Rouf vs State 52 DLR 395.
Section 190–Sessions Judge cannot take cognizance of a case against the accused sent up in the supplementary charge-sheet without cognizance being taken by the Magistrate. Sultan Ahmed alias Sentu vs State 48 DLR 143.
Sections 190 & 436–A Court of Session has no power to take cognisance of any offence as a Court of original jurisdiction and the Magistrate having power to take cognisance of any offence has exclusive power to take cognisance of an offence and to issue process irrespective of any offence, either he has power to hold trial of the case or not. Ziaul Hoque Chowdhury vs State 58 DLR 193.
Section 190(1)(b)–A naraji petition is a complaint for all practical purposes and if a Magistrate having power to take cognisance of the offence is satisfied on examination of the complainant that the complaint discloses an offence he can take cognisance of the offence, against the accused under section 190(1)(b), irrespective of an offence which is exclusively triable by a Court of Session. Ziaul Claque Chowdhury vs State 58 DLR 193.
Sections 190, 155 & 537– Non cognizable offence–Mere irregularity like investigation by an officer not authorised to investigate a noncognizable offence does not affect the legality of a proceeding .of a Court below.
Investigation by a police officer in the instant case is an antecedent proceeding. It is neither the foundation stone nor a prerequisite of the proceeding nor a sine qua non of a valid trial in the Court. It is difficult for us to see why such an irregularity, i.e. investigation by an officer not authorised, should affect the proceeding in a Court or prevent the Court from taking cognizance of a noncognizable offence under clause (a) or (b) of section 190(1) of the Code of Criminal Procedure in the absence of a clear enactment, expressed or implied preventing the Court from doing so. Golam Moula Master vs State 46 DLR Zoo.
Sections 190 and 193–Orders passed by the Sessions Judge starting from registering the complaint as petition case upto the orders date directing the Assistant Superintendent of Police for further enquiry are without jurisdiction. Eman Ullah vs Abdul Kader 54 DLR 623.
Sections 190, 195 and 196–198—Provisions in section 195 like the provisions in sections 196-198 CrPC are exceptions to the general and ordinary powers of a criminal Court to take cognizance of an offence under section 190 of the said Code. A private party may be the real victim of the commission of an offence, but he is debarred from making a complaint directly to the Court. Abdul Hai Khan vs State 40 DLR (AD) 226.
Sections 190, 200 and 202–An enquiry or an investigation can be directed by the Magistrate under section 202 of the Code in order to ascertain the nature of the allegation and to decide whether cognizance of the offence should be taken because till then he is in seisin of the case. Golam Rahman vs Md Bazlur Rahman (Babu) 53 DLR 461.
Section 190(1)–-Refusal to take cognizance against some of the accused persons amounts to dismissal of the complaint as against them and application filed before the learned ffstrict Judge by the complainant is maintainable.
Magistrate’s power of taking cognizance under section 190(1) in all cases, including those exclusively triable by a Court of Sessions, has remained unaffected by (the repeal of the provision for committing the accused to the Court of Sessions. Syed Ahmed vs Habibur Rahman 42 DLR 240.
Sections 190(1) & 156(3)—The prayer made by the accused for holding further investigation against some other persons is, in fact, a prayer cancelling the charge-sheet filed against them. This is nothing but an indirect way of reopening the case by making re-investigation but there is no provision of law for cancelling the charge-sheet once filed against some accused and accepted by the Magistrate. Sukhil Kumar Sarkar vs Kazi Wazed Ali @ Subed 47 DLR 252.
Sections 190(1)(b) & 200–It appears that the naraji petition has been filed on a complaint but as an application out of apprehension that the Magistrate might accept the recommendation of the Investigation Dicer. It is no more than an application to the Magistrate to be cautious and careful in considering the materials before him. Shahan Ali Mia, Shukur Ali Khandaker vs State, Md Hormuz Ali Mollah 48 DLR 55.
Section 190(1)(b)–The Court can, in a given case, regard the police report as a report under section 190(1 )(b) CrPC and take cognizance on that Police Report. (Relied on to DLR Dhaka 152). Aroj Ali Sarder vs State 41 DLR 306
Section 190(1)(b)—Direcrion to the Upazila astrate to take cognizance. Sessions judge left nothing for the learned Magistrate to do except taking cognizance. Quamruzzaman alias Lal vs State 40 DLR 509.
Section 190(1)(b)–Sessions Judge acted illegally in directing the Upazila “Magistrate to take cognizance of the offence. Quamruzzaman alias Lai vs State 40 DLR 509.
Section 190(1)(c)—Cognizance of offence by Magistrate—The Magistrate has got wide power under section 199(1)(c) CrPC to lake cognizance of any offence even upon his knowledge or suspicion that an offence has been committed and to pass, in the present case, the impugned order sending the case for judicial enquiry. after rejecting the police report and then taking cognizance after receipt of the enquiry report. Abdur Rashid vs State 43 DLR 279.
Section 191—The Magistrate cannot proceed with the trial himself as the offence alleged is triable in the Court of Sessions. Provision of section 191 of the Code is not applicable in the case triable in the Court of Sessions.. flifiur Rahman vs State 50 DLR 325.
Section 193—Section 193 provides that except as otherwise expressly provided no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been sent to it by a competent Magistrate. Bangladesh vs Yakub Sardar 40 DLR (AD) 246.
Sections 193(1), 204, 439 and 439A–Case sent to the Sessions Court by Upazila Magistrate –Sessions Judge recorded some evidence— Prosecutor made an application for sending record to Upazila Court for taking cognizance against some persons allegedly implicated in the offence, by the witnesses in Sessions Court—Sessions Judge made an order accordingly–Magistrate complied with the order of the Sessions Judge.
Held—Order of Sessions Judge is illegal and consequently cognizance taken of by the Magistrate thereon is illegal—The Court of Sessions or the High Court Division has no jurisdiction to interfere with the discretion of the Magistrate in the matter of taking cognizance of any offence irrespective of the fact whether the offence is triable by a Court of Sessions or not. Abdul Matin vs State 42 DLR 286
Section 195–The offences alleged to have been committed in connection with proceeding of a Civil Court cannot be tried by any other Court except upon a complaint by the said Court. Syed Ahmed Chowdhury vs Abdur Rashid Mridha and 15 ors 54 DLR 498.
Section 195—Section 195 includes any document produced or given in evidence in the course of.a proceeding whether produced or given in evidence by the party who is alleged to have committed the offence or by anyone else. Akkas Ali Molla vs State 55 DLR 296
Sections 195 and 198–There is no bar for an individual to making a complaint in respect of alleged defamatory statement made in a judicial proceeding—Section 198 CrPC enables an individual to file such complaint. AY Mashiuzzaman vs Shah Alam 41 DLR 180.
Sections 195 & 476–Section 476 is not independent of section 195 of the Code—Section 476 does not abridge or extend the scope of section 195(b) or (c). Abdul Hai Khan vs State 40 DLR (AD) 226
Sections 195 & 476—When a fraudulent document is not produced in a proceeding before Court private complaint is not barred.
It is absolutely clear that unless the document is filed in Court, the Court cannot make a complaint. In the present case in view of the positive finding of the High Court Division and on the failure of the learned Advocate to show before us that, in fact, the allegedly fraudulent document was produced in Cr Case No.116 of 1953, the private complaint at the instance of the informant is not barred. Shamsuddin Ahmed Chowdhury vs State 49 DLR (AD) 159.
Sections 195 and 476–when a question of right, title and interest relating to any immovable property is in seisin of the Court, the Anti-Corruption Department has no jurisdiction to hold any inquiry under articles 31 and 50 of Anti-Corruption Manual. Humayun Majid vs Bangladesh Bureau of Anti-Corruption 54 DLR 12.
Sections 195 & 561A—In a proceeding where a forged document has been used the Court concerned should make the complaint. The criminal Court should not take cognizance on a private complaint. The want of complaint under section 195 is incurable and the lack of it vitiates the whole trial. Wahida Khan vs Shahar Banoa Ziwar Sultan and State 48 DLR 286
Section 195(1)–A criminal Court can take cognizance of any offence described in sections 463, 471, 475 and 476 of the Penal Code on the basis of complaint by an aggrieved party when such offence is alleged to have been committed by a party to any mutation proceeding in respect of a document produced in evidence in such proceeding. Shahera Khatun vs State 53 DLR 19.
Section 195(1)(a)–If the officer to complain is the officer also to take cognizance then there is no necessity of fling a written complaint by the same officer to himself for taking cognizance of an offence against the accused persons. Anwar Hossain vs State 48 DLR 89.
Section 195(1)(b)—Proceeding in Court—In view of the decision that a Magistrate acts his judicial capacity while discharging an accused on the basis of a final report by the Police and the reasonings in the majority judgment in 1979 AIR (SC) 777, the offence under section 211 Penal Code was committed in relation to a proceeding in Court and, as such, the bar under section 195(10) is attracted. Serajuddowla vs Abdul Kader 45 DLR (AD)101.
Section 195(1)(b)—Complaint of Court—Requirement—When the Magistrate considered the prayer of the Investigating Officer that he appellant be prosecuted for making a false charge and the prosecution report upon which cognizance was taken shows that the same was filed as directed by the Magistrate it is clear that the prosecution of the appellant was sanctioned by the Magistrate himself and, as such, it could not be said that the cognizance was taken in violation of section 195(1)(4 Serajuddowla vs A Kader 45 DLR (AD)101.
Section 195(1)(c)–The view taken in AIR 1943 Nagpur 327 “all the High Courts are now agreed that once a forged document is brought then private complaints subsequent to this are barred by section 195 even in respect of anterior forgeries—anterior, that is, to the litigation”–has been consistently followed in 20 DLR Dhaka 66 & other cases. Abdul Hai Khan vs State 40 DLR (AD) 226.
Section 195(1)(c)—Legislature did not intend any anomalous situation that might arise if the trial of one offence may be made dependent upon a possible complaint by the Court while the other offence is tried upon a private complaint. Abdul Hai Khan vs State 40 DLR (AD) 226
Section 195(1)(c)–Jurisdiction of a criminal Court when barred, Which Court is empowered to take cognizance of offences in the section 1950)(c) Abdul Hai Khan vs State 40 DLR (AD) 226.
Section 195(1)(c)—No cognizance can be taken against one of the appellants who appears to have forged the document expect on complaint by the Court. Abdul Hai Khan vs State 40 DLR (AD) 226.
Section 195(1)(c)—Private complaint, when incompetent—Ingredients of offence such as forging of a document and making use of such documents in Court by a party to the proceeding if found present in a case then the mandatory provision against filing of a private complaint comes into play. The instant proceeding initiated by the complainant opposite party is a bar under section 195(1)(c) CrPC and the Courts concerned only have sole jurisdiction to make a complaint in the interest of justice. Ajit.Kumar Sarker vs Radha Kanta Sarker 44 DLR 533.
Section 195(1)(c)–Prosecution for a document given in evidence–From a perusal if the provision of law it appears that the words “documents produced or given in evidence” contemplate the original documents alleged to be forged and not a certified copy of the same. If the document in question is not produced in Court, but a certified copy of the same is produced, no complaint from the Court is necessary fox prosecution of the alleged offenders. In view of the decision in the case of Saurnakhsingh vs King AIR 1950 (PC) 31 the absence of complaint cannot stand as a bar to the trial of the accused- petitioner in the present case for forgery relating to the sale deed produced in Court in the earlier SCC suit. Shambhu Nath Saha vs State 43 DLR 660.
Section 195(1)(c)–Stay of proceeding—In the facts of the case as in point of time the civil suit was instituted before the filing of the FIR, and the questioned documents in their originals are yet to be produced and examined by the civil Court. The criminal proceeding where the documents are claimed as forged, may, in the interest of justice, be stayed till the disposal of the civil suit. Zakir ilossain vs State 43 DLR (AD) 102.
Section 195(1)(c)–Use of a photo copy of the forged document could not amount to the use of a forged document.
It would appear that the photocopy of the kabala which is said to be forged by the opposite party gave only a clue or inkling to the forgery. The action brought by the opposite party against the petitioner is an action independent of the filing of photocopy of the forged document in the Court of Magistrate. Wherefore, it is clear to see that we are not to depart from the views held by the superior Courts including the Privy Council that when the original forged instrument is not used in the Court section 195(1)(c) is no bar to a proceeding for forgery. Moklesur Ruhman Sharif vs State, Jamiruddin Sharif 47 DLR 229.
Section 195(1)(c)—Words “document produced or given in evidence” contemplate to produce original document alleged to have been forged and not a photocopy. Abdul Gafur alias Dana Mia vs Md Nurul Islam 56 DLR 519.
Section 195(1)(c)—Forged document produced before a revenue officer not being considered as a Court does not stand as a bar for initiation of a criminal proceeding by the private person for a commission of forgery. China Ranjan Das vs Shashi Mohan Das 56 DLR 276
Section 195(1)(c)—In the instant case, in the absence of the original document being produced in the proceeding the bar under section 195(1)(c) will not apply. Abdus Sattar Pramanik vs State 56 DLR 452.
Section 195(1)(c)—Since the alleged forged document has been filed in the civil Court which is the subject matter of a suit for Specific Performance of Contract, it is for the concerned Civil Court to lodge any complaint before the criminal Court if it finds the forgery relating to the said document. But since the instant proceeding in GR Case No.190 of 2000 under sections 420/467/ 468/471 has been initiated on private complaint the same cannot continue in view of the provision of section 195(1)(c). Abur Rahman vs State 59 DLR 683.
Section 195(1)(c) — Ambit of subsection (4) of section 195 CrPC—It is therefore clear that the offences referred to in cl.(c) when committed in pursuance of a conspiracy or in the course of the same transaction, will fall within the ambit of sub-section (4) of section 195 including their abetments or attempts independent of the dates of their commissions. Abdul Hye Khan vs State 40 DLR (AD) 226
Sections 195(1)(c) and 476–Restricted application of clause (c) to be discardedi—I am, therefore, inclined to think that reading clause (c) with section 476 of the Code, there does not seem to be any compelling reason to restrict the application of the said clause limiting the control of the Court only to few offences committed (pendente lite) as would be the practical result of such interpretation. The clause will be applicable even when the offence alleged is committed by the party to proceeding in any Court before becoming such party if it is produced or given in evidence in such proceeding. Abdul lye Khan vs State 40 DLR (AD) 226
Sections 195(1)(a)(b)(c) and 476—There is specified procedure and method for filing complaint by a Court in respect of offences described in clauses (a) and (b) but there is no such specified procedure for offences in clause (c) of section 195 CrFC. Abdul Hye Khan vs State 40 DLR (AD) 226.
Sections 195(1)(c), 476 and 561A–No Court can take cognizance of any offence under section 467 of the Penal Code without a complaint in writing by the Court in which the document was given in evidence or by a Court to which the said Court is subordinate. Sana Mia vs State 42 DLR 8.
Section 195(2)–A Revenue Officer holding an inquiry in a mutation proceeding, in the premises, does not become a court as he does not really adjudicate a right and he does not give a decision which is binding on the parties. Shahera Khatun vs State 53 DLR 19.
Section 197–After arrest at dead of night the victim was beaten to death on his way to the Singra Police Station. He was not even shown any warrant of arrest nor any case number. Such an act of the accused-petitioners can never be said to be an act done by them while acting or purporting to act in the discharge of official duty. Abdul Awal vs State 50 DLR 483
Section 197–Previous sanction of the Government is required under section 197 of the Code of Criminal Procedure before commencing any criminal prosecution against the petitioner. Kazi Obaidul Hague vs State 51 DLR 25.
Sections 197—It appears prima facie that Md Mahabubur Rahman, the then Officer-in-Charge of Ramna Police Station on 3-3-2004, fabricated false evidence by way of making a photocopy of a GD Entry, which he attested as true copy of the GD Entry Register. Such an act by the officer-incharge can be brought within the mischief of sections 193/ 1941195 of the Penal Code, since the evidence was used in the trial to secure conviction of innocent accused for commission of an offence involving the death penalty. It further appears that Ahmad Kamrul Islam Chowdhury, who at the relevant time was engaged in the trial of the instant case as Special Public Prosecutor, Chittagong, took positive steps to testify to the genuineness of the attested photocopy of the GD Entry declaring that he had seen the original GD document. The falsity of their respective attestation/declaration is evident from a cursory glance at the photocopy which shows the original printed form to be upside down.
Firstly, an Officer-in-Charge of a police station does not fall in this category as Government sanction is not required for his removal from service. Secondly, in the facts and circumstances of the instant case, the provisions of section 197 would not be attracted in any event since the act alleged to have been done constituting an offence was certainly not done while acting or purporting to act in the discharge of his official duty. In no way does the act of fabricating evidence have any nexus with the official duty of the officer concerned as contemplated in section 197 of the said Code. The learned Magistrate is to take a note of this aspect of law accordingly. State vs Salauddin 60 DLR 188.
Section 197—The evidence of the witness including the report of the inquiry held by a Magistrate leads to irresistible opinion that the offence alleged has not been committed by the accused in the discharge of their official duties and, as such, we do not find any force in the submission of the learned Advocate as to applicability of section 197 of the Code regarding the two petitioners. AS1 Md Ayub Ali Sardar vs State 58 DLR (AD) 13.
Sections 198 and 199 —If the provision of section 199 is allowed to be continued, then husband of a woman can compel her to yield to any sexual harassment to attain his personal gain. The provisions of sections 198 and 199 of the Code not only degraded the dignity of a woman, but the same are offending against the fundamental rights of a woman to be treated equally as well as seek protection of law. These two sections may either be deleted from the Code or be modified in a way to ensure that the victim or aggrieved woman herself can launch a prosecution against a person liable to be pro-secured for committing offence under sections 497 and 498 of the Penal Code. Aftabuddin vs State 63 DLR 235.
Sections 177 and 179–Criminal trial —Interpretation of the provisions of section 179 of the Code of Criminal Procedure—Territorial jurisdiction of the Criminal Court—Offence of forgery took place in Noakhali but trial being held in Comilla—In view of the provision of section 179 CrPC the Court of competent Magistrate of Noakhali district where false documents were made and the Court of Additional District Magistrate, Comilla where consequences ensued had both jurisdiction to try the offence of forgery complained of, Jagenath Chandra Bakshi vs State 42 DLR 238.
Sections 177-180—The offence under section 138 of the Act can be completed with the concentration of a number of facts i.e. (i) drawing of the cheque, (ii) presentation of the cheque, (iii) returning of the cheque unpaid by the drawee bank, (iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount and (v) failure of the drawer to make payment within 15 days of receipt of the notice. As per provisions of sections 177, 178, 179 and 180 of the Code of Criminal Procedure if the aforesaid five different acts were done in five different localities any of the Courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under section 138 of the Act and complainant can choose any one of the Courts in whose jurisdiction any of the 5 components of the said offence was done. The legal notice was issued from a lawyer at Chittagong District Bar and the complainant, for encashing the cheques, presented the same at a Bank at Chittagong. As such, on the ground of initiating the proceeding at Chittagong this proceeding cannot be quashed. Abdul Alim vs Biswajit Dey 59 DLR 236
Section 179—Applicability of section 179 CrPC to the offences defined in section 463 Penal Code—provisions of section 463 PC analysed. Two essential ingredients of section 463 PC pointed out–both the competent Criminal Courts al Noakhali and Comilla have jurisdiction to try the offence, Jagenath Chandra Bakshi vs State 42 DLR 238.
Section 179(c)—Since in the sequel of the criminal acts of accused Nos. 3 and 4 by way of obtaining signatures of the complainant in blank papers at Jeddah money was withdrawn in Bangladesh, a Criminal Court of competent jurisdiction in Bangladesh can take cognizance in the case in accordance with illustration (c) of section 179 of the Code. Abdus Sattar vs State 50 DLR (AD) 187.
Section 188–It was obligatory on the part of the Magistrate to make a written complaint about the nature of the order made by him which was alleged to have been disobeyed and the manner of violation in order to form an opinion that accused persons have committed an offence punishable under section 188 Penal Code. Abdul Ahad a Md Abdul Ahad vs State 52 DLR 379.
Sections 188 & 196–The alleged offence having been committed in India, the trial of- the case in question cannot be proceeded with without sanction of the Government for the purpose in view of the proviso to section 188 of the Criminal Procedure Code and sanction obtained in his case under section 196 of the Code cannot do away with the requirement of proviso to section 188.
This sanction however can be accorded by the Government even after cognizance has been taken of the case if it is found desirable. Since the cognizance of the case has been taken upon a petition by an order of the Government in accordance with section 196 of the Code of Criminal Procedure the complaint case itself need not be quashed. In this view of ours we are fortified by the decision in the case of Ranjit vs Sm Parul Hore, and another reported in 1980 CrLJ Noc 57 (Cal); (1979)1 Cal HN 414. Dr Taslima Nasrin vs Md Nurul Alam 48 DLR 280.
Section 171(1)(2)—The police officer who has investigated the case shall be responsible for the attendance of witnesses at the trial. Daily Star and Protham Al o Patrika vs State 53 DLR 155.
Section 172–The Case Diary of an Investigating Officer which is not a public document cannot be made public by swearing affidavit. Bangladesh vs Dr Shamima Sultana Rita 54 DLR (AD) 151.
Section 172—A case diary maintained by the Police cannot be treated as substantive evidence but it may be used for the purpose of ascertaining the truth or otherwise of the evidence appearing in the case. Abdus Sukur Miah vs State 48 DLR 225.
Section 173—The Police can file supplementary charge-sheet even after acceptance of the previous charge-sheet. There is no limitation in this regard to taboo in the law. Sultan Ahmed alias Sentu vs State 48 DLR 143.
Section 173—Where cannot be any reinvestigation into a case after charge-sheet is submitted. Mubashwir Al i vs State 46 DLR 535.
Section 173—There is no provision in the Code of Criminal Procedure entitling the accused persons to file an application to the Magistrate for further investigation or reinvestigation into a case in which charge-sheet has already been submitted against them.
In the case of Sukhil Kumar vs State reported in 47 DLR 252=15 BLD 311 distinction between further investigation and reinvestigation with reference to earlier decisions was considered and it was held that prayer for further investigation made by the accused persons against whom charge sheet has already been submitted is nothing but a prayer for reinvestigation in the name of further investigation and the same cannot be allowed. We, therefore, find merit in this Rule Shajahan Ali vs Belayet Hossain 47 DLR 478.
Section 173—In the name of further investigation police cannot make reinvestigation of the case and discharge the accused person against whom charge-sheet has already been submitted. Moslemuddin vs State 47 DLR 420.
Section 173—Section 27 of the Special Powers Act is a departure from the provision if section 173 of the Code of Criminal Procedure–Special Tribunal alone. is empowered to take cognizance of the offence on the report of a Police Officer of the rank of Sub-Inspector and hold trial on the same– Sections 26 and 27 of the Special Powers Act provided for special machinery for investigation and trial by special tribunal Taslima Begum vs State 42 DLR 136
Section 173–If the investigation officer fails to mention proper section in charge-sheet or in his report, the court is empowered to take cognizance under proper section on consideration of the facts and circumstances of the case. Alauddin vs State 54 DLR 564.
Section 173–There is no scope of filing a final report meaning not sending up any accused for trial and then aseparate report for sending up some other accused for trial as one report is sufficient to serve both the purposes. Abdur Rouf Rab Howlader vs State 55 DLR 202.
Section 173—After investigation in respect of the relevant allegations the police submit a report under section 173 of the Code. If the report contains sufficient materials for taking cognisance by a Magistrate, it is commonly known as a charge-sheet. But a mere police report has got no bearing on the question of conduct of an accused. Air Marshal Jamaluddin Ahmed (Retd) vs Bangladesh 57 DLR 1.
Section 173—Charge-sheet being a police report is not admissible in evidence and as such the case has no legs to stand. This is nothing but an abuse of the process of the Court and, it can be safely held this case is preposterous one and barred by law and out come of the evil desire of the then ruling Government being dictated and guided by the Four Parties alliance and, as such, continuation of the proceedings will be an abuse of the process of the Court. Dr Kamal Hossain vs State 63 DLR Zoo.
Section 173—Naraji Petition—When a naraji petition is filed against the police report the same should be disposed of in accordance with law. Khurshida Begum vs Monira Begun (Criminal) 64 DLR 91
Section 173—The investigation conducted by the IO was incomplete and further investigation should be directed for securing the ends of justice. Mahbubur Rahman vs State (Criminal) 64 DLR 265
Section 173— IO submitted his investigation report on the basis of insufficient examination of relevant persons and document with regard to the two vital issues. The first one is about the surplus status of the 11 accused-petitioners. The other vital issue is with regard to the alleged forgery in the nomination letter containing the signature of the concerned Deputy Secretary. Mahbubur Rahman vs State (Criminal) 64 DLR 265
Sections 173 and 537—Investigation held by the junior officer the appellant has become seriously prejudiced which cannot be cured by the provision of section 537 of the Code. Sazzak Hossain vs State (Criminal) 64 DLR 113
Sections 173 and 190—There is nothing either in section 173 or in section 190 of the Code providing for ejection or acceptance of a police report. There is also nothing to show that such police report is binding upon a Magistrate. Dilu alias Delwar Hossain vs State, represented by the Deputy Commissioner, 48 DLR 529.
Sections 173 and 190–There is no statutory requirement to lodge suo motu a first information report and register another case thereupon on the result of successful investigation. Abdur Rouf a Rab Howlader vs State 55 DLR 202.
Sections 173 and 205C–The expression “Police Report” in this section means the report under section 173 of the Code. It is obvious from section 205C that when a Magistrate receives charge-sheet and an accused appears or is brought before him, the Magistrate shall send the case to the Court of Session if it appears to him that the case is exclusively triable by the Court of Session. The Magistrate has no option to decide whether charge-sheet was properly submitted. Ibrahim vs State 53 DLR 533.
Sections 173 & 439A—So far as the direction by the Sessions Judge to hold further investigation into the case is concerned, it is quite lawful; but his direction to submit charge-sheet is clearly without jurisdiction.
Per Mustafa Kamal J (agreeing): By making absurd comments, uninformed criticisms and vituperative innuendos on the judgments of the Appellate Division the learned Judges have placed themselves well inside the perimeter of contempt of this Court. By openly, blatantly and consciously flouting Article. 111 they have also put themselves within the ambit of steps to refer the matter to the Supreme Judicial Council. Yet we decide to follow the course to caution the learned Judges not to repeat the performance in future.
It will be useful for all to remember that as human beings are not infallible, the judgments of the Appellate Division are too not infallible. Yet in all disciplined and constitutional societies and governments, the pronouncements of the highest Court are given a finality and a binding effect for the simple reason that there must be a finality to litigation at some point and that there must be judicial discipline, the lower judicial hierarchy being bound by the decision of the higher judicial hierarchy. To allow or even to tolerate a breach of this time-honoured and constitutionally fixed duty is to invite judicial anarchy and judicial indiscipline. This will create confusion in the administration of justice’ and erode people’s confidence in the orderly and disciplined dispensation of justice under the Constitution. we Dope that the learned Judges will appreciate the merit of judicial restraint and will desist in future from the temptation of treading on a beaten path.
Per Latifur Rahman J (agreeing): The pronouncement in respect of the power and jurisdiction of the High Court Division with regard to 561A of Code having been clearly stated in several decisions of this Division, it does not lie in the mouth of the High Court Division to tape a contrary view of the same. The judgments of this Division as per the mandate of Article 111 of our Constitution is binding on the High Court Division. It is a clear violation of the Constitutional mandate by the learned Judges of the High Court Division. Is it not a violation of the oath of Office of a Judge to protect and preserve the Constitution of Bangladesh. Sher Ali vs State 46 DLR (AD) 67.
Section 173(3A) & 3(B)–Before conclusion of trial the Investigating Officer may send further report if new and important evidences are available which may be considered by the Court during trial. Rahmatullah vs State 48 DLR 158.
Section 173(3B)—By further investigation the police officer can bring to the notice of the Court additional facts and even prosecute persons against whom charge-sheet was not submitted earlier.
But the police in the name of further investigation cannot exclude the persons against whom chargesheet had already been submitted. In the present case supplementary charge-sheet having been filed against the FIR named accused persons excluded in the earlier charge-sheet we find no illegality in this case. Ear Ali (Md) vs Stag 47 DLR 405.
Section 173(3B)–The police may make further investigation in respect of an offence after submission of a report and submit a further report or a supplementary charge-sheet in respect of any accused against whom evidence has been collected during further investigation, but the Magistrate has no power to direct further investigation in respect of accused persons against whom the police has once submitted a charge-sheet just to obtain a final report, nor can the police, after further investigation, submit final report in respect of a person against whom a charge-sheet was once submitted. Golam Mostafa vs State 47 DLR 563.
Section 173(3B)–When it is not provided in the law itself as to under whose order a Police officer may hold further investigation, no illegality was committed by the Police officer concerned in holding further investigation on the order of his superior officer. Idris alias Jamai Idris vs State 52 DLR 184.
Section 173(3B)–A witness once narrating the occurrence without implicating the appellant with the offence in any manner cannot be permitted to depose for the second time with a view to implicating the accused and play double standard. Ruhul Amin Kha vs State 56 DLR 632.
Section 173(3B)—The CID committed no error of law in holding further investigation as per provision of section 173(3B) of the CrPC. Had further investigation been done after the case record was transmitted to the Senior Special Judge after taking cognizance of the offence or passing any order whatsoever then permission of the Special Judge would have been necessary. The police had the power to hold further investigation as per provision of section 173(3B) of the Code as the provision of this section is in no way derogatory to the provision of sub-section 5(6) of the Criminal Law Amendment Act, 1958. Abdus Samad Khan vs State 50 DLR 143.
Section 173(3B)—The provision does not have any scope for the Sessions Judge to direct further investigation by the police. The order of the Sessions Judge directing further investigation on an application by the informant is without jurisdiction and is liable to be set aside. Abdul Malek vs Payer Ahmed Chowdhury and State 46 DLR 455.
Section 173(3b)—The Government’s decision to withdraw a case from the Criminal Investigation Department after withdrawing the earlier order for investigation by the CID is not illegal. Abu Talukder vs Bangladesh 49 DLR (AD) 56.
Section 174–A perusal of section 174 of the Code indicates that the object of the proceeding is merely to ascertain whether a person died under suspicious circumstances or an unnatural death and, if so, what is the apparent cause of death. The question regarding the details of death is foreign to the ambit and scope of proceeding under section 174. Babul Sikder vs State represented by the DC 56 DLR 174.
Sections 176 and 197—Meaning of taking cognizance of offence—Stage of determination of guilt when reaches under section 176 CrPC difference between “prosecuted” without prior sanction under section 6(5) and “taking cognizance” without prior approval. Matiur Rahman vs State 40 DLR 385.
Section 167–Order of remand–Its validity–The word `forward’ used in section 167 CrPC means `act of sending’. Unless the accused is sent to the Magistrate and the Magistrate passing the order of remand without the accused being forwarded to him, the legal requirement is not complied with for the Magistrate to assume jurisdiction to pass the order of remand. The accused must be brought before the Magistrate prior to passing of an order of remand, no matter whether the accused is in police lockup or judicial custody. Aftabur Rahman vs State 45 DLR 593.
Section 167—Law did not provide for automatic stopping of further investigation and release of the accused after expiry of the time limit nor for stopping proceedings by the Sessions Judge or Special Tribunal on such ground. Niamatullaha Chand (Md) vs State 48 DLR 148.
Section 167—The provisions of section 167 CrPC being a procedural law, there being no express provisions for its prospective operation, shall operate retrospectively. AKM Azizul Islam vs State 49 DLR (AD)115.
Section 167—while producing a person jested wihout warrant before the Magistrate, the police officer must state the reasons why the investigation could not be completed within 24 hours and what are the grounds for believing that the information received against him is well-founded. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.
Section 167—The order for detaining in police custody is passed by a Magistrate in exercise of the power given to him under subsection (2) of this section. If the requirements of sub-section (1) are not fulfilled, the Magistrate cannot pass an order under subsection (2) for detaining a person even in jail not to speak of detention in police custody. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363
Section 167—Though the provisions empower the Magistrate to authorise the detention in police custody, no guideline has been given in sub-sections (2) and (3) as to the circumstances. under which detention in police custody may be authorised. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.
Section 167—Entries in the Diary—It is for the Magistrate to decide on certain materials placed before him such as the material contained in the diary relating to the case whether or not the detention of the accused was necessary. In coming to the conclusion the Magistrate has to exercise his judicial mind and only when the Magistrate did apply such a mind, it could be said that the order made for detention is a valid order. Saifuzzaman vs State 56 DLR 324.
Section 167—Remand order should be made in presence of the accused in view of the expression “forwarded” used in sub-section (2) of section 167 of the Code. Saifuzzaman (Md) vs State 56 DLR 324.
Sections 167 & 61—An accused cannot be detained in custody of the police for a longer period than under all the circumstances of the case is reasonable and such period must not, without an order of remand by a Magistrate, exceed 24 hours, exclusive of the time necessary for the journey from the place of arrest to the Court of the Magistrate.
In the instant case before us, no incriminating articles, e.g. currency notes, soiled notes or stamps were recovered within the first 24 hours of arrest pursuant to any information given by accused Farook Mahajan, and so it cannot be said with an equal degree of certainty that the unlawful detention of the prisoner without any order of remand beyond 24 hours had no effect on the confession made by him. Faruque Mahajan and 4 (four) others vs State 49 DLR 47.
Sections 167 & 173—Charge-sheet submitted not upon the revival of the case under section 167 but following the further investigation under section 173 CrPC–The power to make further investigation is available to the police if there has been no order under 167 CrPC stopping the proceeding and releasing the accused after the expiry of the period of investigation under the said section. Shah Alam Chowdhury vs State 42 DLR (AD) 10.
Sections 167, 173, 190 and 561A–—Proceeding before a Court starts when the competent Court takes cognizance of an offence on Police report or on a complaint or upon his own knowledge. No proceeding can be said to be pending before the Magistrate in this case as the Police after recording the FIR has not submitted any charge-sheet. Rule for quashing the proceedings is liable to be discharged. Mokbul Hossain vs State 40 DLR 326
Sections 167 and 364—The statement of the condemned-prisoner having been recorded on the same day after giving hire only one hour for reflection of mind and with no assurance that he would not be sent back to police custody, all create a serious doubt as to the true nature of the confessional statement. State vs Harish 54 DLR 473.
Sections 167, 339C and 494—Children are entitled to trial before the Juvenile Courts and positive step should have been made to make their trial in accordance with law of Juvenile Court, not to be tried jointly with the adults. The respondents are directed to comply with the earlier direction and report compliance within six months from date. Bangladesh Legal Aid and Services Trust vs Bangladesh 57 DLR 11.
Section 167(5)—The accused-petitioner did not stand released under section 167(5) on stopping further investigation on the ground of expiry of the limitation of specified or extended period of investigation—Charge-sheet validly submitted in accordance with law. Shah Alam Chowdhury vs State 42 DLR 49.
Section 167(5)–Stopping of investigation being subject to order of Sessions Judge, no absolute right, not to speak of any vested right of release, could be created in favour of the accused with the passing of order stopping further investigation by the Magistrate on the expiry of specified or extended time for investigation.
In the case of Mohitullah vs State reported in 38 DLR (AD) 240 it has been held that an accused would be tried in accordance with procedure prevailing on the day trial commenced and if the procedure is changed by the time trial commenced the accused cannot claim vested right to be tried in accordance with the provisions of the repealed procedure. It is well settled that procedural law takes effect retrospectively. In this connection reference nay be made to the case reported in (1994) 14 BLD (AD) 143 (State vs Ana Mia). Sultan Ahmed vs State 47 DLR 196
Section 167(5)—The effect of the amendment is that the accused may be released on bail by the Magistrate or by the Sessions Judge in case of failure of the Investigating Officer to complete investigating within the specified period. Amalendu Mazumder vs State 49 DLR 204
Section 167(5)–In view of the proviso to this section the period spent awaiting sanction of the government for prosecution of the accused should be added to the statutory period for submission of charge sheet. Saheb Ali Miah vs State 46 DLR 238.
Section 167(5)–At a time when the report to prosecute the petitioner was submitted there was no provision in section 167(5) of the Code of Criminal Procedure for stopping investigation of a case and releasing the accused because of non-completion of investigation within the statutory period and as such, the proceeding cannot be stopped and the accused cannot be released, Bimal Chandra Adhikari vs State 51 DLR 282.
Section 167(5)—After the amendment of the provisions of sub-section (5) of section 167 of the Code in 1992 there is no scope of stopping the investigation on the ground of expire of time limit specified for investigation. Nazrul Islam vs State 51 DLR 368.
Sections 167(5) & 498—The fixation of the period of investigation is meant for speedy trial of the case and to save the accused from unnecessary harassment in jail custody. But this provision is directory and not mandatory—on the expiry of the period for investigation the accused cannot claim bail as a matter of right. Arrwar Hossain (Md) vs State 48 DLR 276
Sections 167(5),190(1) & 561A–Quashing of proceeding under Special Powers Act–In matters of cognizance of offence triable exclusively by the Special Tribunal under the Special Powers Act initial cognizance of offence by a Magistrate in the manner provided in the Code of Criminal Procedure has no application.
In an application for quashrrient of proceeding on the ground of expi.ry of period of limitation for investigation, the provisions of section 167(5) of the Code applies only to cases in which the Magistrate can take initial cognizance and does not apply to cases exclusively triable by the Tribunal. On this ground the application for quashing is summarily rejected. Mahbubur Rahman vs State 42 DLR 375
Section 167(5)—Exclusion of period does not cure the legal consequences that had already crept in after the lapse of 60 days, Sohrab Ali Dewan vs State (Criminal) 64 DLR 106
Section 167(5)—The expiry of the 60 days time limit went on unnoticed by the Magistrate. The investigating offence first brought the necessity for extension of the time limit after 3 months and 26 days and after expiry of the 60 days time limit. But the Magistrate had no legal authority to extend the time limit. Extension could be allowed on the last date of expiry or before that. The extension allowed was no extension in the eye of law. Sohrab Ali Dewan vs State (Criminal) 64 DLR 106
Section 167(6)—Sessions Judge’s power to direct further investigation—The power given to the Sessions Judge under section 167 CrPC is retrospective in nature. He can extend the period of investigation for an indefinite period or direct further investigation from time to time as occasion requires. The legislature has not put any limitation on this power. Artwar Hossain Maji vs State 42 DLR 410.
Section 167(7)—Transitory Provisions, purpose of—Investigation pending immediately before commencement of the Ordinance—Magistrate did not accept the Final Reported directed further investigation—Police on further investigation submitted charge-sheet for beyond the “specified period” of 60 days as stated in sec. 167(5) and also of 90 days as stated in section 35(d) of the Transitory Provision—Charge-sheet was submitted one year after the Magistrate’s order for further investigation–Accused respondents, whether entitled to be released—Provision in section 35(d) of the Ordinance is not mandatory and intended to save an investigation which had started at the time when there was no time limit for its conclusion—Investigation on which the police submitted charge-sheet, not governed by section 167, and the charge-sheet not hit by section 167(7)—Consequently the charge-sheet stands. Kazi Abdul Jalil vs Jashem Munshi 43 DLR (AD) 116
Section 167(5)&(7) —Investigation of a case being matter of procedure no vested right accrued in favour of the accused. So, expiry of the time for completion of investigation cannot stop further investigation and release the accused from custody. Kitab Ali Sikdar vs State 47 DLR 509.
Section 167(7A), Proviso and 173(B)—Revival of the investigation of a Sessions triable case beyond the period of six months of the discharge of the accused-petitioner on submission of final report.
The Police validly and legally further investigated into the case under the provisions of sub-section (3B) of section 173 CrPC with the usual leave of the Chief Metropolitan Magistrate, Dhaka from 14-7-88 as the order dated 6-9-87 duly passed by the Chief Metropolitan Magistrate under section 167(7A) CrPC reviving the case for investigation by the Police continued to be fully operative under the law and the Police, therefore, validly submitted charge-sheet No.196 dated 258-88 in accordance with law and the Learned Sessions Judge, Dhaka has also validly taken cognizance of this offence against the accused persons. Shah Alam Chowdhury vs State 42 DLR 49.
Section 167(7), (7A)—Revival of a case after order of stopping investigation and release of the accused whether valid; Nowhere in the two subsections or the proviso it has been indicated that for revival of investigation stopped by the Chief Metropolitan Magistrate the revival within 6 months could not be made by him. In the present case the Chief Metropolitan Magistrate exercised his power to stop the proceeding under subsection (7) but he exercised a different power that was provided by sub-section (7A) for revival of the proceeding. It cannot therefore be said that he exhausted his jurisdiction after the exercise of power to stop proceedings and became functus officio. Md Arab Ali vs State 42 DLR 524.
Section 167(7A)—Whether Additional District Magistrate is not included within the term “District Magistrate” as contended by the petitioners’ Advocate. Fazlul Hogue vs State 41 DLR 477.
Section 167(7A)— Prosecution had no alternative but to approach the District Magistrate for revival of the case under the now repealed provision of sub-section (7A) of section 167 of the Code as no other higher authority was mentioned in the said provisions. Niamatullah @ Chand (Md) vs State 48 DLR (Criminal) 148.
Section 167 (7A)—Ministry of Establishment’s Notification bearing No. MF/JAIII/VEST/84-377 dated Dhaka 17-10-84 vested all powers of District Magistrate in Additional District Magistrates. Fazlul Hoque vs State 41 DLR 477.
Sections 167(7A) & 339(b)—On a plain reading of the provision of section 3390 the District Magistrate’s authority and jurisdiction ariset to revive the case under section 167(7A) on, and from the date on which the order of stopping investigation and release of the accused persons is actually passed and not from the date when such order of stopping proceeding and release of the accused should have been passed or deemed to have been passed. Hamizuddin vs State 40 DLR 287.
Section 169—Section 169 of the Code of has not given the Police Officer any power to judge the credibility of the witnesses and to decide the defence plea of alibi. Abdur Rouf vs Jalaluddin 51 DLR (AD) 22.
Sections 169, 242(1), (2B)–Interpretation of statute—Whether order of discharge of the accused by the Magistrate on receipt of final report (true) is in a way like releasing the accused by the Investigating Officer under section 169 CrPC on the ground of deficiency of evidence, Shah Alam Chowdhury vs State 42 DLR 49.
Section 164—The trial Court misdirected itself when he had convicted appellants on the basis of statements of witnesses made under section 164 by treating them as confessional statements. Muslim vs State 47 DLR 185.
Section 164–Statements recorded under section 164 of the Code cannot be treated as substantive evidence of the facts stated therein. Syed Nazakat Hossain alias Ujjal vs State 48 DLR 139.
Section 164–Retraction of confession–Once a confession is found to be true and voluntary, a belated retraction will be of no help to the confessing accused. The necessity even of some sort of corroboration in such cases is not a requirement of law but it is usually desired as a rule of prudence. State vs Tajul Islam 48 DLR 305
Section 164–-It is settled principle that one part of the confession cannot be accepted and other part be rejected. It is an error to split up the confessional statement and use that part only which is favourable to prosecution. State vs Lokman Miah 48 DLR 149.
Section 164–The defect of non-compliance of section 164 CrPC by the Magistrate while recording a statement cannot be cured by his examination in Court. State vs Raisuddin 48 DLR 517.
Section 164—Before a confessional statement is relied upon it must be found that it was not only voluntary but also true. Voluntariness and truth together make it worthy of acceptance. Moslemuddin vs State 48 DLR 588.
Section 164–Confessional statement recorded on a plain paper without the narration of questions and answers and without complying with the provisions of section 164 CrPC becomes inadmissible. The accused was kept in police custody for 3 days preceding his confession and the forwarding report mentions injuries on his person. Confession is involuntary. Alaluddin alias Alauddin vs State 49 DLR 66
Section 164—Statement of a person recorded under section 164 CrPC is not ‘a substantive piece of evidence of the fact stated therein. Such statements recorded by a Magistrate under section 164 CrPC can only be used for contradicting the maker of it under sections 145 and 155 of the Evidence Act or for the purpose of corroborating him under section 157 of the Act. Seraj Miah vs State 49 DLR 192.
Section 164–The rule of prudence requires that a retracted confession needs corroboration inasmuch as it is open to suspicion. It is unsafe to rely on such confession without corroboration from other sources. Alaluddin alias Alauddin vs State 49 DLR 66
Section 164—As against the maker himself his confession, whether judicial or extra judicial, whether retracted or not retracted, can validly form the sole basis of his conviction, if the Court believes that it was true and voluntary and was not obtained by torture or coercion. Abul Kashem vs State 49 DLR 573.
Section 164–When the accused were kept in police custody for two days, it was the duty of the Magistrate, who recorded their confession, to put questions as to how they were treated in the police station, why they were making confession and that if they made a confession or not they would not be remanded to police custody.
Further, it is found in the record that the Magistrate did not inform the accused persons that he was not a police officer but a Magistrate. On scrutiny we find in the record that magistrate sent the accused persons to the police custody after recording their confessional statements. Therefore, we find the Magistrate had no idea or acumen that it was his legal duty to remove the other, inducement and influence of the police completely from the mind of the accused before recording their confession, So, therefore, we hold that the confessions made by the accused cannot be considered either against the maker or against their coaccused. State vs Abul Hashem 50 DLR 17.
Section 164—Exculpatory statement uncorroborated by any other evidence cannot be the basis of conviction. Abu Jamal vs State 51 DLR 57.
Section 164–There is no hard and fast rule that a retracted confession must be discarded. Retracted confession can form the basis of conviction if it is found true and voluntary. State vs Tota Mia 51 DLR 244.
Section 164—There is no requirement under the law for the Magistrate to inform the confessing accused that whether he confessed his guilt or not he will not be handed over to the police.
The submission of the learned Advocate that the absence of observing the formalities by the Magistrate regarding recording the confessional statements by saying that whether they confess of not they will not be handed over to the police and in view of not reporting of the fact by the confessing accused themselves that they confessed their guilt due to physical torture the submission of the learned Advocate for the appellants appears to have no bearing in this case. Raf iqul Islam @ Rafiq vs State 51 DLR 485.
Section 164–A retracted confession cannot be used to base a conviction for murder unless corroborated by credible independent evidence. State vs Manik Bala 41 DLR 435.
Section 164–Statement recorded under section 164 CrPC cannot be used as a substantive evidence against the accused person except for contradicting or corroborating its maker. State vs Manik Bala 41 DLR 435.
Section 164–Confessional statement subsequently retracted—To base a conviction for murder upon a retracted confession alone is not safe when the proof of factum of murder is dependent upon that confession. State vs Manik Bala 41 DLR 435.
Section 164—Confession—(question of credibility when part of the occurrence is omitted or suppressed—It cannot be found nor it could be suggested by either the prosecution or the defence why throttling part of the occurrence was omitted or suppressed. Even if it be taken that accused Rina had deliberately suppressed the throttling part of the occurrence in her judicial confession that cannot mean that the confession was not true. Shahjahan Manik vs State 42 DLR 465.
Section 164–Confession—Its nature and credibility—The recording Magistrate having not made any genuine effort to satisfy himself to find out the real character of the confession’ it casts a serious doubt on the voluntariness of the confession which is the basic requirement of law. Akhtar Hossain alias Bahul Akhtar alias Akhtar Ali vs State 44 DLR 53.
Section 164— Confessional statement–Such statement whether retracted or not, if found to be true and voluntary, can form the basis of conviction of the maker.
Confessional statements, credibility of—The UNO stated that he recorded the statements merely in his own language there is nothing to show that he gave the accused warnings before recording the same, there is nothing to show the time given for reflection, it was not mentioned whether police were present at the time of recording–The Magistrate also did not inform the accused that they would not be sent to police custody after the making of the statements and the Magistrate’s statement as to the presence of PTV 5 at the time of recording of the statements is contradictory to that of the latter the confessional statements, in such facts and circumstances, are neither voluntary nor true. Hafizuddin vs State 42 DLR 397
Section 164— Conviction can be based solely on confession, if found true and voluntary, though retracted subsequently. Hazrat Ali & Abdur Rahman vs State 42 DLR 177.
Section 164–Confession—Rule of law as opposed to rule of prudence–whether conviction can be based on confession if voluntary and true. For ascertaining as to whether the confession is voluntary and true or not the Court has to examine the confession itself and consider the same in the light of the materials on record and broad probabilities of the case.
There is no reason to disbelieve the evidence of the learned Magistrate who recorded the confession. No material could be elicited by the defence that the confession was the result of torture and maltreatment and hence it was not voluntary and not true as well. Hazrat Ali & Abdur Rahman vs State 42 DLR 177.
Section 164—Retracted confession—A confession can be taken into evidence, though retracted, if found to be true and voluntary. A belated retraction at the end of the trial would be of no value. State vs Nurul Hoque 45 DLR 306
Section 164—Statement made by the victim of an offence, when it can have evidentiary value –In the absence of examination of the alleged victim, her statements allegedly made to the police or to the Magistrate cannot be treated as evidence against the accused. As neither the victim girl nor the magistrate was examined, the statements recorded by the latter is not even a secondary evidence and in that view it is no legal evidence to prove the prosecution case. Abul Kashem vs State 43 DLR 420.
Section 164—Confessional statement—The Magistrate having admitted that after recording the confessional statement, the condemned-prisoner was sent back to the police custody, his confessional statement is to be treated as not voluntarily made. State vs Ali Kibria 43 DLR 512.
Section 164—The Magistrate while recording the confession did not record any questions and answers. But then he made real endeavour for coming to the conclusion that the statement was voluntary. The omission to record questions and answers cannot be considered as fatal defects when confession was made duly, though not recorded duly, for want of prescribed form. Facts stated in the confessional statement appear to be consistent with the evidence of PWs. In that view, the confessional statement is true as well. State vs Kalu Bepari 43 DLR 249.
Section 164–Credibility of confessional statement—No substantial compliance would cure the defect of noncompliance with the provisions of section 164 CrPC on material points. Confessional statement in a plain paper without the narration of questions and answers would not, by itself, make it inadmissible in evidence. Certificate given by the Magistrate, who had recorded the confessional statement, as to what had happened, how he warned and gave time for reflection to the person confessing, how yet he insisted on making confession and his admitting the same to be correct and the Magistrate’s believing the same to be voluntary ought to be treated as conclusive evidence of facts stated therein unless shown to be otherwise. Abdul Hakim vs State 43 DLR 389.
Section 164— Confessional statement of appellant Dablu runs counter to the prosecution case.
The whole story is inconsistent with the “confessional statement of the appellant—Pw changed the version in Court which differs from the FIR about the number of participants in the murder.
Circumstances of the case PVC 4 statement differs from the confessional statement of appellant Dablu rendering it contradictory to each other. Mizazal Islam vs State 41 DLR (AD) 157,
Section 164–The shivering condition in which the accused made confession indicated that he was subjected to threat and torture before he was produced for recording the confession. His conviction though could be based on the retracted confession, even if it was uncorroborated, is illegal when it appears to be neither voluntary nor true. Sanwar Hossain vs State 45 DLR 489.
Section 164–when an accused is under threat of being sent back to the police remand he is likely to make confession out of fear. His statement in such a position should not be considered as voluntary. Nazrul Islam vs State 45 DLR 142.
Section 164–Previous statement, use of—The statement of a witness made u/s 164 CrPC is meant for binding him down to the statement made during investigation. The defence may use it to contradict the witness, whereas the prosecution may use it to corroborate him when he gives evidence in Court (per Shahabuddin Ahmed CJ concurred by MH Rahman & ATM Afzal J3). Abu Taher Chowdhury vs State 42 DLR (AD) 253.
Section 164–If a statement recorded under this section is true and voluntary, the same alone is sufficient for convicting the confessing accused. Retraction of confession is immaterial once it is found to be voluntary and true. Baku! Chandra Sarker vs State 45 DLR 260.
Section 164–The Magistrate having not followed the requirement of law while recording the alleged confession of the accused and the columns were not properly filled in by him and as such, the genuineness of the confessional statement was rightly challenged. Belal alias Bellal vs State 54 DLR 80.
Section 164–Copies of section 164 CrPC statements cannot be granted to the accused before the filing of the charge-sheet. Mobarak Hossain alias Jewel vs State 54 DLR 135.
Section 164–To allow an accused an access to documents like the statements under section 164 of the Code, before filing charge-sheet, may prejudice the investigation before submission of the police report an accused is not entitled to get copies of the statements recorded under section 164 of the Code. Mnbarak Hossain alias Jewel vs State 54 DLR 135.
Section 164–In the attending facts and circumstances of the case when the veracity of the confessional statement is questionable, the same enjoys no presumption of correctness under section 80 of the Evidence Act. Belal alias Bellal vs State 54 DLR 80.
Section 164—Established legal position is that statement under section 164 CrPC can be used against its maker if it is found to be true, voluntary and inculpatory in nature–Statement under section 164 CrPC cannot be used against any other co-accused without any corroborative evidence and circumstances. Zakir Hossain ;vs State 55 DLR 137.
Section 164–Due to prayer for police remand with petition for recording statements under section 164 CrPC and non asking of any question to the accused that if they confessed or not they would not be sent to the custody of police there will be no reasonable scope to presume that there will be apprehension and lingering fear in the minds of accused of what might happen to them in the event of their going back to police custody. Alam Kabiraj vs State 55 DLR 273.
Section 164—Statement recorded behind the back of the accused the same cannot be treated as substantive evidence against hire. Such statement can be used to corroborate or to contradict a statement made in the court in the manner provided in sections 145 and 157 of the Evidence Act. Hobi Sheikh vs State 56 DLR 383.
Section 164—A statement made by a witness under section 164 CrPC can only be used by the accused for the purpose of cross examining in the manner provided by section 145 of the Evidence Act. State vs Nazrul Islam @ Nazrul 57 DLR 289.
Section 164—The conviction on confession alone can be maintained if it is found inculpatory in nature, true and voluntary. Lour Chandra Pal vs State 59 DLR 17.
Section 164—The confessional statement could not be said to be voluntary since it was recorded three days after the accused was arrested and certainly after illegal detention in police custody. State vs Md Raushan Mondal 59 DLR 72.
Section 164—The Tribunal appears to have used 164 statement of Pw 60 as a piece of evidence. This is a gross illegality. Such statement was recorded by the Magistrate behind the back of the accused persons; it can never be used as substantive evidence against them in any way. State vs Kajal Ahmed Jalali 59 DLR 345.
Section 164–From the confession it transpires that accused Shahjahan made confessional statement being fully aware of its consequence and his repentance led him to make the confession as he killed the mother of his friend. Admittedly, police did not arrest accused Shahjahan who voluntarily surrendered and made the confession at the earliest possible time. During recording ,of the confessional statement accused Shahjahan did not complain of any torture by the police while in custody and the Magistrate also did not find any marks of assault on the person of accused Shahjahan and no such endorsement is found in Exhibit 6, confession. Shahjahan Ali (Md) d Shahjahan vs State 59 DLR 396
Section 164–There is no earthly reason to disbelieve the statements of the victim which she also gave under section 164 of the Code. It is also not acceptable to us why a minor girl would give her deposition and statement narrating the involvement of the appellant in such a manner as she has given, if there would have been no forceful abduction by the appellant and that if she went with him on her own. Monir Hossain vs State 59 DLR 416.
Section 164–From the form of the recording statement, it is clear that the Magistrate did not state when she started recording the statement. How much time she allowed the accused for reflection. So, on scrutiny of the above confessional statement, it is difficult for us to hold that the same recorded in full compliance with the provision of 164(3) of the Code of Criminal Procedure and that the same is not voluntary and true. Bashar vs State 60 DLR 347.
Section 164—The allegation has also been brought for misuse the privilege of ad-interim bail because the accused-petitioner use to threaten the victim over telephone to withdraw the case which is enough to prove the misuse the privileges of bail at this stage. Masud Mahiuddin vs State (Criminal) 64 DLR 145
Section 164—In lodging the FIR and handing over the convict after 27 hours of his arrest when the police station is only half kilometer away from the place of occurrence, creates reasonable doubt about the veracity of the prosecution case and manipulation of the prosecution case cannot be ruled out particularly in view of the evidence adduced by the defence witnesses. Dolon vs State (Criminal) 64 DLR 501
Sections 164 & 241A—To frame a charge or to consider an application of the accused person that the charge brought against him is groundless trial Court is not obliged to consider the statements of any witness recorded under section 164 CrPC. Forhad Hossain vs State 50 DLR 337.
Sections 164 & 342—The witnesses deposed disclosing involvement of petitioner Mamun in the meeting of conspiracy and the occurrence of bomb blast resulting in the murder of the two Judges—In his examination under section 342 CrPC he admitted to have committed the offence and he felt proud being able to kill the judges according to the premeditated plan of his leader—His confessional statement and admission before the Court coupled with evidence on record proved the case against hire : Per Amirul Kabir Chowdhury J dictating the Full Court Judgment. Iftekhar Hasan (Md) @a Al Mamun vs State 59 DLR (AD) 36
Sections 164, 342 and 364–The Court is required to see not only that the forms under sections 164 and 364 of the Code of Criminal Procedure were complied with but the substance underneath was equally adhered to. There must not be any reason for doubt as to the truth of the statements, be it circumstantial or proved otherwise. In the circumstances it is difficult to deny the accused an opportunity to cross-examine the Magistrate who allegedly recorded the statements. Sadeque a Sadequr Rahman vs State 61 DLR 495.
Sections 164 & 364–Presumption as to confession–Even though provision is there for making certain presumption in respect of a confession by an accused person produced before a Court taken in accordance with law and purporting to be signed by a Magistrate, having regard to the facts of the case it was injudicious to rely upon such confession without calling the Magistrate as a witness. In respect of a confession the Court is required to see not only that the forms under sections 164 and 364 CrPC were complied with but the substance underneath the law was equally adhered to–There must not be any reason for doubt as to the truth of the statements, be it circumstantial or proved otherwise. In this particular case it is difficult to deny accused appellants an opportunity to cross-examine the Magistrate who allegedly recorded their statements. Babul vs State 42 DLR (AD)186.
Sections 164 and 364—All the formalities in recording the confessional statement were observed. The magistrate recording the confessional statement was satisfied that the confession was voluntary and free from taint. Facts revealed in confession substantially corroborate the prosecution story. State vs Mizanul Islam 40 DLR 58.
Sections 164 and 364–No hard and fast rule as to the time to be given to the accused for reflection before confession. Ratan Kha vs State 40 DLR 186
Sections 164 and 364—Confession— Statement not recorded in the language of the maker but in the language of the Magistrate—Accused admitted nothing. State vs Abdur Rashid 40 DLR MD) 106
Sections 164 and 364—Giving of remand of the confessing accused after recording his confessional statements is against the principle of law and as such the prosecution cannot get any benefit out of the confessional statements. Shah Alam vs State 52 DLR 566
Sections 164 & 533–Confession—Noncompliance with provisions for recording confession, effect of—In a case of non-compliance with the provisions of section 164 CrPC on material points, no question of any substantial compliance would arise.
Certificate given by the Magistrate as to what had happened, how he warned, gave time for reflection, yet how the accused insisted on making the confessional statement ought to be treated as conclusive evidence of facts therein unless shown to be otherwise.
Section 533 CrPC is the curable section but it would not cure a non-compliance if the error had injured the accused in the defence on merits. Thus, when the statements were not even read out to him or could not possibly be read over to him for him to admit or to deny or to examine its correctness or not even shown to him and signed by him, specially when the said are made against his interest and would be used against him, it could not be said that the said would be cured under section 533 CrPC. Abdul Hakim vs State 43 DLR 291.
Sections 164 and 537—The recording Magistrate did not make any genuine effort to find out the real character of the confession.
Omissions in the filling up of many paragraphs cast serious doubt upon the voluntary character of confessional statement.
In a careful perusal of the confessional statement we are satisfied that the recording Magistrate did not make any genuine effort to find out the real character of the confession which he recorded. The omissions to fill up the above mentioned paragraphs are not mere omissions curable under section 537 CrPC and the manner in which the confession was recorded casts serious doubt as to the voluntary character of the statement. Azad Shaikh vs State 41 DLR 62.
Sections 164 & 374–Part of the confessional statement found true may be accepted by the Court to convict the accused rejecting the other part which is not true. There is no merit in the contention that when one part of the confessional statement is rejected, other part, even if true, cannot be accepted.
Learned Sessions Judge could reject a part of the confessional statement if he found the same contrary to other evidence on record. But he could not reject the same on mere surmise and conjecture. A part of the confessional statement favourable to the accused should be given due weight to it unless Court finds the same not true being contrary to other evidence on record. State vs Afazuddin Sikder 50 DLR 121.
Sections 164,342 & 537—Since the attention of the accused was not drawn to his confessional statement when he was examined under section 342, he is obviously prejudiced. Such defect is not curable under section 537 of the Code. Abu Jamal vs State 51 DLR 57
Sections 164 & 364—It was injudicious to rely upon confession without calling the Magistrate as a witness. The Court is required to see not only that the forms under sections 164 and 264 CrPC were complied with but the substance underneath the law equally adhered to. Bimal Chandra Das vs State 51 DLR 466
Sections 164 533—The recording of the statement on a foolscap paper and mere omission of endorsement cannot be considered as fatal defect. The breach of the provision of law, if any, is a technical one and by that the evidentiary value of the confessional statement cannot be blown away. The defect is very much curable under section 533 of the Code of Criminal Procedure. Syed Ahmed vs Abdul Khaleque 51 DLR 43.
Section 164(2)—- The act of recording confession is a very solemn act and in discharging his duties, the Magistrate must taken care to see that the requirements of sub-section (2) of Section 164 are fully satisfied. State vs Babul Miah 63 DLR (AD) 10
Section 164(3)–It is a mandatory requirement that after recording a confessional statement the recording Magistrate is required to make a memorandum to the confession containing a clause to the effect that he had warned the accused that he was no bound to make a confession, that if he makes a confession, it would be used against him, that the statement was true and voluntary, that it was recorded as per version of the maker and that it was read over to the maker after his statement was recorded which was the true and correct version and it contained a full and true account of statement made by the maker. State vs Babul Miah 63 DLR (AD) 10
Section 164(3)—-It does not appear sufficient questions were put and made understandable to the accused in their own language and proper time for reflection was not given hence their confessions cannot be deemed to be voluntary or true. State vs Raja Abdul Majid 48 DLR 336
Section 164(3)—Mere absence of LTI on a particular sheet (though the LTI is available on every sheet except one) and on the face of mentioning of relevant questions before recording the confessional statement informing about the consequence of such confessional statement to the confessing accused the confessional statement Exhibit4 is quite admissible in evidence. Abul Kalam Mollah vs State 51 DLR 544.
Section 164(3)—The provisions of sub section (3) of section 164 is mandatory and therefore he is required to fill up Column 7 of the form for recording confession which is a column for recording a brief statement of the Magistrate’s reason for believing that the statement was voluntarily made. State vs Babul Miah 63 DLR (AD) 10.
Section 164(3)–The confessional statement is not true and voluntary and there is no other direct or circumstantial evidence to substantiate the same, rather the prosecution particularly PW 5 Ohid Miah the alleged eye-witness embellished the prosecution story, the conviction cannot be sustained, Nuru Miah vs State 63 DLR 242.
Sections 164(3) & 364—The provisions under these two sections are mandatory and required to be strictly followed to make the confession voluntary and true and fit for reliance for convicting the accused on his confession. Abdul Hossain vs State 46 DLR 77.
Sections 164(3) and 364—Section 164(3) a mandatory provision of law. The requirement of adherence to the provisions of section 164(3) CrPC is not a mere matter of form but of substance that has to be complied with—Viewed in the light of the principles indicated above we have no hesitation to hold that the recording of the confessional statement Ext. 5(c) was not done in compliance with the requirement of sub-section (3) of section 164 read with section 364 of the Code of Criminal Procedure. Azad Shaikh vs State 41 DLR 62.
Section 164(3)—Corroborative evidence–For corroborative evidence, the Court must look at the broad spectrum of the approver’s version and then find out whether there is other evidence to corroborate and lend assurance to that version. The nature and extent of such corroboration will depend upon the facts and circumstances of each case. Corroboration need not be in the form of ocular testimony of the witnesses and may even be in the form of circumstantial evidence. State vs Md Fazlur Rahman Tonmoy 61 DLR 169.
Section 164(3)–In the absence of any evidence concerning the direct participation of Moti in the planning of the occurrence, it is difficult to hold that he had ‘mens rea’ in the commission of the offence. The confessional statement of the accused dated 21-4-1993 (Exhibit 6) does not indicate that the confession-recording Magistrate complied with the mandatory provision of sub-section (3) of section 164 of the Code. State vs Md Fazlur Rahman Tonmoy 61 DLR 169.
Section 164(3)—The requirement of adherence to the provisions of section 164(3) of the Code of Criminal Procedure is not a mere matter of form, but substance. Section 164(3) is a mandatory provision of law as has been settled by the Privy Council in the case of Nazir Ahmed vs King Emperor, AIR 1936 PC 253 “. Before recording a confession a Magistrate is bound to make real and substantial inquiry as to the voluntariness of the confession. In so doing he must put questions to the accused with a view to find out the real object of the confession, whether it is made out of repentance or for any other such good reason or whether it is the result of torture or tutoring by somebody or whether it has been caused by any inducement, threat or promise.
A confessional statement, even if it is partly true or partly false or, in other words, does not disclose the full picture, can be used against the maker and there is no legal bar in upholding the conviction on the basis of such confession. State vs Suman Saha 61 DLR 253.
Sections 164(3) & 553—Procedure mandatory in nature—It is ex facie clear from the Exhibit 7 that the confession-recording Magistrate has not explained to the accused Tonmoy that he is not bound to make any confession and if he does so, it may be used as evidence against him. This is a very vital question to be explained by the confession-making accused. The provision of subsection (3) of section 164 of the Code is mandatory in nature. It appears from column 6 of the Exhibit 7 that the Magistrate put a question to the accused Tonmoy as to whether he is making the confession voluntarily and he has replied in the affirmative. But the non-putting of any question to the effect that the accused Tonmoy is not bound to make any confession and if he does so, it may be used as evidence against him at the trial has rendered the confession involuntary, invalid and unreliable, though it purports to be inculpatory in nature and may be true in some respects. State vs Md Fazlur Rahman Tonmoy 61 DLR 169.
Sections 165 & 166(3)–The position of search by police officers of a different jurisdiction has been spelt out in section 166(3) of the Code of Criminal Procedure according to which a police officer is entitled to conduct search within the jurisdiction of another police station, if he has reason to believe that in having the place searched by the police of that place a delay would be accused and as a result evidence would be destroyed.
In such a case presumption of regularity of official acts will be invoked otherwise the purpose of the section will be defeated. If a police officer conducts a search within the limit of another police station, it may be presumed, unless otherwise proved, that reasons have been recorded by that officer that delay would have occasioned and evidence destroyed, if he had waited to have the place searched by police having jurisdiction of the place. Kamruzzaman alias Babul Sikdar vs State 47 DLR 416
Section 161—The right of cross-examination on the basis of witnesses’ previous statements under section 161 CrPC having not been available, prejudice to the defence could not be ruled out. The right given to the accused of getting copies of the statements under section 161 CrPC is a valuable right. End of justice requires setting aside the conviction. State vs Zahir 45 DLR (AD) 163.
Section 161–The examination of prosecution witnesses under section 161 CrPC after a considerable lapse of time casts serious doubt on the prosecution story. Moin Ullah vs State 40 DLR 443.
Section 161–The investigation officer having not been cross-examined on the question of delay in recording the statement under section 161 CrPC, there is no substance in the contention that the delay should have been taken as a factor to question the veracity of the witnesses concerned. Shadat Ali vs State 44 DLR 217.
Section 161—The trial Court illegally referred to and considered the statements of witnesses recorded under section 161 Criminal Procedure Code, which could only be used to contradict or corroborate the witness. Abu Bakker vs State 49 DLR 480.
Section 161–Due to lapse of time in recording of their statements, witnesses indulge in concoction of the prosecution case, more so when they are inimically disposed to the accused. Moreover, one tainted evidence cannot corroborate another tainted evidence.
In a case where enmity is admitted the evidence of such witnesses are liable to be closely scrutinised and unless there are corroboration by cogent, independent and disinterested witnesses the evidences of such witnesses who are inimically disposed are not accepted as the basis for conviction, particularly in a murder case. State vs Hosen Sheikh a@ Hochen 50 DLR 508.
Section 161—Because of belated examination of witness by the Investigating Officer for no plausible reason, possibility of embellishing the prosecution case by the witness cannot be ruled out. State vs Babul Hossain 52 DLR 400.
Section 161—Judges are competent to tape judicial notice of the fact about the present condition of law and order situation in the country and, as such, it is not unlikely that a witness will hesitate to tell the truth for fear of his life. Mahmudul Islam vs State 53 DLR (AD) 1.
Section 161–Unusual delay cannot be caused in the matter of noting down statement of a person/witness and mandate of law demands immediate recording of statements when memory of witness remains fresh as human memory is always fleeting. Kazi Mahbubuddin Ahmed alias Mahbub vs State, represented by the DC, Dhaka 57 DLR 513.
Section 161–The contradiction of the statement under section 161 of the Code of Criminal Procedure with the ultimate testimony of the PWs made before the trial Court has adverse effect upon the reliance of the prosecution witnesses which reduces the evidentiary value of the testimony of the PWs as adduced at the trial which makes the witness unreliable on the point on which the witness has contradicted. Zamir All (Md) vs State 59 DLR 433.
Section 161—Inordinate delay in examining the important prosecution witnesses casts a serious doubt as to the truth of the prosecution case and in the circumstances their evidence cannot be relied on and are to be left out of consideration. State vs Al Hasib Bin Jamal alias Hasib 59 DLR 653.
Section 161—Investigating officer did not assign any reason for the long delay in examining the PWs. Delay in examining the witnesses under section 161 of The Code is fatal to prosecution case and statements of witnesses are required to be left out of consideration. Sahabuddin vs State 61 DLR 54.
Section 161--Under certain circumstances delay of a few days even, may render the testimonies of the prosecution witnesses doubtful but yet there may be cases is which delay of years together may not do so. State vs Resalder Moskmuddin 61 DLR 310.
Section 161–Benefit of doubt—It was the failure on the part of the Investigating Officer to detect all the 5 assailants who had entered inside the jail, otherwise none of them could deserve any sort of lenient attitude from the Court because of their involvement in such a horrendous crime, but these 2 condemned prisoners namely Dafader Marfat Ali Shah and LD Dafader Abul Hashem Mridha cannot be connected with the crime beyond reasonable doubt. Therefore, the two condemned-prisoners are entitled to be acquitted on the principle of benefit of doubt. State vs Resalder Moslemuddin 61 DLR 310.
Section 161–Unexplained delay in recording the statements of eye-witnesses by Investigation Officer casts a doubts as to the truthfulness of their testimonies. They had been given chance of concoction and false implication. Therefore, their evidence should be left out of consideration.
When a witness is cross examined by a party calling him, his evidence is not to be rejected either in whole or in part but the whole of evidence so far as it affects both parties favourably or unfavourably must be taken into account and assessed like any other evidence for whatever its worth. Jalal uddin vs State 58 DLR 410.
Section 161—The witness claiming to have seen the occurrence admittedly resides at a far off place—Some time had therefore elapsed to find him and for recording his statement No adverse presumption should be drawn because of the delay in recording his statement. State vs Mokammel Hyeath Khan 58 DLR 373.
Sections 161 & 162—A statement of a witness recorded under section 161 CrPC couldn’t be used as substantive evidence. It can only be utilised under section 162 CrPC to contradict such witness in the manner provided by section 145 of the Act. State vs Nazrul Islam 57 DLR 289.
Sections 161 & 162—Statements made under section 161 CrPC are not substantive evidence. Such statements can only be utilised under section 162 CrPC to contradict the witness in the manner provided by section 145 of the Evidence Act. Abdus Subhan vs State 46 DLR 387.
Sections 161 and 162—An omission from the statement recorded in a boiled form does not amount to contradiction and the alleged contradiction sought to be taken from the omission of the statement cannot, in a particular case, be proved under section 162 of the Code to hold that contradiction in accordance with the provision of section 162 has been established. Abul Kalam Azad alias Ripon vs State 58 DLR (AD) 26
Sections 161 and 162–When witness is contradicted by a statement recorded by the Police in the course of investigation the only effect that it can have is to reduce the evidentiary value of his testimony in Court and make the witness unreliable on the point on which he is so contradicted. Abul Kalam Azad alias Ripon (Md vs State 58 DLR (AD) 26
Sections 161, 164, 173 & 205C–Statement recorded under section. 164 of the Code comes within the purview of the word ‘document’ used in section 173 and section 2050 and such statements should be transmitted to the Court of Session along with the case record under section 2050. Nurul Islam Manzoor vs State 52 DLR 276
Sections 161, 164 & 342—The accused failed to discharge his obligation. The certified copies of the statements under sections 161 and 164 of the Code of the maids and others of the house of the accused filed by the accused at the time of examination under section 342 of the Code in support of his case that the deceased committed suicide by hanging are not evidence and, as such, cannot be considered. There is no evidence that the deceased committed suicide by hanging. Moreover the accused’s explanation that the deceased committed suicide by hanging has been proved untrue. It is proved beyond doubt that the deceased was done to death. There is nothing to hold that anybody else besides the accused could cause the death of the deceased. State vs Azam Reza 62 DLR 399.
Sections 161 & 241A—Consideration of the statements made under section 161 of the CrPC while framing of charge or otherwise is a necessary part of the Court’s duty. Shaheb Ali vs State 52 DLR 366
Section 162—Test identification—The substantive evidence of a witness as regards identification is the statement made in the court. In order to carry conviction, the evidence should ordinarily show as to how and under what circumstances the witness came to pick out the particular accused person and the details of the part which the accused had played in the crime in question with reasonable particularity, Sbamsul Alam vs State 56 DLR 218.
Section 162–Statements made to the Police in course of investigation of an offence started on the basis of FIR are admissible in evidence. Ext. I not being statements made in course of investigation to the Police comes within the above provision of law. Nurul Islam vs State 40 DLR 122.
Section 154–FIR—delay–The Court has always viewed First Information Report with grave suspicion when there had been unexplained delay in lodging it. It can be presumed that the delay was used for manipulation of the prosecution story. Abdul Latif vs State 44 DLR 492.
Section 154–FIR does not contain detailed facts of the prosecution case. Its main purpose is to give information of a cognizable offence to the public and set the law in action. Ataur Rahman vs State 43 DLR 87.
Section 154–FIR—Effect of departure from FIR story–where the prosecution has a definite case, it must prove the whole of it; partial departure from the prosecution case affects credibility of the witnesses and complete departure makes their testimony to be entirely discarded. Copal Rajgor vs State 42 DLR 446
Section 154–A FIR may be lodged by any person for, it is meant just to set the machinery of law in action. Shah Alam vs State 42 DLR (AD) 31.
Section 154–where FIR does not contain an important statement deposed to by the witnesses, it is clear that there has been subsequent embellishment of the prosecution case which makes it untrustworthy. iVazrul Islam vs State 45 DLR 142.
Section 154—FIR can be used only to corroborate or contradict the maker thereof. There is neither any law nor any principle on the basis of which the testimony of another witness can be ignored or rejected, because the informant had made an omission to mention about the fact which the witness stated in his deposition. State vs Abdus Sattar 43 DLR (AD) 44.
Section 154–The first information report is not a substantive piece of evidence and can be used only for the purpose of corroborating or contradicting the matter thereof, but its value lies in being the earliest version of the prosecution story. Seraj Miah vs State 49 DLR 192.
Section 154–The first information report is not a substantive piece of evidence but it can be used to corroborate the informant or to contradict him. It cannot be used to contradict the evidence of any witness other than the informant. The Court is, of course, entitled to note the conflict between the first recorded version of the prosecution case and the case made out in the course of the trial. State vs Tajul Islam 48 DLR 305.
Section 154—The First Information cannot be treated as the first and the last word of a prosecution case—Weight 1s to be given to the legal evidence adduced by a witness before the Court at the time of trial. AlAmin vs State 51 DLR 154.
Section 154–-When the First Information Report is lodged within minimum possible time, such First Information Report story should not be disbelieved only because of any somersault on the part of the informant.
We have already found that for saving his full brother, the informant suppressed the truth at the time of deposing in the Court and, as such, we are of the view that in this case before us conviction may be given on the basis of the statement made in the First Information Report and on the basis of the evidence of the witnesses who corroborated the First Information Report story. Khorshed vs State 51 DLR 317.
Section 154–The filing of the first information report by the victim’s father that she died after taking poison was no bar to file a second first information report if subsequently it transpires that the death was homicidal in nature. Abdul Khaleque vs State 53 DLR (AD) 102.
Section 154—Publication of a report in a news-paper about commission of a cognizable offence against a particular person is not “information” within the meaning of section 154. Mohammod Hossain, Advocate vs Quamrul Islam Siddique 54 DLR 88.
Section 154–The first information report is a matter of special importance when its maker died shortly after he made it. The FIR is clearly admissible in evidence. This may also be treated as a dying declaration in view of the fact that victim himself dictated the ejahar at a time when his condition was really critical. State vs Rashid Ahmed & others 54 DLR 333.
Section 154—There could not be any second first information report and there could not be any investigation on the strength of such a first information report. Kazi Mahbubuddin Ahmed alias Mahbub vs State, represented by the DC, Dhaka 57 DLR 513.
Section 154—The entire period of trial is to be calculated on the basis of the concerned Judge’s working days. On 5 occasions the concerned judge was on leave which are to be excluded from the period of trial. Such period excluded, this case is not hit by section 10 of the said Act. This aspect has not also been raised during the trial before the Judge to count his working days as contemplated in section 10 of Act. State vs Naimul Islam 60 DLR 481.
Section 154—FIR—Delay—Mere Delay–Mere delay in lodging a case is not a ground for disbelieving a prosecution case, for there are various circumstances in which lodging any case as to the cornmission of offence may be delayed. (Per SK Sinha J) Major Bazlul Huda vs State 62 DLR (AD) 1.
Section 154–Words Ôgvgjv `v‡qiÕ means institution of a case by submission of a charge-sheet by an officer of the Commission, before the concerned Court and certainly not an first information report as envisaged under section 154 of the Code of Criminal Procedure or a complaint (Awf‡hvM) as envisaged under Rule 3 and 4 of the Rules.
The irresistible conclusion is that no sanction will be required to file a complaint (Awf‡hvM) either with the Commission or with the police. But sanction from the Commission shall be required both under the unamended and the amended section 32, before institution of a case ((gvgjv `v‡q‡ii †ÿ‡Î) in the concerned Court. Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir G2 DLR (AD) 290.
Sections 154 and 157—Information–News-paper Report—The use of the word ‘information’ in section 157 normally means the information received under section 154 of the Code. In section 157, besides using the word information, the expression ‘or otherwise’ has also been used. This cannot empower a police officer to start investigation on the basis of a report published in a newspaper. Mohammod Hossain, Advocate vs Quamrul Islam Siddique 54 DLR 88.
Sections 154 and 157–Receipt of information is not a condition precedent for investigation–The officer-in-charge of a police station can start investigation either on “information” or “otherwise”. Saifuzzaman vs State 56 DLR 324.
Sections 154, 156 & 157—If an officer-in‑charge of a police station does not investigate a case, some reasons must be recorded and with such reasons he should notify the informant that he would not investigate into the case. Yasmin Sultana vs Bangladesh 54 DLR 269.
Sections 154, 156 & 157–An officer-incharge of a police station is legally bound to reduce an information of cognizable offence into a first information report and to start investigation into the case. Yasmin Sultana vs Bangladesh 54 DLR 269.
Sections 154 & 161–The GD Entry being the earliest in point of time containing facts of the murder though not signed by the informant was in fact the First Information Report and the information recorded by the police later on the basis of statement of PW 1 could at best be treated as one under section 161 CrPC. Shahjahan vs State 46 DLR 575.
Sections 154 and 161–The information of commission of a cognisable offence earliest in point of time, on the basis of which law was already set in motion, is the first information report within the meaning of section 154 of the Code and the first information report lodged later on during investigation is a statement of PW 1 under section 161 of the Code and, as such, it is inadmissible. State vs Al Hasib Bin Jamal 59 DLR 653.
Sections 154 & 161—The written _information that was handed over by PW I to the SI (PW 12) of the Sonargaon PS and Investigating Officer at 19-45 hours of 4th March, 1987 and on receipt whereof PW 12 started Sonargaon PS Case No. 2 dated 4th March, 1987, is in the eye of law not a FIR but a statement in writing by PW 1, who heard from PW about the incident, to the Investigating Officer, subsequent to commencement of the investigation and, as such, the same is a statement under section 161 of the CrPC (38 DLR (AD) 311). Ansar (Md) Chan Mia vs State 53 DLR (AD)115.
Sections 154,161 & 162–First Information Report is an accusation, an information relating to the commission of cognisable offence reported to the Police by any person with the object of putting the Police in motion in order to investigate. Nure Alam vs State 54 DLR 242.
Sections 154 & 162—The document exhibited as FIR in the case should not be treated as an FIR for the reason that an information as to the murder was lodged earlier and there was a GD Entry thereon, but the same had not been produced. Akhtar Hossain vs State 44 DLR 83.
Section 155—A police officer is not to investigate into a non-cognizable case under section 155 CrPC without the order of a Magistrate of the first or second class. Under the law when the police has a report of a non-cognisable offence he is bound to refer the informant to the Magistrate for initiating the process of investigation. Aroj Ali Sarder vs State 41 DLR 306.
Sections 155,190 & 195–There is nothing in the law to prevent a police officer from making a complaint when some facts come to his knowledge even if he cannot investigate them. Abul Hossain vs State 55 DLR (AD)125.
Sections 155, 190 & 537—Non cognizable offence–Mere irregularity like investigation by an officer not authorised to investigate a non -cognizable offence does not affect the legality of a proceeding of a Court below:–
Investigation by a police officer in the instant case is an antecedent proceeding. It is neither the foundation stone nor a prerequisite of the proceeding nor a sine qua non of a valid trial in the Court. It is difficult for us to see why such an irregularity, i.e. investigation by an officer not authorised, should affect the proceeding in a Court or prevent the Court from taking cognizance of a noncognizable offence under clause (a) or (b) of section 190(1) of the Code of Criminal Procedure in the absence of a clear enactment, expressed or implied preventing the Court from doing so. Golam Moula Master vs State 46 DLR 140.
Section 155(2)—There is no legal bar on the part of the police officer receiving an information about a non-cognizable offence in recording the same in the general diary and obtaining permission from a competent Magistrate to investigate into the case. Nasiruddin Kazi vs Aleya Khatun alias Fulu 48 DLR 216
Section 155(2)—Without complying with the provisions of section 155(2) of the Code the police held investigation of the nor-GR case. The subsequent taking of cognizance by the Magistrate is certainly an abuse of the process of the Court. Mohiuddin Ahmed vs State 63 DLR 564
Section 155(2), 241 A— The matter should be sent back to the Magistrate for hearing specifically on the point whether the investigation can be proceeded and police report can be submitted under section 509 Penal Code without the permission of the Magistrate. Abul Hossain vs State 53 DLR 402.
Sections 156(3) & 200—Where is nothing wrong in the procedure adopted by the Magistrate directing the police to hold investigation treating the petition of complaint as a First Information Report Cases reported in 6 DLR (WP) 205 and 54 Cal 305 are not applicable in the facts of the present case. Yakut, Ali vs State 47 DLR (AD) 94.
Sections 156(3) & 190(1)—The prayer made by the accused for holding further investigation against some other persons is, in fact, a prayer cancelling the charge-sheet filed against them. This is nothing but an indirect way of reopening the case by making reinvestigation but there is no provision of law for cancelling the charge-sheet once filed against some accused and accepted by the Magistrate. Sukhil Kumar Sarkar vs Kazi Waned Ali @ Subed 47 DLR 252.
Section 157–First Information Report—FIR cannot be substituted for evidence given on oath and when there is no other evidence the facts mentioned in the information could not be relied upon as proof of the offence alleged. Babul vs State 42 DLR (AD) 186
Section 160—Since there is no reference as to any investigation or inquiry in the notice issued_ by the police officer asking the petitioner to produce documents the same has been issued in an unauthorised manner. Mohsin Hossain vs Bangladesh 49 DLR 112.
Nothing to post
Section 144–-Status quo is not contemplated in a proceeding under section 144 CrPC. Nazibul Islam vs Dr Amanullah 40 DLR 94.
Section 144--A Magistrate has no jurisdiction under section 144 CrPC to issue notice upon the parties to file written statement before him showing cause by a certain date. Nazibul Islam vs Dr Amanullah 40 DLR 94.
Sections 144 and 145(4)—The instant case is not one of conversion from -section 144 to 145 CrPC. By the impugned order the application under section 144 CrPC was disposed of and a proceeding was drawn under section 145 CrPC being satisfied as to the apprehension of serious breach of peace. Nazibul Islam vs Dr Amanullah & the State 40 DLR 94.
Section 145/144—No receiver can be appointed of the disputed property unless the proceedings under section 144 of the Code are converted into one under section 145 of the Code. Provat Mondal vs State (Criminal) 64 DLR 182
Section 145—A proceeding under section 145 CrPC is not a criminal matter.
As to proceedings under section 145 CrPC it is erroneous to designate the complainant as an informant, having regard to the provisions of that section. Once an information is brought to the notice of the Magistrate he has to be satisfied that a dispute as to immovable property is likely to cause a breach of the peace. Further proceedings which he starts are not proceedings in the interest of any private party but in the interest of public peace. (See Babu vs Shyam, MR 1950 All 543). It is, therefore, highly doubtful if proceeding under section 145 CrPC can properly be termed as a “criminal matter”. Jobeda Khatun vs Momtoz Begum 45 DLR (AD) 31.
Section 145–The jurisdiction of the Magistrate under section 145 CrPC is ousted when the civil Court is seized with the subject matter of dispute. Jobeda Khatun vs Momtaz Regum 45 DLR (AD) 31
Section 145—Bid money–When it cannot be forfeited–Receiver appointed by the Magistrate being an agent of the Court can attach any condition to the auction held for leasing out the attached property. But in the absence of any such condition attached by him or the Magistrate the part of the bid money deposited cannot be forfeited on the bidder’s failure to deposit the balance money, though the bid can be cancelled and fresh auction held. Amir Hossain Farhad vs Dr A Mannan 44 DLR 401.
Section 145–Under section 145 CrPC the Court deals with the limited scope of finding possession. Haji Gomm Hossain vs Abdur Rahman Munshi. 40 DLR (AD) 196
Section 145—A Magistrate making an inquiry under section 145 CrPC is to decide the fact of `actual possession’ without reference to the merits or the claims of any of the parties of a right to possess the subject of dispute. Ami’nul Islam vs Mujibar Rahman 44 DLR (AD) 56.
Section 145—Jurisdiction of Magistrate acting under sub-section (1) does not cease until and unless the proceeding is either cancelled under sub-section (5) or is finally disposed of under sub-section (6).
Exercise of power under sub-section (5) not dependent upon the result of inquiry under sub section (4).
The jurisdiction once validly acquired by the Magistrate acting under sub-section (1) of section 145 of the Code of Criminal Procedure does not cease until and unless the said proceeding drawn under sub-section (1) is cancelled under subsection (5) or the subject-matter of the proceeding is finally disposed of under sub-section (6) declaring a party to be entitled to possession thereof. At any stage of the proceeding the Magistrate may come to the conclusion that there is no longer any case for continuing the inquiry.
The exercise of power under sub-section (5) is not dependent upon the result of inquiry under sub-section (4). Moslemuddin Dhali vs Helal uddin Dhali 41 DLR 120.
Section 145—Right to show that no dispute exists or existed—in moving for cancellation for preliminary order a party has liberty to produce evidence—what is evidence depends upon the facts and circumstances of each case—Single piece of paper may prove to the satisfaction of the magistrate that a dispute exists or existed or that there is no apprehension of breach of peace. Moslemuddin Dhali vs Helaluddin Dhali 41 DLR 120.
Section 145—The High Court Division should not interfere with the finding of possession passed by the Magistrate on proper evidence unless the finding is perverse. Soleman vs Ahbarek Khalifa 46 DLR 298.
Section 145—Court’s concern in a proceeding under this section–The basic condition for a proceeding under section 145 of the Code of Criminal Procedure is the existence of a dispute regarding any land, etc, between the rival claimants. The concern of the Court in such a proceeding will therefore be the facture of possession of either claimant at the relevant time and also whether there is any apprehension of breach of peace regarding the possession of the parties and not title or other incidental rights, Abdul Jabbar vs Azizul Haque 46 DLR 416
Section 145--A Magistrate’s satisfaction while exercising jurisdiction under this section cannot be presumed extrinsic to his order, it must be gathered from the express statements made in the order. Abdul Quddus vs State and Md Mobarak Hossain Ratan 47 DLR 506.
Section 145-W–Filing of case under section 145 of the Code of Criminal Procedure during pendency of a civil suit between the same parties cannot be said to be proper.
A party to a civil suit, if threatened in his possession, can seek remedy from the civil Court and should not seek such remedy from a criminal Court as civil Court if final arbiter of land disputes. Serajul .Islam vs Fazlul Haque 47 DLR 480.
Section 145—Dispute of ownership was beyond the scope of determination in a proceeding under section 145 of the Code. Shah Gauhar Jamil Palash vs Shah Md Mansur 57 DLR 298.
Section 145—-1t is the dispute relating to possession that was for a Magistrate to consider in a proceeding under section 145 of the Code. Shah Gauhar Jamil Palash vs Shah Md Mansur 57 DLR 298
Section 145—Since appellate Court is in seisin of the matter after a decree of the Court in favour of 2nd party the Magistrate’s power under section 145 CrPC is not available. Abdur Rahman Sikder (Md) vs Nur Mohammad Khan. 57 DLR 239.
Sections 145—In a proceedings under section 145 of the Code the Magistrate is required to decide which of the contending parties was in possession of the disputed property on the date of drawing up of the proceedings or whether two months next before such date on the basis of evidence of possession and not to decide which of the parties has lawful claim of possession therein on the basis of document of title. Shebait Mohanta Sree Kedar Nath Achari vs Sree Khitish Chandra Rhattacharya 52 DLR 176.
Sections 145, 439A and 537—Though the Sessions Judge prematurely intervened, he has passed the order correctly and legally and any irregularity as pointed out is curable by the provisions in section 537 CrPC. Shah Gauhar Jamil Palash vs Shah Md Mansur 57 DLR 298.
Sections 145, 439A and 561A–The revisional jurisdiction at the instance of the second parry respondents under section 561A of the Code of Criminal Procedure does not lie as it is a device of invoking a second revision under the garb of an application under section 561A of the Code of Criminal Procedure which is not maintainable. Shamsuddin alias Shamsuddoha vs Mvi Amjad Ali 56 DLR (AD) 59.
Sections 145 & 146–Dispute as to possession of land—Attachment to continue until civil Court’s decision on title—The parties are litigating their title, as .also possession in a Title Suit. It is for them to raise all the’ questions therein. All comments, observations and findings of the Magistrate in the proceedings under section 145 CrPC and of the High Court Division while disposing of the application under section 561A OTC with regard to the title and possession of the disputed property (the subject matter of the proceeding under section 145 CrPC) will be ignored by the civil Court while deciding the title suit. It will be fit and proper, in the facts and circumstances of the case, to keep the Magistrate’s order directing the receiver to hand over possession of the case land to the 1st party of section 145 proceeding in abeyance for the present and it is so ordered. It is further ordered that pending disposal of the title suit the disputed land will remain under attachment and the 1st party is to hand over possession thereof to the receiver. On receipt of judgment in the title suit, the Magistrate shall dispose of the proceeding before him in conformity with the decision of the civil Court. Samirun Nessa vs Kamaluddin 43 DLR (AD) 175.
Sections 145 & 146–Sections 145 and 146 of the Code of Criminal Procedure should be read together as they provide a composite provision to meet a situation as aforesaid. The scheme is that once a proceeding has begun with preliminary order it must be followed by attachment of the property, appointment of a receiver and final determination of right and title by the civil Court.
Unfortunately this aspect of the case was not taken into consideration by the Revisional Court which has resulted in failure of justice. The Courts below have travelled beyond their jurisdiction in finding title of the parties which is not their business but the business of the civil Court. The impugned order accordingly needs to be modified by way of keeping properties in custody of the receiver till such tine as the parties decide their respective title in a civil Court in accordance with section 146 of the Code of Criminal Procedure. Abdul Jabbar vs Azizul Haque 46 DLR 416.
Sections 145 & 146–When the receiver is a police officer he could not be dispossessed from the disputed property since he has authority to arrest anyone and send him to jail and also prosecute him for committing a cognizable offence or for violating law and order. Abdul Karim vs Gousddin 51 DLR 259.
Sections 145 & 146—The Magistrate is duty bound as the custodian of the disputed property to take over possession of the same from the 2nd party who is bound by the decree of the civil Court and to make over the same to the first party. Abdul Karim vs Gousddin 51 DLR 259.
Sections 145 and 146–The Criminal Court exercising the limited summary jurisdiction could regulate the possession of the disputed property. On the failure of the learned Magistrate to ascertain factum of possession in favour of either party direct the parties under section 146 of the Code of Criminal Procedure to go to the Court of competent civil jurisdiction. Shamsuddin vs Mvi Amjad Ali 56 DLR (AD) 59.
Sections 145 & 146–Order under section 146 could have been passed only after being satisfied on evidence in the proceeding under section 145 of the Code of Criminal Procedure that neither party could prove his possession in the subject matter of the proceeding and therefore the order passed by the learned magistrate was misconceived and beyond the authority under section 146 of the Code of Criminal Procedure. Bangladesh Co-operative Book Society Ltd vs Md Dastagirul Huq 61 DLR (AD) 62.
Sections 145 and 146(1)—The purpose of the proceeding under section 145 CrPC is to find out the possession of the property. Haji Golam Hossain vs Abdur Rahman Munshi 40 DLR (AD) 196.
Sections 145 and 161—The GD Entry being the earliest in point of time containing facts of the murder though not signed by the information was in fact the First. Information Report and the information recorded by the police later on the basis of statement of PW 1 could at best be related as one under section 161 CrPC. Shahjahan vs State 46 DLR 575.
Sections 145 and 561A—As the order of the Civil Court was passed earlier there could not be any proceeding under section 145 of the Code of Criminal Procedure in respect of that property. Abdul Alirn vs State 53 DLR (AD) 64.
Sections 145 and 561A As the order of the civil court was passed earlier regarding possession of the property, there cannot be any proceeding under section 145 of the Code of Criminal Procedure in respect of the same property. Abdul Alan vs State 52 DLR 616
Sections 145 and 164—A statement of witness is not legally acceptable evidence to prove or disprove any accusation, particularly when the witness herself is available in the court to depose about the occurrence. Alam vs State 54 DLR 298.
Sections 145 & 561A–Though two civil suits, instituted before the drawing up of the proceeding under section 145 CrPC, are pending, the civil Court has not passed any order regulating possession of the case land, nor a decree for possession or permanent injunction has been granted. In this view of the matter, the jurisdiction of the Magistrate to act under section 145 CrPC is not ousted. Mozaffar Ahmed vs State 49 DLR 485.
Sections 145 & 561A—When the Civil Court is already seized with the question of regulating possession of the land between the same parties, the Magistrate acted without jurisdiction in initiating the impugned proceeding under section 145 CrPC. Abul Bashar vs Hasanuddin Ahmed 51 DLR (AD)14
Sections 145 & 561A–When the Civil Court is already seized with the question of regulating possession of the land between the same parties the Magistrate acted without jurisdiction in initiating the proceeding under section 145 CrPC. Abdul Algid Mondal vs State 51 DLR 287.
Section 1450)–Grounds of satisfaction not stated in the preliminary order—Additional Sessions Judge could inquire whether there were materials on record for such satisfaction and come to a conclusion that the same was not based on materials. Moslemuddin .Dhali vs Helaluddin Dhali 41 DLR 120.
Section 145(1)(5)—Subjective satisfaction in passing order under sub-section (1) but not when moved under sub-section 5.
When a Magistrate passes a preliminary order under sub-section (1), he has to exercise a subjective satisfaction with regard to the apprehension of breach of peace. But when he decides to cancel or not to cancel the preliminary order on being moved under sub-section (5), his satisfaction is no longer subjective.
Decision under sub-section (5) is subject to scrutiny on a wider ground than in an order under sub-section (1). This subsequent decision under sub-section (5) is subject to scrutiny by the revisional Court on a wider ground than the Magistrate’s order passed under sub-section (1). Order under sub-section (5) based on objective satisfaction—open to wider challenge on revision. But an order passed under subsection (5) is based on objective satisfaction and it is open to wider challenge before the revisional Court. Moslem uddin Dhali vs Helal uddin Dhali 41 DLR 120.
Section 145(4) & 561A—- When an order of attachment and appointment of receiver was legally made by the Magistrate to prevent serious apprehension of immediate breach of peace, such order is to be restored by setting aside the order of Sessions fudge who illegally set aside the order of the Magistrate in exercise of inherent jurisdiction of High Court Division for securing ends of justice. Alauddin vs State 58 DLR 364.
Section 145(4)–Power in section (4) of section 145 CrPC is an extraordinary power to be exercised in a case of emergency and should not be resorted to as a matter of routine—No apprehension of breach of peace and parties being in joint possession, the order is to be vacated. Gura Miah vs Fazar Ali 42 DLR 70.
Section 145(4)–Before passing any order under sub-section (4) the Court is required to enquire as regards the fact of actual possession of evidence to be adduced by the parties and if the Magistrate does not comply with this mandatory requirement then ex facie the order must be held to be adduced by the parties and if the Magistrate does not comply with this mandatory requirement then ex facie the order must be held to be illegal as in the instant case. Abdul Quddus vs State and Md Mobarak Hussain Ratan 47 DLR 506
Section 145(5)—Magistrate came to the conclusion that there is apprehension of breach of peace on the basis of a certain material In revisional jurisdiction a different view may be taken. The Chief Metropolitan Magistrate by his order dated 12-4-87 came to the conclusion that the posting of Ansars is a further material for coming to a conclusion that there is apprehension of breach of peace. Sitting in the revisional jurisdiction from an order under sub-section (5) the learned Additional Sessions Judge was perfectly entitled to take a different view. Moslemuddin Dhali vs Helaluddin Dhali 41 DLR 120
Section 146—ourt’s concern in a proceeding under this section–The basic condition for a proceeding under section 145 of the Code of Criminal Procedure is the existence of a dispute regarding any land, etc. between the trial claimants. The concern of the Court in such a proceeding will therefore be the factum of possession of either claimant at the relevant time and also whether there is any apprehension of breach of peace regarding the possession of the parties and not title or other incidental rights. Abdul Jabbar vs Azizul Haque 46 DLR 416
Section 147—Removal of obstruction—If the Magistrate, after recording evidence, finds merit in the case, he will pass orders prohibiting interference with the right of using the disputed land as the 1 st Party’s pathway. In passing such order the Magistrate has sufficient jurisdiction to pass ancillary orders so as to make his order of prohibition effective and, if necessary, to pass orders for removal of any obstruction in the pathway. Farhad Hossain vs Mainudd in Hossain Chowdhury 46 DLR 127.