High Court Division :
(Criminal Appellate Jurisdiction)
Syed Md Ziaul
Ashish Ranjan Das J
June 4th, 2014
Matiur Rahman (Md) ..... ... Complainant-Appellant
Abdul Shahid and two others............Respondents
During inquiry the Police in its report merely stated that there is no eye witness to the occurrence. But the complainant in his narajee petition categorically stated that the Police without visiting the place of occurrence without examining the eye witnesses most illegally submitted a perfunctory report. There are sufficient grounds for proceeding against the accused in the case. The Judge of the tribunal without appreciating the narajee petition and without any speaking order accepted the police report. .. .... (23)
Secretary Sub-Divisional Fisherman Co-operative Society Ltd. vs Mukunda Lal Adhicary, 17 DLR 42; Nurul Hoque vs Bazal Ahmed, and three others 48 DLR 327; Jalaluddin Bhuiyan vs Abdur Rouf, 51 DLR 408; Bhagwant Singh vs Commissioner of Police, '(1985) 2 SCC 537 = AIR 1985 SC 1285; Union Public Service Commission vs Papaiah, (1997 CrLJ 4636 (SC); Nur Mohammad MandaI vs Abul Hossain, and 3 others 28 DLR 389 ref.
Tripti Dutta, Advocate-For the Complainant-Appellant.
No one appears-Accused-Respondent Nos. 1-2.
Sakila Rowshan, DAG with Sharmina Haque, AAG and Md Showardhi, AAG-For the State-Respondent No.3.
Syed Md Ziaul Karim J : By this appeal, the complainant-appellant has challenged the legality and propriety of the order dated 14-8-2000 passed by the learned Judge of Nari-o-Shishu Nirjatan Daman Tribunal No.1, Habigonj (briefly as Tribunal) in Nari-o-Shishu Nirjatan Daman Tribunal Case No. 163 of 2000 dismissing the petition of complaint without taking cognizance under sections 5(1) and 9(1) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 (briefly as Ain 2000).
2. Facts in brief, are that on 4-4-2000 Md Matiur Rahman as complainant filed a petition of complaint in the Court of Magistrate, first Class, Habigonj accusing the accused-respondents alleging that his daughter Trisha Begum had love affairs with accused No. 1 and taking such advantage the accused No.2 Ajmal Kha used to visit his house, Thereafter accused No. I abducted the victim and kept her in the house of accused No.2 who ultimately committed consecutive rape upon her. With these allegations prosecution was launched.
3. On receipt of the complaint the learned Magistrate, refers the same to the local Police Station for inquiry. After inquiry the Police on 3-6-2000 submitted a report against the prosecution. Against which the complainant filed a narajee petition supported by statements of five witnesses including the victim Trisha Begum.
4. On receipt of the said report the learned Magistrate refers the case to the Tribunal.
5. On receipt of the case record the learned Judge of the Tribunal by the order dated 25-7-2000 accepted the report and discharged the accused, and later by the impugned order rejected the application of the complainant.
6. Feeling aggrieved the informant preferred the instant appeal.
7. The learned Advocate appearing for the appellant and the learned Deputy Attorney General appearing for the State-respondent support the appeal. Their common contentions are that the narajee petition should be treated as fresh complaint. So the learned Judge of the Tribunal ought to have given opportunity in respect of adducing evidence in support of the narajee petition but by rejecting the said petition the learned Judge committed the error of law causing miscarriage of justice.
8. In support of their contentions learned Advocates refer the following cases-
9. In the case of Secretary Sub-Divisional Fisherman Co-operative Society Ltd. vs Mukunda Lal Adhicary, 17 DLR 42 held:
"When narajee petition has been filed against police report, the trying Magistrate should not have acted on police report without hearing the party concerned in support of its narajee petition."
10. In the case of Nurul Hoque vs Bazal Ahmed and three others 48 DLR 327 held:
"When an accused is discharged pursuant to a final report that' means that the accused has been discharged from custody under section 500 of the Code and not discharged from the case.
"A second prosecution 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.
A narajee petition is a fresh complaint and a Magistrate is competent to take cognizance on the basis of a narajee petition by complying with the requirement of the case.
11. In the case of Jalaluddin Bhuiyan vs Abdur Rouf 51 DLR 408 held:
"Both the Magistrate and the Sessions Judge committed error of law resulting in miscarriage of justice by rejecting the narajee petition and discharging the accused opposite parties on the basis of the police report. The Magistrate ought to have held an inquiry on the narajee petition before rejecting the case."
12. No one appears on behalf of the accused respondent Nos.1-2 to oppose the appeal.
13. In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.
14. On going to the materials on record, it transpires that the complainant narrated the manner of crime in the petition of complaint. Subsequently in the narajee petition he also stated that the Police without proper inquiry into the matter in issue and without examining the relevant witnesses of the occurrence submitted a perfunctory report. It is pertinent to point out that the complainant in support of his allegations produced five statements of witnesses wherein it was commonly stated that the allegations made by the complainant is true and the accused No. 2 Ajmal Kha committed such offence as alleged by the complainant but both the Courts below did not at all consider such aspects. We have meticulously examined the petition of complaint, narajee petition, the Police report, the impugned order and other materials on record and we find that there are sufficient grounds for proceeding against the accused.
15. A three-Judge Bench of the Supreme Court of India in Bhagwant Singh vs Commissioner of Police (1985) 2 SCC 537 = AIR 1985 SC 1285 opined that while dealing with a final report submitted by the Police stating that no offence appears to have been committed, the Magistrate can adopt one of the three courses, i.e. (1) he may accept the report and drop the proceedings or (2) he may disagree with the report and taking the view that there is sufficient ground for proceedings further, take cognizance of the offence and issue Process or (3) he may direct for further investigation to be made by the Police under subsection 3 of section 156 of the Code of Criminal Procedure (briefly as Code). While adopting the first course (accepting the final report and dropping the proceedings), the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. In its subsequent decision in Union Public Service Commission vs Papaiah (1997 Cr. LJ 4636 (SC), the Court, as per the law laid down in Bhagwant Singh's case observed that the issuance of a notice by the Magistrate to the informant at the time of consideration of the final report is "must".
16. It has been held in the case of Nurul Huq vs Bazal Ahamed reported in 48 DLR 327 that if an accused discharged from prosecution or on a final report that means that the accused has been discharged from custody not discharged from the case and subsequent prosecution of the accused is permissible. It was further held in the said case that Narajee petition is a fresh complaint and a Magistrate is competent to take cognizance on the basis of a Narajee petition by complying with the requirements of the law.
17. In the instant case the Tribunal did not take notice regarding narajee petition. It has been held in the case of Nur Mohammad Manda vs Abul Hossain reported in 28 DLR 389 that the complainant is to be examined on oath under Section 200 of the Code. We also hold that without examining the complainant on oath, as required under Section 200 of the Code, it cannot be determined as to whether there is a prima facie case against the accused-persons or not and 'without examining the complainant as required under section 200 of the Code the complaint petition cannot be thrown out in limine.
18. By the above principle we find that the Narajee is to be treated as fresh complaint, the
Court can take cognizance of an offence if, in his opinion, there is sufficient ground for proceedings (27 Cal. 985 (DB), and discharge the accused where no sufficient ground exists.
19. There can be said to be no sufficient grounds in the following cases for issue of process.
(a) where the complaint is made on information and not an personal knowledge. In such cases the Court should satisfy itself on inquiry that there is a case for the issue of process (4 Crl LJ 217 (DB) Cal)
(b) Where the allegations made in the complaint are not substantiated by the statement on oath (AIR 1917 Cal. 671 = 18 Crl LJ 626(DB).
(c) Where the allegations disclose a dispute purely of a Civil nature (AIR 1952 Pat. 200 + AIR 1923 All 544 + AIR 1927 Lah. 145.)
20. The following are not sufficient grounds for refusing issue of process.
(a) Where a prima facie case is, made out but in the Magistrate's opinion there is no chance of conviction and no useful purpose will be served by the inquiry.
(b) Avoidance of religious ill feeling
(c) The fact that the offence is cognizable by the Police in the first instance.
(d) The fact that the Magistrate thinks that it is unlikely that the proceeding will result in a conviction, though the fact that another person accused upon the same facts for the same offence has been acquitted may properly be taken into consideration in determination whether upon the materials before the Magistrate there is sufficient ground for proceedings.
(e) The fact that one of the accused was a member of the higher services in the land who was sworn to do justice.
21. The aforesaid general principles are squarely applicable in the cases instituted under the Special law i.e. the AAin, 2000.
22. We also find that the above essentia ingredients are absolutely absent in the case in our hand.
23. It is pertinent to point out that the informant categorically narrated the manner of occurrence aswellas the manner of crime committed by the accused, during inquiry the Police in its report merely stated that there is no eye witness to the occurrence. But the complainant in his narajee petition categorically stated that the Police without visiting the place of occurrence without examining the eye witnesses most il1egally submitted a perfunctory report. We have meticulously examined the FIR, narajee petition, impugned order, Police report along with other materials on record and we find that there are sufficient grounds for proceeding against the accused in the instant case. Moreso it appears that the learned Judge of the Tribunal without appreciating the narajee petition and without any speaking order accepted the Police report. So in our view the same cannot be sustained.
24. Moreover the impugned order in its entirety is not well founded in the facts and circumstances of the case. So the submissions advanced by the learned Counsel for the appellant are the correct exposition of law and appears to have a good deals of force.
25. In the light of discussions made above and the preponderant judicial views emerging out of the authorities referred to above, we are of the view that the appeal having merit succeeds.
26. In view of foregoing narrative the appeal is allowed. The impugned order dated 14-8-2000 passed by the learned Judge of the Tribunal in Nari-o-Shishu Nirjatan Daman Tribunal Case No.163 of 2000 is hereby set-aside. The learned Judge of the Tribunal is directed to dispose of the narajee. petition filed by the complainant in accordance with law and in the light of observations made above.
The Office directed to communicate the order at once.