High Court Division :
(Criminal Miscellaneous Jurisdiction)
Farah Mahbub J
Mahmudul Hoque J
Ataur Rahman (Md) alias Dhanu and
State and anothers .... ...... Opposite Parties
November 22nd, 2017
Code of Criminal Procedure (V of 1898)
Since the original "boinama" has not been produced in. evidence in title suit but a photocopy of the same, therefore, Section 195(1)(c) of the Code of is not attracted in the case. There is no bar to file a criminal case alleging genuinity of the document on the plea that photocopy of the same has been given in evidence in connection with a civil suit. .. .... (29 & 30)
Moklesur Rahman Sharif vs State, Jamiruddin Sharif, 47 DLR 229; Shambhu Nath Saha vs State, 43 DLR 660 and Cirdharilal vs King Emperor, 1925 AIR, Qudh 413 ref.
Md Zakir Hossain, Advocate-For the Accused Petitioner.
Mansur Habib, Senior Advocate-For the Opposite Party No.2.
Farah Mahbub J : In this Rule issued under Section 561A of the Code of Criminal Procedure the opposite parties have been called upon to show cause as to why the judgment and order dated 27-6-2016 passed by the learned Additional Sessions Judge, 5th Court, Dhaka in Metro Criminal Revision No. 129 of 2015 allowing the revision by setting aside the order dated 27-11-2014 passed by the learned Additional Chief Metropolitan. Magistrate, Dhaka in Turag Police Station Case No.8 dated 10-4-2010 corresponding to GR No. 42 of 2010 under sections 406/420/467/468 and 471 of the Penal Code should not be quashed.
2. Alleging commission of offence punishable under sections 406/420/467/468 and 471 of the Penal Code one Md Sajal Chowdhury, being an informant lodged Turag Police Station Case No. 8 dated 10-4-2010 corresponding to GR No. 42 of 2010 implicating the accused petitioners with the alleged occurrence alleging, inter alia, that the case property as described in the schedule belonged to one Laljan Bibi, Keti Bibi and Kanu Bibi whose names were duly recorded in CS Khatian No. 202 of CS Plot Nos. 2288 and 2313 respectively measuring 10.43 acres of land. While Kanu Bipi was owning and possessing the same SA Khatian was duly recorded in her name under SA Khatian No. 373. Subsequently, she died leaving behind 3 (three) daughters namely Fazar Bibi, Chandraban Bibi and Surjaban Bibi while they were owning and possessing the same they sold out 2.4 acres of land to one Amin Box and Rokeya Khatun vide registered deed No. 5521 dated 24-4-1970. Later, said Rokeya Khatun sold out her portion of share to one Amin Box vide registered deed No. 3515 dated 7-7-1973. Said Amin Box while enjoying. possession of his purchased land measuring 2.45 acres sold out 0.33 acres of land to one Abul Kashem vide deed No.36 dated 41-1978. Said Abul Kashem Pubsequently sold out the said land i.e., 0.33 acres to one Mrs Delwara Begum and others vide registered deed No. 1685 dated 1-3-1995 with possession thereof, who, however, in turn had appointed the informant of the present case as their respective attorney.
3. It has been alleged that the FIR named accused persons, the petitioners, in collusion with each other had created a forged "boinama" under Certificate Case No. 255/1933-34 and pursuant thereto they claimed ownership of the land in question. Accordingly, the FIR in question had been lodged against them under the above quoted provisions of law.
(To be continued)
4. Meanwhile, on conclusion of investigation the Investigating Officer submitted police report against the accused petitioners being charge sheet No. 97 dated 26-10-2011 under sections 406/420/467/468 and 471 of the Penal Code stating, inter alia,-
“..............মামলাটি তদন্তকালে উক্ত বায়নামার কাগজ পত্র সংগ্রহের জন্য অতিরিক্ত জেলা প্রশাসক (রাজস্ব) ম্যানেজার কোর্ট অব ওয়াউস ভাওয়াল রাজ এস্টেট ১৪১-১৪৩ মতিঝিল বাণিজ্যিক এলাকা ঢাকা বরাবর আবেদন করিলে উল্লেখিত অফিসদ্বয় হইতে লিখিত প্রতিবেদন এর মাধ্যমে জানান বর্ণিত দাগ খতিয়ানের ৩৩ শতক জমি নিলাম বিক্রি হইয়াছে কিনা এ সংক্রান্ত কোন তথ্য অফিসে মওজুত নাই। বিষয়টি ডায়রীতে নোট রাখি। তাছাড়া আসামীদের নিলাম খরিদে দলিলের বিভিন্ন জায়গায় ঘষামাজা দেখা যায়। ইহাতে প্রতীয়মান হয় যে, আসামীরা পরস্পর যোগসাজসে বাদীর জমি অবৈধ ভাবে ভোগ দখলের জন্য প্রতারণার আশ্রয় নিয়ে জাল জালিয়াতির মাধ্যমে ভুয়া নিলামের কাগজ স"জন করিয়েছে।...............”
5. In the meanwhile, the accused petitioners obtained bail from the court concern. However, being aggrieved with the instant proceedings they filed Criminal Miscellaneous Case No. 19483 of 2010 before the High Court Division of the Supreme Court of Bangladesh.
6. Upon hearing the respective petitioners this Court issued Rule along with an order of stay, which was subsequently discharged on the ground that the case was at the initial stage and consequently, the order of stay had also been vacated. The petitioners accordingly filed Criminal Petition for Leave to Appeal No. 632 of 2012 before the Appellate Division of the Supreme Court of Bangladesh with a prayer for. stay, but no ad-interim order of stay was passed and ultimately, it was dismissed for default vide order dated 10-9-2015. In the meantime, the learned Magistrate concern proceeded with the case which was subsequently transferred to the court of learned Additional Chief Metropolitan Magistrate, Court No.2, Dhaka. At this stage, the petitioners filed an application before the learned Magistrate concern under Section 241A of the Code of Criminal Procedure (in short, the Code). After hearing both the contending parties the learned Magistrate had allowed the said application and thereby had discharged the accused petitioners observing that there was no scope to prove the allegations so brought against them and that the matter being related to the ownership and possession over the property, the dispute might be decided by the civil court.
7. The informant opposite party No.2 being aggrieved by and dissatisfied with the order of discharge filed Criminal Revision No. 129 of 2015 before the learned Metropolitan . Sessions Judge, Dhaka which was ultimately heard by the Court of learned Additional
Sessions Judge, 5th Court, Dhaka who upon hearing the informant opposite party allowed the same upon setting aside the order passed by the learned Additional Chief Judicial Magistrate, Dhaka, observing, inter alia,-
ৃৃ“.............আমি তর্কিত আদেশ ও সংশ্লিষ্ট কাগজপত্র সহ এল, সি, আর পরীক্ষা ও পর্যবেক্ষণ করলাম। পর্যবেক্ষণে দেখা যায় যে, আসামীদের বিরুদ্ধে এজহারকারী তপসিলভুক্ত সম্পত্তি বাবদে নিলাম বিক্রয়ের জাল বায়নামা ও অন্যান্য কাগজপত্র স"ষ্টির অভিযোগ এনেছেন। জব্দতালিকা পর্যবেক্ষণে দেখা যায় যে, তদন্তকারী কর্মকর্তা আসামীদের দ্বারা প্রদর্শিত এবং বাদীর উপ¯'াপনামতে তর্কিত বায়নামাটি জব্দতালিকা প্র¯'তক্রমে জব্দ করেছেন। উক্ত জব্দতালিকায় দুজন সাক্ষীর স্বাক্ষর রয়েছে। তর্কিত আদেশ বিজ্ঞ অতিরিক্ত চীপ মেট্টোপলিটন ম্যাজিস্ট্রেট উল্লেখ করেছেন যে, জব্দতালিকার সাক্ষীদের ফৌজদারী কার্যবিধির ১৬১ ধারায় গ"হীত জবানবন্দি পর্যালোচনায় আসামীদের কাছে নালিশী বায়নামার ফটোকপি জব্দ করা হয়েছে মর্মে তারা জবানবন্দি প্রদান করেনি। কার নিকট হতে উক্ত ফটোকপি জব্দ করা হয়েছে তা সাক্ষীদের জবানবন্দিতে সুস্পষ্টভাবে পাওয়া যায়নি।
তদন্তকারী কর্মকর্তা ৪ জন সাক্ষীর বিব"তি কার্যবিধির ১৬১ ধারামতে লিপিবদ্ধ করেছেন। তার মতে জব্দতালিকার সাক্ষী মোঃ হাবিবুর রহমান ওরফে হাবিব সুস্পষ্টভাবে বলেছেন যে, আসামীরা ভূয়া নিলাম কাগজ তৈরী করে গত ১০-৪-২০১০ খ্রিঃ তারিখ সকাল ১০ টায় বাদীর জমি দখল করার চেষ্টা করে। তদন্তকারী কর্মকর্তা উক্ত নিলামের কাগজ জব্দ করলে তিনি সাক্ষী হিসেবে কাগজে স্বাক্ষর করেন। স্বামী মোঃ নাসির উদ্দিন রিপন ও মোঃ নূরুল হক ঘটনার তারিখ ও সময়ে আসামীগন ভূয়া নিলাম কাগজ তৈরী করে বাদীর দখল করার চেষ্টা করেন মর্মে বিবৃতি দিয়েছেন। তাছাড়া, তদন্তকারী কর্মকর্তা তর্কিত বায়নামা সম্পর্কে অতিরিক্ত জেলা প্রশাসক (রাজস্ব), ম্যানেজার কোর্ট অব অয়ার্ডস, ভাওয়াল রাজ স্টেট, ১৪১-১৪৩ মতিঝিল বাণিজ্যিক এলাকা, ঢাকা বরাবর আবেদন করলে উল্লেখিত অফিসদ্বয় হতে লিখিত প্রতিবেদনের মাধ্যমে জানানো হয় যে, বর্ণিত দাগ ও খতিয়ানের ৩৩ শতক জমি নিলাম বিক্রি হয়েছে কিনা এ সংক্রান্ত কোন তথ্য অফিসে মজুদ নেই মর্মে মতামত দিয়েছেন, যা তর্কিত বায়নামাটির শুদ্ধতা সম্পর্কে সন্দেহের উদ্রেক করে।
বর্ণিত আলোচনা হতে দেখা যায় যে, বিজ্ঞ বিচারিক আদালত আসামীদেরকে অব্যাহতি দিয়ে আইনগত ত্রুটি করেছেন বিধায় উক্ত আদেশ হস্তক্ষেপযোগ্য। কাজেই, একমাত্র বিবেচ্য বিষয়টি রিভিশনকারী পক্ষের অনুকূলে গ"হীত হলো। ......................”
8. Being aggrieved by and dissatisfied with the accused petitioners have preferred the instant application under Section 561A of the Code of Criminal Procedure and obtained the present Rule.
9. In support of the instant Rule the categorical assertion of the accused petitioners is that earlier in the year 2001 the executant of the deed of power of attorney namely Mrs Delwara Begum, the mother of the informant along with others instituted Title Suit No. 131 of 2001 in the Court of learned Assistant Judge, '2nd Court, Dhaka impleading the defendants, the accused petitioners, for a decree of permanent injunction stating, inter alia that they had purchased' the land in question measuring 0.33 acres vide deed No. 1685 dated 1-3-1995 from their predecessors. They accordingly erected their house with boundary wall and got their name mutated with regard to the suit land. However, the defendants (the accused petitioners) alleged to have threatened to dispossess them 'from the suit land in the month of April, 2001; hence, the suit.
10. The accused petitioners as defendants contested the said suit by filing written statements denying all the material averment so made therein stating, inter alia, that in 1933-34 the properties of Baunia Mouza under CS Khatian No.202 comprising CS Plot Nos. 1520, 1521, 2288, 2302, 2313, measuring 15.19 acres were put into auction for arrear of rent under Certificate Case No.255DW /1933-34. One Khetro Mohan Barai and Rahman Box Bepari purchased the suit land and ultimately, the auction sale was confirmed in their favour on 30-8-1934. Thus, the right, title and interest of Keti Bibi and others were extinguished. It has also been contended therein that one Falu Miah purchased 1.72 acres of land from one Khetro Mohan Barai on 28-1-1946 vide deed No.574 and Falu Miah and his brothers had purchased 3.15 acres of land on 24-8-1960 vide deed No: 10946. They, however; had purchased another' 1.901/2 acres of land on 27-9-1960 vide deed No. 12307 from one Rahman Box Bepari with possession thereof. Accordingly, they had been paying rent to the authority concern. '
11. In this regard, it has also been averred that some portion of land of Falu Miah and his brother was acquired by the government in LA Case No. 181/62-63 and accordingly, they were awarded compensation money. Subsequently, Falu Mia and his brothers' name were duly recorded in SA Khatian No. 373 appertaining to plot Nos. 2288 and 2313 corresponding to RS khatian No. 991, RS plot Nos. 6349,6350 with some other plots.
12. However, during the course of trial the defendants had exhibited some 'documents including the said "boinama," which was marked as Exhibit-ka.
13. The trial court upon consider the oral and documentary evidence of both the contending, parties dismissed the suit vide judgment and decree dated 12-7-2003 observing, inter alia, that by Exhibit-ka the fact of the auction purchase had been proved and also found from the electricity bill that the said property was used for residential-cum commercial purpose by the defendants. The trial court further observed that no boundary of the property was specified in the deed, as relied upon by the plaintiffs and that the evidence given in this regard by the various witnesses were also found contradictory and ultimately, it was found that the plaintiffs had no possession over the suit land.
14. The plaintiff-being the judgment debtor namely Mrs Delwara Begum and others being aggrieved by and dissatisfied with preferred Title Appeal No. 359 of 2003 before the learned District Judge, Dhaka which was ultimately heard by the learned Additional District Judge, 2nd Court, Dhaka who upon hearing both the parties had allowed the appeal and had sent back the case on remand vide judgment and decree dated 29-6-2006. The defendants-respondents, the accused petitioners in the present case, accordingly preferred Civil Revision. No. 4308 of 2006 before this Court. Upon hearing the respective contending parties the Rule so issued was ultimately made absolute vide judgment and decree dated 19-2-2009. Said judgment and decree passed in Civil Revision No. 4308 of 2006 is still in force.
15. At this juncture, Mr Md Zakir Hossain, the learned Advocate appearing for the accused petitioners categorically submits that, in the suit for permanent injunction, instituted by the mother of the informant Mrs Delwara Begum and others, they had measurably failed to prove their prima facie title and possession over the suit property (the case land). On the contrary considering Exhibit-ka, the "boinanama," which is the subject matter of the instant criminal case, the civil court found that the auction purchase of the predecessor of the accused petitioners had been proved and had ultimately dismissed the suit on the ground that the plaintiffs had failed to specify the boundary in the respective deeds as relied upon them.
16. In the given context, he submits that when the alleged "boinama" was produced before the concerned civil court as evidence and was marked as Exhibit-'ka' the plaintiff never raised any objection towards its genuinity. Moreover, pursuant to the said "boinama" the trial court had categorically observed that the auction purchase of the predecessor of the petitioners had been duly proved and that said observation of the trial court had been affirmed by the High Court Division in Civil Revision No. 4308 of 2006, which is still in operation. As such, he submits that now the informant cannot allege, by filing the instant criminal case suppressing all those material facts that said "boinama" is the product of forgery.
17. He lastly submits that the informant opposite party No.2 is admittedly the son of the plaintiff No.1 named Mrs Delwara Begum of Title Suit No. 131 of 2001 as such, it was within his knowledge that alleged, "boinama" was produced in evidence in the said suit. Therefore, since no complaint has been made by the said court concern, the instant case is barred under Section 195(1)(c) of the Code. But the revisional court while disposing of the revisional application filed by the informant had failed to consider the said factual as well as legal position of the case and thus, has occasioned miscarriage of justice. Accordingly, he submits that upon striking down the impugned order' dated 27-6-2016 passed in Metro Criminal Revision No. 129 of 2015 the instant Rule is liable to be made absolute.
18. Conversely, Mr Mansur Habib, the learned Senior Advocate appearing on behalf of the opposite party No. 2 by filing a counter affidavit submits that Title Suit No. 131 of 2001 was a suit for a permanent injunction, not for declaration of title over the land in question. He also submits that in the said title suit no issue was framed with regard' to the title of the plaintiffs in connection with the suit land. As such, he submits that the observations and findings so made by this Hon'ble Court while disposing of Civil Revision No. 4308 of 2006 cannot go to have any bearing whatsoever in determining the issues as have been agitated in the instant criminal case.
19. Further, he submits that admittedly in Title Suit No. 131 of 2001 a photocopy of the "boinama" was given in evidence by the defendants, the accused petitioners. As such, he submits that vide the decisions of the case of Moklesur Rahman Sharif vs State, Jamiruddin Sharif reported in 47 DLR 229 since the original has not been produced in evidence Section 195(1)(c) of the Code of Criminal Procedure is not attracted in the instant case.
20. He lastly submits that pursuant to the impugned order dated 27-6-2016 passed by the revisional court in Criminal Revision No. 129 of 2015 charge is yet to be framed by the trial court concern and that whatever the contentions of the accused petitioners are can well be adduced by way of evidence during the course of trial. Hence, considering the said contentions at this stage this Hon'ble court cannot strike down the impugned order. Moreover, he submits that in this application filed under Section 561A of the Code the accused petitioners have failed to show that any miscarriage of justice has occasioned .. Thus, he submits that the petitioners having failed to substantiate any of the grounds so taken in support of the Rule it is liable to be discharged.
21. Turag Police Station Case No. 8 dated 10-4-2010 corresponding to GR No. 42 of 2010 had been launched against the accused petitioners on the allegation of-
“ ...........০১-১১ নং আসামীগণ পরস্পর যোগ সাজশে জাল জালিয়াতির মাধ্যমে প্রতারণার উদ্দেশ্যে সার্টিফিকেট আদালত ঢাকা হতে ২৫৫/১৯৩৩-৩৪ নং মামলার জাল বায়নাম নিজেরা স"ষ্টি করে এবং উক্ত জাল-জালিয়াতির মাধ্যমে সৃষ্ট বায়নামা দ্বারা ০১-১১ নং আসামীগণ অদ্য ১০-৪-১০ইং তারিখ বেলা ১০ ঘটিকার সময় আমার নিকট জাল বায়নামা এবং উক্ত বায়নামা হতে স"ষ্টি কাগজ পত্র দেখিয়ে তফসিল বর্ণিত সম্পত্তির মালিকানা দাবী করেন। এবং উক্ত জাল বায়নামা দলিল ও জাল বায়নামা দলিল হতে স"ষ্টি কাগজপত্র কে সঠিক দলিল বলে দাবী করে। .............”
22. Hence, they alleged to have committed offence punishable under - sections 406/ 420/467/468 and 471 of the Penal Code.
23. It appears from record that earlier in the year 2001 the mother of the informant one
Mrs Delwara Begum along with others instituted Title Suit No. 131 of 2001 before the court concern for a decree of permanent injunction impleading the accused petitioners as defendants, having been threatened by them to be dispossessed from the suit property. The petitioners as defendants contested the said suit by filing written statement. During the course of trial both the parties adduced evidence both oral and documentary. The petitioners, however, in support of their claim had produced the alleged "boinama" in connection with Certificate Case No. 255/1933-34 which was given in evidence and marked as Exhibit 'Ka'. The trial court upon hearing both the contending parties ultimately dismissed the suit for the failure of the plaintiffs to prove their prima facie title and possession over the suit property. But at the same time made certain observations to the effect that by Exhibit 'Ka' the auction purchase of the suit property by the predecessor of the defendants i.e., the accused petitioners had been proved. The appeal preferred by the plaintiffs as appellants though was allowed in Title Appeal No. 359 of 2003 but it was sent back on remand. The High Court Division in Civil Revision No. 4308 of 2006, preferred by the defendants respondents i.e., the accused petitioners! on the other hand had set aside the judgment and decree dated 29-6-2006 passed in the said appeal and thereby had affirmed the observations and findings of the trial court.
24. In view of the above position of facts the accused petitioners have assailed the impugned order dated 27-6-2016 passed by the revisional court setting aside the order dated 27-11-2014 passed by the learned Magistrate concern allowing' the application of the petitioners under Section 241A of the Code on two counts. Firstly, since alleged "boinama" in question was given in evidence in Title Suit No.131 of 2001 and marked as Exhibit-'Ka' and that the plaintiffs had never raised objection as to its genuinity nor the trial court made any complaint to that effect hence, the instant case is barred under Section 195(1)(c) of the Code. Secondly, the trial court (the civil court concern) had categorically observed while dismissing the said suit that the auction purchase of the property in question, vide the said alleged "boinama," had been proved and that said observation is still in force. In the stated position of facts and law placing the petitioners to face trial under sections 406/420/467/468 and 471 of the Penal Code is nothing but a glaring instance of miscarriage of justice.
25. During the course of hearing of the instant Rule, the accused petitioners by filing supplementary affidavit have annexed the copy of the alleged "boinama", which was earlier given in evidence in Title Suit No. 131 of 2001 and marked as Exhibit-Ka. From perusal of the same it appears that, in fact, a photocopy of the said "boinama", which was subsequently notarized by the officer concern, was given in evidence and was marked as Ext. 'ka'.
26. In the case of Cirdharilal vs King Emperor reported in 1925 AIR, Qudh 413 it was observed basing upon the decision of King Emperor vs Shamkar Bakish Sing that "the words "produced or given in evidence" in Section 195 refers to the production of the original and not the production of a copy and this is for a very sound reason that the court before which a copy of the document is produced is not really in a position to express any opinion about the genuineness of the original documents." It was held in this decision that "the language used in Section 195(1)(c) was deliberate in excluding the copies of the forged document."
27. Moreover, in the case of Shambhu Nath Saha vs State reported in 43 DLR 660 it was held that "the absence of complaint by the court cannot stand as a bar to the trial of the accused petitioner for forgery if the original of the alleged forged documents is not used or given in evidence in the court."
28. In agreement with the above observations and findings one of the Benches of this Division also observed in Moklesur Rahman Sharif vs State reported in 47 DLR 229 at paragraph 12 "when the original forged instrument is not used in the court Section 195(1)(c) is no bar to a proceeding for forgery". "
29. We find no reason to depart from the observations of the Privy Council so made in ' the cases as referred above and also by one of the Benches of the High Court Division. Accordingly, it is our concerned view that since the original "boinama" has not been produced in evidence in Title Suit No. 131 of 2001, but a photocopy of the same, therefore, Section 195(1)(c) of the Code of Criminal Procedure is not attracted in the instant case.
30. As to the second contention of the' accused petitioners we are of the view that the instant criminal case, launched by the opposite party No.2 as informant against the accused petitioners, is independent of producing the photocopy of the document in question in evidence in Title Suit No. 131 of 2001. Moreover there is no bar to file a criminal case alleging genuinity of the said document on the plea that photocopy of the same has been given in evidence in connection with a civil suit.
31. In view of the facts and circumstances, observations and findings we find no ground for interference.
32. In the resultnthe Rule is discharged.
33. The order' of stay granted earlier is hereby vacated.
Communicate the order at once,