Home Today's Paper Most Popular Video Gallery Photo Gallery
Subscription Blog Signin Register
Logo
Tuesday, January 22, 2019 01:37:44 PM
Follow Us On: Facebook Twitter Twitter Twitter Twitter

Quashing proceeding of case pending before the court below

By
08th-Sep-2018       
Comments
Share your thought
Post a comment »
Read all () »

High Court Division :
(Special Original Jurisdiction)
Moyeenul Islam
Chowdhury J
Md Ashraful Kamal J
AKM Zakaria Hossain
Choudhury ..... Petitioner
vs
Chief Metropolitan Magistrate, Dhaka and
others     Respondents
Judgment
Judgment, May 21,st, 2018
Constitution of Bangladesh, 1972
Article 102(2)
For quashing the proceedings of complaint case pending before the Court below, the proper remedy for the accused-petitioner lies in the miscellaneous jurisdiction of the High Court Division under Section 561 A of the Code. As the petitioner has failed to cross the threshold of the writ jurisdiction of the High Court Division under Article 102 of the Constitution, we refrain from making any observation on the mens rea or any other dimension of the case touching upon its merit.  (17)
Cost
As it is a thoughtless, slapdash and frivolous application, some exemplary costs should be imposed on the accused-petitioner. The writ petition is rejected in limine with costs of Taka 50,000 (fifty thousand) only . ...... (18 & 19)
Shafiqul Islam (Md) vs Bangladesh, 68 DLR 283; Bangladesh vs Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku, 60 DLR (AD) 147 Jahangir Hossain Howlader(Md) vs CMM, Dhaka 58 DLR 106; Chairman, Anti-Corruption Commission vs Enayetur Rahman, 64 DLR (AD) 14; Golam Nabi vs Anti-Corruption Commission, 65 DLR 181 and Anti-Corruption Commission vs  Mehedi Hasan, 67 DLR (AD) 137 ref.
Junayed Ahmed Chowdhury Advocate-For the Petitioner.
Md Motaher Hossain (Sazu) DAG with Muhammad Jaber,  DAG with Purabi Rani Sharma, AAG with Purabi Saha, AAG and Md Mizanur Rahman. AAG-For the Respondents.
Judgment
Moyeenul Islam Chowdhury J :  Let the supplementary-affidavit do form part of the main application.
2. This is an application under Article 102 of the Constitution of the People's Republic  of Bangladesh.
3. Mr Junayed Ahmed Chowdhury, learned Advocate appearing on behalf of the petitioner, submits that the petitioner is an accused in Complaint Case No. 367 of 2018 under Section 138 read with Section 140 of the Negotiable Instruments Act, 1881 filed by the respondent no. 2 complainant, now pending before the Chief Metropolitan Magistrate, Dhaka.
4. Mr Junayed Ahmed Chowdhury also submits that the offence punishable under Section 138 of the Negotiable Instruments Act is not a strict liability offence and that being so, the petitioner can set up defence pleas, if any, during the trial of the case. In support of this submission, Mr Junayed Ahmed Chowdhury relies on the decision in the case of Shafiqul Islam (Md) vs Bangladesh reported in 68 DLR 283.
5. Mr Junayc Ahmed Chowdhury further submits that mens rea or criminal intent is an essential ingredient of any criminal offence; but stunningly enough, no mens rea was pleaded in the petition of complaint which was lodged with the learned Chief Metropolitan Magistrate of Dhaka and, as such, the Complaint Case No. 367 of 2018 cannot be proceeded with and in this perspective, the proceedings of the case are liable to be quashed. To buttress up this submission, Mr Junayed Ahmed Chowdhury adverts to the decision in the case of Sunil Bharti Mittal and 3 others vs State of UP which was rendered by the Lucknow Bench of the High Court of Judicature at Allahabad, India on 9-2-2017.
6. Mr Junayed Ahmed Chowdhury next submits that the accused-petitioner did not invoke the criminal miscellaneous jurisdiction of the High Court Division under Section 561 A of the Code of Criminal Procedure, 1898 with a view to quashing the proceedings of the case and instead he has come up with the present Writ Petition for quashing the proceedings of the case, regard being had to the decision in the case of the Government of the People's Republic of Bangladesh vs Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku reported in 60 DLR (AD) 147.
7. Mr Junayed Ahmed Chowdhury also submits that a Division Bench of the High Court Division has already held in the case of Jahangir Hossain Howlader (Md) vs CMM, Dhaka reported in 58 DLR 106  filing of an application under Section 561 of the Code of Criminal Procedure is not an adequate alternative remedy as contemplated under Article 102(2) of the Constitution and by that reason, he has invoked the writ jurisdiction of the High Court Division under Article 102 of the Constitution and on that score, the Writ Petition is maintainable.
8. We have heard the submissions of the learned Advocate Mr Junayed Ahmed Chowdhury and perused the Writ Petition, Supplementary Affidavit and relevant Annexures annexed thereto.
9. Indisputably the Cognizance Court No. 27 of Dhaka Metropolitan Magistracy took cognizance of the offence punishable under Section 138 read with Section 140 of the Negotiable Instruments Act on 18-2-2018 on the basis of the petition of complaint lodged by the respondent no. 2 complainant under Section 190(1 )(a) of the Code of Criminal Procedure and the Court summoned the petitioner to appear before it on 17-4-2018. But the accused-petitioner did not appear before the Court below on 17-4-2018 as summoned; rather he surrendered before the Court of first instance on 13-5-2018 and was enlarged on bail. Anyway, what is curious is that without submission of the petitioner to the jurisdiction of the lower Court, the constituted attorney of the petitioner sworn the affidavit of the instant Writ Petition on 18-3-2018. It is ex-facie clear that at that point of time, the petitioner was a fugitive from law.
10. What we are driving at boils down to this: without submitting to the jurisdiction of the Court below, the accused-petitioner, or for that matter, his attorney cannot swear any affidavit in support of the Writ Petition before this Court. In this regard, we reiterate that it is a settled proposition of law that a fugitive from law is not entitled to get any relief from any Court of law. This practice of swearing any affidavit by any accused or his attorney while the accused is still at large cannot be countenanced at all. We strongly deprecate this practice. On this count alone, the accused petitioner cannot cross the threshold of the writ jurisdiction of the High Court Division under Article 102 of the Constitution.
11. In the case of the Chairman, Anti- Corruption Commission vs, Enayetur Rqhmar: reported in 64 DLR (AD) 14, it has been spelt out in paragraph 7:
"7. This Court on repeated occasions argued that Article 102(2) of the Constitution is not meant to circumvent the statutory procedures. The High Court Division will not allow a litigant to invoke the extra-ordinary
jurisdiction to be converted into Courts of appeal or revision. It is only where statutory remedies are entirely ill-suited to meet the demands of extra-ordinary situations, that is to, say, where vires of a statute is in question or where the determination is mala fide or where any action is taken by the executives in contravention of the principles of, natural justice or where the fundamental right of a citizen has been affected by an act or where the statute is intra vires, but the action taken is without jurisdiction and the vindication of public justice requires that recourse may be had to Article 102(2) of the Constitution."
12. The facts and circumstances as stated in the present Writ Petition, according to us, do not attract any of the extra-ordinary situations that have been specified in Paragraph 7 of the decision reported in 64 DLR (AD) 14.
13. In the decision in the case of Golam Nabi vs Anti-Corruption Commission reported in 65 DLR 181, it has been clearly, unambiguously, categorically and unmistakably held that the decision reported in 64 DLR (AD) 14 has ousted the jurisdiction of the writ Court to quash the proceedings of a criminal case unless the 'vires' of any law is found to have been challenged.
14. In the decision in the case of Anti-Corruption Commission vs Mehedi Hasan reported in 67 DLR (AD) 137, it has been observed in paragraph 27 that there is no scope for quashing a criminal proceeding under the writ jurisdiction, under Article 102 of the Constitution unless the 'vires' of the law involved is challenged.
15. Admittedly the 'vires' of any of the provisions of the Negotiable Instruments Act has not been challenged in the Writ Petition before us. So the question of quashing the proceedings of Complaint Case No. 367 of 2018, now pending before the Court below, is out of the question.
16. Mr Junayed Ahmed Chowdhury has emphatically relied upon the decision in the case of the Government of the People's Republic of Bangladesh vs Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku reported in 60 DLR (AD) 147 for his 'standing' under Article 102 of the Constitution. We have gone through that decision with a tine tooth-comb. It does not transpire that the decision reported in 60 DLR (AD) 147 and the decision reported in 67 DLR (AD) 137 are fundamentally, perceptively and notionally conflicting to each other. In the facts and circumstances of the case reported in 60 DLR (AD) 147, the Appellate Division maintained the 'standing' of the writ petitioner under Article 102 of the Constitution. But reverting to the case in hand, we 'find that the decision reported in 60 DLR (AD) 147 has no manner of application ; rather the decision reported in 67 DLR (AD) 137 fits in therewith.
17. From the foregoing discussions, it is abundantly clear that for quashing the proceedings of Complaint Case No. 367 of 2018, now pending before the Court below, the proper remedy for the accused-petitioner lies in the miscellaneous jurisdiction of the High Court Division under Article 561A of the Code of Criminal Procedure. As the petitioner has failed to cross the threshold of the writ jurisdiction of the High Court Division under Article 102 of the Constitution, we refrain from making  any observation on the mens rea or any other dimension of the case touching upon its merit.-
18. As it is a thoughtless, slapdash and frivolous application, some exemplary costs should be imposed on the accused-petitioner.
For all the reasons stated above, the writ petition is rejected in limine with costs of Taka 50,000 (fifty thousand) only.

Tariff
Add Rate

News Archive

Inside The New Nation

Editorial »

The miseries of River Karnafuli must end


WITH alleged support from a section of officials, the encroachment of Karnafuli banks is still rampant by some powerful quarters flouting the High Court order.  Quoting investigation report done by the National River Conservation Commission (NRCC), the media yesterday reported that none of the 2,181 illegal structures has been removed ...

Cricket »

David Warner to undergo surgery on injured elbow


Banned former Australian vice-captain David Warner is expected to undergo minor surgery on his elbow Tuesday after returning home from the Bangladesh Premier League with an injury.Warner, alongside former skipper Steve Smith and batsman Cameron Bancroft, was suspended from international cricket over a ball-tampering scandal during a Test match in ...

Entertainment »

Will Kareena contest Lok Sabha Election 2019?


Kareena’s name has been proposed by two Congress leaders, Guddu Chouhan and Anas Khan, as a possible candidate for Bhopal parliamentary seat where the grand old party has not tasted success since 1984. Local leaders of the Congress in Madhya Pradesh’s Bhopal have demanded Bollywood actress Kareena Kapoor Khan be ...

Football »

Tuchel draws best out of me at PSG:Neymar


Neymar says his strong bond with Paris Saint-Germain coach Thomas Tuchel inspires the Brazilian forward to give his "life on the pitch", as the French giants gear up for a trip to Manchester United in the Champions League next month.Neymar, the world's most expensive player, scored twice in Saturday's record ...

International »

May to unveil new Brexit strategy


AFP :British Prime Minister Theresa May unveils her Brexit "Plan B" to parliament on Monday after MPs shredded her EU divorce deal, deepening the political gridlock 10 weeks from departure day.Britain will crash out of the European Union on March 29 unless MPs can force a delay or come up ...

Entertainment »

Munmun, Achol`s movie Ragi


Sheikh Arif Bulbon :Last week shooting of Mizanur Rahman Mizan directed movie Ragi again started at BFDC in the capital’s Karwanbazar area. In the middle days, its shooting was stopped. This time Achol has been attached with the movie. After Achol’s engagement in Ragi, its shooting got momentum. In the ...

Sports »

Ko, Ji charge to LPGA lead with Henderson one back


New Zealand's Lydia Ko and South Korea's Ji Eun-hee each fired a five-under par 66 to share the lead after Saturday's third round of the LPGA Tournament of Champions.Ko and Ji charged into contention by going low on the front side and parring their way home to stand on 13-under ...

Football »

Salah fires Liverpool seven points clear, Arsenal rock Chelsea


Liverpool moved seven points clear at the top of the Premier League as Mohamed Salah's double inspired a dramatic 4-3 victory over Crystal Palace, while Arsenal ignited their top-four bid by beating Chelsea on Saturday.With second-placed Manchester City travelling to bottom-of-the-table Huddersfield on Sunday, Liverpool seized the chance to tighten ...

City »

Prime Minister Sheikh Hasina being greeted by Home Minister, secretary and IGP during her visit to the Home Ministry yesterday.


International »

Trump offers 3-year protection for immigrants in exchange for border wall


The Washington Post :President Donald Trump on Saturday offered Democrats three years of deportation protections for some immigrants in exchange for $5.7 billion in border wall funding, a proposal immediately rejected by Democrats and derided by conservatives as amnesty.Aiming to end the 29-day partial government shutdown, Trump outlined his plan ...

Cricket »

Rangpur Riders beat Sylhet Sixers


Sports Reporter :Rangpur Riders beat Sylhet Sixers by four wickets in their match of the UCB 6th Bangladesh Premier League (BPL) T20 cricket at Sylhet International Cricket Stadium on Saturday.Chasing Sylhet's fighting total of 194 for the loss of four wickets in 20 overs, Rangpur Riders reached the winning target ...

Sports »

Virat Kohli attends Australian Open, posts picture with Roger Federer


The Indian team completed its most successful campaign Down Under as they won the Test and ODI series comfortably. After close to two months of energy-sapping cricket, skipper Virat Kohli along with wife Anushka Sharma looked in a relaxed mood and attended day six of the Australian Open in Melbourne ...

Entertainment »

Alia , Madhuri Nene on the set of Kalank


Alia Bhatt, Varun Dhawan, Madhuri Dixit Nene, Aditya Roy Kapur, Sanjay Dutt and Sonakshi Sinha star together in Kalank. Dharma Productions' next, Kalank, is being directed by Abhishek Varman. The film's shooting is currently on and Varun Dhawan wrapped up shooting for his part of the film just yesterday. However, ...

International »

Afghan Taliban reject talks with US in Pakistan


Reuters, Peshawar :The Afghan Taliban rejected reports in the Pakistani media that they were prepared to resume meetings with U.S. special envoy Zalmay Khalilzad in Islamabad and repeated their refusal to deal directly with the Afghan government.Pakistani newspapers and television stations reported that a meeting in Islamabad was in prospect ...

Editorial »

Bravery and courage of a Bangladeshi expatriate


FOR bravery and courage, a Bangladeshi expatriate has been honoured as he saved the life of a three-year-old boy in UAE. Bangladeshi expatriate Farouk, who works as a welder in Ajman of UAE, rescued the child thrown from the balcony of a burning apartment by his mother.Bangladeshi community in the ...

 
Items that you save may be read at any time on your computer, iPad, iPhone or Android devices.
 
Are you new to our website? Do you have already an account at our website?
Create An Account Log in here
Email this news to a friend or like someone
Email:
Write a comment to this news