High Court Division :
(Criminal Miscellaneous Jurisdiction)
ANM Bashir Ullah J
Mustafa Zaman Islam J
Farook (Md) alias Kazi Farook and others….Accused-Petitioners
October 16th, 2018
Code of Criminal Procedure (V of 1898)
A criminal case can only be quashed before trial if from the prosecution case itself did not disclose any offence or crime by the accused or if the initiation of the proceeding and continuation of the same is found barred by any law…………………………….(1)
None appears-For the Petitioners.
SRM Lutfor Rahman Akhand, Advocate-For the Added Opposite Party.
Md Aminul Islam DAG with Fatema Rashid, AAG-For the State.
ANM Bashir Ullah J : This Rule, on an application under Section 561A of the Code of Criminal Procedure (in short, the Code) at the instance of accused petitioners was issued calling upon the opposite party to show cause as to why the proceeding of Sessions Case No. 2349 of 2011 arising out of Kotwali Police Station case No.47(12) 2009 dated 28-12-2009 corresponding to GR case No. 1350 of 2009 under Sections 385/380/427 of the Penal Code now pending before the learned Metropolitan Joint Sessions Judge, 5th Court Chittagong should not be quashed and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. The facts leading to the issuance of the Rule, in short, is that one Akhtaruzzaman Chowdhury filed a petition of complaint in the Court of Magistrate against 4 accused naming the present petitioners in serial Nos. 1, 2 and 3 alleging inter alia that his son Aktaruzzaman Chowdhury has a business firm at Darogarhat Sadargat road, Chittagong in the name and style "AJ Traders and Get IT Academy." The accused are the men of mighty nature who were disturbing Eftekharuzzaman Chowdhury to run his business smoothly. Eftekharuzzaman Chowdhury purchased the shop and its land on 9-1-2007 from one Abul Hashem. On the 3rd week June 2009, the accused persons had stormed along with 7/8 terrorist, in the shop of the Eftekharuzzaman Chowdhury and rank sacked the articles of the shop and demanded Taka 50,00,000 (fifty lacs) as illegal contribution also. On 4-8-2009 at 4.00 pm the accused persons again had stormed in the shop of the Eftekharuzzaman Chowdhury and asked Abul Hashem and Bipul Kumar, the staffs of the Eftekharuzzaman Chowdhury to hand over of the said amount of Taka 50,00,000 (fifty lacs), they also rank sacked the various articles of the shop causing a damage of Taka 50,00,000 (fifty lacs) and also took away cash Taka 125,000 from the cash box of the shop and also other articles namely mobile set, sim, mobile card, air phone, blue tooth etc. at a worth of Taka 23,75,000. The kotwali Police Station being informed of the said occurrence from the informant sent Police to guard the said shop but ultimately Police Station did not receive FIR from the complainant considering the political identity of the accused, thereafter the complainant filed a petition to the Police Commissioner, Chittagong stating all the facts who asked the OC, Kotwali to inquire into the matter and pursuant to the said effort Police Sub-Inspector Utpal Barua noticed both the parties, ultimately no effective result was found in the said inquiry but SI Ranjit Barua lodged an GD entry being No. 200 dated 4-12-2009 but did not consider the same as FIR. Thus the complainant finding no other alternative filed a petition of complaint on 24-12-2009 in the Court of Magistrate and ultimately the learned Magistrate sent the said petition of complaint to the Kotwali Police Station where kotwali Police Station case No. 47 dated 28-12-2009 was recorded.
3. The case was investigated by as many as six Police officers and last of all by Police Inspector Md Bashir Ahmed Khan of DB Chittagong who submitted Police report recommending the trial of accused Farook alias Kasai Farook, Abu Siddique and Kazi Mofizur Rahman under Section 385/448/427/380/506 and 34 of the Penal Code and when the case became matured for trial charge was framed under Sections 385/380/427 of the Penal Code against the accused petitioners by the Joint Metropolitan Sessions Judge, 5th Court, Chittagong by his order dated 11-7-2012 and later on the prosecution also examined one witness in the case and ultimately the accused petitioners filing an application under Section 561A of the Code of Criminal Procedure moved this Court and obtained the present Rule as stated hereinbefore.
4. At the time of issuance of the Rule the further proceedings of the Sessions case No. 2349 of 2011 was stayed for six months later on it was extended on 6-7-2017 till disposal of the Rule.
5. None appears on behalf of the petitioners to support the Rule although the Rule is pending from 2013 in this Court for disposal and in that view of the matter the Rule is pending for the last 5 years for disposal. Over and again, the Rule has been appearing in the daily cause list of this Court for the last 3 months but nothing is sufficient to bite the conscience of the learned Advocate for the petitioners for hearing of the Rule.
6. Mr SRM Lutfor Rahman Akhand, the learned Advocate assisting the learned Deputy Attorney General on behalf of the State submits that this a case where there is specific allegations against the accused the petitioners that they demanded illegal contribution to the staffs of Eftekhar-uz-zaman Chowdhury having been in his shop on 4-8-2009 and there is also categorical allegation that since that demand were not fulfilled they rank sacked the furniture of the business firm of Eftekhar-uz-zaman Chowdhury causing a damage of more than Taka 23,00,000 and also took away Taka 1,25,000 from the cash box and the case was investigated at best by six Police officers and ultimately the Investigating officer submitted charge sheet recommending the trial of the accused petitioners under Sections 385/380/ 506/448/427 of the Penal Code along with some other Sections of law and the trial Court being convinced of the facts of the case and the Police report and the other materials on record framed charge against the accused petitioners under Sections 385/380/427 of the Penal Code. So there is no reasons and grounds for quashing 19 the proceedings.
7. The learned Advocate also submits that the informant has alleged in the FIR that the accused persons took away the money, rank sacked the furniture demanding illegal contribution whereas the accused persons filing this application under Section 561A of the Code has been claiming that they did not do they said act. When there is denial of commission of crime by the accused that cannot be ascertained in a proceeding under Section 561A of the Code and a proceeding of this nature can only be quashed if it is found that from the prosecution case itself did not disclose any commission of crime or offence by the accused or it is found that the initiation of the proceeding is barred by law but nothing is suitable and available for the accused in this case, so there is no any earthly reason for quashing the proceeding.
8. The learned Advocate also submits that without a full scale trial on the above framed charge there is no scope to say that the accused were not involved with the occurrence of this case. So the right answer of the claim of the accused petitioners would be available after a full scale trail of the case. So the Rule is liable to be discharged with costs.
9. We have considered the above submissions of the learned Advocate for the State and have gone through the materials on record.
10. On going through the materials on record it appears that there is categorical allegations in the FIR (which was infact at early stage a petition of complaint) that the accused petitioners being mighty man of the locality were demanding illegal contribution to the staffs of Eftekharuzzaman Chowdhury who was maintaining a business firm in the place of occurrence and there is also categorical allegation that on 4-8-2009 the accused persons storming in the said shop took away cash Taka 125,000 and rank sacked the furniture causing a damage at a worth of Taka 500,000 and also demanded Taka 50,00,000 (fifty lacs) at 'chada.' So we find it difficult to hold that the trial Court committed any error in framing charge against the accused petitioners.
11. A criminal case can only be quashed before trial if from the prosecution case itself did not disclose any commission of offence or crime by the accused or if the initiation of the proceeding and continuation of the same is found barred by any law but nothing is found in the instant case to that effect.
12. The grounds taken in this petition by the accused petitioners is that there is a long standing enmity between them and the place of occurrence is also very much disputed. If for the sake of argument it is conceded for a moment that both the parties have been claiming the shop land as of their own that will be settled by the Civil Court but for having any claim over a disputed land no accused can storm there to show their strength and cannot take an attempt to oust his adversary by force or cannot make demand for illegal contribution or 'chada' or cannot damage the standing furniture and cannot take away the goods from the shop and all these sorts of act are nothing but a criminal offence and if any criminal offence is committed by accused they will have to face the consequence of the same and without trial there is no any way to draw a conclusion that the accused did not commit the crime as alleged by the prosecution.
13. So we find it difficult to accept the case of the petitioners that they are innocent and they did not commit any offence and the shop land is disputed land, so a full scale trial of the case will determine the fade of the accused whether they had committed the offence as alleged or not. So we fail to discover any merit in the Rule.
14. In the result, the Rule is discharged. The stay order granted earlier by this Court at the time of issuance of the Rule is hereby recalled and the trial Court is directed to dispose of the case within 8 (eight) months from the date of receipt of the copy of the judgment and order of this Court without giving any adjournment to either party.