High Court Division :
(Criminal Miscellaneous Jurisdiction)
Salma Masud
Chowdhury J
FRM Nazmul Ahasan J
Judgment
March 1st, 2016
Shahid Ullah (Md) …. ……….
………………………Petitioner
vs
State and another…………
………………..Opposite-Parties
Code of Criminal Procedure (V of 1898)
Section 195(l)(c)
Clause (c) of section 195(1) of the Code of Criminal Procedure, 1898 bars the jurisdiction of a Criminal Court to take cognizance upon a private complaint of certain offences committed by a party to any proceeding in a Court in respect of a document when used or produced in that proceeding and empowers only that court before which the proceeding is taken to make a complaint.” ……..(21)
Abul Kalam Patwary, Advocate-For the Petitioner
AKM Zahirul Haq, DAG with Bilkis Fatema, AAG and Md Sarwardhi, AAG-For the Opposite-Party No.1.
AQM Safiullah, Advocate-For the Opposite Party Nos. 2 and 3.
Judgment
FRM Nazmul Ahasan J : Upon an application under section 561A of the Code of Criminal Procedure at the instance of the accused petitioner Rule was issued calling upon the opposite parties to show cause as to why the impugned order dated 28-6-2010 passed by the Sessions Judge, Noakhali in Criminal Revision No. 119 of 2010 affirming the order dated 26-5-2010 passed by the Judicial Magistrate, Court No. 1, Noakhali in C.R. Case No. 05 of 2009 under sections 465/468/471 of the Penal Code, 1860 should not be set-aside.
2. The prosecution story, in brief, is that the instant petitioner filed a petition of
complaint on 28-7-2008 before the Cognizance Court No.4, Noakhali and after investigation, the same was recorded as CR Case No. 05 of 2009 under sections 465/468/471 of the Penal Code, 1860 alleging that the accused persons had forged document in order to grab land of the power of attorney holder by showing Kalipado Majumder as vendor and the accused petitioner No. 1 as vendor subsequently in order to validating the same, transferred the schedule land to the accused No.2 by deed of gift No. 3990 dated 8-7-1997 allegedly in order to deceive witnesses No. 1-3; that the complainant further alleged that the aforesaid patta deed as created by the accused No.1 proved to be forged and fabricated and the deed of gift as created by the accused petitioner No. 1 and in favour of the accused is also equally forged and the same has allegedly been created only for cheating the complainant; that the accused used the same in the office of the Assistant Settlement Officer, Noakhali at the time of appeal and the complainant being aware of the same filed this case.
3. After filing of the case, the Chief Judicial Magistrate sent the same to the District Registrar, Noakhali who sent the same to investigate into the matter and submit a report, who after investigation submitted the report on 21-9-2008.
4. Thereafter, one of the co-accused of CR Case No. 05 of 2008, filed a Civil suit being Title Suit No.87 of 2008 before the Assistant Judge, Chatkhil, Noakhali for Declaration of Title and Khash Possession on 20-10-2008 with view to get rid of the Criminal Charges filed by the complainant-petitioner and also filed an application for staying the proceedings of the aforesaid CR Case; thereafter, the Assistant Judge after hearing the parties rejected the application vide his order dated 21-10-2008.
5. Thereupon the matter was fixed for framing of charge on 24-5-2010; the accused filed an application for discharging from the case before the Senior Judicial Magistrate,
Court No.1, Noakhali who sent the same for hearing, therefore, the matter was heard and discharged the accused from the charges of the case on 26-5-2010.
6. Being aggrieved by and dissatisfied with the aforesaid order of discharged complainant-petitioner filed a Criminal Revision before the Sessions Judge, Noakhali, it was registered JS Criminal Revision No.119 of 2010, and after hearing the parties rejected the aforesaid Criminal Revision.
7. Being aggrieved by and dissatisfied with the aforesaid impugned order passed by the Sessions Judge in Criminal Revision No.119 of 2010 complainant-petitioner filed this application under section 561A of the Code of Criminal Procedure, 1898 before this Court and obtained the present Rule.
8. At the time of hearing Mr Abul Kalam Patwary, the learned Advocate appeared on behalf of the petitioner. On the other hand, Mr AKM Zahirul Huq, the learned Deputy Attorney-General appeared on behalf of the opposite party No.1 and Mr AQM Safiullah, the learned Advocate appeared on behalf of the opposite party Nos. 2 and 3.
9. Mr Abul Kalam Patwary, the learned Advocate appearing on behalf of the petitioner submits that a Criminal Court can take cognizance of any offence described in sections 465/468/471 of the Penal Code, 1860 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 and, as such, the impugned order may be quashed.
10. He next submits that when a photocopy of a forged document but not the original is produced in any proceedings before the Court, the initiation of Criminal prosecution by private complaint is not barred under section 195(1)(c) of the Code of Criminal Procedure, 1898 and, as such, the impugned order may be quashed for ends of justice.
11. He also submits that the pendency of a civil suit, the proceedings of Criminal Case should not be barred; as such the impugned order may be quashed to secure the ends of justice.
12. The learned Advocate for the petitioner finally argued that the courts below have not applied their judicial mind to the facts and circumstances of the case and the relevant provision of law and wrongly rejected the application filed by the complainant petitioner which may be quashed for ends of Justice.
13. On the other hand, Mr AQM Safiullah, the learned Advocate appearing on behalf of the opposite party Nos. 2 and 3 opposes the Rule and submits that the trial Court on perusal of the petition of complaint and the civil suit filed by the opposite pasty found that the cognizance court erred in law in taking cognizance of the complaint case without complying with the provision of section 195(1)(c) of the Code of Criminal Procedure, 1898. He further submits that with the disputed deed there is a Civil Suit No.87 of 2008 pending before the Assistant Judge Court, Chatkhil, Noakhali and without examining the alleged deed No.4769 which is the subject matter of the Title Suit No.87 of 200R, the Criminal Case cannot be continued as it is barred under section 195(1)(c) of the Code of Criminal Procedure, 1898, with the aforesaid findings trial Court discharged the accused opposite parties from the case.
14. He also submits that the Revisional Court below found that the disputed deed was not declared forged by any appropriate Court. Moreover, Title Suit No.87 of 2008 is pending before the Assistant Judge Court, Chatkhil, Noakhali with the aforesaid subject matter of the present complaint case. On consideration of the aforesaid facts and circumstances and the relevant provision of law judicial Magistrate properly decided the matter that the criminal case is barred under section 195(1)(c) of the Code of Criminal Procedure, 1898 with the aforesaid findings revisional Court below rejected the Revisional application.
15. We have gone through the petition of complaint, the Judgment and order passed by the Revisional Court below and the order passed by the Judicial Magistrate. We have also perused the application under section 241A of the Code of Criminal Procedure, 1898 which was filed before the trial Court.
16. On perusal of the application under section 561A of the Code of Criminal Procedure, 1898 it appears that the petition of complaint was filed with the disputed Deed No.4769 dated 16-12-1950 and the subsequent deed of Haba dated 8-7-1977.
17. It is the claim of the complainant that those documents are forged and created. Form Annexure ‘C’ of the present application it appears that the Title Suit No.87 of 2008 was filed in the Assistant Judge Court, Chatkhil, Noakhali by the accused opposite party Hajera Begum impleding Khurshed Alam, Sahidulla and Oziullah for Title and Khas possession, which is now pending before the Court of Trial. In the aforesaid civil suit, plaintiff claims that the disputed Deed No.4769 dated 16-12-1950 was settled in favour of the husband of the plaintiff Noor Ahmed.
18. The learned Advocate for the petitioner tried to argue that there is no bar to proceed with a Criminal proceeding during the pendency of a civil suit on the same subject matter of alleged forged document. He also argued that the disputed deed was not filed before the Civil Court in Title Suit No. 87 of 2008 and, as such, there is no bar to be continued of the Criminal case against the accused of the Criminal Case.
19. The learned Advocate for the opposite party submits that the disputed deed was filed with the Title Suit No.87 of 2008 in accordance with the provision of order 7 Rule 14 of the Code Civil Procedure, 1908. Thus, the argument advanced by the learned advocate for the petitioner has no substance at all.
20. In support of his argument the learned Advocate for the opposite party referred to a decision in the case of Abdul Hai Khan vs State reported in 40 DLR (AD) 226 wherein it is held, “Jurisdiction of a Criminal Court when barred which Court is empowered to take cognizance of offences under section 195(1)(c) of the Code of Criminal Procedure, 1898.”
21. Clause (c) of section 195(1) of the Code of Criminal Procedure, 1898 bars the jurisdiction of a Criminal Court to take cognizance upon a private complaint of certain offences committed by a party to any proceeding in a Court in respect of a document when used or produced in that proceeding and empowers only that court before which the proceeding is taken to make a complaint.”
22. We have gone through the order of discharged passed by the Judicial Magistrate as well as the judgment and order passed by the Revisional Court below which affirmed the order of the trial court that there is no ingredient of framing charge against the opposite party Nos. 1 and 2 as both the courts below concurrently found that the criminal proceeding filed by the present petitioner is barred under section 195(1)(c) of the Code of Criminal Procedure, 1898.
23. From the discussions made above and on consideration of the facts and circumstances of the case and the relevant provision of law, we are of the view that the Courts below did not commit any illegality in rejecting the Revisional application which affirmed the order of discharged passed by the Judicial Magistrate, Court No.1, Noakhali.
24. Thus, the Rule fails.
25. In the result, the Rule is discharged without any order as to costs.
26. The judgment and order passed by the Sessions Judge, Noakhali dated 28-6-2010 in Criminal Revision No.119 of 2010 affirming the order dated 26-5-2010 passed by the Judicial Magistrate, Court No.1, Noakhali in CR Case No. 05 of 2009 under sections 465/468/471 of the Penal Code, 1860 is hereby affirmed.
27. The opposite party Nos. 1 and 2 are released from their bail bond which was submitted in connection of the instant case.
Communicate a copy of the judgment and order to the Court concerned.
(Criminal Miscellaneous Jurisdiction)
Salma Masud
Chowdhury J
FRM Nazmul Ahasan J
Judgment
March 1st, 2016
Shahid Ullah (Md) …. ……….
………………………Petitioner
vs
State and another…………
………………..Opposite-Parties
Code of Criminal Procedure (V of 1898)
Section 195(l)(c)
Clause (c) of section 195(1) of the Code of Criminal Procedure, 1898 bars the jurisdiction of a Criminal Court to take cognizance upon a private complaint of certain offences committed by a party to any proceeding in a Court in respect of a document when used or produced in that proceeding and empowers only that court before which the proceeding is taken to make a complaint.” ……..(21)
Abul Kalam Patwary, Advocate-For the Petitioner
AKM Zahirul Haq, DAG with Bilkis Fatema, AAG and Md Sarwardhi, AAG-For the Opposite-Party No.1.
AQM Safiullah, Advocate-For the Opposite Party Nos. 2 and 3.
Judgment
FRM Nazmul Ahasan J : Upon an application under section 561A of the Code of Criminal Procedure at the instance of the accused petitioner Rule was issued calling upon the opposite parties to show cause as to why the impugned order dated 28-6-2010 passed by the Sessions Judge, Noakhali in Criminal Revision No. 119 of 2010 affirming the order dated 26-5-2010 passed by the Judicial Magistrate, Court No. 1, Noakhali in C.R. Case No. 05 of 2009 under sections 465/468/471 of the Penal Code, 1860 should not be set-aside.
2. The prosecution story, in brief, is that the instant petitioner filed a petition of
complaint on 28-7-2008 before the Cognizance Court No.4, Noakhali and after investigation, the same was recorded as CR Case No. 05 of 2009 under sections 465/468/471 of the Penal Code, 1860 alleging that the accused persons had forged document in order to grab land of the power of attorney holder by showing Kalipado Majumder as vendor and the accused petitioner No. 1 as vendor subsequently in order to validating the same, transferred the schedule land to the accused No.2 by deed of gift No. 3990 dated 8-7-1997 allegedly in order to deceive witnesses No. 1-3; that the complainant further alleged that the aforesaid patta deed as created by the accused No.1 proved to be forged and fabricated and the deed of gift as created by the accused petitioner No. 1 and in favour of the accused is also equally forged and the same has allegedly been created only for cheating the complainant; that the accused used the same in the office of the Assistant Settlement Officer, Noakhali at the time of appeal and the complainant being aware of the same filed this case.
3. After filing of the case, the Chief Judicial Magistrate sent the same to the District Registrar, Noakhali who sent the same to investigate into the matter and submit a report, who after investigation submitted the report on 21-9-2008.
4. Thereafter, one of the co-accused of CR Case No. 05 of 2008, filed a Civil suit being Title Suit No.87 of 2008 before the Assistant Judge, Chatkhil, Noakhali for Declaration of Title and Khash Possession on 20-10-2008 with view to get rid of the Criminal Charges filed by the complainant-petitioner and also filed an application for staying the proceedings of the aforesaid CR Case; thereafter, the Assistant Judge after hearing the parties rejected the application vide his order dated 21-10-2008.
5. Thereupon the matter was fixed for framing of charge on 24-5-2010; the accused filed an application for discharging from the case before the Senior Judicial Magistrate,
Court No.1, Noakhali who sent the same for hearing, therefore, the matter was heard and discharged the accused from the charges of the case on 26-5-2010.
6. Being aggrieved by and dissatisfied with the aforesaid order of discharged complainant-petitioner filed a Criminal Revision before the Sessions Judge, Noakhali, it was registered JS Criminal Revision No.119 of 2010, and after hearing the parties rejected the aforesaid Criminal Revision.
7. Being aggrieved by and dissatisfied with the aforesaid impugned order passed by the Sessions Judge in Criminal Revision No.119 of 2010 complainant-petitioner filed this application under section 561A of the Code of Criminal Procedure, 1898 before this Court and obtained the present Rule.
8. At the time of hearing Mr Abul Kalam Patwary, the learned Advocate appeared on behalf of the petitioner. On the other hand, Mr AKM Zahirul Huq, the learned Deputy Attorney-General appeared on behalf of the opposite party No.1 and Mr AQM Safiullah, the learned Advocate appeared on behalf of the opposite party Nos. 2 and 3.
9. Mr Abul Kalam Patwary, the learned Advocate appearing on behalf of the petitioner submits that a Criminal Court can take cognizance of any offence described in sections 465/468/471 of the Penal Code, 1860 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 and, as such, the impugned order may be quashed.
10. He next submits that when a photocopy of a forged document but not the original is produced in any proceedings before the Court, the initiation of Criminal prosecution by private complaint is not barred under section 195(1)(c) of the Code of Criminal Procedure, 1898 and, as such, the impugned order may be quashed for ends of justice.
11. He also submits that the pendency of a civil suit, the proceedings of Criminal Case should not be barred; as such the impugned order may be quashed to secure the ends of justice.
12. The learned Advocate for the petitioner finally argued that the courts below have not applied their judicial mind to the facts and circumstances of the case and the relevant provision of law and wrongly rejected the application filed by the complainant petitioner which may be quashed for ends of Justice.
13. On the other hand, Mr AQM Safiullah, the learned Advocate appearing on behalf of the opposite party Nos. 2 and 3 opposes the Rule and submits that the trial Court on perusal of the petition of complaint and the civil suit filed by the opposite pasty found that the cognizance court erred in law in taking cognizance of the complaint case without complying with the provision of section 195(1)(c) of the Code of Criminal Procedure, 1898. He further submits that with the disputed deed there is a Civil Suit No.87 of 2008 pending before the Assistant Judge Court, Chatkhil, Noakhali and without examining the alleged deed No.4769 which is the subject matter of the Title Suit No.87 of 200R, the Criminal Case cannot be continued as it is barred under section 195(1)(c) of the Code of Criminal Procedure, 1898, with the aforesaid findings trial Court discharged the accused opposite parties from the case.
14. He also submits that the Revisional Court below found that the disputed deed was not declared forged by any appropriate Court. Moreover, Title Suit No.87 of 2008 is pending before the Assistant Judge Court, Chatkhil, Noakhali with the aforesaid subject matter of the present complaint case. On consideration of the aforesaid facts and circumstances and the relevant provision of law judicial Magistrate properly decided the matter that the criminal case is barred under section 195(1)(c) of the Code of Criminal Procedure, 1898 with the aforesaid findings revisional Court below rejected the Revisional application.
15. We have gone through the petition of complaint, the Judgment and order passed by the Revisional Court below and the order passed by the Judicial Magistrate. We have also perused the application under section 241A of the Code of Criminal Procedure, 1898 which was filed before the trial Court.
16. On perusal of the application under section 561A of the Code of Criminal Procedure, 1898 it appears that the petition of complaint was filed with the disputed Deed No.4769 dated 16-12-1950 and the subsequent deed of Haba dated 8-7-1977.
17. It is the claim of the complainant that those documents are forged and created. Form Annexure ‘C’ of the present application it appears that the Title Suit No.87 of 2008 was filed in the Assistant Judge Court, Chatkhil, Noakhali by the accused opposite party Hajera Begum impleding Khurshed Alam, Sahidulla and Oziullah for Title and Khas possession, which is now pending before the Court of Trial. In the aforesaid civil suit, plaintiff claims that the disputed Deed No.4769 dated 16-12-1950 was settled in favour of the husband of the plaintiff Noor Ahmed.
18. The learned Advocate for the petitioner tried to argue that there is no bar to proceed with a Criminal proceeding during the pendency of a civil suit on the same subject matter of alleged forged document. He also argued that the disputed deed was not filed before the Civil Court in Title Suit No. 87 of 2008 and, as such, there is no bar to be continued of the Criminal case against the accused of the Criminal Case.
19. The learned Advocate for the opposite party submits that the disputed deed was filed with the Title Suit No.87 of 2008 in accordance with the provision of order 7 Rule 14 of the Code Civil Procedure, 1908. Thus, the argument advanced by the learned advocate for the petitioner has no substance at all.
20. In support of his argument the learned Advocate for the opposite party referred to a decision in the case of Abdul Hai Khan vs State reported in 40 DLR (AD) 226 wherein it is held, “Jurisdiction of a Criminal Court when barred which Court is empowered to take cognizance of offences under section 195(1)(c) of the Code of Criminal Procedure, 1898.”
21. Clause (c) of section 195(1) of the Code of Criminal Procedure, 1898 bars the jurisdiction of a Criminal Court to take cognizance upon a private complaint of certain offences committed by a party to any proceeding in a Court in respect of a document when used or produced in that proceeding and empowers only that court before which the proceeding is taken to make a complaint.”
22. We have gone through the order of discharged passed by the Judicial Magistrate as well as the judgment and order passed by the Revisional Court below which affirmed the order of the trial court that there is no ingredient of framing charge against the opposite party Nos. 1 and 2 as both the courts below concurrently found that the criminal proceeding filed by the present petitioner is barred under section 195(1)(c) of the Code of Criminal Procedure, 1898.
23. From the discussions made above and on consideration of the facts and circumstances of the case and the relevant provision of law, we are of the view that the Courts below did not commit any illegality in rejecting the Revisional application which affirmed the order of discharged passed by the Judicial Magistrate, Court No.1, Noakhali.
24. Thus, the Rule fails.
25. In the result, the Rule is discharged without any order as to costs.
26. The judgment and order passed by the Sessions Judge, Noakhali dated 28-6-2010 in Criminal Revision No.119 of 2010 affirming the order dated 26-5-2010 passed by the Judicial Magistrate, Court No.1, Noakhali in CR Case No. 05 of 2009 under sections 465/468/471 of the Penal Code, 1860 is hereby affirmed.
27. The opposite party Nos. 1 and 2 are released from their bail bond which was submitted in connection of the instant case.
Communicate a copy of the judgment and order to the Court concerned.
