(Criminal Miscellaneous Jurisdiction)
AKM Abdul Hakim J
SM Mozibur Rahman J
Abdul Karim ………Petitioner
VS
State……………Opposite-Party
Judgment
March 13th, 2017
Nari-o-Shishu Nirjatan Doman Ain (VIII of 2000)
Sections 11(Ga) and 27(1) (Kha)(Kha)
The Tribunal can take cognizance of any offence in the interest of Justice even if no such recommendationis made after inquiry for
Proceeding with a case. ……(10)
HMA Alam, Advocate-For the Petitioner.
Md Akramul Haque Baki, Advocate-For the Added- Opposite-Party No.2.
Md Harun-ar-Rashid DAG with Shah Abdul Hatem AAG and MA Kamrul Hasan Khan, AAG-For the State.
Judgment
SM Mozibur Rahman J : On an application under Section 561A of the Code of Criminal Procedure, 1898, this Rule was issued calling upon the opposite parties to show cause as to why the proceeding of Nari-o-Shishu Nirjatan Case No. 140 of 2015, arising out of CP Case No.31 of 2015 under Section 11(Ga) of the Nari-o-Shishu Nirjatan Daman Ain 2000 now pending in the court of Nari-o-Shishu Nirjatan Daman Tribunal, Cox’s Bazar should not be quashed and/or pass such other or further order or orders as to this court may seem fit and proper.
2. Short facts necessary for disposal of the Rule, are that complainant-opposite party No.2 filed a complaint petition on 11-1-2015 before the learned Judge of Nari-o-Shishu Nirjatan Daman Tribunal, Cox’s Bazar against the accused petitioner alleging inter alia that the complainant got married with the accused petitioner on 7-5-2014. They enjoyed their conjugal life happily for one month and then the accused petitioner began to torture his wife physically and mentally for bringing dowry from her father’s house. On 1-8-2014 at about 2-00 pm the accused petitioner demanded an amount of Taka 5,00,000 (five lacs) as dowry which was denied by his wife and then the accused petitioner inflicted blows with the stick abruptly causing injuries upon the right and left arms, right elbow and right thigh of the victim Anjuman Akter (Munni). Thereafter, the accused petitioner after taking away gold and valuable clothes of his wife, drove her out from his house. At one stage of the occurrence, the neighbouring peoples and local winesses rushed to the place of occurrence and took the victim to Ukhiya Hospital for treatment.
3. Subsequently, being failed to lodge a First Information Report with local police station complainant opposite party No.2 filed a petition of complaint before the learned Judge of the Nari-o-Shishu Nirjatan Daman Tribunal, Cox’s Bazar. The learned Judge of the Tribunal, after examining the complainant opposite party No. 2 under Section 200 of the Code of Criminal Procedure, 1898 asked Judicial Magistrate 1st Class of his jurisdiction for making inquiry into the matter and submit report upon which the learned Magistrate submitted report against the petitioner stating that primafacie case has been made out against the accused petitioner and others. Having found this inquiry report the learned Judge of the Tribunal took cognizance of the offence under Section 11 (Ga) of tne Nari-oShishu Nirjatan Daman Ain, 2000 (as amended up to 2003). After accepting the inquiry report learned Judge issued warrant of arrest against the accused petitioner who was subsequently enlarged on bail. Thereafter he filed the instant quashment petition on the ground that learned Judge of the Tribunal committed error in taking cognizance of the offence violating the provision laid down in Section 27(1)1(Kha) (Kha) of the Nari-o-Shishu Nirjatan Ain, 2000.
4. Mr. HMA Alam, the learned Advocate appearing on behalf of the petitioner submits that the learned Judge of the Tribunal did not not comply 1 (Kha) (Kha) and as such taking cognizance violating the mandatory provision of such section is liable to be set aside.
5. He further submits that the opposite party complainant was divorced by the petitioner on 9-9-2014 and notice of such divorce was sent to the local Chairman of the Union Parishad on 10-09-2014 under Section 7 of the Muslim Family Laws Ordinance , 1961. Since relation of conjugal life between the parties was dissolved, proceeding initiated against the accused petitioner is false and fabricated and as such it is liable to be quashed. In support of dissolution of marriage by Talak, the accused petitioner submitted a certificate issued by the local Union Parishad, learned Advocate added.
6. On the other hand, the learned Advocate appearing on behalf of the complainant opposite party No. 2 submits that after observing all legal formalities which need to be followed in this regard, the learned Judge of the Tribunal took cognizance of the offence against the accused petitioner without violating any provision of law. Learned Advocate lastly submits that for the purpose of prolonging the trial of the case the instant quashment petitioner has been filed by the accused petitioner.
7. Inview of the above submission of the learned advocates of both the parties, we have carefully perused the quashment petition along with the papers annexed thereto. With regard to the effectiveness of Talak proclaimed by the accused petitioner on 9-9-2014 and sending notice thereof to the local Union Parishad on 10-9-2014, it appears that having received the notice of Talak given by the accused petitioner, local Chairman of the Union Parishad did not take any step as per law. The certificate issued by the Chairman of the local Union Parishad Annexure-F shows that notice of Talak was received by him on 15-9-2014. Even if it is considered as true, Talak will be effective on and from 15-12-2014 after expiry of 90 days. But the occurrence of this case took place petitioner and complainant opposite party No. 2 was not dissolved. In that view of the matter we are unable to accept the submission of the learned Advocate for the petitioner that complainant was not his wife at the time of occurrence of the case. Second point raised by the learned Advocate for petitioner is the violation of provision envisaged in Section 27 (1) 1 (Kha) (Kha) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 which runs as follows :
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8. In view of the above provision of Section 27 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 we find that the petition of complaint was filed by the complainant opposite party along with affidavit sworn by her stating that having failed to lodged an FIR with the local police station she has filed the petition of complaint on the basis of which learned Judge of the Tribunal sent the matter for inquiry to a Judicial Magistrate who after completing inquiry submitted his report stating that primafacie case has been made out against the accused petitioner. Learned Judge of the Tribunal accepting this report submitted by the Judicial Magistrate took cognizance of the offence under Section 11 (ga) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 against the accused petitioner.
9. In this regard, it is submitted by the learned Advocate for the accused petitioner that though second part of Sections 27(1) l(Kha)(Ka) was complied with regarding primafacie case has been made out against the accused petitioner, but it was not at all mentioned by the Inquiry Officer in his report that having failed to lodge on FIR the complainant filed the complaint petition. The complainant filed the case with an affidavit stating that having failed to lodge an FIR with local police station she had no other way except filing the petition of complaint as per Section 27(1)(lka) of the Nari-o-Shishu Nirjatan Daman Ain, 2000. If the Officer-In-Charge of the local police station had received the First Information Report of the occurrence, the complainant opposite party would not have filed the complaint petition to the learned Judge of the Tribunal for initiating a case against the accused petitioner.
10. Moreover, when she filed the petition of complaint by swearing affidavit stating that having failed to lodge an FIR with the local police station in relation to the offence of the case question of non compliance of 1st part of Sections 27(1)(lKha)(Kha) does not arise. Apparently it transpires that sections 27(1)(1Kha)(Kha) the consequential effect of Sections 27 (1) (1Kha)(Ka) of the Nari-o-Shishu Nirjatan Daman Ain, 2000. On a plain reading of Sections 27(I)(lKha)(Kha) of Nari-o-Shishu Nirjatan Daman Ain. 2000, it is manifested that learned Judge of the Tribuunal will reject the complaint petition if the complainant cannot prove that he/she failed to lodge an FIR or that no prima facie evidence is found in support of the allegations brough against the accused person. But in this case, after making judicial inquiry it was reported by the local Magistrate of the 1st class that prima facie case has been made out against the accused petitioner, Learned Judge of the Tribunal could have rejected the complaint petition if any one of the two grounds had not been complied with as per above provision of law. So, the submission of the learned Advocate for the petitioner that the Police Officer denied to receive the case of the petitioner was not mentioned in the inquiry report is not opinion we have given above . Moreover, an affidavit was also sworn by the complainant opposite party stating that having failed to lodge an FIR, she had filed the instant petition of complaint. It may be recorded here that the learned Judge of the Tribunal can take cognizance of any offence in the interest of justice even if no such recommendation is made after inquiry for proceeding with a case in accordance with the provision of Section 27 (1)(1ga) of the Nari-o-Shishu Nirjatan Daman Ain, 2000. In such a situation, relying on some strategic grounds we cannot repulse an oppressed woman from the door of the court at this initial stage of the proceedings without giving her a chance for getting redress.
11. In view of the above discussion, we find no merit in this Rule.
12. Accordingly, the Rule is discharged.
13. The order of stay judgment be sent down to the learned judge of the concerned Tribunal for information and necessary action.
