High Court Division :
(Criminal Miscellaneous Jurisdiction)
Syed Md Ziaul Karim J
Md Akram Hossain Chowdhury J
Judgment
July 2nd, 2018
Moinul Hoque Chowdhury
and another.…….Accused-Petitioners
vs
State and others……..
———- Opposite-Parties*
Code of Criminal Procedure (Vof 1898) Section 561A
The accused petitioners straight way moving to this Court under Section 561A of the Code, at the very initial stage of the case, stayed the whole proceeding of the case; even though there has been some specific allegations against them and while the other co-accused were in absconding against whom the warrant of arrest was pending.
In the case of Anti-Corruption Commission vs ATM Nazimullah Chowdhury, reported in 62 DLR (AD) 225 has expressed it views holding-
“This Court repeatedly argued that a fugitive from justice is not entitled to obtain a judicial order defying the process of the Court”
Not only that our Appellate Division in the case of Khondaker Mahtabuddin Ahmed vs State reported in 49 DLR (AD) 132, has categorically held-
“There is nothing in law precluding a criminal case on account of a civil suit pending against the petitioners on the same facts. The criminal case stands for the offence, while the civil suit is for realization of money. Both case stand together.” …. (12 & 13)
Habibur Rahman Mollah (Ex-Member of Parliament, Dhaka-4) vs State, 62 DLR (AD) 233; Abdul Quader Chowdhury vs State, 28 DLR (AD) 38; Anti-Corruption Commission vs ATM Nazimullah Chowdhury. 62 DLR (AD) 225 and Khondaker Mahtabuddin Ahmed vs State, 49 DLR (AD) 132 ref.
None appears-For the Petitioners.
Md Monzurul Alam Khan with Antas Samlul Alam, Advocates-For the Opposite-Party Nos. 2.
Shakila Rowshan, DAG with Sharmina Haque.
AAG-For the State, Opposite-Party No. 1
Judgment
Md Akram Hossain Chowdhury J : By this Rule, two of the accused out of six, as petitioners sought for quashing the proceeding of CR Case No. 606 of 2013 under sections 420/109 of the Penal Code, pending before the Metropolitan Magistrate, Court No. 26, Dhaka.
2. At the time of issuance of the Rule by an ad-interim order of this Court the impugned proceeding was stayed for a period of six months which has been ultimately extended till disposal of the Rule.
3. The facts leading to this Rule, in brief. are that Mr Kao Wen Fu (Winston) Chairman, Shepherd Yarn Limited, represented by its-Deputy Manager, Admin & HR, Mr Ratan Kumar Banik as complainant on 10-7-2013 filed a petition of complainant before the Chief Metropolitan Magistrate, Dhaka implicating therein six persons as accused including the present two petitioners for committing offence under sections 403/4061 420 read with Section 109 of the Penal Code alleging therein inter-alia that the accused Nos. 15, as contained in the petition of complaint, had placed various orders to the complainant about to supply 100% acrylic yarn and accordingly through their Bank, accused No.6, they opened Bank to Bank Letter of Credit (L/C) in favour of the complainant’s company for supplying above 100% acrylic yarn in favour of the accused Nos. 1-5. As per the said orders to supply the accused persons requested the complainant to activate the letter of credit as well as the other related documents. The complainant’s company following the same has therefore upon complying all formalities supplied 100% acrylic yarn as per terms of the letter of credit of the accused Nos. 1-5, through their bank accused No.6. Against the said supply of 100% acrylic yarn the accused made some payments to the complainant through their bank accused No.6; however, towards the above payments all on a sudden, the accused Nos. 1-5 directed its Bank accused No. 6 to stop the payment of outstanding dues owing to the complainant which stood as of US$ 60,000 and the bank accused No.6 following the same has stopped the complainant’s payments. Upon while the payments of complainant’s outstanding dues of US$ 60,000 was stopped the complainant approached to the Bangladesh Garments Manufactures & Exporters Association (BGMEA) to settle the matter in dispute as being raised by the accused. But that steps of the complainant was in vain. In the situation the complainant issued legal notice upon the accused Nos. 1-5 as well as to its bank accused No.6. But even then no payment was made by the accused as was stood due to them. Thereafter, while the complainant contacted the accused over telephone requesting them to make the payments of outstanding dues, but they refused to pay the same. By this act all the accused have conjointly made initial deception inducing the complainant in order to cheat him and they had ultimately misappropriated the complainant’s outstanding dues. Hence, they are liable to be finished under sections 403/406/420 read with Section 109 of the Penal Code.
4. The learned Metropolitan Magistrate concerned who was assigned by the Chief Metropolitan Magistrate, after receiving the said petition of complaint upon taking statement on oath of the complainant under Section 200 of the Code of Criminal Procedure took cognizance against all the six accused under Sections 420/109 of the Penal Code and thereby issued the process against them.
5. The present two accused petitioners thereafter surrendering before the concerned Metropolitan Magistrate, Dhaka obtained their bail and while the process of other four co-accused were pending for return.
6. At this stage the present accused petitioners, two in number, by filing an application under Section 344 of the Code of Criminal Procedure prayed for staying the proceeding of the case on the plea that a Civil case pending between the parties; however, after hearing both the party the learned Metropolitan Magistrate concerned vide order dated 12-5-2014 rejecting the said application fixed the next date on 25-6-2014 for carrying out the order of P & A as issued against the absconding accused. The present two accused petitioners in this backdrop moved to this Court under Section 561 A of the Code of the Criminal Procedure for quashing the whole proceeding of the case and then obtained the present Rule and the order of stay as aforesaid while the other co-accused were absconding against whom the warrant of arrest were pending.
7. The said Rule was pending for near about four years and now appearing in the cause list for hearing for a couple of days and while on 1-72018 was taken up, one of the associate of Mr Golam Abbas Chowdhury, learned Advocate for the accused petitioners sought for adjournment of hearing and then after hearing the opposite party the matter was adjourned till today but no one for the accused petitioner is found present to support the Rule. In this compelling circumstance, we upon hearing the learned Advocate for the complainant opposite party No.2 as well as the learned Assistant Attorney General who appeared for the opposite party No.1, state, has taken up the matter to dispose the same on merit.
8. Mr Md Monzur Alam Khan appearing with Mr Antas Samiul Alam, learned Advocate for the complainant opposite party No.2, at the very outset, submits that while the case was pending for carrying out the order of P & A against the other absconding co-accused and the case was not ready for trial and in as much the charge of the case was not framed, the present two accused petitioners without producing the other absconding accused moved to the High Court Division for quashing the whole proceeding of the case invoking inherent jurisdiction of this Court under Section 561A of the Code of Criminal Procedure and upon misleading the Court has obtained an order of stay only in view to frustrate the whole proceeding of the case in a very initial stage; even, though there is an alternative legal remedy very much present before them to redress their grievances. Learned Advocate further submits that there has been no cause of action to file the instant petition under section 561 A of the Code of Criminal Procedure at this stage; because of that the grievances as raised herein cannot be decided and settled without taking respective evidence as to be produced by both the party at the trial and the trial Court is very much competent to settle the said dispute. He thus, submits that the disputed question of facts as raised by the accused petitioner could not be decided under the summary jurisdiction of Section 561A of the Code of Criminal Procedure and therefore, the learned Advocate for the complainant opposite party urges to discharge the Rule.
9. Mrs. Sharmina Haque, learned Assistant Attorney General appearing for the state opposite party No. 1 has conceded the said submissions as advanced by the learned Advocate for the complainant opposite party No.2.
10. We have considered the above submissions as placed by the learned Advocate for the complainant opposite party which has been adopted by the learned Assistant Attorney General and gone through the materials available on record. It appears from the petition of complaint that the complainant has categorically able to make out the allegations against the accused petitioners as well as the other absconding accused and upon considering such complaint as well as the other materials on record the learned Metropolitan Magistrate who was assigned by the Chief Metropolitan Magistrate was pleased to take cognizance against all the six accused as being finding a prima-facie case against them. Thereafter the case was pending for return report of process as issued against the absconding accused and then for carrying out the order of warrant of arrest. Therefore, it becomes very clear that the case is not yet ready for trial and no charge has yet been framed in the case. Moreover it reveals from the record that the present two accused petitioners, leaving the other absconding co-accused, after obtaining their bail unsuccessfully filed an application under Section 344 of the Code of Criminal Procedure for staying the whole proceeding of the case on the plea that a civil case is pending between the parties; however, while the said application was rejected the accused petitioners did not take the legal recourse as being available before them as an alternative legal remedy provided under Section 439A of the Code of Criminal Procedure. But without availing the said legal remedy they rushed before the High Court Division for quashing the whole proceeding while the other co-accused are absconding till today and the case is not yet ready for trial. It is also pertinent to mention here that in the present case the accused petitioners have an every chance to agitate their said grievances before the trial Court under Section 241A of the Code of Criminal Procedure; while the case will be ready for trial; However, without awaiting to that extent the accused petitioners rushed before the High Court Division for quashing the whole proceeding leaving the fugitive accused who were all along absconding and they upon misleading the Court has obtained the present Rule in a very initial stage of the case. In the prevailing such circumstances we find reliance in a decision enunciated by our Apex Court, in the case of Habibur Rahman Mollah (Ex-Member of Parliament, Dhaka-4) vs State, reported in 62 DLR (AD) 233 wherein their Lordships held-
“Inherent power of the High Court Division is generally exercised where no other remedy is available for obtaining justice in the cause it should not be invoked where another remedy is available. This power has not been vested upon the High Court Division where another remedy is available. This is an extraordinary Power and is exercised in extraordinary circumstances in the interest of Justice. This power is controlled by the principles and precedents as are its express statutory powers. The provisions of the Code provide that the administration of criminal justice should be allowed to proceed in the usual manner without interruption.”
11. Further in earlier in the case of Abdul Quader Chowdhury vs State, reported in 28 DLR (AD) 38 our Appellate Division has reiterated the same views holding that- The Jurisdiction given by Section 561A is not an alternative jurisdiction nor an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the code itself. This power cannot be so utilized as to interrupt or divert the ordinary course of criminal procedure.
12. Upon going through the above enunciation of our Apex Court we find reliance of applicability of the same in this case in our hands as the two accused persons, out of six, at the very initial stage without invoking the legal recourse as was available before them moved to this Court by taking privilege of inherent jurisdiction of this Court under Section 561 A of the Code of Criminal Procedure and stayed the whole proceeding in a very initial stage of the case in order to frustrate the normal course of criminal Justice. Of course, our Appellate Division, in the case reported in 28 DLR (AD) 38 and in 17 BLD (AD) 44, has enunciated some criteria where and when the jurisdiction of 561A of the Code of Criminal Procedure can be invoked; in which the Apex Court has made a guideline about to invoke the said jurisdiction as to while apparent from the face of the FIR or complaint the facts and allegation against the accused petitioner is found as a preposterous one and there has been a legal bar to proceed the proceeding and in as much as while there has been a corum non-judice. Whereas, in the instant case the accused petitioners straight way moving to this Court under Section 561A of the Code of Criminal Procedure, at the very initial stage of the case, stayed the whole proceeding of the case; even though there has been some specific allegations against them and while the other co-accused were in absconding against whom the warrant of arrest was pending. Whereas, our apex Court in the case of Anti-Corruption Commission vs ATM Nazimullah Chowdhury, reported in 62 DLR (AD) 225 has expressed it views holding-
“This Court repeatedly argued that a fugitive from justice is not entitled to obtain a judicial order defying the ‘process of the Court.”
13. Not only that our Appellate Division in the case of Khondaker Mahtabuddin Ahmed vs State reported in 49 DLR (AD) 132, has categorically held-
“There is nothing in law precluding a criminal case on account of a civil suit pending against the petitioners on the same facts. The criminal case stands for the offence, while the civil suit is for realization of money. Both case stand together.”
14. Thus, this Court cannot over look such decisions of our apex Court in any way.
15. In view of the prevailing facts and circumstances and upon reliance on the decisions of our apex Court thereto we find no substance in the merit of the Rule and thus, we find it deserves our interference. Hence, we are inclined to discharge the Rule.
16. In the result, the Rule is discharged. The order of stay granted earlier is hereby recalled and vacated.
17. The learned Chief Metropolitan Magistrate, Dhaka is directed to proceed with the proceeding of CR Case No. 606 of 2013 as pending before him under Sections 420/109 of the Penal Code, in accordance with law.
Communicate this judgment and order to the Court concerned at once.
(Criminal Miscellaneous Jurisdiction)
Syed Md Ziaul Karim J
Md Akram Hossain Chowdhury J
Judgment
July 2nd, 2018
Moinul Hoque Chowdhury
and another.…….Accused-Petitioners
vs
State and others……..
———- Opposite-Parties*
Code of Criminal Procedure (Vof 1898) Section 561A
The accused petitioners straight way moving to this Court under Section 561A of the Code, at the very initial stage of the case, stayed the whole proceeding of the case; even though there has been some specific allegations against them and while the other co-accused were in absconding against whom the warrant of arrest was pending.
In the case of Anti-Corruption Commission vs ATM Nazimullah Chowdhury, reported in 62 DLR (AD) 225 has expressed it views holding-
“This Court repeatedly argued that a fugitive from justice is not entitled to obtain a judicial order defying the process of the Court”
Not only that our Appellate Division in the case of Khondaker Mahtabuddin Ahmed vs State reported in 49 DLR (AD) 132, has categorically held-
“There is nothing in law precluding a criminal case on account of a civil suit pending against the petitioners on the same facts. The criminal case stands for the offence, while the civil suit is for realization of money. Both case stand together.” …. (12 & 13)
Habibur Rahman Mollah (Ex-Member of Parliament, Dhaka-4) vs State, 62 DLR (AD) 233; Abdul Quader Chowdhury vs State, 28 DLR (AD) 38; Anti-Corruption Commission vs ATM Nazimullah Chowdhury. 62 DLR (AD) 225 and Khondaker Mahtabuddin Ahmed vs State, 49 DLR (AD) 132 ref.
None appears-For the Petitioners.
Md Monzurul Alam Khan with Antas Samlul Alam, Advocates-For the Opposite-Party Nos. 2.
Shakila Rowshan, DAG with Sharmina Haque.
AAG-For the State, Opposite-Party No. 1
Judgment
Md Akram Hossain Chowdhury J : By this Rule, two of the accused out of six, as petitioners sought for quashing the proceeding of CR Case No. 606 of 2013 under sections 420/109 of the Penal Code, pending before the Metropolitan Magistrate, Court No. 26, Dhaka.
2. At the time of issuance of the Rule by an ad-interim order of this Court the impugned proceeding was stayed for a period of six months which has been ultimately extended till disposal of the Rule.
3. The facts leading to this Rule, in brief. are that Mr Kao Wen Fu (Winston) Chairman, Shepherd Yarn Limited, represented by its-Deputy Manager, Admin & HR, Mr Ratan Kumar Banik as complainant on 10-7-2013 filed a petition of complainant before the Chief Metropolitan Magistrate, Dhaka implicating therein six persons as accused including the present two petitioners for committing offence under sections 403/4061 420 read with Section 109 of the Penal Code alleging therein inter-alia that the accused Nos. 15, as contained in the petition of complaint, had placed various orders to the complainant about to supply 100% acrylic yarn and accordingly through their Bank, accused No.6, they opened Bank to Bank Letter of Credit (L/C) in favour of the complainant’s company for supplying above 100% acrylic yarn in favour of the accused Nos. 1-5. As per the said orders to supply the accused persons requested the complainant to activate the letter of credit as well as the other related documents. The complainant’s company following the same has therefore upon complying all formalities supplied 100% acrylic yarn as per terms of the letter of credit of the accused Nos. 1-5, through their bank accused No.6. Against the said supply of 100% acrylic yarn the accused made some payments to the complainant through their bank accused No.6; however, towards the above payments all on a sudden, the accused Nos. 1-5 directed its Bank accused No. 6 to stop the payment of outstanding dues owing to the complainant which stood as of US$ 60,000 and the bank accused No.6 following the same has stopped the complainant’s payments. Upon while the payments of complainant’s outstanding dues of US$ 60,000 was stopped the complainant approached to the Bangladesh Garments Manufactures & Exporters Association (BGMEA) to settle the matter in dispute as being raised by the accused. But that steps of the complainant was in vain. In the situation the complainant issued legal notice upon the accused Nos. 1-5 as well as to its bank accused No.6. But even then no payment was made by the accused as was stood due to them. Thereafter, while the complainant contacted the accused over telephone requesting them to make the payments of outstanding dues, but they refused to pay the same. By this act all the accused have conjointly made initial deception inducing the complainant in order to cheat him and they had ultimately misappropriated the complainant’s outstanding dues. Hence, they are liable to be finished under sections 403/406/420 read with Section 109 of the Penal Code.
4. The learned Metropolitan Magistrate concerned who was assigned by the Chief Metropolitan Magistrate, after receiving the said petition of complaint upon taking statement on oath of the complainant under Section 200 of the Code of Criminal Procedure took cognizance against all the six accused under Sections 420/109 of the Penal Code and thereby issued the process against them.
5. The present two accused petitioners thereafter surrendering before the concerned Metropolitan Magistrate, Dhaka obtained their bail and while the process of other four co-accused were pending for return.
6. At this stage the present accused petitioners, two in number, by filing an application under Section 344 of the Code of Criminal Procedure prayed for staying the proceeding of the case on the plea that a Civil case pending between the parties; however, after hearing both the party the learned Metropolitan Magistrate concerned vide order dated 12-5-2014 rejecting the said application fixed the next date on 25-6-2014 for carrying out the order of P & A as issued against the absconding accused. The present two accused petitioners in this backdrop moved to this Court under Section 561 A of the Code of the Criminal Procedure for quashing the whole proceeding of the case and then obtained the present Rule and the order of stay as aforesaid while the other co-accused were absconding against whom the warrant of arrest were pending.
7. The said Rule was pending for near about four years and now appearing in the cause list for hearing for a couple of days and while on 1-72018 was taken up, one of the associate of Mr Golam Abbas Chowdhury, learned Advocate for the accused petitioners sought for adjournment of hearing and then after hearing the opposite party the matter was adjourned till today but no one for the accused petitioner is found present to support the Rule. In this compelling circumstance, we upon hearing the learned Advocate for the complainant opposite party No.2 as well as the learned Assistant Attorney General who appeared for the opposite party No.1, state, has taken up the matter to dispose the same on merit.
8. Mr Md Monzur Alam Khan appearing with Mr Antas Samiul Alam, learned Advocate for the complainant opposite party No.2, at the very outset, submits that while the case was pending for carrying out the order of P & A against the other absconding co-accused and the case was not ready for trial and in as much the charge of the case was not framed, the present two accused petitioners without producing the other absconding accused moved to the High Court Division for quashing the whole proceeding of the case invoking inherent jurisdiction of this Court under Section 561A of the Code of Criminal Procedure and upon misleading the Court has obtained an order of stay only in view to frustrate the whole proceeding of the case in a very initial stage; even, though there is an alternative legal remedy very much present before them to redress their grievances. Learned Advocate further submits that there has been no cause of action to file the instant petition under section 561 A of the Code of Criminal Procedure at this stage; because of that the grievances as raised herein cannot be decided and settled without taking respective evidence as to be produced by both the party at the trial and the trial Court is very much competent to settle the said dispute. He thus, submits that the disputed question of facts as raised by the accused petitioner could not be decided under the summary jurisdiction of Section 561A of the Code of Criminal Procedure and therefore, the learned Advocate for the complainant opposite party urges to discharge the Rule.
9. Mrs. Sharmina Haque, learned Assistant Attorney General appearing for the state opposite party No. 1 has conceded the said submissions as advanced by the learned Advocate for the complainant opposite party No.2.
10. We have considered the above submissions as placed by the learned Advocate for the complainant opposite party which has been adopted by the learned Assistant Attorney General and gone through the materials available on record. It appears from the petition of complaint that the complainant has categorically able to make out the allegations against the accused petitioners as well as the other absconding accused and upon considering such complaint as well as the other materials on record the learned Metropolitan Magistrate who was assigned by the Chief Metropolitan Magistrate was pleased to take cognizance against all the six accused as being finding a prima-facie case against them. Thereafter the case was pending for return report of process as issued against the absconding accused and then for carrying out the order of warrant of arrest. Therefore, it becomes very clear that the case is not yet ready for trial and no charge has yet been framed in the case. Moreover it reveals from the record that the present two accused petitioners, leaving the other absconding co-accused, after obtaining their bail unsuccessfully filed an application under Section 344 of the Code of Criminal Procedure for staying the whole proceeding of the case on the plea that a civil case is pending between the parties; however, while the said application was rejected the accused petitioners did not take the legal recourse as being available before them as an alternative legal remedy provided under Section 439A of the Code of Criminal Procedure. But without availing the said legal remedy they rushed before the High Court Division for quashing the whole proceeding while the other co-accused are absconding till today and the case is not yet ready for trial. It is also pertinent to mention here that in the present case the accused petitioners have an every chance to agitate their said grievances before the trial Court under Section 241A of the Code of Criminal Procedure; while the case will be ready for trial; However, without awaiting to that extent the accused petitioners rushed before the High Court Division for quashing the whole proceeding leaving the fugitive accused who were all along absconding and they upon misleading the Court has obtained the present Rule in a very initial stage of the case. In the prevailing such circumstances we find reliance in a decision enunciated by our Apex Court, in the case of Habibur Rahman Mollah (Ex-Member of Parliament, Dhaka-4) vs State, reported in 62 DLR (AD) 233 wherein their Lordships held-
“Inherent power of the High Court Division is generally exercised where no other remedy is available for obtaining justice in the cause it should not be invoked where another remedy is available. This power has not been vested upon the High Court Division where another remedy is available. This is an extraordinary Power and is exercised in extraordinary circumstances in the interest of Justice. This power is controlled by the principles and precedents as are its express statutory powers. The provisions of the Code provide that the administration of criminal justice should be allowed to proceed in the usual manner without interruption.”
11. Further in earlier in the case of Abdul Quader Chowdhury vs State, reported in 28 DLR (AD) 38 our Appellate Division has reiterated the same views holding that- The Jurisdiction given by Section 561A is not an alternative jurisdiction nor an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the code itself. This power cannot be so utilized as to interrupt or divert the ordinary course of criminal procedure.
12. Upon going through the above enunciation of our Apex Court we find reliance of applicability of the same in this case in our hands as the two accused persons, out of six, at the very initial stage without invoking the legal recourse as was available before them moved to this Court by taking privilege of inherent jurisdiction of this Court under Section 561 A of the Code of Criminal Procedure and stayed the whole proceeding in a very initial stage of the case in order to frustrate the normal course of criminal Justice. Of course, our Appellate Division, in the case reported in 28 DLR (AD) 38 and in 17 BLD (AD) 44, has enunciated some criteria where and when the jurisdiction of 561A of the Code of Criminal Procedure can be invoked; in which the Apex Court has made a guideline about to invoke the said jurisdiction as to while apparent from the face of the FIR or complaint the facts and allegation against the accused petitioner is found as a preposterous one and there has been a legal bar to proceed the proceeding and in as much as while there has been a corum non-judice. Whereas, in the instant case the accused petitioners straight way moving to this Court under Section 561A of the Code of Criminal Procedure, at the very initial stage of the case, stayed the whole proceeding of the case; even though there has been some specific allegations against them and while the other co-accused were in absconding against whom the warrant of arrest was pending. Whereas, our apex Court in the case of Anti-Corruption Commission vs ATM Nazimullah Chowdhury, reported in 62 DLR (AD) 225 has expressed it views holding-
“This Court repeatedly argued that a fugitive from justice is not entitled to obtain a judicial order defying the ‘process of the Court.”
13. Not only that our Appellate Division in the case of Khondaker Mahtabuddin Ahmed vs State reported in 49 DLR (AD) 132, has categorically held-
“There is nothing in law precluding a criminal case on account of a civil suit pending against the petitioners on the same facts. The criminal case stands for the offence, while the civil suit is for realization of money. Both case stand together.”
14. Thus, this Court cannot over look such decisions of our apex Court in any way.
15. In view of the prevailing facts and circumstances and upon reliance on the decisions of our apex Court thereto we find no substance in the merit of the Rule and thus, we find it deserves our interference. Hence, we are inclined to discharge the Rule.
16. In the result, the Rule is discharged. The order of stay granted earlier is hereby recalled and vacated.
17. The learned Chief Metropolitan Magistrate, Dhaka is directed to proceed with the proceeding of CR Case No. 606 of 2013 as pending before him under Sections 420/109 of the Penal Code, in accordance with law.
Communicate this judgment and order to the Court concerned at once.
