High Court Division
(Criminal Miscellaneous Jurisdiction)
Siddiqur Rahman
Miah J
KM Kamrul Kader J
Judgment January 9th, 2013.
Kazi Khairuzzaman
and others …. Petitioners·
vs
State … Opposite Party
Code of Criminal Procedure (V of 1898)
Section 561A
If the allegations in FIR and finding in the charge sheet are taken in their face value and accepted in their entirety, no prima facie charge is made out against the accused petitioners. . ….. (25)
Rahela Khatun vs Abul Hassan, 48 DLR (AD) 213; Latifa Akter vs State, 7 BLT (AD) 282; Md Obaidul Hoque vs State, 20 BLT 44; Ali Akkas vs Enayet Hossain, 17 BLD (AD) 44 = 2 BLC (AD) 16; Abdul Huque vs State, 60 DLR (AD) 1; Nazrul Islam vs State, 13 MLR (AD) 184; Salma Khaton vs State, 38 DLR 348; AHS Rahman vs State, 58 DLR (AD) 63; Bangladesh vs Shahjahan Seraj, 32 DLR (SC) 1; Abdul Kader Chowdhury vs State, 28 DLR (SC) 38; Sabdul Ali (Md) vs Md Mahed Ali Sarker, 50 DLR 146; Hazi Abul Bashar vs Hossan Uddin Ahmed, 6 BLT AD 193 = 51 DLR (AD) 14 ref.
Md Shahjahan, Advocate-For the Petitioner. Mohammad Ali Zinnah AAG -For the State.
Judgment
Siddiqur Rahman Miah J: This Rule under Section 561A of the Code of Criminal Procedure was issued calling upon the opposite party to show cause as to why the proceeding of Keranigonj PS case No. 16(11) 2004 under sections 147/148/249/379/307/447 of the Penal Code now pending in the court of 1st class Magistrate, Dhaka shall not be quashed.
2. The short facts of the prosecution case is that one Alhaj Abdur Rahman lodged FIR with Keranigonj PS on 9-11-2004 stating inter alia that he is the member of Governing Body of Doleshwar A Mannan College; that on 26-8-2004 accused Khairuzzaman with his followers claimed chanda; that accused Kazi Khairuzzaman on 5-11-2004 at about 12-30 with other accused including 100/150 persons being armed with pistol, revolver, hockey-stick, chapati with Raj Mistry and other labourer entered into the college land and prepared to start work violating the status-quo order of District Judge, and that the local people Alhaj Nemayt Ullah, Firoj, Amzad, Nazir and others announced through Mosque’s mike that the land of college was captured by the accused and hearing such sound, they left the place making blank fire by engine boat and they also took sign boards and thereafter the police appeared there. Thus Keranigonj PS case No. 16(11) 2004 under sections 147/1487/249/379/307/447 of the Penal Code was started.
3. The petitioners voluntarily surrendered before the court who were enlarged on bail and the case is under investigation.
4. The police after investigation submitted charge-sheet No. 29 dated 30-4-2005 against the petitioners.
5. Being aggrieved by and dissatisfied with the proceeding, the accused petitioners moved before this court under section 561A of the Code of Criminal Procedure praying for quashment of the proceeding whereupon this Rule was issued.
6. Mr Md Shahjahan the learned Advocate for the accused petitioners submits that the accused petitioner No.1 Kazi Khairuzzaman is the real owner of the suit property and that the accused petitioner No.1 filed Title Suit No. 291 of 2004 in which the informant is a defendant No.6 wherein temporary injunction as granted and against which the informant filed Civil Revision No.418 of 2004 in the court of District Judge, Dhaka who upheld the order of the trial court. He further submits that being frustrated with the result of the civil case, the informant has been filing the criminal case against the accused petitioners one after another in order to grab the property.
7. It is further submitted that as per ejhar no status-quo was in force rather injunction order is in force against the informant refraining them from entering into the suit land and to construct any structure which they have violated for which violation Misc. case No.20 of 2004 was filed against the informant and others and, as such, they filed this case only to save them from the violation proceedings and that if facts considered to be true even then the proceeding can not be continued as on the’ same matter, civil case is pending and civil matter cannot be decided in criminal proceedings and their remedy if any lies with civil court.
8. Mr Md Shahjahan also submits that it is stated in the FIR that accused petitioner No.1 Kazi Khairuzzaman and 10 others being armed with deadly weapons entered into the suit premises and started to construct structure and when the local people came forward to prevent them, then they went away making open fire. Whereas it transpires from the police Diary No. 1690 dated 6-11-2004 under Section 54 of the Code of Criminal Procedure that on the same date and the same time, police was present on the place of occurrence and arrested nine of the accused persons who were preparing to commit some cognizable offence. Mr Shahjahan the learned Advocate for the accused petitioners stoutly submits that this documentary contradictions clearly proves that the case alleged against accused petitioners are false and concocted and the facts of the ejhar is fabricated. He further submits that the inherent jurisdiction of the High Court Division can be exercised to quash the proceedings to prevent the abuse of the process of the court or otherwise to secure the ends of justice where it is found that there is glaring contradiction between the FIR and police report and this documentary contradiction proves that FIR is the product of falsity and forgery and, as such, this proceeding is liable to be quashed.
9. The learned Advocate for the petitioner refers the decisions in the case of Rahela Khatun vs Abul Hassan reported in 48 DLR (AD)213, in the case of Latifa Akater vs The state and another reported in 7 BLT (AD) 282, in the case of Md Obaidul Hoque @ Obaidullah @ Obaidul Islam @ Obaidullah and another vs The state and another reported in 20 BLT HCD 44, in the case of Ali Akkas vs Enayet Hossain reported in 17 BLD (AD) 44 = 2 BLC (AD) 16 in support of his contention.
10. Mr Mohammad Ali Zinnah, the learned Assistant Attorney-General for the state opposing the Rule submits that there is prima facie case against the petitioners and, as such, the impugned proceeding is not liable to be quashed.
11. He refers the decisions in the case of Abdul Haque vs State reported in 60 DLR (AD) 1, in the case of Nazrul Islam vs State reported in 13 MLR (AD) 184, in the case of Salma Khaton vs The state reported in 38 DLR, 348 and in the case of AHS Rahman vs State reported in 58 DLR (AD) 63 in support of his contention.
12. Before entering into the facts of the case, let us first see the provision of section 561A of the Code of Criminal Procedure.
“561A : nothing in this Code shall be deemed to limit or affect the inherent power of the High Court Division to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice”.
13. Now let us see the decision of our Apex court. It is held in the case of Bangladesh vs Shahjahan Seraj reported in 32 DLR (SC) 1.
“The inherent jurisdiction is attracted firstly to make such orders as may be necessary to give effect to any order under the code, secondly to prevent abuse of process of any court and lastly otherwise to secure the ends of justice. Section 561A emphases that the High court has widest jurisdiction to pass orders to secure the ends of justice”.
14. Our Supreme court held in the case of
Abdul Kader Chowdhury vs The State reported in 28 DLR (SC) 38.
“High Court extra-ordinary power under its inherent jurisdiction in relation to courts subordinate to it under Section 561A is to be exercised to prevent abuse of the process of the Court and advance substan·tial justice “.
15. It is held in the case of Md Shamuddin @ Lambu vs State:
“When a prosecution arises out of ill motive or improper motive, the machinery of administration of justice need to be available to such person”.
16. Our Appellate Division held in the case of Ali Akkas vs Enayet Hossain reported in 17 BLD (AD) 44:
“in a case where the allegations in FIR or the petition of complaint, even if taken at their face value and accepted in their entirety do not constitute the offence alleged”.
17. Now let us see whether the proceeding of this case is liable to’be quashed in view of the above decisions considering the facts and circumstances of the case.
18. The facts of the case are that on 5-11-2004 at 12-30 night the accused petitioner No.1 Kazi Khairuzzaman along with 19 ( Nineteen) other accused persons being armed with deadly weapons entered into the College premises and tried to start construction work but when the local people came forward to prevent them, then they left the place of occurrence.
19. But it transpires from the police report submitted by SI Md Shamsuzzaman in connection with Keranigonj PS General Diary No. 1690 dated 6-11-2004 under Section 54 of the Code of Criminal Procedure that on the same time, same date and same place, police of Keranigonj was present there who arrested nine of the accused persons for taking preparation of committing cognizable offence. The above mentioned glaring contraction between the contents of FIR with that of police report clearly proves that the contents of FIR is false and concocted. It further appears to us that the 10 being biased submitted charge-sheet against the accused persons overlooking such contradictions.
20. There is no denying of the fact that the land centering which the allegation is revolving is a disputed land. Both the college and the accused petitioner No.1 has been claiming the land. The accused petitioner No. 1 filed Title Suit No. 291 of 2004 in respect of the suit land in which the informant is defendant No. 6 and prayed for injunction which was granted and the defendant filed revision in the Court of District Judge, Dhaka who upheld the order of the learned trial court. It is the contention of the accused petitioner that being frustrated about result of the Civil suit, the informant has filed this false Criminal case only to harass and humiliate the accused. There is substance in the contention of the accused petitioners.
21. Moreover the place of occurrence is still under the possession of accused petitioner, No.1 so his entering into the place of occurrence does not constitute offence of Criminal trespass under section 447 of the Penal Code. The Criminal proceeding in the instant case is required to be quashed to secure the ends of justice so that the title may be set alright once for all by the Civil Court. We find support of the above view in the case of Sabdul AU (Md) vs Md Mahed Ali Sarker reported in 50 DLR 146 and in the case of Hazi Abul Bashar vs Hassan Uddin Ahmed reported in 6 BLT AD 193 = 51 DLR (AD) 140
22. It is stated in counter Affidavit filed on behalf of the accused petitioner No.1 that the petitioner is a very respectable and distinguished person in the society. He is a very renowned businessman and proprietor of Romel Motors, Jewel Automobiles, Arju Enterprise etc. and was a member of Dhaka Chamber of Commerce and Industries. He is one of the highest tax payees and associated with different charitable and social work oriented activities and organization. He is a PHF member of the Rotary Club. He is also the president @ Founder of Kari Belali Darul Ulum Madrasha, South Keranigonj, member of Shura committee of Jamia Hosainia Islamia Arjabad, Mirpur, the President of Uttar Shamoly Parcham Agargaon Shamaz Kayllan Samity, vice President of west Agargaon Central Jame Mosque, Dhaka and a Human Rights activist also .
23. It is not believable that the man of such outstanding background can go with 19 men to construct structure in the land which is in his possession.
24. On perusal of the materials on record it appears that out of a well planned design, the petitioners have been implicated in this case. It further appears’ that the fact of the case is so preposterous that no criminal case stands against the petitioners. In spite of that the police most illegally had submitted chargesheet against the accused petitioners. The judicial process should not be allowed to be abused in such a way out of vlendetta and enmity for the sake of upholding the confidence of the people in our justice delivery system and, as such, it is reasonably presumed that the accused petitioners are the victim of a grave conspiracy and design. On perusal of the evidence on record it appears that the accused petitioners are absolutely innocent. They never committed any offence as alleged against them.
They have been falsely implicated in this case only for harassment and humiliation.
25. In view of the above decisions and considering the facts and circumstances of the case and evidence on record, it appears that no prima facie case has been made out against the accused petitioner. The informant being the enemies of the petitioners has brought this false and concocted case against the petitioners. If the allegations in FIR and finding in the charge sheet are taken in their face value and accepted in their entirety, no prima facie charge is made out against the accused petitioners.
26. Having regard to the facts and circumstances of the case as noticed above, we find no prima facie case against the accused petitioners to connect the petitioners with the alleged commission of offence and that the allegation has been falsely brought against the accused petitioners only to harass and humiliate them.
27. Considering the above facts and circumstances of the case, we find that it is fit case to interfere at this stage under Section 561A of the Code of Criminal Procedure to prevent the abuse of the process of the court and to secure the ends of justice and thus the continuation of such proceedings will be a flagrant abuse of the process of the court and such process of law must be not used as an engine of harassment.
28. In view of the above fact, we hold that the instant proceedings against the petitioners
is an abuse of the process of the court and interference of this court is required under its inherent jurisdiction to secure the ends of justice and the said proceedings is liable to be quashed.
29. In the result, the Rule is made absolute.
The proceeding of Keranigonj 16(11) 2004 corresponding to GR No. 449 of 2004 pending in the court of 1st class Magistrate, Dhaka is hereby quashed.
30. The order of stay granted earlier by this court is hereby vacated.
Let a copy of this judgment be sent to the court below at once.
