Appellate Division :
(Criminal)
Nazmun Ara Sultana J
Syed Mahmud
Hossain J
Md Imman Ali J
Judgment
May 29th, 2014
Muntasir Mamun Khan (Md) and others …….Petitioner
vs
State and another….Respondents
Code of Criminal Procedure (V of 1898)
Section 265C
If the Court/Tribunal, on examination of the records and also after hearing both the sides finds that there are sufficient materials for proceeding against the accused the court/tribunal shall frame charge against the accused persons, there is no requirement in law for recording the reasons for framing charge elaborately. Law does not require that the “sufficient materials” found by the court tribunal for framing charge should be stated elaborately in the order of framing charge. …… (10)
AJ Mohammad Ali, Senior Advocate instructed by Syed Mahbubar Rahman, Advocate-on-Record-For the Petitioners.
Haridus Paul, Advocate-on-Record -For Respondent No.2.
None Represented -Respondent No. 1.
Judgment
Nazmun Ara Sultana J : This Criminal Petition for Leave to Appeal is directed against the judgment and order dated 8-6-2011 passed by the High Court Division in Criminal Appeal No. 611 of 2009 dismissing the criminal appeal and thereby affirming the order dated 13-1-2009 passed by the Nari-o-Shishu Nirjatan Daman Tribunal, Jessore in Nari-o-Shishu Case No. 178 of 2008 framing charge against the present accused-appellant-petitioners under sections 11 (ga) and 11(ga)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 after rejecting their application under Section 265C of the Code of Criminal Procedure.
2. The necessary facts for disposal of this Criminal Petition for Leave to Appeal, in short, are that one Nazrul Islam @ Robi, as informant, lodged an FIR with Kotwali Model Police Station, Jessore alleging that his younger sister Most. Moslema Afroz @ Ruma was given in marriage with the accused No. 1 Dr Md Muntasir Mamun Khan on 6-7-2007. At the time of marriage an amount of Taka 3,00,000 was demanded by the accused persons as dowry, out of which Taka 2,00,000 was paid. Subsequently on demand of remaining Taka 1, 00,000 as dowry, the accused persons started torturing Most. Moslema Afroz @ Ruma-the victim and at one stage, she was driven out from her husband’s house.
Apprehending legal consequence, the cunning accused-husband Md Muntasir Mamun Khan instituted Family Suit No. 67 of 2008 for restitution of conjugal life. Subsequently on the basis of compromise, the victim was brought to the husband’s house on 4-5-2008 and the said family suit was withdrawn.
But the accused persons again started to claim remaining Taka 1,00,000 as dowry and on such demand the accused persons assaulted the victim. Ultimately on getting information over telephone, the relatives of the victim girl went to the house of the accused and rescued the victim and took her to the hospital where she got treatment.
3. On the basis of the above FIR Kotwali Model Police Station Case No. 30 dated 8-5-2008 was started and the police, after investigation submitted charge sheet against all the FIR named accused persons under Sections 11(ga)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000.
The case was ultimately sent to the Nari-o-Shishu Nirjatan Daman Tribunal, Jessore for trial. Before this tribunal the accused persons filed an application under Section 265C of the Code of Criminal Procedure praying their discharge, but the tribunal, on hearing the learned Advocates of both the sides, rejected that application and framed charge under Section 11 (ga) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 against the present accused petitioner No.1 and under sections 11(ga)/30 against the other two accused-petitioners by the order dated 13-1-2009.
4. Being aggrieved by the said order of the tribunal the accused-petitioners preferred the above mentioned criminal appeal under Section 28 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 before the High Court Division. A Division Bench of the High Court Division, after hearing both the parties, dismissed that appeal by the impugned judgment and order.
5. Mr AJ Mohammad Ali, the learned Senior Advocate for the accused-appellant petitioners has assailed the impugned judgment and order of the High Court Division making submissions to the effect mainly that both the High Court Division and the Nari-o-Shishu Nirjatan Daman Tribunal did not consider at all the purpose of insertion of Section 265C in the Code of Criminal Procedure. The learned Advocate has argued that the Section 265C has been inserted in the Code of Criminal Procedure to check false and frivolous cases and thereby to ensure that the innocent persons are not harassed unnecessarily by being put to the trouble of undergoing trial and also to check the abuse of courts process and also wastage of court’s valuable time.
The learned Counsel has contended that neither the Tribunal nor the High Court Division has examined the materials on record and without being satisfied that there were sufficient materials for framing charge the tribunal framed charge against the accused petitioners illegally and unjustly and the High Court Division also affirmed this order of framing charge most unjustly without taking into consideration the purport of Section 265C of the Code of Criminal Procedure at all.
6. Mr Haridus Paul, the learned Advocate-on-Record for the informant respondent has made submissions supporting the impugned judgment.
7. We have considered the submissions made by the learned Advocates of both the sides and gone through the impugned judgment and order of the High Court Division and also the order dated 13-1-2009 passed by the Nari-o-Shishu Nirjatan Daman Tribunal, Jessore in Nari-o-Shishu Case No. 178 of 2008.
8. It appears from the order dated 13-12009 passed in Nari-o-Shishu Case No. 178 of 2008 that the learned Judge of the Tribunal, before passing this order, heard the submissions made by the learned Advocate for the accused persons in support of the application under Section 265C of the Code of Criminal Procedure and also the submissions of the special public prosecutor and examined the record and finding sufficient materials for framing charge against the accused persons rejected that application under Section 265C of the Code of Criminal Procedure and framed charge against the accused persons as already mentioned above.
9. Section 265C provides:
“265C. Discharge.-If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Court considers that there is no sufficient grounds for proceeding against the accused, it shall discharge the accused and record the reasons for so doing.”
10. Evidently, the tribunal took into consideration the mandate of Section 265C of the Code of Criminal Procedure and also complied with the same before passing the impugned order of framing charge.
The learned Advocate for the accused-petitioners has argued also that the tribunal did not assign any reason for framing charge in the impugned order and for this defect also the impugned order of framing charge in liable to be set aside. But this argument of the learned Advocate also is not correct. From the above quoted section 265C it is evident that the court/tribunal requires to record the reasons for discharging the accused only, there is no direction either in Section 265C or in any other section of the Code of Criminal Procedure that the court/ tribunal will have to record the reasons of framing charge also.
If the Court/Tribunal, on examination of the records and also after hearing both the sides finds that there are sufficient materials for proceeding against the accused the Court/Tribunal shall frame charge against the accused persons, there is no requirement in law for recording the reasons for framing charge elaborately. In this present case as it appears from the impugned order of framing charge, the tribunal, on hearing both the sides and examination of record, found sufficient materials for framing charge against the accused persons and hence it rejected the application under Section 265C of the Code of Criminal Procedure and framed charge against the accused-persons. Law does not require that the “sufficient materials” found by the court/ tribunal for framing charge should be stated elaborately in the order of framing charge.
11. The learned Advocate for the accused petitioners has made submissions questioning the truth of the prosecution case also by pointing out some facts and circumstances in support of defence case. But this submission also of the learned Advocate is not entertainable at this stage since all these are disputed facts which need to be adjudicated on taking evidence at the trial of the case.
The High Court Division rightly pointed out that the police investigated this case and finding the allegations against the accused persons prima facie proved, submitted charge sheet and that there are nothing on record to prove conclusively that the allegations made against the accused persons are false and that in the circumstances, before trial, the accused persons cannot be discharged.
12. We also, in agreement with the High Court Division and also the Tribunal, find that there are sufficient materials on record for proceeding against the accused persons and hence the impugned order passed by the Tribunal rejecting the application under Section 265C of the Code of Criminal Procedure and framing charge against the accused persons and also the order of the High Court Division affirming this impugned order passed by the Tribunal do not call for any interference by this Division.
Hence this Civil Petition for Leave to Appeal be dismissed.
(Criminal)
Nazmun Ara Sultana J
Syed Mahmud
Hossain J
Md Imman Ali J
Judgment
May 29th, 2014
Muntasir Mamun Khan (Md) and others …….Petitioner
vs
State and another….Respondents
Code of Criminal Procedure (V of 1898)
Section 265C
If the Court/Tribunal, on examination of the records and also after hearing both the sides finds that there are sufficient materials for proceeding against the accused the court/tribunal shall frame charge against the accused persons, there is no requirement in law for recording the reasons for framing charge elaborately. Law does not require that the “sufficient materials” found by the court tribunal for framing charge should be stated elaborately in the order of framing charge. …… (10)
AJ Mohammad Ali, Senior Advocate instructed by Syed Mahbubar Rahman, Advocate-on-Record-For the Petitioners.
Haridus Paul, Advocate-on-Record -For Respondent No.2.
None Represented -Respondent No. 1.
Judgment
Nazmun Ara Sultana J : This Criminal Petition for Leave to Appeal is directed against the judgment and order dated 8-6-2011 passed by the High Court Division in Criminal Appeal No. 611 of 2009 dismissing the criminal appeal and thereby affirming the order dated 13-1-2009 passed by the Nari-o-Shishu Nirjatan Daman Tribunal, Jessore in Nari-o-Shishu Case No. 178 of 2008 framing charge against the present accused-appellant-petitioners under sections 11 (ga) and 11(ga)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 after rejecting their application under Section 265C of the Code of Criminal Procedure.
2. The necessary facts for disposal of this Criminal Petition for Leave to Appeal, in short, are that one Nazrul Islam @ Robi, as informant, lodged an FIR with Kotwali Model Police Station, Jessore alleging that his younger sister Most. Moslema Afroz @ Ruma was given in marriage with the accused No. 1 Dr Md Muntasir Mamun Khan on 6-7-2007. At the time of marriage an amount of Taka 3,00,000 was demanded by the accused persons as dowry, out of which Taka 2,00,000 was paid. Subsequently on demand of remaining Taka 1, 00,000 as dowry, the accused persons started torturing Most. Moslema Afroz @ Ruma-the victim and at one stage, she was driven out from her husband’s house.
Apprehending legal consequence, the cunning accused-husband Md Muntasir Mamun Khan instituted Family Suit No. 67 of 2008 for restitution of conjugal life. Subsequently on the basis of compromise, the victim was brought to the husband’s house on 4-5-2008 and the said family suit was withdrawn.
But the accused persons again started to claim remaining Taka 1,00,000 as dowry and on such demand the accused persons assaulted the victim. Ultimately on getting information over telephone, the relatives of the victim girl went to the house of the accused and rescued the victim and took her to the hospital where she got treatment.
3. On the basis of the above FIR Kotwali Model Police Station Case No. 30 dated 8-5-2008 was started and the police, after investigation submitted charge sheet against all the FIR named accused persons under Sections 11(ga)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000.
The case was ultimately sent to the Nari-o-Shishu Nirjatan Daman Tribunal, Jessore for trial. Before this tribunal the accused persons filed an application under Section 265C of the Code of Criminal Procedure praying their discharge, but the tribunal, on hearing the learned Advocates of both the sides, rejected that application and framed charge under Section 11 (ga) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 against the present accused petitioner No.1 and under sections 11(ga)/30 against the other two accused-petitioners by the order dated 13-1-2009.
4. Being aggrieved by the said order of the tribunal the accused-petitioners preferred the above mentioned criminal appeal under Section 28 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 before the High Court Division. A Division Bench of the High Court Division, after hearing both the parties, dismissed that appeal by the impugned judgment and order.
5. Mr AJ Mohammad Ali, the learned Senior Advocate for the accused-appellant petitioners has assailed the impugned judgment and order of the High Court Division making submissions to the effect mainly that both the High Court Division and the Nari-o-Shishu Nirjatan Daman Tribunal did not consider at all the purpose of insertion of Section 265C in the Code of Criminal Procedure. The learned Advocate has argued that the Section 265C has been inserted in the Code of Criminal Procedure to check false and frivolous cases and thereby to ensure that the innocent persons are not harassed unnecessarily by being put to the trouble of undergoing trial and also to check the abuse of courts process and also wastage of court’s valuable time.
The learned Counsel has contended that neither the Tribunal nor the High Court Division has examined the materials on record and without being satisfied that there were sufficient materials for framing charge the tribunal framed charge against the accused petitioners illegally and unjustly and the High Court Division also affirmed this order of framing charge most unjustly without taking into consideration the purport of Section 265C of the Code of Criminal Procedure at all.
6. Mr Haridus Paul, the learned Advocate-on-Record for the informant respondent has made submissions supporting the impugned judgment.
7. We have considered the submissions made by the learned Advocates of both the sides and gone through the impugned judgment and order of the High Court Division and also the order dated 13-1-2009 passed by the Nari-o-Shishu Nirjatan Daman Tribunal, Jessore in Nari-o-Shishu Case No. 178 of 2008.
8. It appears from the order dated 13-12009 passed in Nari-o-Shishu Case No. 178 of 2008 that the learned Judge of the Tribunal, before passing this order, heard the submissions made by the learned Advocate for the accused persons in support of the application under Section 265C of the Code of Criminal Procedure and also the submissions of the special public prosecutor and examined the record and finding sufficient materials for framing charge against the accused persons rejected that application under Section 265C of the Code of Criminal Procedure and framed charge against the accused persons as already mentioned above.
9. Section 265C provides:
“265C. Discharge.-If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Court considers that there is no sufficient grounds for proceeding against the accused, it shall discharge the accused and record the reasons for so doing.”
10. Evidently, the tribunal took into consideration the mandate of Section 265C of the Code of Criminal Procedure and also complied with the same before passing the impugned order of framing charge.
The learned Advocate for the accused-petitioners has argued also that the tribunal did not assign any reason for framing charge in the impugned order and for this defect also the impugned order of framing charge in liable to be set aside. But this argument of the learned Advocate also is not correct. From the above quoted section 265C it is evident that the court/tribunal requires to record the reasons for discharging the accused only, there is no direction either in Section 265C or in any other section of the Code of Criminal Procedure that the court/ tribunal will have to record the reasons of framing charge also.
If the Court/Tribunal, on examination of the records and also after hearing both the sides finds that there are sufficient materials for proceeding against the accused the Court/Tribunal shall frame charge against the accused persons, there is no requirement in law for recording the reasons for framing charge elaborately. In this present case as it appears from the impugned order of framing charge, the tribunal, on hearing both the sides and examination of record, found sufficient materials for framing charge against the accused persons and hence it rejected the application under Section 265C of the Code of Criminal Procedure and framed charge against the accused-persons. Law does not require that the “sufficient materials” found by the court/ tribunal for framing charge should be stated elaborately in the order of framing charge.
11. The learned Advocate for the accused petitioners has made submissions questioning the truth of the prosecution case also by pointing out some facts and circumstances in support of defence case. But this submission also of the learned Advocate is not entertainable at this stage since all these are disputed facts which need to be adjudicated on taking evidence at the trial of the case.
The High Court Division rightly pointed out that the police investigated this case and finding the allegations against the accused persons prima facie proved, submitted charge sheet and that there are nothing on record to prove conclusively that the allegations made against the accused persons are false and that in the circumstances, before trial, the accused persons cannot be discharged.
12. We also, in agreement with the High Court Division and also the Tribunal, find that there are sufficient materials on record for proceeding against the accused persons and hence the impugned order passed by the Tribunal rejecting the application under Section 265C of the Code of Criminal Procedure and framing charge against the accused persons and also the order of the High Court Division affirming this impugned order passed by the Tribunal do not call for any interference by this Division.
Hence this Civil Petition for Leave to Appeal be dismissed.
