High Court Division :
(Criminal Miscellaneous Jurisdiction)
Md Nizamul Huq J
Md Jahangir Hossain J
Judgment
May 8th 2014.
Abdul Hamid (Ujir) …..
Accused Petitioner
Vs
State and others……..
Opposite-Party
Nari-o-Shishu Nirjatan Daman Ain (VIII of 2000)
Section 27
Tribunal without complying with the stipulated provision of law i.e. without sending the matter for inquiry and without getting inquiry report directly took cognizance merely on the basis of the petition of complaint, as such, the very initiation and continuation of the proceedings is an abuse of the process of the court.
Section 27 transpires that a person who has complaint under the Provision of the Nari-o-Shishu Nirzatan Daman Ain, 2000 must go the local police station to lodge the First Information Report in the first phase and if the complainant has been refused by the police/officer-in_charge to receive such FIR in that case the complainant can file her case in the Tribunal provided the complainant has to narrate the story of Such refusal in the petition of complaint on oath. But on persual of the petition of complaint in neither appears that the complainant has earlier been refused by the local police station to accept her FIR nor she stated such story of refusal on oath in her petition of complaint. (14 & 13)
Md Shakhawat H Khan, Advocate-For the Petitioner.
Md Shahidul Islam Khan, AAG-For the Opposite Party (State).
Judgment
Md Jahangir Hossain J: This is an application under Section 561A of the Code of Criminal Procedure.
2. In this Miscellaneous Case Rule was issued calling upon the opposite party to show cause as to why the impugned proceeding of Nari-o-Shishu Case No. 123 of 2009 arising out of Petition Case No. 152 of 2009 under section 11(Ga)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 pending in the court of Nari-o-Shishu Nirjatan Damon Tribunal, Habigonj shall not be quashed and/or such other or further order or orders passed as to this Court may seem fit and proper.
3. Pending hearing of the Rule, let all further proceeding of Nari-o-Shishu Case No. 123 of 2009 arising out of Petition Case No. 152 of 2009 under section 11(Ga)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 pending in the court of Nari-o-Shishu Nirjatan Daman Tribunal, Habigonj be stayed for a period of 4(four) months from date.
4. The relevant facts of the case are as follows:-
One Mst Aklima Begum, daughter of Md Ishrak Uddin of village Latibpur, No.3 Union Parisad Enatgonj, Police Station Nabigonj, District Habiganj filed a petition of complaint before the learned Nari-o-Shishu Nirjatan Daman Tribunal, Habigonj stating that the complainant got married with the accused appellant about 10/11 years ago who has two sons aged about 8 years and 4 years old respectively. The accused petitioner being a greedy person has been torturing the complainant since her marriage. Recently. the accused appellant came back from Kingdom of Saudi Arabia/hereinafter referred as KSA he again started demanding dower of Taka 5 lakh in order to go to London.
5. Since the complainant refused to comply with his demand, the accused appellant forcefully sold out her gold made ornaments and also threatened to divorce her and get married again. On the date and time of occurrence the accused appellant in association with the other accused persons demanded dower of Taka 5 lakh otherwise he would divorce her. Since she protested the accused appellant being angry and being ordered by the accused No.2 pulled her down on the floor. The accused No.3 then gave several lathi blows on her back. Thereafter, the accused appellant stepped on her neck and tried to suffocate to kill her. While those things were going on the elder son of the complainant made an outcry and coincidently the witnesses came to see the complainant at the same time in the place of occurrence and witnessed the incident.
6. Upon receiving the said petition of complaint the Tribunal registered the same as Nari-o-Shishu Nirjatan Daman Case and took cognizance against the accused-petitioner and others under sections 1 1 (Ga)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000. And the Tribunal also issued summons against the accused-petitioner and others. On 25-4-2012 the Nari-o-Shishu Nirjatan Daman Tribunal arbitrarily framed charge against the accused-petitioner and others under sections 11(Ga)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 (amended in 2003).
7. That it is submitted that as per the provision of the section 27 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 a Tribunal cannot take cognizance on its own without having an inquiry report submitted either by a Magistrate or a person who is being entrusted by the said Tribunal to submit a report within 7 (seven) days. But in the present case the Tribunal without complying with the stipulated provision of law as contemplated in section 27 of the said Ain most illegally took cognizance against the accused-petitioner and others, as such, the continuation of the instant proceeding is a sheer abuse’ of process of the Court. In Annexure-‘A’ it neither appears that the complainant has earlier been refused to accept her FIR by the local police station nor she stated such story of refusal with an undertaking in her petition of complaint, as such, the initiation and continuation of the instant proceeding is a sheer abuse of process of the Court and to secure ends to justice the continuation of the proceeding is liable to be quashed.
8. We heard the learned Advocate for the petitioner at length.
9. Mr Md Shahidul Islam Khan, the learned Assistant Attorney-General appears on behalf of the State and opposed the rule.
10. We have scrutinized the petition, complaint, relevant laws and other materials submitted in the record. The main argument of the petitioner biased on the violation of Section 27 of the ‘Nari-o-Shishu Nirjatan Daman Ain, 2000 and which was not complied.
11. We have examined the Section 27 of Nari-o-Shishu Nirjatan Daman Ain, 2000 (as amended in 2003). It is held in the section 27 that
27| UªvBey¨bv‡ji GLwZqvi|- Ò(1) mve-B݇c±i c`gh©v`vi wb‡gœ b‡nb Ggb †Kvb cywjk Kg©KZ©v ev GZ`y‡Ï‡k¨ miKv‡ii wbKU nB‡Z mvaviY ev we‡kl Av‡`k Øviv ÿgZvcÖvß †Kvb e¨w³i wjwLZ wi‡cvU© e¨wZ‡i‡K †Kvb UªvBey¨bvj †Kvb Aciva wePviv‡_© MÖnY Kwi‡eb bv|
(1K) †Kvb, Awf‡hvMKvix Dc-aviv (1) Gi Aaxb †Kvb cywjk Kg©KZ©v‡K ev ÿgZvcÖvß e¨w³‡K †Kvb Aciv‡ai Awf‡hvM MÖnY Kwievi Rb¨ Aby‡iva Kwiqv e¨_© nBqv‡Qb g‡g© njdbvgv mnKv‡i UªvBey¨bv‡ji wbKU Awf‡hvM `vwLj Kwi‡j UªvBey¨bvj Awf‡hvMKvix‡K cixÿv Kwiqv-
(A) mšÍó nB‡j Awf‡hvMwU AbymÜv‡bi (inquiry) Rb¨ †Kvb g¨vwR‡óªU wKsev Ab¨ †Kvb e¨w³ Awf‡hvMwU AbymÜvb Kwiqv mvZ Kvh© w`e‡mi g‡a¨ UªvBey¨bv‡ji wbKU wi‡cvU© cÖ`vb Kwi‡eb,
(Av) mšÍó bv nB‡j Awf‡hvMwU mimvwi bvKP Kwi‡eb|
(1L) Dc-aviv (1K) Gi Aaxb wi‡cvU© cÖvwßi ci †Kvb UªvBey¨bvj hw` GB g‡g© mš’ó nq †h,
(Av) Awf‡hMKvix Dc-aviv (1) Gi Aaxb †Kvb cywjk Kg©KZ©v‡K ev ÿgZvcÖvß e¨w³‡K †Kvb Aciv‡ai Awf‡hvM MÖnY Kwievi Rb¨ Aby‡iva Kwiqv e¨_© nBqv‡Qb g‡g© cÖgvY cvIqv hvq bvB wKsev Awf‡hv‡Mi mg_©‡b †Kvb cÖv_wgK mvÿ¨ cvIqv hvq bvB †mB †ÿ‡Î UªvBey¨bvj Awf‡hvMwU bvKP Kwi‡eb,
(1M) Dc-aviv (1) Ges (1K) Gi Aaxb cÖvß wi‡cvU© †Kvb e¨w³i weiæ‡× Aciva msNU‡bi Awf‡hvM ev Zrm¤ú‡K© Kvh©µg MÖn‡Yi mycvwik bv _vKv m‡Ë¡I UªvBey¨bvj, h_vh_ Ges b¨vqwePv‡ii ¯^v‡_© cÖ‡qvRbxq g‡b Kwi‡j, KviY D‡jøLc~e©K D³ e¨w³i e¨vcv‡i mswkøó Aciva wePviv_© MÖnY Kwi‡Z cvwi‡eb|Ó
12. It appears that as per the provision of the Section 27 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 a Tribunal cannot take cognizance on its own without having an inquiry report submitted either by a Magistrate or a person who is being entrusted by the said Tribunal within 7 (seven) days. But in the present case the Tribunal without complying the stipulated provision of law as contemplated in Section 27 of the said Ain illegally took cognizance against the accused petitioner and others.
13. Section 27 transpires that a person who has complaint under the provision of the Nari-o-Shishu Nirjalan Daman Ain, 2000 must go the local police station to lodge the First Information Report ‘FIR’ in the first police and if the complainant bas been refused by the police Officer-in Charge to receive such FIR in that case the complainant call file her case in the Tribunal provided the complainant has to narrate the story of such refusal in the petition of complaint on oath. But on perusal of the petition of complaint (as contained in Annexure-A) it neither appears that the complainant has earlier been, refused by the local police station to accept her FIR nor she state such story of refusal on oath in her petition of complaint.
14. Moreover it appears that the Tribunal after receiving a petition of complaint should send the matter for inquiry and having such inquiry report the Tribunal can only take cognizance as per the section 27 of the Nari-o-Shishu Nirjatan Daman Ain, 2000. But in the instant case the Tribunal without complying with the stipulated provision of law i.e. without sending the matter for inquiry and without getting inquiry report directly took cognizance merely on the basis of the petition of complaint, as such, the very initiation and continuation of the proceedings is an abuse of the process of the court.
15. On the above discussion we are of the view that the case is liable to be quashed.
16. In the result. the Rule is made absolute.
The proceeding of Nari-o-Shishu Case No. 123 of 2009 arising out of Petition Case No. 152 of 2009 under Section 11 (Oa)/30 of the Nari-o-Shishu Nirjatan Damon Ain, 2000 pending in the court of Nari-o-Shishu Nirjatan Damon Tribunal, Habigonj is hereby quashed.
Send a copy of this judgment to the concerned court immediately.
(Criminal Miscellaneous Jurisdiction)
Md Nizamul Huq J
Md Jahangir Hossain J
Judgment
May 8th 2014.
Abdul Hamid (Ujir) …..
Accused Petitioner
Vs
State and others……..
Opposite-Party
Nari-o-Shishu Nirjatan Daman Ain (VIII of 2000)
Section 27
Tribunal without complying with the stipulated provision of law i.e. without sending the matter for inquiry and without getting inquiry report directly took cognizance merely on the basis of the petition of complaint, as such, the very initiation and continuation of the proceedings is an abuse of the process of the court.
Section 27 transpires that a person who has complaint under the Provision of the Nari-o-Shishu Nirzatan Daman Ain, 2000 must go the local police station to lodge the First Information Report in the first phase and if the complainant has been refused by the police/officer-in_charge to receive such FIR in that case the complainant can file her case in the Tribunal provided the complainant has to narrate the story of Such refusal in the petition of complaint on oath. But on persual of the petition of complaint in neither appears that the complainant has earlier been refused by the local police station to accept her FIR nor she stated such story of refusal on oath in her petition of complaint. (14 & 13)
Md Shakhawat H Khan, Advocate-For the Petitioner.
Md Shahidul Islam Khan, AAG-For the Opposite Party (State).
Judgment
Md Jahangir Hossain J: This is an application under Section 561A of the Code of Criminal Procedure.
2. In this Miscellaneous Case Rule was issued calling upon the opposite party to show cause as to why the impugned proceeding of Nari-o-Shishu Case No. 123 of 2009 arising out of Petition Case No. 152 of 2009 under section 11(Ga)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 pending in the court of Nari-o-Shishu Nirjatan Damon Tribunal, Habigonj shall not be quashed and/or such other or further order or orders passed as to this Court may seem fit and proper.
3. Pending hearing of the Rule, let all further proceeding of Nari-o-Shishu Case No. 123 of 2009 arising out of Petition Case No. 152 of 2009 under section 11(Ga)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 pending in the court of Nari-o-Shishu Nirjatan Daman Tribunal, Habigonj be stayed for a period of 4(four) months from date.
4. The relevant facts of the case are as follows:-
One Mst Aklima Begum, daughter of Md Ishrak Uddin of village Latibpur, No.3 Union Parisad Enatgonj, Police Station Nabigonj, District Habiganj filed a petition of complaint before the learned Nari-o-Shishu Nirjatan Daman Tribunal, Habigonj stating that the complainant got married with the accused appellant about 10/11 years ago who has two sons aged about 8 years and 4 years old respectively. The accused petitioner being a greedy person has been torturing the complainant since her marriage. Recently. the accused appellant came back from Kingdom of Saudi Arabia/hereinafter referred as KSA he again started demanding dower of Taka 5 lakh in order to go to London.
5. Since the complainant refused to comply with his demand, the accused appellant forcefully sold out her gold made ornaments and also threatened to divorce her and get married again. On the date and time of occurrence the accused appellant in association with the other accused persons demanded dower of Taka 5 lakh otherwise he would divorce her. Since she protested the accused appellant being angry and being ordered by the accused No.2 pulled her down on the floor. The accused No.3 then gave several lathi blows on her back. Thereafter, the accused appellant stepped on her neck and tried to suffocate to kill her. While those things were going on the elder son of the complainant made an outcry and coincidently the witnesses came to see the complainant at the same time in the place of occurrence and witnessed the incident.
6. Upon receiving the said petition of complaint the Tribunal registered the same as Nari-o-Shishu Nirjatan Daman Case and took cognizance against the accused-petitioner and others under sections 1 1 (Ga)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000. And the Tribunal also issued summons against the accused-petitioner and others. On 25-4-2012 the Nari-o-Shishu Nirjatan Daman Tribunal arbitrarily framed charge against the accused-petitioner and others under sections 11(Ga)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 (amended in 2003).
7. That it is submitted that as per the provision of the section 27 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 a Tribunal cannot take cognizance on its own without having an inquiry report submitted either by a Magistrate or a person who is being entrusted by the said Tribunal to submit a report within 7 (seven) days. But in the present case the Tribunal without complying with the stipulated provision of law as contemplated in section 27 of the said Ain most illegally took cognizance against the accused-petitioner and others, as such, the continuation of the instant proceeding is a sheer abuse’ of process of the Court. In Annexure-‘A’ it neither appears that the complainant has earlier been refused to accept her FIR by the local police station nor she stated such story of refusal with an undertaking in her petition of complaint, as such, the initiation and continuation of the instant proceeding is a sheer abuse of process of the Court and to secure ends to justice the continuation of the proceeding is liable to be quashed.
8. We heard the learned Advocate for the petitioner at length.
9. Mr Md Shahidul Islam Khan, the learned Assistant Attorney-General appears on behalf of the State and opposed the rule.
10. We have scrutinized the petition, complaint, relevant laws and other materials submitted in the record. The main argument of the petitioner biased on the violation of Section 27 of the ‘Nari-o-Shishu Nirjatan Daman Ain, 2000 and which was not complied.
11. We have examined the Section 27 of Nari-o-Shishu Nirjatan Daman Ain, 2000 (as amended in 2003). It is held in the section 27 that
27| UªvBey¨bv‡ji GLwZqvi|- Ò(1) mve-B݇c±i c`gh©v`vi wb‡gœ b‡nb Ggb †Kvb cywjk Kg©KZ©v ev GZ`y‡Ï‡k¨ miKv‡ii wbKU nB‡Z mvaviY ev we‡kl Av‡`k Øviv ÿgZvcÖvß †Kvb e¨w³i wjwLZ wi‡cvU© e¨wZ‡i‡K †Kvb UªvBey¨bvj †Kvb Aciva wePviv‡_© MÖnY Kwi‡eb bv|
(1K) †Kvb, Awf‡hvMKvix Dc-aviv (1) Gi Aaxb †Kvb cywjk Kg©KZ©v‡K ev ÿgZvcÖvß e¨w³‡K †Kvb Aciv‡ai Awf‡hvM MÖnY Kwievi Rb¨ Aby‡iva Kwiqv e¨_© nBqv‡Qb g‡g© njdbvgv mnKv‡i UªvBey¨bv‡ji wbKU Awf‡hvM `vwLj Kwi‡j UªvBey¨bvj Awf‡hvMKvix‡K cixÿv Kwiqv-
(A) mšÍó nB‡j Awf‡hvMwU AbymÜv‡bi (inquiry) Rb¨ †Kvb g¨vwR‡óªU wKsev Ab¨ †Kvb e¨w³ Awf‡hvMwU AbymÜvb Kwiqv mvZ Kvh© w`e‡mi g‡a¨ UªvBey¨bv‡ji wbKU wi‡cvU© cÖ`vb Kwi‡eb,
(Av) mšÍó bv nB‡j Awf‡hvMwU mimvwi bvKP Kwi‡eb|
(1L) Dc-aviv (1K) Gi Aaxb wi‡cvU© cÖvwßi ci †Kvb UªvBey¨bvj hw` GB g‡g© mš’ó nq †h,
(Av) Awf‡hMKvix Dc-aviv (1) Gi Aaxb †Kvb cywjk Kg©KZ©v‡K ev ÿgZvcÖvß e¨w³‡K †Kvb Aciv‡ai Awf‡hvM MÖnY Kwievi Rb¨ Aby‡iva Kwiqv e¨_© nBqv‡Qb g‡g© cÖgvY cvIqv hvq bvB wKsev Awf‡hv‡Mi mg_©‡b †Kvb cÖv_wgK mvÿ¨ cvIqv hvq bvB †mB †ÿ‡Î UªvBey¨bvj Awf‡hvMwU bvKP Kwi‡eb,
(1M) Dc-aviv (1) Ges (1K) Gi Aaxb cÖvß wi‡cvU© †Kvb e¨w³i weiæ‡× Aciva msNU‡bi Awf‡hvM ev Zrm¤ú‡K© Kvh©µg MÖn‡Yi mycvwik bv _vKv m‡Ë¡I UªvBey¨bvj, h_vh_ Ges b¨vqwePv‡ii ¯^v‡_© cÖ‡qvRbxq g‡b Kwi‡j, KviY D‡jøLc~e©K D³ e¨w³i e¨vcv‡i mswkøó Aciva wePviv_© MÖnY Kwi‡Z cvwi‡eb|Ó
12. It appears that as per the provision of the Section 27 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 a Tribunal cannot take cognizance on its own without having an inquiry report submitted either by a Magistrate or a person who is being entrusted by the said Tribunal within 7 (seven) days. But in the present case the Tribunal without complying the stipulated provision of law as contemplated in Section 27 of the said Ain illegally took cognizance against the accused petitioner and others.
13. Section 27 transpires that a person who has complaint under the provision of the Nari-o-Shishu Nirjalan Daman Ain, 2000 must go the local police station to lodge the First Information Report ‘FIR’ in the first police and if the complainant bas been refused by the police Officer-in Charge to receive such FIR in that case the complainant call file her case in the Tribunal provided the complainant has to narrate the story of such refusal in the petition of complaint on oath. But on perusal of the petition of complaint (as contained in Annexure-A) it neither appears that the complainant has earlier been, refused by the local police station to accept her FIR nor she state such story of refusal on oath in her petition of complaint.
14. Moreover it appears that the Tribunal after receiving a petition of complaint should send the matter for inquiry and having such inquiry report the Tribunal can only take cognizance as per the section 27 of the Nari-o-Shishu Nirjatan Daman Ain, 2000. But in the instant case the Tribunal without complying with the stipulated provision of law i.e. without sending the matter for inquiry and without getting inquiry report directly took cognizance merely on the basis of the petition of complaint, as such, the very initiation and continuation of the proceedings is an abuse of the process of the court.
15. On the above discussion we are of the view that the case is liable to be quashed.
16. In the result. the Rule is made absolute.
The proceeding of Nari-o-Shishu Case No. 123 of 2009 arising out of Petition Case No. 152 of 2009 under Section 11 (Oa)/30 of the Nari-o-Shishu Nirjatan Damon Ain, 2000 pending in the court of Nari-o-Shishu Nirjatan Damon Tribunal, Habigonj is hereby quashed.
Send a copy of this judgment to the concerned court immediately.
