The New Nation - Internet Edition

(From previous issue)

Government and in the first information report or in the charge sheet there is no allegation that petitioners resorted to any deception or false representation or inducement and the petitioners have not committed any offence punishable under section 420 of the Penal Code, inasmuch as neither the first information repot nor the charge sheet discloses that the petitioners deceived any person or fraudulently or dishonestly induced any person to deliver any property.

The learned Counsel next submitted that the High Court Division failed to consider that there is no ingredient of abetment in the first information report or in the charge sheet on the part of the petitioners in the commission of offence punishable under sections 409 and 420 of the Penal Code or section 5(2) of the Prevention of Corruption Act, 1947 and initiation and continuation of the above proceeding against the petitioners are abuse of the process of the Court.

5. As it appears the High Court Division discharged the Rule holding that the charge sheet in G.R. Case No. 20 of 1997 was received by the learned Chief Metropolitan Magistrate on 14.2.2000 and while the case was still pending before him awaiting execution of the processes petitioner Q.Z. Abedin preferred Criminal Misc. Case No. 1837 of 2000 and petitioner Abdul Haque prefered Criminal Misc. Case No. 7253 of 2000 seeking quashing of the proceedings of the above G.R. Case No. 20 of 1997 and then the High Court Division issued Rule and stayed the said proceeding in relation to them ; then on receipt of the records of the above G.R. Case No. 20 of 1997 from learned Chief Metropolitan Magistrate, the learned Metropolitan Sessions Judge Dhaka, the ex-officio Senior Metropolitan Special Judge, registered the same as Metropolitan Special Case No. 81 of 2000 but the certified copy of his order dated 21.11.2000 shows that he could not take cognizance of the offenced as further proceedings of G.R. case No. 20 of 1997 was stayed earlier as aforesaid ; thereafter, the High Court Division issued Rules in Criminal Misc. Case Nos. 1847, 4264 and 4297 of 2001 and also stayed further proceeding of Metro Special Case No. 81 of 2000 ; thus the learned Senior Metropolitan Special Judge, who had the exclusive jurisdiction to take cognizance of the offence either accepting the police report or refusing to accept it, could not take such cognisance ; section 5(2) of the Criminal Law Amendment Act, 1958 has introduced schedule to the Act specifying the offences triable under the above Act and the offences under sections 409 and 420 of the Penal Code committed by a public servant have been included in paragraph (b) of the above schedule and further, any other person abetting the public servant in the commission of such offence has been made jointly triable with such public servant in terms of paragraph (b) of the schedule ; offences punishable under the Prevention of Corruption Act, 1947 have been included in paragraph (c) of the schedule ; sections 4 and 5(1) of the Criminal Law Amendment Act have conferred exclusive jurisdiction upon the Senior Special Judge of the area in the matter of taking cognisance of the offence and further the offence might be tried by the Senior Special Judge himself or by any other special Judge on transfer of the case record by the Senior Special Judge ; all the cases seeking quashing of the proceedings were preferred before taking of cognisance of the offence by the Senior Metropolitan Special Judge ; in the case of Bangladesh Vs. Tan Khong Hock reported in 31 DLR (AD) 169 the Appellate Division has discouraged such seeking quashing of proceedings after submission of the charge sheet but before taking of cognisance of the case by the competent court or tribunal observing that "ity should not be presumed that we are expressing the view that the High Court is not competent to examine propriety of the charge sheet but this can be done at a proper stage. Because, after cognisance is taken on the basis of the charge sheet and on proper occasion or quashing the proceedings certainly the High Court shall examine the charge sheet to ascertain as to whether the allegations made therein constitute a criminal offence. (But before cognizance is taken by appropriate Court, there is hardly any scope for saying that charge sheet would lead to abuse of the process of the Court, because the court competent to try the case has ample power to refuse taking cognizance of the offence on the facts disclosed in the police report and pass an appropriate order."

In the case of Syed Mohammad Hashem alias Hashim Vs. State reported in 48 DLR (AD) 87 the Appellate Division held that "the usual and well settled practice is that a criminal proceeding can only be quahsed after cognizance has been taken and process issued thereupon subject to the fundamental principle that the power of quashing is and should be very sparingly exercised and only to prevent the abuse of the process of the court."

In the case of N Mahmud Vs. N. Ahmed reported in 36 DLR (AD) 14 the Appellate Division observed that "Proceeding before a court starts when the Magistrate has taken cognizance of an offence on police report or on complaint. Before such cognizance there is no proceeding that may be quashed under section 561A Cr.PC." Accordingly, before taking of cognisance of a case by the competent court or tribunal a proceedings cannot be said to be pending and accordingly, a proceeding cannot be quashed unless cognisance in respect thereof has been taken and process issued and so the instant criminal Miscellaneous cases preferred under section 561A of the Code of Criminal Procedure are quite premature and so the High Court Division should not enter into the first information report and the charge sheet in order to appreciate whether the facts alleged therein constitute any offence or not.

6. We are of the view that the High Court Division on proper consideration of the principle of law laid down by this Division and also the materials on record arrived at a correct decision. The learned Counsel could not point out any illegality or infirmity in the decision of the High Court Division so as to call for interference.

Cases cited :

Bangladesh Vs. Tan Khong Hock, 31 DLR (AD) 169.

Syed Mohammad Hashem alias Hashim Vs. State, 48 DLR (AD) 87.

N. Mahmud Vs. N. Ahmed, 36 DLR (AD) 14.