The New Nation - Internet Edition

High Court Division

(Criminal Miscellaneous Jurisdiction)

Sharif Uddin Chaklader-J.

Md. Emdadul Huq-J.

CRIMINAL MISC. CASE No. 6935 of 2006.

(Arising out of C.R. No. 41 of 2006 now pending in the Court of Chief Metropolitan Magistrate, Dhaka).

Shihan Monirul Hasan, Managing Director, F.E. & A. Limited

tAccused Petitions (on bail).

Vs.

The State, represented by the Deputy Commissioner, Dhaka t Opposite Parties.

For the petitioenrs : Mr. Md. Moulvi Wahidullah, Advocate.

For the opposite party : Mr. Mohammad

Ozair Farooq, Advocate.

Judgment: 15 May, 2007

Code of Criminal Procedure, 1898-

Section 561A- Quashment of proceedings- at premature stage-

The learned judges of the High Court Division expressed their surprise as to how the accused petitioners were granted anticipatory bail in a complaint case and without surrendering before the court of Magistrate filed the application for quashment of the proceedings.

The accused-petitioners could wait till framing of charge or seeking discharge under section 241A Cr.P.C if the charge was groundless. The application being premature has been rejected.

It appears that the accused petitioner did not surrender before the learned Magistrate before moving this court. We also find the petitioner did not invoke 'the provision of section 241A of the Code of Criminal Procedure and did not wait till framing of charge by the learned Magistrate tttt(Para 3)

Mr. Mohammad Ozair Farooq, learned Advocate, appearing for the opposite party submits that, sufficient ingredients of sections 420/406 of the Penal Code are disclosed in the petition of complaint (Para 4)

Considering all these aspects of the case, we are of the view that this Rule was obtained at a very prematurp stage. We find no substance in the rule. tttt(Para 5)

JUDGMENT

SHARIF UDDIN CHAKLADER-J:

This Rule, at the instance of' the accused petitioner, is for quashment of C.R. Case No. 41 of 2006 under sections 406/420 of the Penal Code pending in the Court of Chief Metropolitan Magistrate, Dhaka.

2. The complainant, a firm, supplied construction materials to the accused readymade concrete worth of Taka 30,30,780/-' who issued eheque on 21,10.2005 for Taka 5,86,000/- and another 2 cheques dated 21.10.2005 (for Taka 17,52,750/- and also a cheque on 6.10.2005; accused undertook to pay in cash, when the cheques were presented, those were returned with endorsement 'insufficient fund, Thereafter, the complainant placed the remaining 2 cheques and were dishonoured as the accused instructed not .to pay the money. From the order sheet, annexed as Annexure-A, we find complainant was examined on 8.1.2006 and thereafter the accused obtained anticipatory bail. We do not understand in a complaint case how anticipatory bail can be granted by this court, just after obtaining anticipatory bail and without going to the Magistrate, the accused rushed to this court and obtained this Rule to stifle this proceeding.

3. Mr. Md. Moulvi Wahidullah, learned Advocate appearing for the petitioner submits that the allegation disclosed in the petition of complaint disclosed a civil litigation as it crept up from business transaction. In support of his submission the learned Advocate relied on the decision reported in 45 DLR (AD) 27. We have gone through the decision and we find that this decision can no way come in any help of the accused petitioners. It appears that the accused petitioner did not surerender before the learned Magistrate before moving this court. We also find the petitioner did not invoke the provision of sections 241A of the Code of Criminal Procedure and did not wit till framing of charge by the learned Magistrate.

4. Mr Mohammad Ozair Farooq, learned Advocate, appearing for the opposite party, submits that, sufficient ingredients of sections 420/406 of the Penal Code are disclosed in the petition of complaint.

5. Considering all these aspects of the case, we are of the view that this Rule was obtained at a very premature stage. We find no substance in the rule.

6. In the result, the rule is discharged.

Order of stay granted earlier by this court is hereby vacated.

Case cited:

45 DLR (AD) 27.