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Sentence enhanced without issuing rule illegal

Appellate Division

( Crimina1)

Mohammad Fazlul Karim-J.

M.M. Ruhul Amin-J.

CRIMINAL APPEAL No. 60 of 2003.

(From the judgment and order dated the 10th November, 2002 passed by the High Court Division in Criminal Revision No.699 of 2001).

Mokbul Hossain Howlader t.. Appellant.

Vs.

The State Respondent.

For the Appellant : Syed Mahbubar Rahman, Advocate-on-Record.

For the Respondent : Mr. Zahurul Isbm Mukul, Deputy Attorney General, instructed by Md. Sajjadul Huq, Advocate-on-Record.

Judgment: September 13, 2007

Penal Code, 1860-

Section 420-Offence of cheating and the punishment therefor Enhancement of sentence without issue of Rule is appeal not permissible in law.

Money obtained by the accused on the inducement of sending the complainant to America and arrange for him a job there and ultimately misappropriating the same and refusing to refund the money constitutes offence of cheating punishable under section 420 of the Penal Code. Enhancement of sentence by the appellate Court without issue of any Rule is not permissible in law.

It also appears from the record that before the revisional Court it has been contended from the side of the accused petitioner that the alleged transaction does not call for any criminal action, rather it was a civil liability only and as such, the impugned order of the conviction and sentence cannot be sustained in law. But the contention of the accused petitioner is not tenable at all. The accused gave false assurance to the complainant that he would send him to America and arrange a job for him there if he paid Tk.2 lacs to him and giving such false assurance he dishonestly induced the complainant to give Tk. 1,65,000.00 to him and subsequently he misappropriated the entire money and did not send the complainant to America. It appears that the act of the accused clearly constitutes the offence of cheating as defined in Section 415 of the Penal Code and, as such, is punishable under Section 420 of the Penal Code …………(Para 9)

Admittedly no Rule in the nature of enhancement of sentence was ever issued, instead enhanced the sentence contrary to Law and procedure …….(Para 11)

JUDGEMENT

MOHAMMAD FAZLUL KARIM-J:

This Criminal Appeal, by leave, is directed against the judgment and order dated 10.11.2002 passed by the High Court Division in Criminal Revision No.688 of 2001 discharging the Rule obtained by (he appellant against the judgment and order dated 28.08.2001 passed by the learned Additional Metropolitan Sessions Judge, Court No.5,

Dhaka in Metropolitan Criminal Appeal No.87 of 2000 setting aside the order of conviction under Section 406 of the Penal Code and maintaining the conviction under Section 420 of the Penal Code and enhancing the period of sentence from 3 months to 6 (six) months and fine of Tk. 1000.00 to 2000.00 in default to suffer simple imprisonment for 1 (one) month more passed by the learned Metropolitan Magistrate, Dhaka convicting the appellant under Section 406/420 of the Penal Code and sentencing him to suffer imprisonment for 3 months for each Section and to pay a fine of Tk. 1000.00 under each Section in default to suffer simple imprisonment for 1 (one) month more by the judgment and order dated 25.04.2000.

2. The prosecution case, in short, is that on 01.09.1998 the complainant Mahbubul Alam Akan lodged a petition of complaint before the Chief Metropolitan Magistrate, Dhaka alleging that he was an employee of Barisal Textile Mills and since that Mills was closed he became helpless. At that time his close friend accused Md. Mokbul Hossain Howlader allured him to send him to America. The accused told that if the complainant paid him taka two lac he would send the complainant to America within four months and would arrange a job there for him. The complainant agreed and gave the accused total Tk. 1,65,000.00 on different dates. It was agreed upon that the remaining taka would be paid after getting visa and confirmation of ticket. But the accused did not send the complainant to America as per that agreement. The complainant demanded his money back but the accused was killing time on flimsy grounds. On 08.10.1995 the accused executed a deed of agreement acknowledging receipt of Tk. 1,65,000.00 from the complainant on condition of sending the complainant to America and also agreeing that if he failed to send the complainant to America he would refried the entire amount of Tk. 1,65,000.00 at a time to the complainant. But the accused neither did send the complaint to America nor refunded the money to him. The complainant then lodged a complaint in the office of the accused and the official authority of the accused, after making inquiry, found the complaint true and dismissed the accused from the service. On 15.08.1998 the accused refused to give back the money to the complainant for the last time and thus the complainant was compelled to lodge the petition of complaint.

The C.M.M. Dhaka, on receiving that petition of complain examined the complainant under Section 200 of the Code of Criminal Procedure and took cognisance against the accused under Sections 406/420 of the Penal Code. The case was ultimately ripe for trial. The trying Magistrate framed ·charge against the accused under Section 406/420 of the Penal Code and held trial in accordance with law.

3. The prosecution examined 5 (witnesses before the trial Court. The trial Court on consideration of these oral evidence as well as the documentary evidence adduced by the prosecution, found the accused guilty under Sections 406/420 of the Penal Code and convicted him thereunder and sentenced him to 3 months simple imprisonment and also to a fine of taka one thousand in default to simple imprisonment for one month more under each of the Sections.

4. The convict-petitioner preferred appeal before the Metropolitan Sessions Judge, Dhaka, against the said judgment and order. The appeal was heard by the learned Additional Sessions Judge, who was pleased to dismiss the appeal, with modification of the order of conviction and sentence and convicted the accused under Section 420 of the Penal Code only and sentenced him thereunder to 6 (six) months imprisonment and also to fine of Tk. 2000.00 in default to suffer simple imprisonment for one month more and set aside the order of conviction and sentence under Section 406 of the Penal Code.

5. Against the said judgment and order of the appellate Court the convict petitioner preferred criminal revision before the High Court Division and the High Court after hearing discharged the Rule by the judgment and order dated 10.11.2002.

6. Leave was granted to consider that submission of the learned Counsel [or the petitioner that "the lower appellate Court committed an error of law by enhancing the sentence of the convict-petitioner from 3 (three) months to 6(six) months under Section 420 of the Penal Code without issuing a Rule of enhancement and this aspect having been overlooked by the learned single Judge of the High Court Division committed an error of law in discharging the Rule which caused a serious miscarriage of justice."

7. Syed Mahbubar Rahman, learned Advocate-on-Record, appearing for the appellant submitted that the appellate. Court committed gross illegality by enhancing the sentence of the convict petitioner from 3 (three) months to 6(six) months under Section 420 of the Penal Code without issuing a Rule of enhancement but the learned Judge of the High Court Division failed to consider this aspect of law while discharging the Rule and thus caused illegalities resulting in serious miscarriage of justice.

8. It appears from the record that the allegation brought against the accused petitioner was that he took Tk. 1,65,000.00 from the complainant giving him assurance that he would send him to America and arrange a job for him there within 4 months. But ultimately he did not send the complainant to America and also did not refund the money to the complainant in spite of complainant's repeated demands which aspect of the case has been proved beyond all reasonable doubt by sufficient oral as well as documentary evidence. The complainant himself as P.W.I and all the other four P.W.'s have deposed before the Court supporting this allegation against the accused. The trial Court has discussed the evidence of these witnesses elaborately in his judgment. Besides, these oral evidence there are documentary evidences which also have supported the allegation against the accused. These two documentary evidence are an agreement vide Exhibit-1 and one hand note.

The genuineness of both these documents has been admitted by the accused-petitioner himself in this very provisional application. In the revisional application the accused petitioner has clearly admitted the genuineness of these 2 documents.

It also appears that in both these documents the accused Mokbul Hossain Howlader admitted that he took total Tk 1,65,000.00 from the complainant on giving him assurance that he would send the complainant to America. Before the trial Court the accused Mokbul Hossain Howlader though admitted his signature in this Exhibit-l but tried to plead a case that this signature was taken forcibly. But both the Courts below, on consideration of the evidence adduced by the P.W.'s and also on consideration of the fact that accused could not adduce a single iota of evidence to substantiate his above plea, arrived at the finding that the deed of agreement the Exhibit-1 was genuine.

9. It also appears from the record that before the revisional Court it has been contended from the side of the accused-petitioner that the alleged transaction does not call for ant criminal action, rather it was civil liability only and as such, the impugned order of the conviction and sentence cannot be sustained in law.

But the contention of the accused petitioner is not tenable at all. The accused gave false assurance to the complainant that he would send him to America and arrange a job for him there if he paid Tk 2 lac to him and giving such false assurance he dishonestly induced the complainant to give Tk 1,65,000.00 to him and subsequently he misappropriated the entire money and did not send the complainant to America. It appears that the act of the accused clearly constitutes the offence of cheating as defined in Section 415 of the Penal Code and, as such, is punishable under Section 420 of the Penal Code.

10. Leaving aside the merit of the case as discussed above, the leave was granted to consider the question of enhancement of the sentence from three months to six months under Section 420 of the Penal Code without issuing a Rule of enhancement.

11. Admittedly no Rule in the nature of enhancement of sentence was ever issued, instead enhanced the sentence contrary to the law and procedure.

12. In view of the above, we find substance in the appeal.

Accordingly, the appeal is allowed.

Offence of defamation - Quashment of proceedings

High Court Division

(Criminal)

Sharif Uddin Chaklader-J.

And

Sheikh Abdul Awal-J.

Criminal Miscellaneous Case

No. 9003 OF 2004

(An application uls 561A of the Code of Criminal Procedure, 1898.)

Shamsul Alam Selim alias Sheikh Selim

alias Anik Chowdhury ………t Accused-Petitioner.

Vs.

The State and another t Opposite Parties.

For the Petitioner : Mr. Md. Shamim-ul-Alam, Advocate.

For the Opposite Parties : No one appears.

Judgment: December 12, 2006

Code of Criminal Procedure, 1898-

Section 561A- Quashment of proceeding at the stage before framing charge is not permissible

Penal Code, 1860-

Sections 500/501/502- Offence of defamation by publication of false and malicious news-

Freedom of press does not afford any immunity of publication of false and scandalous news and views Proceedings cannot be quashed on the basis of defence plea-

When there is prima-facie truth of the allegations, the proceedings cannot be quashed. Nor such proceedings become invalid merely because the complainant did not send any rejoinder to the news paper against the news item.

Besides, it also appears that the charge of the case has not yet been framed and therefore, we do not find any valid ground for quashing the impugned proceeding by invoking our inherent jurisdiction under section 561A of the Code of Criminal Procedure as the accused petitioner still has an opportunity to invoke the provisions under section 241-A of the Code of Criminal Procedure which provides for an alternative remedy ttttttt (Para 10)

Here it may be mentioned that freedom of press has been guaranteed under Article 39 of the Constitution subject to certain restrictions including offence of defamation. A journalist cannot take shelter under the cloak of freedom of press after committing an offence including one of defamation by publishing false and malicious news or views ………….(Para 11)

Be that as it may, it is by now well settled that on the basis of the defence plea or materials the criminal proceeding should not be stifled before trial when there is a prima facie case for going to the trial. No interference is therefore called for with the impugned proceeding t (Para 12)

Judgment

SHEIKH ABDUL AWAL-J: This Rule was issued on an application under section 561A of the Code of Criminal Procedure calling upon the District Magistrate, Chuadanga as well as opposite party No. 2 to show cause as to why the proceeding of C.R. Case No. 545 of 2003 under sections 500/501/502 of the Penal Code now pending in the Court of learned Magistrate, 1st Class, 'Ka' Anchal, Chuadanga should not be quashed and/or pass such other or further order or orders as to this Court may seem fit and proper.

2. Facts, in short, are that on 19.10.2003 one Solaiman Haque Joardar as complainant (opposite party No.2) filed a petition of Complaint in the Court of Magistrate, 1st Class, 'Ka' Anchal, Chuadanga against the accused Sarder Ali Hossain, Editor, Protidin Khash Khabar, Chuadanga and 2 others. In the petition of complaint, it has been alleged that the complainant petitioner comes from a very respectable family in Chuadaanga. The father of the complainant was landlord and renowned businessman since British period and his brothers and sisters are highly educated and have been working in higher post in Bangladesh and out of Bangladesh. The complainant is a founder of Chuadanga District Chatra League and freedom fighter. He is also Secretary of Bangladesh Awami Leage, Chuadanga District Committee as well as social worker in the locality. The complainant opposite party is also a well established businessman. Seeing the social and political position as well as reputation of the complainant opposite party No.2 the accused persons became jealous of him and in order to lower down the prestige and position of the complainant opposite party No.2 in the eye of the people at large, they published a false, concocted and defamatory news in their local newspaper named "Dainik Khash Khabor" dated 18.09.2003 under the "‡mvjvqgvb nK †mjy‡bi Aemi bvU‡Ki †gwKs †g Aj‡iwW wdwbm" and on 10.10.2003 also published a news under the caption ‡mjyb Zzwg Kvi? AvIqvgxjx‡Mi bv Ab¨ Kv‡ivi It has been further alleged that for publishing such false, baseless, malicious and defamatory news hampered the prestige and position of the complainant in the society. Hence, the case under section 500/501/502 of the Penal Code.

3. On receipt of the petition of complainant the learned Magistrate examined the complainant under section 200 of the Code of Criminal Procedure and took cognisance against the accused petitioner and others under sections 500/ 501/502 of the Penal Code.

4. Thereafter, on 18.10.2002 the accused petitioner and another appeared in the Court of Magistrate, 1st Class, Chuadanga and obtained bail.

5. Being aggrieved and dissatisfied with the said proceeding the accused Shamsul Alam Selim alias Aniket Chowdhury as petitioner moved this Court seeking quashment of the proceeding under section 561 A of the Code of Criminal Procedure and obtained the present Rule.

6. Mr. Md. Shamim-ul-Alam, the learned Advocate appearing for the accused petitioner submits that there is no ingredients under sections 500/501/ 502 of the Penal Code. The learned Advocate in the course of argument referring the compliant petition and other materials on record including supplementary affidavit submits that the opposite party No2 as complainant filed a petition of complaint on 19.10.2003 in the Court of learned Magistrate, 1st Class, Chuadanga accusing the Editor, Executive Editor and a columnist namely "Anik Chowdhury" of the local daily "Protidin Khash Khabor" for the news item published in the said daily on 18.09.2003 under the caption ‡mvjvBgvb nK ‡mjy‡bi Aemi bvU‡Ki †gwKs †Mg Aj‡iWx wdwbm and another news item under the caption. ‡mjyb Zywg Kvi? AvIqvgxjx‡Mi bv Ab¨ Kv‡ivi published in the same daily on 10.10.2003, whereupon, the learned Magistrate took cognisance against all the 3 accused persons including Aniket Chowdhury but subsequently, the learned Magistrate by order dated 05.09.2004 issued warrant of arrest in the name of the accused petitioner Shamsul Alam Selim alias Sheikh Selim alias Aniket Chowdhury in place of Aniket Chowdhury without assigning any reason, although there is no allegation against this petitioner Aniket Chowdhury in the petition of complaint and as such the continuation of the impugned proceeding is liable to be quashed. Finally, Mr. Md. Shamim-ul-Alam submits that since the complainant did not send any rejoinder for the alleged news to the daily newspaper named "Protidin Khash Khabor" and 'hence the continuation of the proceeding is an abuse of the process of the Court which is liable to be quashed.

7. No one appears for the complainant opposite-parties We have perused the application along with connected papers as annexed therewith and considered the submissions made by the learned Advocate for the accused petitioners. It appears that the opposite party No.2 on 19.10.2003 filed a petition of complaint in the Court of Magistrate, 1st Class, Chuadanga accusing the Editor, Executive Editor of the local daily "Protidin Khash Kliabor" including the present petitioner (columnist) for publishing malicious, concocted and defamatory news under the caption ‡mvjvBgvb nK ‡mjy‡bi Aemi bvU‡Ki †gwKs †Mg Aj‡iWx wdwbm and ‡mjyb Zywg Kvi? AvIqvgxjx‡Mi bv Ab¨ Kv‡ivi in the daily newspaper named "Protidin Khash Khabor" dated 18.09.2003 and 10.10.2003 respectively, whereupon the Magistrate took cognisance against the accused petitioner and others under sections 500/501/502 of the Penal Code. It is also disclosed from the fact as stated in the complaint petition that the alleged imputation dated 18.09.2003 and 10.10.2003 is causing harm to the complainant in the society.

8. Now, we are to see the basic question whether the impugned publications scandalising the complainant come within the mischief of an offence of defamation as laid down in section 499 of the Penal Code.

9. From a plain reading of the impugned 2 caption news dated 18.09.2003 and 10.10.2003 and the allegations made in the complaint petition we have no hesitation to hold that there are sufficient ingredients of the offence of defamation inasmuch as prima-facie it appears that the alleged imputation was published with intent to harm the reputation of the complainant opposite party No.2. As regards the submission of the learned Advocate that the complainant opposite party No. 2 did not send any rejoinder claiming that the contents of the impugned publications was false, which is a disputed question of fact as well as defence plea which can be decided by the trial Magistrate after taking evidence.

10. On going through the materials on record, it is also found that the Magistrate on examining the complainant under section 200 of the Code of Criminal Procedure took cognisance against the 3 (three) accused persons namely, 1) Sarder Ali Hossain, Editor Protidin Khash Khabor, 2) Marium Sheli, Editor, Protidin Khash Khabor, 3) Anik Chowdhury, reporter of the local daily " Protidin Khash Khabor" and subsequently, the complainant filed an application stating the correct address and correct name of the present accused petitioner and whereupon, the learned Magistrate issued warrant of arrest in the correct name and address of the petitioner by order dated 05.09.2004. So, the contention raised by Mr. Md. Shamim-ul-Alam appears to be devoid of substance.

Besides, it also appears that the charge of the case has not yet been framed and therefore, we do not find any valid ground for quashing the impugned producing by invoking our inherent jurisdiction under section 561A of the Code of Criminal Procedure as the accused petitioner still has an opportunity to invoke the provisions under section 241-A of the Code of Criminal Procedure which provides for an alternative remedy.

11. Here it may be mentioned that freedom of press has been guaranteed under Article 39 of the Constitution subject to certain restrictions including offence of defamation. A journalist cannot take shelter under the cloak of freedom of press after committing an offence including one of defamation by publishing false and malicious news or views.

12. Be that as it may, it is by now well settled that on the basis of the defence plea or materials the criminal proceeding should not be stifled before trial when there is a prima facie case for going to the trial. No interference is therefore called for with the impugned proceeding.

13. In the result, the Rule is discharged.

The order of stay granted by this Court at the time of issuance of the Rule stands vacated. The trial Magistrate, Chuadanga is directed to proceed with the trial expeditiously in accordance with law.

Communicate the order at once.

Role of postmortem report in criminal investigation

Md. Kamruzzaman Ferose

Forensic science is any science used for the purposes of the law, and therefore provides impartial scientific evidence for use in the courts of law, and in a criminal investigation and trial. And Post Mortem is one of the area of its. Now a day the "Post Mortem Report" plays a vital role in case of proper investigation. It helps the law enforcing agencies for better law enforcement. Generally "Post Mortem" means autopsy, dissection, analysis, debriefing, examination. Post Mortem is called the medical examination of a dead body in order to establish the cause and circumstances of death. Post Mortem is performed by a doctor trained in pathology. After the exterior body is thoroughly examined, an incision is made to expose the internal organs. Their position is noted, and they are removed for examination by eye and further study under a microscope. Autopsies are commonly performed shortly after death; usually authorization of a surviving relative is required.

Necessity of Post Mortem Report: The main objectives of the post mortem examination of a body is to established its identity when not known, and ascertain the time since death and the cause of death; whether death is natural or unnatural; To identify the real cause of deformed death body; If a skeleton is found, it is necessary to do post mortem; It is necessary to identify the gravity of rape after death of victim; Post Mortem Report is necessary to exhume bodies from graves when a suspicion of poisoning or some foul play, such as criminal abortion, homicide or disputed cause of death. In such instances, the autopsy is made to determine the time and circumstances of death, thereby providing evidence for legal action. So, A medico-legal post mortem examination should never undertake unless there is a written order from a police officer, the district magistrate or the coroner.

Ingredients of Post Mortem Report: The ingredients of post mortem report are very important from which the court get a total concept about death. Basic Ingredients of post mortem report are: Name, gender, age, and caste of dead man; from where the dead body has came (Village & Thana); the name of the constable who brought the dead body and names of relatives who came with dead body; Sent date and time to Thana; The date and time of dead body at the morgue; Experiment date and time; The given information of police; Name of the man who identified the dead body at the instance of the medical officer; etc.

Relationship with Others Reports (GD, FIR, and Inquest Report): Post Mortem Report has a great relation with GD, FIR, and Inquest Report.

A post mortem report depends on General Diary, First Information Report and Inquest Report. For Example, when a police officer heard a news or information about a Dead Body by a person, then the police officer go to the place of occurrence and collect information and make an Inquest Report. When the police can not identify the real causation of death by using Inquest Report then he transferred the dead body to the civil surgeon officer for post mortem examination. The medical officer complete the postmortem and then he make a report which help to identify the real cause of death.

How Post Mortem Report Helps the Criminal Justice System: For proper enforcement of criminal justice System, Post Mortem Report can play a vital role. Post mortem report helps to identify the real criminal who directly involved with that crime.

Because the post mortem report contains some symptoms of the nature of crime which is found in the dead body. For Example, a dead body is found, which contain two sign of hurt by the knife and in inquest report have shown five people related with this activities. Judges does not know who the main culprit is.

Then the post mortem report is required to identify who is main criminal and also who will get grievous punishment according to their activities. Above the example, we can say that post mortem report is very essential for proper judgment.