The New Nation - Internet Edition

Appellate Division

(Criminal)

Md. Ruhul Amin-J.

Syed J. R. Mudassir Husain-J

Abu Sayeed Ahamed-J

CRIMINAL PETITION FOR LEAVE TO APPEAL NO. 151 of 2001.

(From the judgment and order dated 4th July, 2001 passed by the High Court Division in Criminal Miscellaneous Case No. 1493 of 1995)

Golam Sarwar Hiru tt.Petitioner.

Vs.

The State and anothertt.Respondents.

For the Petitioner : Mr. Syed Ziaul Karim, Advocate, instructed by Mr. Md. Nawab Ali, Advocate-on- Record.

Respondents : Not represented.

Judgment: 10 July, 2002

Code of Criminal Procedure, 1898-

Section 561At,. Quashment of the proceedings at the stage when trial already begun and prosecution witnesses are examined, is not permissible-

When after the framing of the charge under section 420 of the Penal Code the prosecution witnesses were examined and cross examined, the High Court Division refused to quash the proceedings at this stage which the apex court found perfectly justified.

We have heard the learned Advocate appearing for the petitioner and perused the judgment of the High Court Division. It appears that the High Court Division found that the trial of the said case has already been started and witnesses were examined on behalf of the prosecution. Having considered this aspect, the High Court Division refused to quash the proceeding (Para 4)

JUDGMENT

SYED J. R. MUDASSIR HUSAIN-J:

This petition for leave to appeal is directed against the judgment and order dated 4th July, 2001 passed by a Single Bench of the High Court Division in Criminal Miscellaneous Case No. 1493 of 1995 discharging the Rule arising out of the proceedings of the Criminal Case No.561 of 1993 under Section 420 of the Penal Code pending in the' Court of Magistrate First Class, Court No.1, Bagerhat,

2. The respondent No.1 as complainant on 6-11-1993 filed a petition of complaint in the Court of Thana Magistrate, Bagerhat Sadar, Bagerhat against the accused petitioner alleging, inter alia, that the complainant has a business transaction with the other business man; that on 8-9-1992 the accused petitioner by executing relevant papers received Tk. 93,380/ - as advance for supplying fish to the complainant; that the accused did not supply the fish in time, on query the complainant came to know that the trawler for catching fish of the accused was disordered, thereafter the complainant again paid Tk.30,000/- to the accused; thereafter the accused without supplying fish denied the entire transaction; that on receipt of the petition of complaint the learned Magistrate examined the complainant and took cognisance of the offence under Sections 406 and 420 of the Penal Code and issued warrant of arrest against the petitioner and subsequently the petitioner was granted bail. It is further stated that the charge under Section 420 of the Penal Code was framed against the petitioner and the case is pending for trial and in the meantime 4 (four) witnesses have been examined.

3. Challenging the aforesaid proceeding, the petitioner moved the High Court Division by filing an application under Section 561A of the Code of Criminal Procedure and the Rule obtained in aforesaid Criminal Miscellaneous Case was discharged. Hence, this leave-petition.

4. We have heard the learned Advocate appearing for the petitioner and perused the judgment of the High Court Division. It appears that the High Court Division found that the trial of the said case has already been started and witnesses were examined on behalf of the prosecution. Having considered this aspect, the High Court Division refused to quash the proceeding.

5. For this reason, we do not find any legal infirmity for our interference with the impugned judgment of the High Court Division. Accordingly this petition is dismissed.