The New Nation - Internet Edition

APPELLATE DIVISION

(Criminal)

Md. Ruhul Amin-C.J

M. M. Ruhul Amin-J.

Md. Hassan Ameen-J.

CRIMINAL PETITION FOR LEAVE TO

APPEAL NO.303 OF 2004.

(From the judgment and order dated 22-8-2004 passed by the High Court Division in Criminal Miscellaneous Case No. 13556 of 2003.)

Lutfor Rahman and others ………..Petitioners.

Vs.

The State and another?Respondents.

For the Petitioners : Mr. Md. Shamsul

Huda, Advocate, instructed by Mrs. Sufia Khatun,

Advocate-on-Record.

For Respondent

No.2. : Mr. Md. Aftab

Hosssain, Advocate-on-Record.

Respondent 1 and 3. : Not represented.

Judgment: July 29, 2007

Code of Criminal Procedure, 1898-

Section 561A- Quashment of proceedings at the stage of investigation unless the same is preposterous, is not permissible-

Whether a deed is forged one is a disputed question which can only be decided at the time of trial. In the instant case the apex court held since the proceedings do not appear to be so preposterous, the same which is still at the stage of investigation, cannot be quashed.

It appears that the charge sheet has not yet been submitted which is the result of investigation in the instant case, the genuineness of the document whether it is fixed one, which is a moot question to be decided on full dress trial. Therefore, the submissions of the learned Advocate for the petitioners appear to have got no substance inasmuch as the case is not so preposterous that at initial stage or at the time of investigation, it requires to be quashed. The question as to impersonification of the deed, which is claimed to be, forged one are all disputed questions of fact, which at this stage cannot be decided. In view of such facts and circumstances of the case, we are of the opinion that there is no substance in this petition for leave to appeal and accordingly, the same is dismissed……ttttt. (Para 7)

JUDGMENT

MD. HASSAN AMEEN-J: This petition for leave to appeal, at the instance of accused-petitioners, is directed against the judgment and order dated 22-8-2004 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No. 13556 of 2003 discharging the Rule.

2. Facts, necessary for the purpose of disposal of this petition, are that one Ajhar Hossain alias Masudur Rahman respondent No. 2 filed a petition of complaint on 14-9-2000 in the Court of learned Chief Metropolitan Magistrate, Dhaka, alleging inter-alia, that he purchased the case house described in the schedule of the petition of complaint vide registered deed No. 1;58 dated 20-06-l991 and he has been possessing the same. The accused persons created a forged deed on 17-4-2000 with an intention to grab the properties of the complainant, showing him as vendor but in fact he did not put any signature on the said deed. The accused-persons created the deed by false personification. Earlier, he started a case under Section 145 of the Code of Criminal Procedure upon which, the learned Chief Metropolitan Magistrate appointed the Officer-in-Charge, Dhanmondi Police Station as receiver. The accused-persons had been using said deed as genuine knowing it to be forged. The learned Magistrate sent the petition of complaint to the Officer-in-Charge, Tejgaon Police Station for starting a regular case, treating the petition of complaint as F.I.R. Upon receipt of the petition of complaint, Tejgaon P.S. Case, No 61 dated 19-9- 2000 under Sections 420/465/467/468/471/ of the Penal Code was started. The accused persons voluntarily surrendered before the learned Chief Metropolitan Magistrate whereupon they were granted bail.

3. After investigation, the investigating officer submitted final report on 8-5-2001 staling that during investigation, the informant failed to produce any witness and, on the other hand, he applied to the Registrar of the Supreme Court of Bangladesh to seize the deed in question but no permission was accorded.

4. The information filed naraji petition against the final report. The learned Chief Metropolitan Magistrate on such application directed on 30-8-2000 for holding judicial inquiry and accordingly, the concerned learned Chief Metropolitan Magistrate took all possible steps to hold judicial inquiry but the complainant once again failed to produce any witness to prove his allegation, except two witnesses, who proved nothing against the petitioners and as a result, the inquiring Magistrate returned the record to the learned Chief Metropolitan Magistrate on 20-6-2002 with his report and the learned Chief Metropolitan Magistrate adjourned the case for months together for hearing in respect of acceptance of final report. Ultimately, the learned Chief Metropolitan Magistrate by his order dated 22-3-2003 sent the case to the C.I.D. for further investigation, who (C.I.D) being biased by the complainant without holding any proper investigation for considering the legal aspects, had been trying to get the bail of the petitioners cancelled and to take them on remand.

5. Whereupon the accused-petitioners moved the High Court Division on an application under Section 561A of Code of Criminal Procedure to quash the proceeding of the G. R 0.3361 of 2000 arising out of Tejgaon P.S. Case No.61 (9) 2000 under Sections 420/467/ 468 and 471 of the Penal Code which, is pending in the Court of learned Chief Metropolitan Magistrate, Dhaka and the High Court Division, upon hearing the parties and in consideration of the facts and circumstances of the case, discharged the Rule. Being aggrieved and dissatisfied thereby the accused-petitioners have come up with the present petition for leave to appeal.

6. Mr. Md. Shamsul Huda, the learned Advocate appearing for the petitioners, submits that the informant of this case is not real Masudur Rahman nor the real owner of the case properties, from whom the petitioners purchased the house. The present informant is Azahar Hossain Bhuiyan, son of Shajahan Bhuiyan still serving as Office Assistant, Stamp Branch in the Dhaka Collectorate according to his service book. He further submits that since the deed in question has already been used in judicial proceeding in Dhanmondi P.S. non FIR Case No. 102 of 2000 and same has been considered by the High Court Division as such, private complaint or police investigation is barred under Section 195 (l)(c) of the Code of Criminal Procedure. He then submits that the civil court is the competent forum to decide the dispute wherein the informant has already filed a suit for declaring the deed in question as forged and as such, continuation of the instant case is an abuse of the process of the Court and as such should be quashed. In support of his submissions, he referred to the decisions in the case of Nasiruddin Mahmud and others vs Momtazuddin Ahmed and another reported in 36 D.L.R. (AD) 14 wherein it has been held that even at an initial stage a proceeding can be quashed and also the decision in the case of Ali Akkas vs. Enayet Hossain and others reported in 2 MLR (AD) 166. He further submits that the High Court Division was in error in holding the question as to the identity of the informant is a disputed question of fact, which cannot be decided, in the instant proceeding. He further submits that the High Court Division was in error in discharging the Rule on the ground that cognisance has not yet been taken and as such at this initial stage, the case as prayed for cannot be quashed. He continued that the High Court Division was in error in discharging the Rule upon observing that fact remains whether a deed, which has been referred to is forged and the facts alleged constitute offence under Sections 420/465/ 467/ 468/ 471 of the Penal Code are yet to be decided by adducting evidence and under the facts and circumstances, the proceeding cannot be quashed.

7. We have heard the learned Advocate for the petitioners and perused the petition along with papers filed thereto. It appears that the charge sheet has not yet been submitted which is the result of investigation in the instant case, the genuineness of the document whether it is forged one, which is a moot question to be decided on full dress trial. Therefore, the submissions of the learned Advocate for the petitioners appear to have got no substance, inasmuch as the case is not so preposterous that at initial stage or at the time of investigation, it requires to be qushed.

The question as to impersonification of the deed, which is claimed to be forged one are all disputed questions of fact, which at this stage cannot be decided. In view of such facts and circumstances of the case, we are of the opinion that there is no substance in this petition for leave to appeal and accordingly, the same is dismissed.

Cases cited:

Nasiruddin Mahmud and others vs. Momtazuddin Ahmed and another, 36 DLR (AD) 14.

Ali Akkas vs. Enayet Hossain and others, 2 MLR (AD) 166.