Monday, January 22, 2018 | ePaper

Trial process to continue when there is a prima-facie case

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High Court Division :
(Criminal Revisional Jurisdiction)
Syed Md Ziaul Karim J
Ashish Ranjan Das J
Maulana Abdul Malek  Miah...... Accused-Petitioner
vs
State.................. Opposite-Party
Judgment
June 18th, 2014
Code of Criminal Procedure (V of 1898)
Section 241A
The plea are nothing but the defence plea. Be that as it may the proposition of law is now well settled that on the basis of defence plea or materials the criminal proceedings should not be stifled before trial; when there is a prima- facie case for going for trial.     (17)
Mohd. Aqil vs State 1988 Crl. LJ 1484 ref.
Hafizur Rahman, Advocate-For the Accused Petitioner.
Ashif Hasan, Advocate-For the Anti-Corruption Commission (ACC)
Sakila Rowshan. DAG with Sharmina Haque. AAG and Md Shorwardhi, AAG-For the State-Opposite Party.
Judgment
Syed Md Ziaul Karim J : By this Rule, accused-petitioner has challenged the legality and propriety of the Order dated 9-8-2003 passed by learned senior Special Judge, Madaripur, in Special Case No. 19 of 2003 framing charge under Sections 406, 420, 467, 468, 471, 109 of the Penal Code and Section 5(2) of Act II of 1947.
2. Facts in brief are that on 24-6-1997 Md Syed Ali, District Anti-Corruption Officer, Madaripur lodged a first information report with the Shibchar Police Station against the accused petitioner and another namely Md Ohidujjaman Khan alleging that accused petitioner in capacity of a Superintendent of a Madrasa since January 1991 to December, 1991 misappropriated Taka 17,580 showing false disbursement of salaries of two teachers by creating their forged appointment. Thereby they conjointly committed the offences under Sections 406, 420, 467, 468, 471,109 of the Penal Code and Section 5(2) of Act-II of S 1947. The case was recorded as Shibchar PS Case No. 23 dated 24-6-1997 corresponding to GR No. 424 of 1997.
3. District Anti-Corruption Bureau investigated the case. After investigation submitted final report in favour of the accused.
4. On receipt of the Police report the learned Magistrate referred the case record to the senior Special Judge, Madaripur for trial.
5. On receipt of the case record the learned· Senior Special Judge, ultimately by the order dated 7-1-2003 rejected the Police report and took cognizance of the offences under Sections 406, 420, 467, 468, 471, 109 of the Penal Code and Section 5(2) of the Act II of 1947 against the accused.
6. Eventually, the learned Judge by the impugned order dated 9-8-2003 framed charge under the aforesaid sections by rejecting the application for discharge filed under Section 241 A of the Code of Criminal Procedure.
7. Feeling aggrieved the petitioner preferred the instant Revision and obtained the present Rule.
8. The learned Advocate appearing for the accused-petitioner submits that the petitioner was a public servant at the relevant time. So to prosecute him sanction for prosecution is necessary but the learned Judge without considering such aspect framed charge and constituted the proceedings against him which is not only illegal but caused serious miscarriage of justice.
9. The learned Advocate appearing on behalf of the Anti Corruption Commission and the learned Deputy Attorney-General appearing for the State-opposite party oppose the Rule. Their common contentions are that although the sanction is required but the Court has ample authority to obtain the same within the period of trial. They lastly submit that other grounds taken in the petition of revision are the subject-matter of evidence that should be decided at the time of trial.
10. In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.
11. We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.
a) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.
b) The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.
c) In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.
d) There must be clear and unequivocal proof of the corpus delicit.
e) The hypothesis of delinquency should be consistent with all the facts proved.
12. Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of no avail.
13. A "Charge" corresponds to an "indictment" in English Law and is very much more than a mere form. It is a precise formulation of specific accusation made against a person. Charge has to be framed on the basis of the material placed before the Trial Court and while doing so the Court is not bound by the inquiry report submitted under section 202 of the Code of Criminal Procedure or in a Police challan case by the report submitted under Section 173 of the Code of Criminal Procedure.
14. A charge is an important step in a criminal proceeding. It separates the inquiry stage from trial. The whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet, and if charge is framed in such a vague manner that the necessary ingredients of the offence with which the accused is convicted are not brought out in the charge, then the charge is defective. The framing of a proper charge is vital to a criminal trial and this is a matter on which the Magistrate or Judge should bestow the most careful attention.
A charge should be carefully drawn up in accordance with the offence disclosed. The charge should be precise in its scope and particular in its details. A charge is defined as a precise formulation of the specific accusation made against a person who is entitled to know its nature at the very earliest stage. The necessity of a system of written accusation specifying a definite criminal offence is the essence of criminal procedure.
15. The chargesheet to which the accused is called upon to plead is a very important document. It should be drawn up and considered with extreme care and caution, so that accused may have no doubt whatever as to the offences to which he is called upon to answer and the Judge of the Appellate Court also may have no doubt upon the matter. The word 'Ground' means basis, foundation or valid reason.
The whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet. Conditions for framing of a charge are (i) presumption of the commission of an offence on the materials before the Court and (ii) offences triable exclusively by a competent Court.
16. In the case of Mohd. Aqil vs State 1988 Crl. LJ  1484 held:
"Framing of charge- Matters to be considered by Court indicated.
For the purpose of framing a charge the Court is required to consider judicially asto whether on consideration of the materials on record, it can be said that the accused has reasonably connected himself with the offence alleged to have been committed and that on the basis of the said material there is reasonable probability or chance of the accused being found guilty of the offence alleged.
If the answer is in the affirmative, the Court will be at liberty to presume "that the accused has committed the offence" as mentioned in Section 228 for the purpose of framing the charge. In finding out a prima-facie case not only the FIR or complaint but even the statements of the witnesses recorded under Section 161 although the same may have been recorded after some delay during the investigation of the case are to be taken into consideration and if from all other material, a prima facie case is made out against the accused then the Magistrate has no option but to frame a charge against the accused.
The Court is not expected to make a roving enquiry in the pros and cons of the matter and weigh the evidence as if he was conducting a trial. However, in a case, if two views are possible and the Judge is satisfied that evidence produced before him while giving rise to some suspicion does not give rise to grave suspicion against the accused. He will be fully within his right to discharge the accused."
17. On going to the materials on record it transpires that the informant categorically narrated the manner of crime committed by the accused. The learned Judge after considering the entire materials on record rightly framed charge under sections 406, 420, 467, 468, 471, 109 of the Penal Code and Section 5(2) of the Act II of 1947 against the accused. All that is required at the stage of framing charge is to see whether the prima-facie case regarding commission of certain offence is made out.
The truth veracity and effect of evidence which prosecution proposes to adduce at the time is not to be meticulously judged at the stage of framing charge. In the instant case the accused stand indicted for offence punishable under Sections 406, 420, 467, 468, 471, 109 of the Penal Code and Section 5(2) of the Act II of 1947.
Cognizance has been taken under the said sections. We have meticulously examined the allegations made by the informant and in Police report we find that the offence punishable under Sections 406, 420,467,468,471, 109 of the Penal Code and Section 5(2) of Act II of 1947 have been clearly disclosed in the instant case against the petitioner. We have gone through the grounds taken in the petition of Revision and we find that such grounds are absolutely the disputed question of facts and the same should be decided at trial.
The plea of the petitioner are nothing but the defence plea. Be that as it may the proposition of law is now well settled that on the basis of defence plea or materials the criminal proceedings should not be stifled before trial; when there is a prima-facie case for going for trial.
In view of such facts the grounds taken in the petition of Revision are not the correct exposition of law. Moreso interruption of the course of Justice will set up a wrong precedent by which the course of justice instead of being advanced readily been stifled inasmuchas the grounds advanced before us are not correct or legal exposition of law.
Therefore we hold that there are sufficient grounds for proceeding against the petitioner for going for trial under Sections 406, 420, 467, 468, 471, 109 of the Penal Code and Section 5(2) of Act II of 1947. To that end in view we are at one with the· learned Judge of the Court below regarding framing of charge against the petitioner. In view of the above we failed to discover any merit in this Rule. Thus the Rule having no merit fails.
18. In view of foregoing narrative the Rule is discharged. The order or stay granted earlier stands vacated.
Office is directed to communicate the order at once.

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