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The public prosecutor should have acted lawfully

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High Court Division :
(Criminal Miscellaneous Jurisdiction)
ANM Bashir Ullah J
Mohammad Ullah J

Showkot Osman Khondakar (Md)..........Petitioner
vs
Md Amzad Hossain and 6 (six) others..........Opposite-Parties

Judgment
February 20th, 2018

Code of Criminal Procedure (V of 1898)
Section 494
The Court is required to exercise its function judiciously to accord withdrawal of any accused from the prosecution. The consent should not be given mechanically for the purpose of withdrawal of a criminal case particularly a murder case like present one.   .... (14)
Code of Criminal Procedure (V of 1898)
Section 494
The Public Prosecutor should assist the Court in accordance with law and shou1d have acted lawfully but in the instant case, that the Public Prosecutor failed to perform his legal duties in accordance with law which is deprecated by all fair means. . ..... (16)
Syed Matiur Rahman @ Motiur Rahman @ Makhan vs State, 1984 BLD (AD) 261 =35 DLR (AD) 329; Prativa Rani Dey (Tirtha) vs Dr. Mohammad Yousuf, Chittagong Medical College, 52 DLR (AD) 8;
Shah Obaidul Mannan vs State, 8 BLT ( (AD) 42 and Md Hafiz Uddin vs State, 20 BLT 245 ref.
Ashif Hasan Advocate-For the Petitioner.
Anwara Shahjahan DAG with Kaii Bashir Ahmed  AAG-For the Respondents.     

Judgment
Mohammad Ullah J : On an application under Section -561A of the Code of Criminal Procedure, 1898, Rule was issued calling upon the opposite parties to show cause as to why the impugned orders dated 5-11-2003 and 26-5-2004 passed by the Additional Sessions Judge, 1st Court, Naogaon allowing the prayer filed by the Public Prosecutor, Naogaon for withdrawal of the case pursuant to letters of the Ministry of Home Affair in Session Case No. 45 of 1997 should not be quashed and/or why such other or further order or orders should not be assed as to this Court may seem fit and proper.
2.    At the time of issuance of the Rule dated 26-10-2005, all further proceedings of Session Case No. 45 of 1997 was stayed initially for a period of 3 (three) months and from time to time the period of stay was extended and lastly on 17-11-2009 the same was extended till disposal of the Rule.
3.    The facts relevant for disposal of the Rule, are that, one Md Khandakar Mustafa lodged a First Information Report (FIR) on 11-12-1995 about the killing of his nephew with Naogaon Police Station alleging, inter alia, that on 10-12-1995 at about 5-30 pm the nephew of the informant Khandakar Abdullah Al-Masud Sumon (Sumon) went to Paharpur Seven Star Club for a discussion about obscuring Independent Day of the country and he along with some others, after their discussions, went to the house of one Mostakim Hossain to bring a harmonium. Having not got the harmonium at about 6-00 pm they were returning back to the club but on the way back when they reached near the house of one Harun Master located at the Badal Gasi Road, the FIR named accused persons being armed with hokey-stick, lathi and others dangerous weapons encircled them and the accused Kazi Salim Uddin ordered to the other accused persons to kill the victim Sumon and then and there the accused Afzal Hossain inflicted a hokey-stick blow on the head of Sumon causing serious bleeding injury who fell on the ground and at that time the accused Babu and Amzad dealt hokey-stick and lathi blow on Sumon causing serious injury on left eye and forehead and other accused persons indiscriminately had beaten on the different parts of the body of Sumon with hokey-stick and lathi and having heard the hue and cry of Sumon some local people rushed to the place of occurrence and hurriedly the accused persons fled away. The local people took Sumon at Naogaon General Hospital for treatment and on the following day on 11-12-1995 at about 10-15 am the victim Sumon succumbed therein.
4.    Accordingly, Naogaon Police Station Case No. 12 dated 11-12-1995 was recorded against 12 (twelve) accused persons under Sections 302, 34 and 201 of the Penal Code including the accused-opposite-parties Nos. 1-4. After investigation police submitted charge sheet on 5-10-1996 against 12 (twelve) accused persons including the accused- opposite-parties Nos. 1-4 under Sections 302, 34 and 201 of the Penal Code.
5.    Thereafter the case record has been transferred to the learned Sessions Judge for trial wherein it was registered as Session Case No. 45 of 1997. The learned Sessions Judge transmitted the case record to the Additional Sessions Judge, 1st Court, Naogaon for trial and disposal. Subsequently the charge was framed against all the 12 (twelve) accused persons including the accused-opposite-parties No, 1-4 under Sections 302, 34 and 201 of the Penal Code. The prosecution produced two PWs including the petitioner in support of its case wherein some of the accused persons cross-examined them (PWs 1 & 2) and accused-opposite-parties Nos. 1 and 2 could not cross-examine those PWs since they were absconding at the relevant time. It has been stated in the petition that the accused-opposite-parties No.1 and 2 Md Afzal Hossain and Amzad Hossain were granted ad-interim bail by this Court but subsequently the said Rule was discharged and their ad-interim bail was cancelled and since then they are absconding.
6.    Pursuant to a letter issued by the Ministry of Home Affairs, the Public Prosecutor filed an application under Section 494 of the Code of Criminal Procedure, 1898 ("the Code, 1898") for withdrawal from the prosecution of the accused-opposite-parties No.1 and 2 (Md Afzal Hossain and Amzad Hossain) before the trial Court who upon hearing the public prosecutor and on consideration of the materials on record by order dated 22-3-2003 rejected the same. The Ministry of Home Affairs issued another letter for withdrawal of another co-accused Kazi Salim Uddin from the prosecution and accordingly the public prosecutor filed further application under section 494 of the Code on behalf of the accused Kazi Salim Uddin, Md Afzal Hossain and Amzad Hossain for withdrawal from the prosecution and the learned Additional Sessions Judge allowed the same by order dated 5-11-2003. Subsequently, the public prosecutor filed another application for withdrawal of the co-accused Babu from the prosecution under the same section pursuant to a decision of the Ministry of Home Affairs. Wherein the learned Additional Sessions Judge by order dated 26-5-2004 allowed the same.
7.    Being aggrieved by and dissatisfied with the aforesaid two impugned decisions of the Additional Sessions Judge, 1st Court, Naogaon, the petitioner being the father of the deceased Sumon moved this Court and obtained the Rule. It has also been stated in the petition that the informant of the case in the meantime died on 2-12-2002.
8.    Mr Ashif Hasan, learned Advocate appearing for the petitioner in support of the Rule submits that the learned Additional Sessions Judge did not at all look into the  gravity of the offence of the accused-opposite- parties Nos. 1-4 as disclosed in the FIR and charge-sheet; moreover in the meantime two prosecution witnesses have been examined and even the learned Court did not take into consideration that the accused-opposite-parties Nos. 1 and 2 were very much absconding when they were discharged for the prosecution and hence the impugned orders are ex-facie illegal and not tenable in law and as such those are liable to be interfered by this Court for securing ends of justice. Having drawn the attention of this Court to the impugned orders, the learned Advocate submits further that the learned Additional -Sessions Judge without applying the judicial mind mechanically passed the impugned order while on the self-same matter earlier on 22-3-2003 on the safe-same application the same Court accurately assigning irrefutable reasonings rejected the application for withdrawal filed by the public prosecutor on behalf of the accused-opposite-parties Nos. 1 and 2. Over and again the learned Additional Sessions Judge cannot sit over of its own decision and pass the impugned orders and as such the impugned decisions are liable to be set aside.
9.    The learned Advocate in support of his contentions has referred to the decisions in the cases of-
(1)    Syed Matiur Rahman @ Motiur Rahman @ Makhan vs State reported in 1984 BLD (AD) 261 = 35 DLR (AD) 329 ;
(2)    Prativa Rani Dey (Tirtha) vs Dr Mohammad Yousuf, Chittagong Medical College reported in 52 DLR (AD) 8
(3)    Shah Obaidul Mannan v State reported  in 8 BLT (AD) 42 and
(4)    Md Hafiz Uddin vs State reported in 20 BLT 245.
10.    No one appears on behalf of the accused-opposite-parties Nos. 1-4 when the matter is taken up for hearing.
11.    We have heard the submissions of the learned Assistant Attorney-General who has adopted the submission as advanced by the learned Advocate for the petitioner and he adds that the public prosecutor who filed the application for withdrawal from the prosecution should be brought under law since he filed application for withdrawal in a plain and simple murder case with an ulterior motive.
12.    Heard the learned Advocates, perused the materials on record placed before us including the impugned orders passed by the learned Additional Sessions Judge, 1st Court, Naogaon, Section 494 of the Code, 1898 has given power to the learned public prosecutor to file application for withdrawing any case from the prosecution but that sort of decision should be taken by the Court concerned judiciously. The consent mentioned in Section 494 of the Code, 1898 is not to be given mechanically rather the Court is to exercise its judicial authority before giving such consent which implies that the Court will have to examine the materials on which the Government decides withdrawal of the case.
13.    It appears that the accused-opposite parties Nos. 1 and 2 were absconding when the decision of withdrawal was passed. But a long standing practice and decision of the Apex Court that withdrawal from prosecution is subject to consent by the trial Judge and when the accused person or persons is/are absconding the discretion should not to be exercised in favour of such absconding person(s). It also appears from the materials on record that there is a direct and specific allegation against the accuse opposite-parties Nos. 1-4 for the commission of offence under Sections 302, 34 and 201 of the Penal Code to kill the victim Sumon and upon such allegations police report has been submitted into the matter the charge against the opposite- parties Nos. 1-4 and other accused persons have been framed and meanwhile two PWs were examined including the informant. From the impugned orders passed by the learned Additional Sessions Judge, 1st Court, Naogaon it appears that in  fact no reasons or grounds has been assigned for  the withdrawal of the case from the  prosecution and there is no indication that what materials were considered before taking such decisions. The concerned Judge assigning the cogent reasons earlier application for withdrawal from the prosecution 22-3-2003 filed on behalf of the opposite-parties No.1 and 2 Md Afzal Hossain and Amzad Hossain. The learned Additional Sessions Judge by order dated 22-3-2003 while rejecting the application filed by the public prosecutor for withdrawal from the prosecution of the accused Md Afzal Hossain and Amzad Hossain assigned the reason to the effect that "this is not a political case rather it is a pure and simple murder". But subsequently the self same Court while taking decision in  favour of the withdrawal from prosecution did not assign any reason we therefore though that for not giving any ground, the reason best known to him. The present facts and circumstances of the case, let us consider whether on the basis of the decisions of the Movement a case can be allowed to be withdrawn.
14.    It appears from the impugned decisions of withdrawal from the prosecution the learned Additional Sessions Judge did not apply its judicial mind at all while taking the impugned decisions of withdrawal from the prosecution of the accused-opposite-parties Nos. 1-4. It is now well-settled that the Court is required to exercise its function judiciously to accord withdrawal of any accused from the prosecution. In other words, the consent should not be given mechanically for the purpose of withdrawal of a criminal case particularly a murder case like the present one. In support of the view taken by us, we may refer to the decision in the case of Prativa Rani Dey (Tirtha) vs Dr Mohammad Yousuf, Chittagong Medical College reported in 52 DLR (AD) 8 wherein their lordships observed that:
"It further appears that the accused persons in this case are all along absconding. And while they are still absconding the Government decided to withdraw from the prosecution which was allowed. It is now well settled that such I withdrawals subject to consent by the trial Judge and when the accused persons are still absconding the discretion ought not to have been exercised by the Divisional (Special Judge in the present case.
It is well settled that the consent mentioned in Section 494 of the Code of Criminal Procedure is not to be given mechanically. The Court is to exercise its function judicially before giving such consent which implies that the Court will have to examine the materials on which the Government decides withdrawal of a case."
15.    In the facts and circumstances of the instant case, it appears that the learned Additional Sessions Judge, 1st Court, Naogaon without giving any reason, just on taking into consideration of the memo issued by the Ministry of Home Affairs, mechanically allowed the same as like as a routine work and accorded permission for non-prosecution which is neither sustainable in law nor maintainable on the face of the given case.
16.    It is to be notable here that the public prosecutor should assist the Court in accordance with law and should have acted lawfully but in the instant case, we find that the public prosecutor failed to perform his legal duties in accordance with law which is deprecated by all fair means.
17.    In view of what have been stated above and in the facts and circumstances of the case, we find merit in the Rule. Accordingly, the Rule is made absolute.
18.    The impugned orders dated 5-11-2003 and 26-5-2004 passed by the learned Additional
Sessions Judge 1st Court, Naogaon in Session Case No. 45 of 1997 is hereby set aside.
19.    Since the matter is old and the FIR was lodged in the year 1995, we consider it prudent to direct the Court concerned to conclude the trial of the Session Case No. 45 of 1997 with utmost expedition preferably with 6 (six) months from the date of receipt of this order without any fail.
20.    The order of stay is hereby recalled and vacated.
Send a copy of the judgment and order to the Court concerned at once.

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