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Legislative import and intent of enactment of law regarding bouncing of the cheque under the Negotiable Instruments Act, 1881
The
purpose and object of enactment of law is to combat and prevent the
offences disclosed in the enacted law. In order to find out the import
and intent of the enactment, the provisions of the Act should be
interpreted in such a way and manner in keeping with the intention of
the Legislature so that the law can adequately serve the purposes and
effectively deals with the offences. It should be borne in mind that the
substantive justice should not be frustrated or other wise defeated for
any technicality in the law.....................(37)
The Code of Criminal Procedure, 1898; Section 561A
Inherent power
The inherent power under section 561A of the Code of Criminal Procedure
can be invoked at any stage of the proceeding even after conclusion of
the trial, if it is necessary to prevent the abuse of the process of the
court or otherwise to secure the ends of
justice.......................................(14)
A
proceeding can not be quashed on the ground of pre-maturity of the
cause of action, even if the petition of complaint was filed before the
expiry of 30 days from the date of the cause of action.............(37)
Noor Jahan Begum Vs. Chairman, BSCIC and others, 2012, 41 CLC (HCD)
The General Clauses Act, 1897; Section 27
If there be notice issued in registered post with acknowledgement due to the proper address of the addressee then it is deemed to be presumed that notice has been served….....(16)
Necessity to complete or exhaust provisions of law before coming to the Court
When
the law provides for appeal as such, before come to the Court, litigant
must complete or exhaust the provision of law and adjudicate the
proceeding, otherwise it will be treated as premature....................................(17)
State Vs. Kazi Mahbub-uddin Ahmed, 2012, 41 CLC (AD)
Confession
A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference, that he committed the crime. In criminal cases a confession made by an accused voluntarily is evidence against him of the facts stated. The ground of reception of voluntary confession is usually said to be the presumption that no person will make a statement against his interest unless it is true; at all events, such confession may reasonably be taken to be true as against himself. A confession duly made and satisfactorily proved is, in general, sufficient to warrant a conviction without corroboration. As in the case of a deposition, so in the case of a confession of an accused, the presumption mentioned in section 80 of the Evidence Act would arise if the confession has been recorded in accordance with section 164 read with section 364 of the Code of Criminal Procedure……………………(5)
Initial burden of proof
Under the prevailing system of the administration of criminal justice, the initial onus to prove the charge of death of a victim is upon the prosecution. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. But once the prosecution succeeds in discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. An obligation is cast on the court to weigh in scale the evidence adduced by the procession in scales the evidence adduced by the prosecution in proving defence of alibi. If the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain same reasonable doubt regarding his presence at the place and time of occurrence, the court would evaluate the prosecution evidence to see if the evidence adduced on behalf of the prosecution leaves any slot available to fit therein the defence of alibi………………………(6)
Burden of proof in spouse killing case
Differences between burden of proof on prosecution and on accused
There are exceptions to the general rule that the prosecution is required to prove the charge against the accused beyond shadow of doubt. In respect of a spouse killing case, where the victim was in the company of the husband or the wife, the spouse is under an obligation to account for the cause of death and a special onus lies upon him/her to prove the cause of death and in the absence of such explanation, the court may draw an adverse inference upon him/her. This is because of the fact that the spouse was presumed to be in the company of the victim unless it is proved otherwise secondly in such type of incident, it is difficult on the part of the prosecution to lead direct evidence to prove the charge; and the inmates of the house who are near ones of the accused normally do not want to depose against the accused and try to suppress the real incident. There is a subtle but fundamental distinction between the degree of certainty required in cases where the burden of proving a fact is on the prosecution and a fact where the burden is on the accused. When the burden of fact is on the prosecution, the case must be 'proved beyond a reasonable doubt. When, however, the burden of an issue is upon the accused, he is not, in general, called on to prove it beyond a reasonable doubt, or in default to incur a verdict of guilty, it is sufficient, if he, succeeds in proving, a prima facie case for, then the burden of such issue is shifted on the prosecution, which has still to, discharge its original onus that never shifts…………………….(8)
Burden of proof and benefit of doubt
The burden of proof on the accused is not so onerous as it is on the prosecution, which must prove the offence beyond any reasonable doubt. If the accused proves that the probabilities of the case are greater on his side, the burden stands discharged. If the court is satisfied from the evidence, the examination of the accused and the evidence adduced by him, or from circumstances bringing the case within the exception or the plea taken by him has been proved, or upon a review of all the evidence, both the prosecution and the defence, if any, is left in reasonable doubt whether such circumstances do exist or not, the accused is entitled to get the benefit of doubt………………………..(10)
Plea of alibi
The theory of an alibi is that the fact of presence elsewhere is essentially inconsistent with presence at the place and time alleged, and therefore, with personal participation in the act. The credibility of an alibi is greatly strengthened, if it be set up at the moment when the accusation is first made, and be consistently maintained throughout the subsequent proceedings. On the other hand, it is a material circumstance to lessen the weight of this defence if it be not resorted to until sometime after the charge has been made. An alibi, not set up at the earliest stage, is, in most cases, unconvincing, in proving the plea of alibi, the accused need not be required to prove the exact time and every moment of time involved in order to sustain his defence. It is sufficient for him to raise a reasonable doubt of his presence at the scene of occurrence at the time that it was committed. But, it must cover the time when the offence is shown to have been committed, so as to preclude the possibility of the accused's presence at the place of the crime at the relevant time. Law does not expect the same standard of proof from the accused as from the prosecution……………………(12)
Making of immediate statement before the police officer
If the statement was not made before the police officer at once or at least shortly after the event when a reasonable opportunity for making it presents itself, there is every possibility of fabrication of extraneous facts. The object of introducing this provision is that, the statement shall be made at a time, when the mind of the witness is still so connected with the events as to make it probable that his description of them then would be accurate. If, however, time for reflection passes between the event and making of the statement subsequently, it not only can be of very little value, but be actually dangerous, as such, statements can be easily brought into being. The factor of time mentioned in section 157 of the Evidence Act, 1872 is very important to serve as a safeguard against fabrication of false evidence. It follows, therefore, that the statement made at or about the time when the occurrence took place may be proved and used to corroborate the testimony of a witness and statements made long after the occurrence cannot be used as corroboration as it does not exclude the chance of false implication of the innocence person…………………………………..(16)
The Evidence Act, 1872 (Act No. 1 od 1872); section 24
Voluntary confession
The word ‘voluntary’ used in respect of means a confession not caused by inducement, threat or promise. If the informant meet the accused in jail, there must have some particular object for which an explanation is required. Any statement which is made afterward can at best be treated as retraction of the earlier confession but in no case can it be treated as a voluntary confession………………………..(19)
Role of the appellate court in reversing an order of acquittal
In reversing an order of acquittal, the appellate court should be slow and circumspect to disturb a finding of fact but if it is of the opinion that the finding of fact is wrong and not borne out by the evidence/there is no limitation on its power to interfere with the order of acquittal. An accused starts with a presumption of innocence when he is put up for trial and this presumption of acquittal should not be lightly interfered with by the Appellate Division "because, if two views of the matter are possible, a view favourable to the accused should be taken. The presumption of innocence has to be kept in mind especially when the accused has been acquitted by the appellate court after examination of the entire evidence………………….(21)
Jamila Khatun Vs. State, 2012, 41 CLC (AD)
National Board of Revenue Vs. Abu Saeed Khan and others, 2012, 41 CLC (AD)
Public Interest Litigations (PILs) when to prefer
The filing of PIL petition is essentially meant to protect basic human rights of the disadvantaged citizens and the High Court Division should guard that the filing of such petition does not convert into a "publicity interest litigation" or "private interest litigation". In this type of petition, a jurisprudence has been innovated where a public spirited person or organization invokes the jurisdiction of the court, on behalf of such persons, who by reason of poverty, lack of education, helplessness, social disabilities or economic paucity cannot seek legal redress for the violation of their rights, fundamental or legal in the court of law. The High Court Division should guard to see that it's processes are not abused by any person or lawyer and exercises it's jurisdiction sparingly. The litigation must be initiated for the benefit of the poor or for any number of people who have been suffering the common injury but their grievances cannot be redressed as they are not able to reach the court. Every wrong or curiosity is not and cannot be subject matter of PIL. In the name of public interest frivolous applications should be avoided……………………………(10)
Present trends of a group of lawyers with PILs
Now-a-days, it is noticeable that a group of lawyers have developed a tendency of filing PIL petitions on behalf of persons or organisations challenging the propriety of the Government in taking decision relating to policy matter, its development works, Orders of promotion and transfer of public servants, imposition of taxes and fixation of tariff value by the authority for achieving dubious goal for generating publicity for themselves or to create public sensation. The High Court Division has been taking cognizance of those petitions without looking at whether or not such petitions are at all maintainable in the light of the principles settled by this Division in Mohiuddin Farooque, Professor Mozaffor Ahmed, and Ms. Syeda Rizwana Hasan. It is also noticeable that after seeking an order from the High Court Division by filing a PIL, the lawyers are appearing before the electronic and print medias propagating that the Court has made such and such directions, which suggest that those petitions had not been made for the cause of the needy or underprivileged or less opportunate people, who could not seek redress for a wrong done by the Government or a local authority, rather it were moved for achieving dubious goal for generating personal publicity…………………………(11)
Locus standi in PILs
A person or organization who has personal interest or directly affected by reason of the wrong done by the Government is not entitled to move such petition. A person who has filed a petition for personal gain or for private profit or personal propaganda or Political motive or any other extraneous consideration will not be entertained. It is only such person who is acting bonafide having no personal interest to the cause involving public wrong or public injury will alone has a locus-standi and can approach the court to wipe out the tears of the poor and the needy ones. All or every default on the part of the Government or a public authority is not immune from interference. No person shall, overtake the limits and similarly, the High Court Division does not have power to take cognizance of any petition which trespasses into the areas which is reserved to the executive and legislative by the Constitution………………(12)
Parameters to entertain a PIL:
The High Court Division should extend its discretionary jurisdiction in entertaining a PIL within the following parameters-
1. Before entertaining a petition the Court will have to decide the extent of sufficiency of interest and the fitness of the person invoking the discretionary jurisdiction.
2. The Court which considering the question of bona fide in a particular case will have to decide as to why the affected party has not come before it and if it finds no satisfactory reason for non-appearance of such affected party/it may refuse to entertain the petition.
3. If a petition is filed to represent opulent members who were directly affected by the decision of the Government or Public Authority, such petition would not be entertained.
4. The expression 'person aggrieved' used in Article 102(1) means not any person who is personally aggrieved but one, whose heart bleeds for the less fortunate fellow beings for a wrong done by any person or authority in connection with the affairs of the Republic or a Statutory Public Authority.
5. If the person making the application on enquiry is found to be an interloper who interferes with the action of any person or authority as above which does not concern him is not entitled to make such petition.
6. The Court is under an obligation to guard that the filing of a PIL does not convert into a publicity interest litigation or private interest litigation.
7. Only a public spirited person or organisation can invoke the discretionary jurisdiction of the Court on behalf of such disadvantaged and, helpless persons.
8. The Court should also guard that its processes are not abused by any person.
9. The Court should also guard that the petition is initiated for the benefit of the poor or for any number of people who have been suffering from common injury but their grievances cannot be redressed as they are not able to reach the Court.
10. It must also be guarded that every wrong or curiosity is not and can not be the subject matter of PIL.
11. No petitions will be entertained challenging the policy matters of the Government, development works being implemented by the Government, Orders of promotion or transfer of public servants, imposition of taxes by the competent authority.
12. The Court has no power to entertain a petition which trespasses into the areas which are reserved to the executive and legislative by the Constitution.
13. A petition will be entertained if it is moved to protect basic human rights of the disadvantaged citizens who are unable to reach the Court due to illiteracy or monetary helplessness.
14. Apart from the above, the following some categories of cases which will be entertained:
a) for protection of the neglected children.
(b) non-payment of minimum wages to workers and exploitation of casual workers and complaints of violation of labour laws (except in individual case).
c) petitions complaining death in jail or police custody, or caused by law; enforcing agencies.
d) petitions against law enforcing agencies for refusing to register a case despite there are existing allegations of commission of cognizable offences.
e) Petitions against atrocities on women such as, bride burning, rape, murder for dowry, kidnapping.
f) petitions complaining harassment or torture of citizens by police or other law enforcing agencies.
g) petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forest and wild life.
h) petitions from riot victims………………………………(38)
Status of policy and intervention of the court
When policy according to which or purpose for which discretion is to be exercised is clearly expressed in the statute it cannot be said to be an unrestricted discretion but on matters requiring technical expertise, the court should leave the matter for decision of those who are qualified to address the issue. Unless the policy or action is inconsistent with the Constitution and the laws, or arbitrary or irrational or by exercise of abuse of power, the court will not interfere. If the policy cannot be faulted on grounds of arbitrariness/or irrationality or perversity or mala fide, judicial interference is impermissible even if it hurts the business interest of a party. Court cannot dictate either that a certain policy ought to have been adopted nor can it opine that a policy should be changed. An executive policy is not open to impeachment unless it infringes any constitutional or statutory provision. In economic regulation or tax matters judicial restrain is necessary and the judgment of the executive should not be interfered with…………………………(36)
Commissioner of Customs Vs. Faridul Alam, 2012, 41 CLC (AD)
Sunderban Taxtils Mills Vs. The Commissioner of Taxes, 1999, 28 CLC (HCD)
M/S. Uttara Properties Ltd. Vs. Joint District Judge and Artharin Adalat No.1, Dhaka and others, 2005, 34 CLC (HCD)
The Artha Rin Adalat Ain, 2003 (Act No. VIII of 2003); section 32
Furnishing of security under section 32 (2) of the Act is a legal requirement. By reading sections 32(1) and (2) of the Ain together, it can be inferred that the legislature seemed to have had the intention to preclude the petitioner from furnishing the security at any stage before hearing the objection or any date fixed by the Adalat………………….(6)
When the application was fixed for hearing on maintrainability, the learned Judge of the Artha Rin Adalat ought to have firstly given a decision requiring the petitioner to furnish security on a given date affording the petitioner opportunity to fulfil the requirement of law. The discretion of the Adalat in giving such opportunity has not been curtailed by the legislature in order to close the door of justice…………………..(7)M/S. Golden Match Works Limited Vs. Customs, Excise and VAT Appellate Tribunal, 2010, 39 CLC (HCD)
Nazir Hossain (Md.) Vs. Zubaed Md. Adel and others, 2007, 36 CLC (HCD)
When eye-witnesses contradict as to manner, place and time of occurrence, then a clear case of benefit of doubt is well established on the prosecution case whereupon no conviction can be awarded……………………………………….(45)
Isahaque Ali (Md.) and others Vs. State, 2007, 36 CLC (HCD)
Burden of proof in cases involving severe punishment or life imprisonment
The provision of law as regard burden of proof is, that in a case involving severe punishment or life imprisonment, courts require even a higher degree of proof and all material evidence, particularly those in favour of the accused, should be placed before the Court. It is a course not obligatory on the Public Prosecutor to examine any number of witnesses on the same point regardless of time. The failure of the accused to produce evidence does not relieve the Public Prosecutor of his duty to bring home the guilt to the accused. The burden of establishing the guilt of the accused is always on the prosecution and the burden never shifts. The prosecution is bound to prove every link in the chain of evidence against the accused from the beginning to the end in a cogent manner. Subject to the exception in section 105 of the Evidence Act where an accused pleads certain mitigating circumstances exist. Nevertheless, the prosecution must establish the charges beyond all reasonable doubt. The failure of the accused to bring his case within any of the exceptions does not relieve the prosecution from leading evidence and proving all the ingredients of the offence…………………..(39)
The Court has to come to a decision on the basis of evidence adduced before it by the parties. If the findings of guilt of the accused is made out beyond reasonable doubt, then only conviction can be awarded. In such circumstances, the prosecution case has to rest on its own strength and not on the weakness of the defence. The governing principle is known as that of standard of proof. Absolute standard of proof does not exist. To determine the proof of a case beyond reasonable doubt is a very delicate task. A testimony without a fringe or embroidery of untruth is rare. The Court can reject it only when it is tainted to the core, that is, where falsehood and truth are inextricably intertwined. If this is not so, the Court must separate the grain from the chaff. Every piece of evidence has to be subjected to the test of objectivity and fabric of truth should be the guiding factor. It is the duty of the Court to disengage the truth from falsehood. The Court has to assess the worth of necessarily imperfect human testimony. In a criminal case, the Court cannot proceed to consider the evidence of prosecution witnesses in a mechanical way. The broad features of the prosecution case, the probabilities and normal course of human conduct of a prudent person are some of the factors which are always kept in mind while evaluating the merits of the case and fixed formula can be adopted………………………………(63)
It is the duty of the prosecution to prove the prisoner's guilt. If at the end of and on the whole of the case, there is reasonable doubt created by the evidence given by either the prosecution or by the prisoner as to whether the prisoner committed the offence as alleged, benefit will go in favour of the accused. If the circumstances and evidence raise doubt as to the genuineness of the prosecution case, the accused appellants are entitled to get benefit of doubt not as a matter of grace but as of right……………………….(65)
Circumstantial evidence
In the absence of any direct evidence to prove the charge under section 304 part 1 of the Penal Code, the only alternative available to the prosecution to sustain the charge is to depend on circumstantial evidence. In order to sustain a conviction on circumstantial evidence alone, there must exist an unbroken and well-knit chain of events which taken together lead to the irresistible conclusion that the accused has committed the alleged offence and no other hypothesis other than the guilt of the accused can be inferred from the given circumstances. In the case under review, circumstantial evidence falls far short of the legal test to be the basis of conviction of the accused appellants. In the facts and circumstances of the case and the evidence on record, we find no legal evidence on record to warrant conviction of the accused appellants under section 304 part 1 of the Penal Code. ……………………………(54)
First information report
First information report being the first recorded version of the prosecution case is of great importance. It can be used to corroborate the statement under section 157 or to contradict him under section 145 of the Evidence Act. It is always viewed with grave suspicion if the story made at the trial differs in material particulars from the story given in the first information report and such an act makes the prosecution case shaky……………………………(58)
Though the first information report is not a substantive piece of evidence, the earliest recorded version of it may be looked into for the purpose of comparing the same with the statement made. Subsequently, during trial by prosecution witnesses, any deviation from the first information report story makes the prosecution case doubtful casting serious doubt as to the credibility of prosecution witnesses……………………………..(60)
The Code of Criminal Procedure, 1898 (Act No. V of 1898); section 342
The fundamental principle underlying in section 342 of the Code of Criminal Procedure is that the accused should be afforded a full and fair opportunity for understanding the evidence and circumstances against him. The need of law for examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial nor is it a mere formality, it is the mandatory provision from procedural law and a departure from fundamental principles of section 342 of the Code causes prejudice to the accused. This section confers a valuable right of the accused and at the same time gives an opportunity to the Court to administer justice in accordance with fundamental principles of criminal justice. It is eminent that it is the duty of the Court to question accused properly and fairly for bringing home to his mind in clear and simple language the exact case he has to meet and for affording him a chance to explain them if he can and so desires. Section 342 (3) of the Code contains necessary support to the legal position that answers given by the accused during such examination should be considered by the Court. The words, "it may be taken into consideration in such inquiry or trial" in section 342 (3) of the Code would amount to a legislative guideline for the Court to give due weight to such answers though it does not mean that such answers could be made the sole basis of any finding. The proper examination of the accused under section 342 of the Code of Criminal Procedure will help to impart equitable justice………………………………..(62)
Is the presiding Judge as a mere umpire and declare the result?
It is not the role of the Judge to simply sit at a contest between two parties and declare at the end of the combat who has won and who has lost, but it is the legal duty of the Judge to play an active role in the proceeding in finding out the truth in order to administer justice assessing the evidence on record and on proper appreciation of the facts and circumstances of the case.……………………..(66)
Position of suspicion in criminal case
In a criminal case the prosecution can call upon the Court to record a verdict of guilt only when it has proved its case by cogent and legal evidence. Suspicion, howsoever high, is no substitute for legal evidence and it can never form the basis of conviction……………………..(67)
Mosammat Setara Begum Vs. Al-Arafah Islami Bank Ltd. and others, 2008, 37 CLC (HCD)
Md. Rezaul Kabir Vs. State and another, 2009, 38 CLC (HCD)
Trap cases
The trap cases have been distinguished from all other corruption cases and the offence under Section 161 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 being included in the schedule to the Anti-Corruption Commission Act, 2004, all the trap cases are required to be conducted as provided under Rule 16 of the Anti-Corruption Commission Rules, 2007…………………(14)
Interpretation of statute
When a statute requires that something shall be done or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, is the requirement to be regarded as imperative or mandatory or merely as directory or permissive. It is the duty of the Courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed. When the parliament or the framers of the law employed certain expression which admits of no doubt, the Courts are not entitled to by a different word to give a different meaning other than the one which was meant by the expression employed by the framers of law. But when the public duty is imposed and the statute requires that something shall be performed in a certain manner or under some specified conditions, such prescriptions may well be regarded as intended to be mandatory in cases where those exercising the duty were obliged to fulfill such essential and imperative requirements of law, such requirements of law if not fulfilled would cause injustice to the accused…………………….(21-23)
Yasin Rahman @ J Rahman Yasin @ Titu Vs. State, 2012, 41 CLC (AD)
Shafiullah Chowdhury and others Vs. State, 2009, 38 CLC (HCD)
The Code of Criminal Procedure, 1898 (Act No. V of 1898); section 561A
Quashment of criminal proceeding involving civil matter
A criminal proceeding can be quashed if the allegations made in the First Information Report and the charge sheet or the petition of complaint do not constitute any criminal offence. A criminal proceeding can be quashed even at initial stage when the fact is preposterous or if it appears from reading the First Information Report and the charge sheet or the petition of complaint it does not disclose any cause of action or resembles certain other nature of case, that is, if it discloses a civil case e.g. non execution and registration of sale deed of a case land……………………………(9)Most. Musarraf Sultana Vs. Principal and Member-Secretary, Kanchipara Mahabidhyalaya and others, 2005, 34 CLC (HCD)
Failure and/or frustration of the ancillary/auxiliary relief cannot frustrate the entire suit and cannot result into dismissal of the suit if the plaintiff is otherwise entitled to a decree of her substantive relief…………..(17)
Secretary, Rahmat-E-Alam Islam Mission and Etimkhane No.1 Railgate Tejgaon, Dhaka Vs. Md. Safiqul Huq and others, 2005, 34 CLC (HCD)
Hamida Begum Vs. Mosharef Hossein Sikder and others, 2005, 34 CLC (HCD)
Abul Kashem (Md.) Vs. Government of Bangladesh and others, 2008, 37 CLC (HCD)
Interpretation of statute
A statute has to be interpreted in its literal meaning after going through the entire provision itself when it is viewed in the context of a particular situation...................(15)
Khairul Amin and others Vs. Md. Saidul Hoque & another, 2008, 37 CLC (HCD)