Penal Code (XLV of 1860)

Sections 304, 315-316

A dead child is a person within the meanings of Section 304,315-316 of the Penal Code. 

State Acquisition and Tenancy Act (XXVIII of 1951); Section 85

Code of Civil Procedure (V of 1908); Section 11

After registration of the lease deed the legal status materially changed from a mere lessee to a full­ fledged tenant with all the rights and incidents of a tenant as provided in the State Acquisition and Tenancy Act.

In the instant case the Revenue Authority had no legal authority to cancel the registered lease after about 18 years on 22‑2‑1992. The plaintiffs and their vendor were fully protected by the provisions of section 85 of the SAT Act……………...............(9)

Since the instant suit is a Civil Suit but appeal pending in the Bhumi Appeal Board is not a Civil Suit, the principle of res judicata will not be claimed here…………(12) 

A case from an ordinary criminal court could be transfered to a Martial Law Court only by the Government under Regulation 3(2) of M.LR. No. 1 of 1975 and that the Summary Military Court also illegally assumed Jurisdiction. 

Family Courts Ordinance (XVIII of 1985); Section 5;

Code of Civil Procedure (V of 1908); Section 115(1) and Order XLI, rule 27

Evidence Act (1 of 1872); Section 60

Family Courts Ordinance (XVIII of 1985); Section 5;

Code of Civil Procedure (V of 1908); Section 115(1) and Order XLI, rule 27

Evidence Act (1 of 1872); Section 60

DNA Test accepted worldwide as a reliable scientific method for various purposes including determination of parentage

The DNA report contains the analysis of data of the child and also of both plaintiff and defendants--"The putative father Md. Saydur Rahman is the biological father of the disputed child Md. Biman, He cannot be excluded as being the biological father of the child Md. Biman as he possesses all the genetic markers that should be contributed to the child by a bio­logical father. The probability of the stated relationship is 99.99999%."……..(52)

DNA test report prepared by the Government DNA Laboratory is a credible evidence. The conclusion of the report is con­sistent with the admitted birth of the child dur­ing continuance of the marriage and also with the statements of the PWs that the child was born with 10/11 months after solemnization of the registration.

Although the fact of solemnization of the marriage before registration was not stated in the plaint, the statement of the PWs on this aspect are definitively corrobo­rated by the independent and credible evidence as record­ed in the DNA test Report. So the evidence the PWs about solemnization of the marriage before registration are rele­vant, admissible and credible evidence.......……………………………… (63 & 64)

As the child was born out of the wedlock between the plaintiff and the defendant and the resultant physical relation­ship, he is legitimate son of the defen­dant. Consequently he is entitled to mainte­nance from the defendant.............. ....(65)

In directing a DNA test courts must be cau­tious about the probable result of a DNA test exposing a child to a socially deplorable condi­tion as a bastard child……..... (61 & 62)

Additional Evidence

Considering the exceptional nature of the dispute, and the prin­ciple laid down by the Appellate Division the application for additional evidence was allowed for determination of the biological relationship between the child and the defen­dant. .......(20) 

Artha Rin Adalat Ain (VIII of 2003); Sections 10(1) and 19(2)

Section 10 of the Ain, 2003 does not provide any provisions for filing applications against the ex-parte judgments and decree of the Adalat similar to the provisions contained in section 19(2) of the Ain. While the appeal provisions of section 41 come immediately to mind, in addi­tion, a reading of section 26 of the Act serves to provide an indication of invoking relevant pro­visions of the Code.............(19)

For ex-parte proceedings maturing under section 10 there remains no scope under the scheme of the Ain for the sec­tion 19 provisions for ex-parte hearing to equal­ly come into play. Section 19 in this regard is found to be predicated upon a due filing of written statement taking place as per the pro­visions of section 10 and permits of no ground or scope for being invoked in the opposite sce­nario of filing of written statements not duly taking place as prescribed under section 10 in that utter contingency, Section 10 is found to have a self-contained response mechanism and procedure of its own, thereby, by necessary construction making it an impossibility to fur­ther invoke the section 19 provisions on ex-parte hearing and disposal.

In the present case, the court having assumed jurisdiction to proceed with the case ex-parte under section 10(1) of the Ain there resultantly remained no legal sanction for the petitioners to further additionally opt to take recourse to 1 section 19 of the Ain given their initial failure to comply with the provisions of section 10 of the Ain.................................(16) 

Additional Evidence taken in exceptional situation

In the context of the dispute arising from the exceptional situation to determine two fundamental issues, namely (1) the biological rela­tionship between the a baby and a man as alleged father and (2) the responsibility of a man as the alleged father to provide maintenance to the minor girl, Court has to rely on Additional Evidence i.e. DNA test to come up with a proper decision.

In the exceptional situation additional evidence may be taken in revision within the purview of the expression "the High Court Division may make such order in the case as it thinks fit" occurring in section 115(1) read with section 151 of the Code……………….(8 & 9) 

Prior Show Cause Notice With Adequate Explanation

It is fundamental principle of administra­tive law that before any order is passed which is likely to adversely affect a person it is essential that he be given a reasonable opportunity to be heard prior passing such order. The principles of audi alteram partem is the basic concept of the Principles of Natural Justice. Further a prior show cause notice must not be a simple paragraph or an idle ceremony but must afford the notice receiver adequate opportunity to explain his posi­tion and without such adequate opportunity it will be considered to be no notice at all……………… (63)

Though in the appointment letters it has been stat­ed that the employment of the petitioners may be cancelled without serving any show cause notice but the requirements of compliance of the rules of natural justice cannot be excluded nor can be excluded by a statu­tory provision.

Furthermore, simply because no prior notice is required for canceling the appointment of a person does not mean that the employment of several employees in mass can be brought to an end without any show cause notice simply relying upon a provision in the appointment letter that no prior show cause notice is required……………..(64) 

When It’s Required Further Investigation

The case can be sent for further investi­gation at any stage of the proceeding if it appears that further inves­tigation is required for collection of further evi­dence. On behalf of the state an applica­tion was filed for further investigation stating that the investigating officer left out some eye witnesses in respect of the offence. Moreso, he failed to record the statements of some important witnesses under section 161 of the Code of Criminal Procedure.

The accused petitioners have no authority to challenge the impugned order inasmuch as by the order of further investiga­tion, they have not been prejudiced. They with­out seeking their redress to the lower jurisdic­tion, have directly sought their redress to this court, revision is not maintainable ……………………………. (10) 

Income Tax Ordinance (XXXVI of 1984);Sections 82BB (1) and 93

Filing With The Return By The Assessee Under Section 82BB(1), No Question To Reopen The Return Exercisecd By The Deputy Commissioner Of Taxes-

DCT has no authority to reopen the return of the assessee by issuing notice under section 93 while the assessee files return under section 82BB(1) without selection for audit by the National Board of Revenue.............................(11)

When a return is filed by an assessee under section 82BB (1) that shall be deemed to be an order of assess­ment for a particular year. This provision is protected by subsection (3) of the said sec­tion. This is to say that the privilege which has been given to an assessee under 82BB (1) cannot be misinterpreted on any pretext. For that reason section 82BB (3) restricts the right to reopen the return which has been filed under 82BB (1), It can only be reopened in the manner as specified in sub-section (3) of section 82BB that is only at the behest of the National Board of Revenue (NBR) it can be reopened. Where it is required by the Board that some returns filed under sub-section (1) of 82BB are to be sent to Deputy Commi­ssioner of Taxes for the purpose of Audit only in that course of event assessment under sec­tion 83 or section 84 has been allowed. By any stretch of imagination it cannot be said that a return filed under section 82BB (1) can be reopened under section 93 of the Ordinance……. (10) 

According to section 138 of the Act (XXIV of 1881), a cheque drawn by a person for payment of any amount of money to any other persons out of his account is returned by the bank unpaid, either for insufficiency of amount to honour the cheque or it exceeds the amount arranged to be paid from that account by an arrangement made with the bank, such person shall be deemed to have committed an offence. From the scheme of the Act, it is clear that following the dishonour of a cheque a notice is to be issued in writing to the person who has issued the cheque inviting his attention to the fact that the "cheque" has been dishonoured for reason stated in the return memo and that he is liable for penal consequences under section 138 read with section 141 of the Act. When the reason for return of the cheque has been mentioned as "refer to drawer" or insufficiency of fund, it is the primary duty of the drawer of the cheque to make payment of the said amount of money to the payee within 15 days from the receipt of the notice….(20)

The words "refer to drawer" is based on a purely literal interpretation of the provision of section 138. It totally failed to take into account the entire scheme of section 138 read with section 141 of the said Act. It also fails to take into account the object sought to be achieved by legislature by introducing Chapter XVII in the Negotiable Instruments Act, 1881. Moreover, from the heading of the section it becomes also clear that the legislature never intended to dishonour the cheques to be made punishable only in case of insufficiency of fund or exceeds the amount arranged to be paid since the word "etc" has also been used there by the caption of the section. So, it can be easily presumed that legislature contemplated various other reasons where the cheque is dishonoured preventing the payee from encashing the face value of the cheque…….(22)

The words “Where any cheque” are of extreme significance, in particular by reason of the use of the word "any". The first three words suggest that, in fact, for whatever reason if a cheque is drawn on an account maintained by the drawer with a banker in favour of another person to encash such amount mentioned in the cheque is returned unpaid then the above words of section 138(1) leave no manner of doubt that, for whatever reason it may be, the liability under the provisions cannot be avoided in such event of refusal by the banker…….(29)

There is no scope to say that civil Court is the only forum to agitate the grievances of the complainant as contended by the learned Advocate for the petitioner, rather sub­-section (3) of section 138 gives additional authority to the civil Court to satisfy the complaint if any other grievances are found to be left out……….(30)

In the instant case, the impugned cheque Ext‑2 admittedly issued by the accused Khalilur Rahman (now dead) and it has been dishonoured for want of fund having an endorsement "refer to drawer". As such, the offence punishable under section 138(1) of the Act is found to have been made complete when other mandatory provisions of the provisos are also found to be complied with. Neither the present petitioners nor convicted accused Khalilur Rahman (now dead) during, the course of trial has denied it in any way. ………(31)