Issue 2 Volume 1 (September 2021) : Black & White Law Issue

Issue 2 Volume 1 (September 2021)
Essence of Section 561A of the Code of Criminal Procedure, 1898
Black & White Law Issue
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Dedicated to
To all the dedicated souls who have contributed to

develop the legal structure of the society and give
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Black & White Law Issue
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Editor
Md. Razu Howlader Palash
Advocate, Supreme Court of Bangladesh
Head of Chambers, Black & White Law House
Editorial Board
Palash Chandra Roy, Advocate, Supreme Court of Bangladesh
Barrister Shihab Uddin Khan, Advocate, Supreme Court of Bangladesh
ABM Imdadul Haque Khan, Advocate, Supreme Court of Bangladesh
Barrister Jahid Hossain Dolon, Advocate, Supreme Court of Bangladesh
Dr. Syeda Nasrin, Advocate, Supreme Court of Bangladesh
And
Mr. Bibek Chandra, Advocate, Supreme Court of Bangladesh
Mr. Saddam Hossain, Advocate
Mr. Golam Kibria Sourav, Advocate
Ms. Sabiha Kabir Jarin, Advocate
Md. Mahabubur Rahman
Mr. Maksudur Rahman
Mr. Faysal Ahemmed
Mr. Ariful Islam Shuvo
Mohammad Tariqul Islam
Mr. Shipon Chandra Shil
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Edition
Volume 1, Issue 2
September, 2021.
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Table of Contents
Head Notes Page No.
# Background of the Study
# Section 561A
# Nothing in this Code shall limit or affect
# Nature of Inherent Power
# Orders as may be necessary
# Giving effect to any Order under this Code
# Preventing abuse of the process of any Court
# Securing the ends of justice
# When no other alternative
# Scope of this jurisdiction
# Stages of applying jurisdiction under Section 561A
# Power and nature of jurisdiction under Section 561A
# Test of Section 561A
# Exercised upon application or suo moto
# Without filing any discharge petition, can section 561A be
invoked?
# Difference between original jurisdiction and section 561A
# Difference between appeal and section 561A
# Difference between Jurisdiction under Section 561A and
Sections 435 read with 439
# Conclusion
# Some Rulings (Year to Year)
5
Background of the Study
Section 561A was not in the original Code of Criminal Procedure, 1898 (as ‘the Code) at the
time of its inception. The Code came into operation on the 1st day of July, 18981 after its
promulgation on 22nd March, 1898. And Section 561A was inserted by the Code of Criminal
Procedure (Amendment) Act, 1923 (Act No. XVIII of 1923). Since then it is in the Code
without any further amendment or interference by the Legislature.
Section 561A has been the area of much interest for the litigants, especially to the accused for
quashing the proceeding i.e. a criminal case. 2 It is also popular to any litigant of a criminal
proceeding when there is no other alternative remedy available. Sometimes, section 561A is
interpreted from wider perspective, and sometimes narrow, and sometimes mixture of both.
That is why the jurisprudence of this Section is ever developing and still holds relevance to
the legal scholars, advocates and judges equally.
Section 561A is not a long provision. It is a section of one sentence containing only 54 (fifty
four) words within. But this Section has a vast legal wisdom. It is still developing. It is
randomly used in legal practice and yet to be explored more. The spirit laid down in this one
sentence has left the judges and lawyers with wonder of legal interpretation. This is the
beauty of law. This is the beauty of this Section. In practice, some try to limit down and some
try to extend the discretionary power laid down in this Section. However, these two different
streams on different directions do not destroy the essence or sanctity of this Section; rather
they both have created a bridge of harmony in exercising the application of this Section in
case to case basis with time, situation and circumstances maintaining check and balance. The
section plays invaluable role in the judicial process as it is preventing or restraining
arbitrariness or irrationality of process and bringing the judges out of box and thinking wide,
thus extending the scope of justice with reasonableness and rationality.
Having a glimpse of the versatility and moving nature of Section 561A and its development
with time, this study will sketch Section 561A in most comprehensive way with till date
judicial rulings and interpretation. It will also advocate for more legal interpretation of this
Section.
1
Section 1(1) of the Code of Criminal Procedure, 1898.
2
There is no denying of the fact that in exercises of the jurisdiction under section 561A of the Code of Criminal
Procedure, High Court Division can quash the proceeding if there is no sufficient material to connect the
petitioner with the accusation as alleged.
[Ahmed Zamal Masum v State, 15 BLC 2010 HCD 346.]
6
Section 561A
Section 561A : Saving of inherent power of High Court Division

Nothing in this Code shall be deemed to limit or affect the inherent
power of the High Court Division to make such orders as may be
necessary to give effect to any order under this Code, or to prevent
abuse of the process of any Court or otherwise to secure the ends of
justice.
[Underlines provided]
From the said provision, it has become manifestly clear that the inherent power of the High
Court Division mentioned under Section 561A can be exercised only for either of the three
purposes specifically mentioned in the Section which are, firstly, to give effect to any order
under the code, secondly, to prevent abuse of the process of the Court, and thirdly, to secure
the ends of justice.
Section 561A resembles with Section 151 of the Code of Civil Procedure 1908. Section 151
provides that “Nothing in this Code shall be deemed to limit or otherwise affect the inherent
power of the Court to make such orders as may be necessary for the ends of justice or to
prevent abuse of the process of the Court.”
Both Section 151 and Section 561A possess the same formula describing the inherent power
except that Section 561A adds "or otherwise to secure the ends of justice" and also Section
561A deals only with the power of the High Court Division. Neither section does invest the
Court with any new power.3 The power is already there and all that these sections do is to
provide that in regard to all Civil Courts, nothing in the Civil Procedure Code limits or
otherwise affects the inherent power and in regard to the High Court Division acting as the
Court of criminal justice that nothing in the Criminal Procedure Code does so limit or affects
its inherent power.4
It is to be remembered that the Courts exist not only for securing obedience of the law of land
but also for securing the ends of justice in its widest sense. Inherent power of the High Court
Division by reason of its being the highest Court must have jurisdiction over Civil and
Criminal Courts of the land. The powers in a sense are inalienable attribute of the position it
holds with respect to the Courts subordinate to it. Thus the High Court Division in a proper
case possesses the inherent power to quash any proceeding, judgment or decision of any
3
It will be discussed later, because, this is not settled yet whether inherent power of Section 561A like Section
151 confers any new jurisdiction or not. It will be discussed later.
4
Ahmed Zamal Masum v State, 15 BLC 2010 HCD 346.
7
Court/Tribunal subordinate to it. But this power must be exercised very sparingly, cautiously
and only in exceptional cases keeping in view the facts and circumstances of each and every
case. The inherent that are in the nature of extraordinary power, has to be pressed in aid when
there is a flagrant abuse by subordinate Court.5
Section 561A emphasizes that the High Court Division has widest jurisdiction to pass orders
to secure the ends of justice. The High Court Division under this section has the power to
entertain applications which are not contemplated under other provisions or the Code. High
Court Division can exercise a limited jurisdiction in proceedings before Special Tribunal.
Further, the section conferred no new powers, but merely declares that no provision of the
Code is to be deemed to limit or affect the inherent powers of the High Court Division.6
Inherent power of the High Court Division is generally exercised where no other remedy is
available for obtaining justice in the cause. It should not be invoked where another remedy is
available. This power has not been vested upon the High Court Division where another
remedy is available. This is an extraordinary power and is exercised in extra ordinary
circumstances in the interest of justice. This power is controlled by the principles and
precedents as are its express statutory powers. The provisions of the Code provide that the
administration of criminal justice should be allowed to proceed in the usual manner without
interruption. If the High Court Division interferes with the case in the midst of the trial it will
have to set up a wrong precedent by which instead of the cause of justice being advanced had
really been stifled.7
Let’s examine this Section minutely separating into different heads as underlined in the
Section –
Nothing in this Code shall limit or affect
The words “Nothing in this Code shall be deemed to limit or affect the inherent power of the
High Court Division” are very important which signify that nothing under the Code is going
to limit or affect the inherent power of the High Court Division on certain situations as
prescribed there. These also imply that the inherent power is already there lying with the
hands of the High Court Division, and the Code does not mean to restrict that.
No provision of the Code does mean to restrict or limit or affect the inherent power of the
High Court Division. This makes the power of the High Court Division wider than the other
5
6
Bangladesh v Shahjahan Siraj, 32 DLR 1980 AD 1.
7
Habibur Rahman Mollah v State, 30 BLD 2010 AD 57.
8
criminal courts including the Appellate Division, because inherent jurisdiction under Section
561A lays only with the High Court Division, not with any other subordinate court, tribunal
or otherwise. It is not possible to estimate all the possible circumstances where the High
Court Division may require applying its inherent jurisdiction. However, the purposes where
the High Court Division may exercise such jurisdiction as mentioned in the Code are limited
and extraordinary in nature.
Nature of Inherent Power
The word “inherent” is used under Section 561A. It is not defined anywhere in the Code. The
word “inherent” bears its meaning itself. What is 'inherent' is an inseparable incident of a
thing or an institution in which it inherits. This rule has its source in the maxim "Quado lex
aliquid alicui concedit, concoders videtur sine quo ipsa esse non potest" which means that
"when the law gives anything to anyone it gives also all those things without which the thing
itself could not exist."8 This is what makes this power inherent and discretionary. This
discretionary and extraordinary power cannot be exercised in favour of the persons against
whom prima facie case is made out.9
This inherent jurisdiction is exercised under the miscellaneous jurisdiction. It is neither the
original jurisdiction nor the appellate jurisdiction. This is not the revisional jurisdiction either.
With each jurisdiction, be it original or appellate or revisional, the Courts are established
under the law with specific power and authority as provided therein. Jurisdiction under
Section 561A is miscellaneous for the High Court Division though inherent for securing the
ends of justice
In Emperor v Khwaja Nazir Ahmed,10 it was held that –

“It has sometimes been thought that Section 561A has given increased powers to the
Court which it did not possess before that Section was enacted. But this is not so. The
Section gives no new powers, it only provides that those which the Court already
inherently possess shall be preserved and is inserted, as their Lordships think, least it
should be considered that the only powers possessed by the Court are those expressly
conferred by the Criminal Procedure Code and that no inherent power had survived
the passing of that Act.”
The scope of exercising jurisdiction under Section 561A is dealt with by the Supreme Court
of Pakistan in Ghulam Muhammad11 case wherein his Lordship Mr. Justice Hamoodur
Rahman observed that the inherent jurisdiction given by Section 561A is not an alternative
8
9
Md. Ehsanullah and others v State, 32 BLD 2012 HCD 447.
10
Emperor v Khwaja Nazir Ahmed, AIR 1945 (PC) 18, (1945) 47 BOMLR 245.
11
Ghulam Muhammad v Muzammel Khan and others, PLD 1967 SC 317, 19 DLR 1967 AD 439.
9
jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of
justice to redress grievances for which no other procedure is available or has been provided
by the Code itself.
In M.S. Khawaja v State, 12 it has been laid down –

“Every prosecution for a criminal offence is to be deemed to have been commenced
and continued in the public interest, as a duty of the State. It can only be in a very rare
case that a superior Court acting under its inherent power "to prevent abuse of the
process of any Court or otherwise to secure the ends of justice" would deem
appropriate to Act so as to place an alleged offence outside the operation of the
criminal Law, on incidental grounds such as that of delay, or for any reasons other
than reasons given to the question whether the allegation is sufficient to constitute an
accusation of an offence in Law.”
The nature and scope of exercising power under Section 561A came up for consideration
before the Appellate Division in Sher Ali v State13 case wherein the Appellate Division
echoed that –
"The inherent power may be invoked independent of powers conferred by any other
provisions of the Code. This power is neither appellate power nor revisional power
nor power of review and it is to be invoked for the limited purpose such as to give
effect to any order under the Code, to prevent abuse of the process of the Court or
otherwise to secure ends of justice. This power may be exercised to quash a
proceeding."
The aforesaid observation took spirit from the case of Abdul Quader Chowdhury v State14. In
this case the Appellate Division observed that –
“The inherent jurisdiction should not be invoked where other remedy is available. The
jurisdiction given by Section 561A is neither an alternative jurisdiction nor an
additional jurisdiction but it is a jurisdiction preserved in the interest of justice to
redress grievances for which Mother procedure is available or has been provided by
the Code itself. This power cannot be so utilized as to interrupt or divert the ordinary
course of criminal procedure as laid down to the Code.”
In the aforesaid case the Appellate Division was dealing with a case where quashing of a
proceeding was sought for, and the Appellate Division has expressed the view that where the
institution or continuation of criminal proceeding against accused persons may amount to
abuse of the process of the Court or that quashing of the impugned proceeding would secure
the ends of justice, a proceeding can be quashed. However, the Appellate Division has also
observed that it is not possible, desirable or expedient to lay down any inflexible Rule which
12
M.S. Khawaja v State, 17 DLR 1965 SC 153.
13
Sher Ali vs. State, 46 DLR 1994 AD 67.
14
Abdul Quader Chowdhury and others v State, 28 DLR 1976 AD 38.
10
should govern the exercise of its inherent jurisdiction of the High Court Division. The
exercise of this jurisdiction will depend upon the facts and circumstances of each case. 15
In exercise of the power under section 561A to do real justice, High Court Division is vested
with unlimited power to prevent abuse of the process of the Court and to secure the ends of
justice. Inherent power of the High Court is very wide and undefended and it can make all
such orders which may be required to render real and substantial justice.16
It can be asserted that sometimes our judges are reluctant to admit that Section 561A confers
a new jurisdiction in the High Court Division. Had this been the settled finding, let’s assume
that Legislature has repealed this Section, or there is no Section like 561A, or the Court has
declared it unconstitutional. If any such unfortunate situation comes in reality one day, then
would the judges and lawyers be able to cover and adjudicate all the cases and scenarios as
now being covering by section 561A? Is there any other alternative or replacement of section
561A under the present law available? If Section 561A is not adding any new jurisdiction,
can any other Section of the Code cover the same scope and area as Section 561A does
Likewise, another question comes, can applying this jurisdiction the High Court Division do
anything or pass any such other which is barred by law or not falling within its jurisdiction !
All these questions may not lead us to any certain answer. Even if these could be answered
precisely and specifically, that may narrow down the scope of this section or would lead us to
more complexities. Sometimes, it is perhaps better not to answer or settle down everything;
rather it is wise to keep few things as it is for development ( if required) through
interpretation of law with the passage of time.
Quashing a proceeding or giving remedy to any extraordinary situation where there is no

other alternative remedy is not a simple one. It is extraordinary though inherent in nature.
Therefore, it is believed that Section 561A confers extraordinary jurisdiction to the High
Court Division who is the main authority to determine its scope and area though the same can
be tested by the Appellate Division in their appellate jurisdiction. In substance, it can be said
that this Section does not add new power upon the Court but do authorize to apply its
inherent jurisdiction within the existing periphery of law in order to give effect to any order
under the Code or to prevent abuse of the process of the Court or to secure the ends of justice.
Orders as may be necessary
“Orders as may be necessary” used in Section 561A extends the inherent nature of this
jurisdiction. The High Court Division while applying its judicial mind will determine what is
15
Rita Kundu v Akbar Ali and others, 6 BLD 1986 HCD 185.
16
PLD 1992 Pesh. 161.
11
necessary for giving effect to any Order under this Code, or for preventing abuse of the
process of any Court or otherwise for securing the ends of justice. This necessity will
determine the nature of the Orders to be passed by the High Court Division. There is no fixed
order or what kind of order the Court can pass under this section. It only refers “orders as
may be necessary”, which ultimately gives the High Court Division wide scope enough to
pass any kind of lawful order as necessary.
The word “necessary” does not authorize the Court to pass any order which is not tenable in
the eye of law or beyond jurisdiction. Though there is no further explanation given in the
Code that what kind of “orders” can be taken “as may be necessary” for giving effect of the
purposes under this section, however our judiciary has already shaped the nature of these
“orders as may be necessary”.
Generally, High Court Division while examining any order, judgment or proceeding under
this Section adjudicates the sustainability or maintainability of the same. The Court can set
aside or quash any order, judgment or proceeding to give effect to any order under this Code,
or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
Giving effect to any Order under this Code
“Giving effect to any order under this Code” is the first scenario and purpose of exercising
jurisdiction under Section 561A by the High Court Division. However, judicial precedents in
this scenario have not been developed much. In other words, not much case references have
been found in this area. The word “Order” includes any Order passed by the Court under this
Code. In Syed Ehsan Abdullah v State,17 the High Court Division nicely observed this issue.
For ready reference, some important observations from that judgment is quoted below –
“Let us now endeavour to delve deep into the above three statutory situations. While
there are impressive interpretations in the scores of case-laws of our jurisdiction as
well as that of this sub-continent on the situation Nos. 2 & 3, however, any detailed
interpretations on the situation No. 1 (to give effect to any order under the CrPC) are
hardly available in the case-laws of our country, as reveals from a search of the
reported cases of Bangladesh. The reason for this is that most of the celebrated cases
of our jurisdiction have mainly centered around and dealt with the issues of quashing
a criminal proceeding/case and probably there was no occasion for the Appellate
Division to deal with the issue of giving effect to any order under the provisions of the
CrPC passed by any subordinate Courts or investigating authority. Even if the public
functionaries, including the investigation agencies, or the public of our country had
ever approached this Court for implementation of an order under the provisions of the
CrPC passed by the subordinate Courts or other competent authorities, its number is
very insignificant given that the same neither has been reported in any legal journal
17
23 BLC 2018 HCD 270.
12
nor is within the common knowledge of the lawyers and the learned Judges, for, it has
not come to our notice in course of carrying out the study and search undertaken by us
on the provisions of section 561A of the CrPC towards a fair and effective disposal of
this Rule. In fact, it is the perception of most of the people, be it the member of the
Bar, investigation agencies and the lay people, that 561A means "quashing of
proceeding" having its practical result of setting aside or reversal of the order
initiating the proceeding or continuing with a criminal case.”
Referring some case laws from India, the Court further held that –
“However, in India there were few occasions when Indian Apex Court had the
opportunity to take up the issue for examination, (i) In the case of Ratilal v Assistant
Collector of Customs,18 when the High Court found that the accused was intimidating
certain German citizens whom the prosecution intended to examine as witnesses, it
cancelled the bail orders and directed him to surrender to the bail in the exercise of
inherent jurisdiction, which was affirmed by the Apex Court, (ii) In the case of
Hazarilal v Rameshwar,19 at the time of granting bail to the two UK citizens who
were accused of cheating, the High Court imposed a condition to surrender their
passports having exercised the jurisdiction of Section 561A of the CrPC and the said
conditional bail order was approved by the Apex Court, (iii) In the case of Pratul
Chowdhuri v State,20 it was held that though the CrPC does not contain any provision
empowering the Session Judges or High Court Judges in exercising its revisional
jurisdiction, the High Court is competent to remand back the case to the Sub-ordinate
Courts by virtue of its inherent power under section 482 of Indian CrPC (section
561A of the CrPC of Bangladesh), (iv) In the case of Fariyad21 involving the
allegation of murder, the High Court in exercise of its inherent power released an
approver, whose statement had been recorded by the trial Court but the trial was not
likely to be concluded within reasonable time due to non-receipt of material exhibit
from Forensic Laboratory, (v) In the case of Surya Baksh Singh v. State of UP,22 the
High Court dismissed the appeals against the conviction and sentence on the ground
of non-appearance of the convict-appellants who having been enlarged on bail was
not taking steps for disposal of the appeal and when the appellants preferred appeal to
the Apex Court, the reason taken by the High Court for dismissal of appeal was
approved by the Apex Court in Admission/Leave Hearing and simply offered the
accused an opportunity to place his case on merit before the Apex Court, without
letting him to buy further time by going back to the High Court.
Thereafter, the Court interpreting this situation explained in own language in the following
manner –
“In our way of understanding of the meaning of the above No. 1 situation is that this
Court is always equipped with ample power of materializing/executing any order
passed under any provision of the CrPC. When an order is passed by any Court of this
land, merely for want of procedural law, the said order cannot be allowed to get
18
AIR 1967 SC 1639.
19
AIR 1972 SC 484.
20
1979 CrLJ 103.
21
1985 CrLJ NOC 75 (Raj).
22
14 (2014) SCC 222.
13
frustrated. The Legislature has, thus, endowed this Court with the power "to make
such orders as may be necessary" and thereby ensures that justice shall not be
defeated due to some loopholes in the CrPC, as apparent from the wordings "nothing
in this code shall be deemed to limit or affect the inherent power of the High Court
Division........." employed in the section 561A of the CrPC. This Rule has its source in
the maxim quando lex aliquid alicui concedit, concoders videtur id sine quo ipsa esse
non potent which means that "when the law gives anything to anyone it gives also all
those things without which the thing itself would not exist."
Whether applying this power as meant by “giving effect to any order under this Code” the
High Court Division can entertain anything suo moto or not, it is yet to be decided. It is
pertinent to mention that there are some instances where High Court Division issued suo
moto Rule in exercise of its inherent jurisdiction under this Section. This is a quite
development. This issue has been discussed later with some details. However, it appears that
this situation vests ample jurisdiction upon the Court to examine, regulate and oversee any
activity of the subordinate courts or other law enforcing agencies in order to give effect of
any order passed under this Code. It has somehow vested one kind power of accelerating the
execution of the “effect of any order” passed under the Code. This also completes the other
two situations (i.e. to prevent the abuse of the process of the Court, and to secure the ends of
justice) as provided under this Code. Applying this situation the Court can grant substantive
remedy or the consequential relief as well.
In Md. Nurul Islam Babul v The State,23 learned Senior Advocate Rafique-ul Huq while
relying on this situation argued that in order to prevent the abuse of the process of the Court
this Court can make any such Order which is necessary to stop harassment of the petitioner
by filing successive false criminal cases in Order to detain him in custody by the referring a
case from another jurisdiction which is referred in the judgment in the following tune –
“The next case is the case of Sh. Zahoor Ahmad v The State reported in PLD 1974
Lahore 256 where provision of Section 561A Cr. P.C has further been elucidated as
regards "High Court's" competency to pass proper orders and give consequential
directions for giving effect to an Order made under the Code and it has been stated in
paragraph 5 to the effect that :
It is well-known that this Court has, in a number of cases, followed this practice.
Moreover, I am of the view that the direction prohibiting the arrest for very limited
period, for the purposes, as are mentioned in Section 561A CrPC. This course is
permissible under the Law. If such a protection is not afforded to a petitioner in a case
like the present one, there could be a serious possibility (of course, depending upon
the circumstances of each case) that when the Court is yet in the process of obtaining
information from the State/ Advocate General, the police might frustrate the entire
proceedings and this might lead to injustice and/or further complicate the proceedings.
23
Md. Nurul Islam Babul v State, 24 BLD 2004 HCD 205, 56 DLR 2004 HCD 347.
14
Therefore, it is not only for the purpose of giving effect to an Order of this Court
relating to the collection of material for disposal of a petition pending before it but
also for the purpose of preventing the abuse of its process as also for securing the ends
of justice that in such like situations, which though would develop only rarely, this
Court is competent to pass proper orders and give consequential directions under
Section 561A CrPC.”
Relying on this, the Court held that –
“It clearly appears from the language of foregoing Section that this Court has not only
been invested with the power to quash any judgment proceeding and Order of any
Court but also to make such Order as may be necessary to give effect to any Order
under this Code or to prevent abuse of the process of any Court. This power is
preserved to the High Court to be exercised when it is necessary to give effect to any
Order made under the Code or to prevent abuse of the process of any Court or
otherwise to secure the ends of justice. Exercise of such power is dependent on the
facts and circumstances of any particular case or proceedings.”
Preventing abuse of the process of any Court
“Abuse of the process of the Court” has not been explained or defined under the Code. There
is no judicial precedent comprehensively containing the list of situations when it can be
identified as the abuse of the process of the Court. Nevertheless, there are many cases where
Court applied this provision on the ground of abuse of the process. The process of law must
not be used as the engine of harassment. If it is found to be so abused, it will be imperative on
the part of the High Court Division to interfere and quash such proceedings in exercise of its
inherent jurisdiction.24
The word “abuse” is of high importance. It refers to situation when process of the Court is not
being used properly, or it is being used in such a way which should not be and which is not
tenable in the eye of law. The litigating party or anyone interested therein may abuse the
process of the Court fraudulently or with ill motive or out of personal grudge without. They
may come before the Court without clean hands. Litigant can misuse the process of Court.
Likewise, the Court itself can abuse its position. In all the situations, predicted or
unpredicted, where abuse of the process of the Court is alleged, the High Court Division can
examine that under section 561A in order to prevent the abuse of the process of the Court.
The ordinary dictionary meaning of “abuse” refers to use (something) to bad effect or for a
bad purpose; misuse. The Cambridge Dictionary defines “abuse” in different situation in
different manner. In short, it indicates “abuse” refers to a situation in which a person uses
24
Md Shokrana v State, 21 BLD 2001 HCD 296, 5 BLC 2001 HCD 611.
15
something in a bad or wrong way, especially for their own advantage or pleasure. 25 The
Merriam-Webster defines it as a corrupt practice or custom, to put to a wrong or improper
use.26
Process of the Court has been interpreted judicially to anything done by the Court. 'Abuse'
means misuse, make bad use of, perversion or an unjust or corrupt practice. In a proceeding if
the Court does anything unjust or makes bad use of its power in so doing, it comes within the
meaning of "abuse of process of any Court." The word "any" in the context of Section 561A
cannot be confined only to criminal courts set up under the Code. "Any" means and indicates
a person, thing, event, etc. as not particular or determinate individual of the given category.27
To find an “abuse” it would be necessary to see in the proceeding, a perversion of the purpose
of the law such as to cause harassment to an innocent party. To bring about delay, or where
the machinery of justice is engaged in an operation from which no result in furtherance of
justice can accrue and similar perverse results. 28
The word 'process' is a general word meaning in effect anything done by a Court. "Abuse of
the process of the Court" is generally applied to a case or proceeding which is wanting in
bonafide and is frivolous or vexatious.
Abuse of the process of Court would not only mean abuse as understood in its ordinary
dictionary meaning but also includes the misuse and colorable use of power of the Court.
Inherent jurisdiction of the Court is generally exercised for preventing the abuse of the
process of the Court in respect of the pending proceeding and it is a fit case where such
inherent power can be rightly be exercised.29
Thus, the expression ‘abuse of process’ in section 561A means in effect anything done by the
Court. The powers given under section 561A are not more extensive than those which it has
under its inherent power. They are extraordinary in their nature and are exercised ex debito
justitiae, that is to say, for the purpose of doing that real and substantial justice for the
administration of which the Courts of law exist. The object of section 561A is to remove any
doubt that the Court’s powers are not exclusively circumscribed by the Code itself.
Prolongation of the prosecution would be an abuse of the process of the court.30
25
<https://dictionary.cambridge.org/dictionary/english/abuse>
26
<https://www.merriam-webster.com/dictionary/abuse>
27
Bangladesh v Shajahan Siraj, 32 DL 1980 AD 1.
28
MS Khawja v State, 17 DLR (SC) 153.
29
30
Salimuddin v State, 32 DLR 1980 (AD) 103.
16
Learned Senior Advocates Mahmudul Islam and Probir Neogi in their book on the Law of
Civil Procedure31 while explaining the “abuse of the process of the Court” as mentioned in
Section 151 as similar to Section 561A observed in the following manner –
“‘Ends of justice’ and ‘abuse of the process of the court’ have to be interpreted with
due regard to the other provisions of the Code and that the section is intended to
prevent the court from being rendered impotent by any omission in the Code.32 No act
done or proceeding taken as of right in due course of law is an abuse of the process of
the court, simply because such proceeding is likely to embarrass the other party. 33
Every court has inherent jurisdiction to vacate an ex parte order if it is necessary for
the end of justice or to prevent abuse of the process of the court. 34 It is the duty of all
courts to correct the decision which runs counter to the law declared by the Supreme
Court.35 When a fictitious person was shown as the tenant in an order obtained by
playing fraud upon the court, that order can be set aside under the inherent power.36 It
is an abuse of the process of the court to file a second suit in respect of the same
matter against the same set of defendants to obtain an order of injunction (when
injunction was refused in the first suit in another court) and the court rejected the
plaint in exercise of its inherent power.37.
Abuse of the process of the Court is a good ground for quashing a proceeding in initial stage
or before the start of trial stage. In Sheikh Hasina v State ,38 the High Court Division listed
some “categories of cases for quashing of trials before trial Court” in the following manner –
“Distinction between absence of evidence legally unsustainable or inconsistent with

prosecution version and presence of legal evidence but contended as not enough to
base a conviction.
Some categories of cases may also be indicated where the inherent jurisdiction can
and should be exercised for quashing the proceeding. There may be cases where it
may be possible for the High Court to take the view that the institution or continuance
of criminal proceedings against an accused person may amount to the abuse of the
process of the Court or that the quashing of the impugned proceedings would secure
If the criminal proceedings in a particular case is in respect of an offence alleged to

have been committed by an accused person and it manifestly appears that there is a
31
Mahmudul Islam and Probir Neogi, The Law of Civil Procedure, Vol 1, Mullick Brothers (2009) Edt 1st, .p.
471-472.
32
U Aung v Government, AIR 1940 Rang 162
33
Sharbati v Kali, AIR 1942 Lah 119
34
Satish v Ganguly, AIR 1962 SC 806
35
Naraian v Vinod, AIR 1987 All 319
36
Koneru Aruna v Shaik Ali, AIR 1991 AP 191
37
Sarwar v Mosharraf, 45 DLR 562
38
Sheikh Hasina Wazed alias Sheikh Hasina v State and another, 63 DLR 2011 HCD 40.
17
legal bar against the institution or continuance of the said proceedings the High Court
would be justified in quashing the proceedings on that ground. Cases may also arise
whether the allegations in the First Information Report or the complaint, even if they
are taken at their face value and accepted in their entirety, do not constitute the
offence alleged, in such cases no question of appreciating evidence arises; it is a
matter merely of looking at the complaint or the First Information Report to decide
whether the offence alleged is disclosed or not. In such cases it would be legitimate
for the High Court to hold that it would be manifestly unjust to allow process of the
Criminal Court to be issued against the accused person.
In the case of Ali Akkas v. Enayet Hossain,39 the settled principle of law to bring a
case within the purview of section 561A for the purpose of quashing a proceeding
certain conditions have been provided.40
………………
………………
We are inclined to hold that no organ of the executive body of the country should be
used as weapon to victimize any citizen of the country. On consideration of the whole
facts as it appear from FIR, charge sheet and order of cognizance and the so-called
sanction, we find that in this case from beginning to end motivated acts were done by
the investigating agencies in as such as FIR has been lodged without any proper
sanction having been accorded by the Anti-Corruption Commission, the so-called
Sanction given before submission of charge sheet which is absolutely a mechanical
sanction and contrary to law, and, as such, the very initiation of the proceeding itself
is barred by law. The investigation is perfunctory in nature, inasmuch as no materials
are available either in the FIR charge sheet or in the 161 statements of the witnesses to
find the petitioner guilty of any offence as alleged and, as such, the instant proceeding
in respect of the petitioner is preposterous and abuse of the process of Court and law.
Further, as we have already observed above that learned Metropolitan Senior Special
Judge has taken cognizance most mechanically, which is highly discouraged.
In this regard amongst all other decisions we are inclined to refer a decision reported
in 55 DLR 596 in the case of Begum Khaleda Zia v State wherein it has been held
that, Criminal intention is a sine quo non for an offence under section 5(1) of the
Prevention of Corruption Act, 1947. When a decision is taken collectively or even
individually by following the rules of procedure or the rules of business criminal
intention behind such decision should not normally be inferred. The author Judge of
judgment is Mr. Justice Joynul Abedin (as then his Lordship was). We are in full
agreement with the decision reported in 55 DLR 596. In this case also we accept the
submissions of the learned Counsels for the petitioner that there was no criminal
intention on the part of the accused petitioner at any stage of process in taking
decision or giving approval to the draft rules and no less has been incurred by the
State for the above acts of accused petitioner and it is totally absent in the case that
the then Prime Minister Sheikh Hasina has misappropriated a single far thing for
herself from the public exchequer.
39
17 BLD 1997 AD 44, 2 BLC (AD) 116.
40
It will be discussed later on.
18
In view of the decision of our apex Court being reported in 28 DLR (AD) 38, 17 BLD
(AD) 44 = 2 BLC (AD) 16, 31 DLR (AD) 69, 5 BLT (AD) 129 and AIR 1992 (SC)
604 we hold that this case comes under the category of abuse of the process of the
Court and preposterous in nature and since absence of proper sanction cuts the root of
the proceeding the same should be quashed to secure the ends of justice. In the result,
the rule is made absolute.”
When prima facie reading of FIR and Charge Sheet does not disclose any ingredient of any
offence, the initiation and continuation of the process of the Court is an abuse. Since the
allegations made in the First Information Report and the Charge Sheet do not constitute any
criminal offence against these accused petitioners within the mischief of section 25C(1)(b) of
the Special Powers Act, 1974 the proceeding of the said case will be an abuse of process of
the court and the same cannot be allowed to continue against them. Hence, the continuation
of the impugned proceeding is a sheer abuse of the process of the court so far as it relates to
the accused petitioners.41
The only point made out on behalf of the accused petitioner is that as per section 140(1) of
the Negotiable Instrument Act the proceeding against the petitioner is an abuse of the process
of law and Court and also harassment to the accused petitioner. The requirement in law is that
there must be clear, unambiguous and specific allegations against the persons who are
impleaded as accused that they were in charge of and responsible to the company in the
conduct of its business at the material time when the offence was committed by the company.
It cannot be left to the wild imagination of the complainant. There must be specific
accusation against each of the persons impleaded that such person was in charge of and
responsible for the conduct of the business of the company at the relevant time when offence
was committed by the company. In the entire body of the complaint no assertion has been
made that the accused petitioner at the relevant time was responsible or was in day-to-day
affairs or was in know of or taking part in issuing the cheque on behalf of the Company. The
Accused petitioner made out a case within section 140(1) of the Act and if this proceeding is
allowed to continue against him that will not give any fruitful result to the complainant and
that will perpetuate an injustice to the accused petitioner which will defeat ends of justice and
to secure ends of justice, the proceeding against the accused petitioner being an abuse of
process of the Court, there is no other alternative but to quash he proceeding against the
accused petitioner.42
When in a case there is no legal evidence on record to justify the conviction, the impugned
order of conviction and sentence clearly amounts to an abuse of the process of the court and
41
Md. Farooque Hossain and others v State, 17 BLT 2009 HCD 318.
42
A.K.M. Siddique v Md. Momenul Haque, 11 BLC 2006 HCD 455, Md. Parvez Bhuiyan and others v State and
others, 38 BLD 2018 HCD 208, 72 DLR 2020 HCD 134.
19
as such the same is liable to be quashed.43 When the subordinate Courts pass any order which
is nullity and beyond jurisdiction, the High Court Division can declare such order an abuse of
the process of Court under Section 561A even though the petitioner earlier filed invoked
revisional jurisdiction.44
When there is nothing in evidence that informant entrusted anything to the accused
petitioners which they dishonestly misappropriated, the allegation made in FIR and Charge
sheet did not attract any of ingredients of criminal breach of trust, there was no evidence that
accused had any intention to deceive informant at initial stage to part with money, and the
facts disclosed in FIR was civil liability for which no criminal case lies, the continuation of
case against the petitioners would be abuse of process of Court.45
Where a proceeding has been initiated legally in a competent court and it cannot be shown
that such proceeding, if allowed to continue, will be "abuse of process of Court" and need be
quashed "for ends of justice". Dispensation of personal appearance of the accused before such
court does not fall within the meaning of section 561A of the Code.46 Proceeding being
quorum non judice is an abuse of the process of law and thus the same is liable to be quashed
for ends of justice.47
Thus the abuse of the process of Court is the unjustified, unreasonable and unfair use of the
process of the Court. It is a well established principle of law that what cannot be done
directly, cannot be done indirectly. Therefore, in the name of exercise of power or any legal
jurisdiction the Court or any authority or person cannot abuse the process of law or court. The
High Court Division has inherent jurisdiction under the Code to exercise its power for
preventing the abuse of the process of the Court. This power is wide enough to prevent any
kind of abuse of the process of the Court. Likewise, this power is extraordinary enough not
extending to do more injustice or misuse of power in the name of preventing abuse of the
process of the Court. This is discretionary but only to be used where there is an abuse of the
process of the Court which must not only done but also seen to be done.
Securing the ends of justice
“Securing the ends of justice” often follows the “abuse of the process of the Court”. When
any proceeding or judgment or order or any action taken by the subordinate Court becomes
43
Fazlul Haq Sikder v State, 15 BLD 1995 HCD 364.
44
Fatema Begum @ Urmila Rani v Gageswar Nath and State, 9 BLD 1989 HCD 469.
45
Shafiullah Chowdhury and others v State, 17 BLT 2009 HCD 566.
46
Shohid Miah v State, 20 BLD 2000 AD 265, 53 DLR 2001 AD 11.
47
Taslima Khatoon Chhanda and other v State, 17 BLC 2012 HCD 277.
20
an abuse of the process of the Court, the High Court Division being its superior Court can
exercise its inherent jurisdiction under the Code for setting aside / quashing the same for
securing the ends of justice. However, the scope of “securing the ends of justice” seem much
wider and it is purely discretionary, because what will secure the ends of justice that is
something purely to be decided by the Court itself within the periphery of law, and certainly
not going beyond or discarding the existing law. When anything is not permissible under law
or otherwise prohibited by law, the Court in exercise of its inherent jurisdiction cannot allow
to do so merely in the name of ‘doing justice’ or ‘securing the ends of justice’, though there
are principles that ‘Let justice be done though the heavens fall (Fīat jūstitia ruat cælum)’ and
‘Justice must not only be done, but must also be seen to be done’.48 To quash a judicial
proceeding in order to ‘secure the ends of justice’ would involve a finding that if permitted to
continue, the proceeding would either operate or perpetuate an injustice.
It is to be remembered that the Courts exist not only for securing obedience of the law of land
but also for securing the ends of justice in its widest sense. Inherent power of the High Court
Division by reason of its being the highest Court must have jurisdiction over Civil and
Criminal Courts of the land.49 A convict may invoke the jurisdiction of the High Court
Division under Section 561A CrPC if he can make out a case of coram non judice of the trial
Court or that the facts alleged do not constitute any criminal offence or that the conviction
has been based on no legal evidence or otherwise for securing the ends of justice.50
Court in exercise of its jurisdiction under Section 561A of the Code may quash a proceeding
in cases of (a) facts not disclosing any offence, (b) coram non judice, (c) bar of law, (d) lack
of legal evidence adduced and (e) for securing the ends of justice.51
In Md. Karamot Ali alias Rafiqul Islam v State,52 the High Court Division in exercise
jurisdiction under section 561A reduced the period of sentence applying the purpose “for
ends of justice. In this case, the Court held that –
“The learned Judge of the Tribunal with due consideration of the evidence of the
prosecution witnesses and other materials on record rightly convicted the accused
petitioner under section 25B(2) of the Special Powers Act for recovery of 100 bottle
full of phensidyl from him but while punishing him he sentenced him to suffer
imprisonment for 7 years and to pay a fine of Taka 5000/- in default of payment of
fine to suffer imprisonment for 6 months more. It is an established principle of law
that punishment must commensurate with the gravity of the offence. For recovery of
48
Rex v Sussex Justices, [1924] 1 KB 256.
49
50
Md. Alamgir Hossain alias Alamgir v State, 17 BLD 1997 HCD 478.
51
Md. Ayub Ali v Md. Abdul Khaleque and State, 24 BLD 2004 HCD 543, 56 DLR 2004 HCD 489.
52
Md. Karamot Ali alias Rafique alias Rafiqul Islam v State, 29 BLD 2009 HCD 250.
21
100 bottle full of phensidyl sentence of 7 years imprisonment which is the maximum
limit awarded to the convict-petitioner is severe and harsh; it is an instance of gross
abuse of the process of the court and we feel that for securing the ends of justice,
maintaining the conviction, sentence is to be modified.”
In the aforesaid case, the Court further held that this is not an appeal and there is little scope
to evaluate the evidence in details like an appeal in a proceeding under section 561A. This
jurisdiction under Section 561A of the Code can be invoked, if it can be shown that the case
is one of no evidence or coram non judice or is barred by law or is an abuse of the process of
the court, or it is necessary for securing the ends of justice.
The dearth of evidence or no evidence or failure to provide the case beyond reasonable doubt
by adducing proper or necessary evidence may lead the High Court Division to quash a
sentence of conviction under Section 561A. In Sohail Ahmed Chowdhury v State,53 the High
Court Division nicely discussed this issue and observed that –
“In the case of Rouf Mia alias Rup Miah54 single Bench of our High Court found with
disapproval the non-production of seized articles before the court and disposal of the
same during trial without obtaining permission from the court. In the present case non
production of seized gold before the court without furnishing any explanation
whatsoever has not only caused serious prejudice to the defence but has rendered the
prosecution case highly doubtful. In total ignorance of these vital commissions
amounting to lacuna and defect of the prosecution the learned trial court has arrived at
the finding of guilt of the accused petitioner which has occasioned a failure of justice.
In the case of Subal Chandra Saha v M.S. Huq,55 it was held: "A conviction based on
no evidence can be quashed by a writ of certiorari." In the case of Vijai Pal and
another v The State56 it was held "The Judge hearing the represented appeal had
ample powers under section 561A to prevent the abuse of the process of the court or
otherwise to secure the ends of justice".
In the case of Mohammad Wasi and another v State57 it was held that the court may
and is bound to review its own order and modify or set aside in order to secure the
ends of justice." In the case reported in 46 DLR (AD) 67 in paragraph 8 and 10 the
learned Judges of the Appellate Division endorsed the view taken earlier by the
Appellate Division the case reported in 45 DLR(AD) 175 reiterating that the power
may be exercised to quash the proceeding or even a conviction on conclusion of a trial
if the court concerned got no jurisdiction to hold the said trial or the facts alleged
against the accused do not constitute any criminal offence or the conviction has been
based on no evidence or otherwise to secure the end of justice. The preponderance of
judicial decision are that finding of guilt of accused person cannot be based merely on
53
Sohail Ahmed Chowdhury v State, 15 BLD 1995 HCD 452.
54
40 DLR 1988 HCD 348.
55
Subal Chandra Saha v M.S. Huq, Magistrate, 1st Class, Comilla and others, 12 DLR 1960 HCD 220
56
AIR 1959 (Allahabad) 559.
57
AIR 1951 (Allahabad) 441.
22
high probabilities but should be rested surely and firm on the evidence and mere
conjecture and hypothesis cannot take the place of proof.
The learned Advocate for the accused petitioner while reading out some excerpts from
the Constitutional Law of Bangladesh by Mahmudul Islam at page 395 and 398
referred to the case reported in AIR 1960(SC) and 12 DLR 220 wherein it is observed
"No evidence does not mean only dearth of evidence. It extends to any case where the
evidence taken as a whole is not reasonably capable of supporting the finding In the
Administrative Law (HWR WADE) the expression has been made to the effect that
perverse and the unreasonable action is unauthorised and ultra vires and where the
findings are based on no satisfactory evidence there is abuse of power and may cause
injustice. Thus from the laws cited above we are of the opinion that High Court
Division got the power in its inherent jurisdiction to quash or set aside the judgment
and order of conviction and sentence which is based on no evidence but merely on
probabilities occasioning failure of justice.
In the present case the non-production of seized gold for which no explanation has
been furnished by the prosecution, failure of the prosecution to test the seized gold by
an expert are sufficient to show that the judgment and order of conviction is based on
surmises and not on evidence and hence liable to be quashed.”
When the necessity of securing ends of justice comes, the scope of Section 561A cannot be
limited or confined to any stage. With a view to secure the ends of justice or to prevent abuse
of the process of any Court and or to give effect to any order under the Code, however, the
exercise of this inherent power of the High Court Division cannot be restricted upto the stage
of framing of the charge when the first information report or the petition of complaint itself
does not disclose any offence.58
This inherent jurisdiction under Section 561A is neither an original jurisdiction nor appellate,
nor revisional as mentioned earlier. It is built-in though specifically provided in the Code,
which ultimately gives wider jurisdiction to the Court for interfering into the things which are
necessary for securing the ends of justice. In Rezia Khatun v State,59 the High Court very
nicely pointed out that –
“So, we hold the view that when there is specific provision in the Code of Criminal
Procedure under Section 435/439, the inherent power of this court under Section
561A of the Code of Criminal Procedure cannot be invoked in the instant case,
because, this extra-ordinary power is neither appellate power, nor revisional power,
nor a power of review, rather it is available for a very limited purpose to remove the
wrong done for the purpose of securing of ends of justice in the absence of any other
forum. It is difficult to pass an Order of remand in the present forum on setting aside
the judgment of acquittal as prayed for by the learned Advocate for the petitioner.
58
Latifa Akhter v State, 51 DLR 1999 AD 159, Nazrul Islam Mollah (Md.) v State, 15 BLC 2010 HCD 394.
59
Rezia Khatun v State, 24 BLD 2004 HCD 183, 56 DLR 2004 HCD 208.
23
Because, the power of sending the case on remand is available to the appellate
authority or even in the revisional forum, where no appeal lies and we have not come
across any instance where the extra ordinary power under Section 561A of the Code
of Criminal Procedure has been used for the purpose of securing conviction of an
accused by setting aside an Order of acquittal. The High Court Division exercising
power under Section 561A of the Code of Criminal Procedure is not supposed to
embark upon an inquiry to ascertain sufficiency, reliability and admissibility of
evidence on record. However, if a conviction Order is passed absolutely without any
illegal evidence, it can be looked into in the present forum to secure ends of justice.”
‘Securing the ends of justice’ is to be determined by the High Court Division by applying its
judicial mind in accordance with law. This ‘ends of justice’ does not mean the ‘complete
justice’ which is conferred upon the Appellate Division only by our Constitution. The power
of ‘securing the ends of justice’ under the Code is lying only with the High Court Division in
exercise of its original jurisdiction under section 561A.
When no other alternative
The jurisdiction given by section 561A is neither an alternative jurisdiction nor an additional
jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for
which no other procedure is available or has been provided by the Code itself. This power
cannot be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid
down in the Code.60 The jurisdiction under section 561A is of an extraordinary in nature
where there is no other remedy available and cannot be utilized where there is other express
remedy provided by the Criminal Procedure Code.61
This is basically not a new element where we can invoke Section 561A. It is rather one of
preconditions set out by the judiciary that when and where there is no other alternative,
jurisdiction under Section 561A can be invoked.
For example : Appeal against the judgment and order under the special laws, such as, Special
Powers Act 1974, Arms Act 1908, Nari O Shishu Nirjatan Daman Ain 2000 the period for
filing appeal is limited. After expiry of the same, there is no other remedy left for. There is no
scope for condonation of delay since Limitation Act 1908 does not apply to special laws
unless expressly provided in the relevant law. The Limitation Act does not apply to the
aforesaid special laws. Therefore, on the occasion of failure to file appeal against any
judgment and order within statutory period of time, the aggrieved party can invoke
jurisdiction under Section 561A of the High Court Division.
60
Mahbub Ahmed and others v Securities and Exchange Commission, 32 BLD 2012 HCD 165.
61
Muhammad Samiullah Khan v State, 15 DLR 1963 SC 150.
24
Likewise, when there is no other alternative, Section 561A can be the last recourse. For
example : offence under section 138 of the Negotiable Instruments Act 1881 is still
uncompoundable though the High Court Division in exercise of its appellate jurisdiction
allowed compromise in such case.62 This compromise is now allowed at trial stage, revision
stage, and in some cases under Section 561A before or after judgment of trial Court.
The scope for invoking jurisdiction under Section 561A by a convict who could not file
appeal in time has been discussed widely in Alamgir v State63 wherein the scope has been
made limited, must say. It was held that a convict may invoke the jurisdiction of this Division
under Section 561A if he can make a case of coram non judice of the trial court or that the
facts alleged do not constitute any criminal offence or the conviction has been based on no
evidence or otherwise to secure the ends of justice. The Court further added that the
petitioner-applicant should approach the Court with clean hands.
Earlier it was decided in Mir Mohammad Ali v Md. Giasudin64 that Section 561A has not
given any new jurisdiction to the High Court Division to override other laws. The Court held
that it is easy to say that this Court cannot have any inherent jurisdiction to strike down the
law of limitation. In that case the petitioner failed to avail of the provision of appeal within 30
days from the date of judgment and order. As the convict failed to prefer appeal within time
and as section 5 of the Limitation Act has no manner of application the petitioner. In that
case, he filed a petition under section 561A. It has been held that the law of limitation is so
inexorable that a person loses his good title on account of law of limitation and that it may be
desirable that something is done for the redress of the accused who lost his right of appeal
and has a very good case in their defence. In that case it has been propounded that section
561A of the Code of Criminal Procedure cannot be conceived of to give the High Court
Jurisdiction to retrieve the cases from the moratorium after they have been barred by
limitation.
This similar kind of view has also been taken in Sohail Ahmed Chowdhury case as referred
above. In this case, the High Court Division held that although the inherent power of the High
Court Division under Section 561A is generally exercised for preventing an abuse of the
process of the court in respect of a pending proceeding but nevertheless the said power can
also be exercised in respect of a proceeding which has reached its finality after the conclusion
of the trial when it is found necessary to prevent an injustice. But this power should be
62
68 DLR 2016 HCD 314, 29 BLD 2009 HCD 684.
63
Md. Alamgir Hossain alias Alamgir v State, 17 BLD 1997 HCD 478.
64
Mir Mohammad Ali Vs. Md. Giasudin, 46 DLR 1994 HCD 175
25
exercised sparingly and in exceptional cases where the facts alleged do not constitute any
criminal offence or conviction has been based on no legal evidence or shockingly inadequate
evidence. In the said case the petitioner earlier preferred criminal Appeal No. 713 of 1990
before the High Court Division which was found to be barred and thereafter on a petition
filed by the convict petitioners the same was converted into Criminal Miscellaneous Case No.
944 of 1995 under Section 561A of the Code of Criminal Procedure and then the final order
was passed.
However, per contra, available of alternative remedy by way of appeal or revision will not
stand on the way when the question of law and interpretation of statute is involved.65
Scope of this jurisdiction
Section 561A cannot be invoked readily in any case, anytime or any manner. It is an
extraordinary jurisdiction to be exercised in fit case only. In Khwaja Nazir Ahmad’s case61 the
Privy Council opined about the inherent nature and scope of jurisdiction of the High Court
Division, as discussed earlier. In that case it was observed, Section 561A gives no new
powers, it only provides that those which the Court already inherently possess shall be
preserved and is inserted. Later in Ghulam Mohammad v Mozammel Khan, 66 it was held that
–
“The power given by this Section can certainly not be so utilised as to interrupt or
divert the ordinary course of criminal procedure as laid down in the procedural
statute. The High Court, as has repeatedly been pointed out in a number of decisions
should be extremely reluctant to interfere in a case where a competent Court has, after
examining the evidence adduced before it, come to the view that a prima facie case is
disclosed and has framed charges or summoned the accused to appear; unless it can be
said that the Charge-on its face of the evidence even if believed, does not disclose any
offence.”
While agreeing with the above principle, our Appellate Division observed in Bangladesh v
Ten Kheng Hock67 –
“When exercising this jurisdiction, the High Court would not embark upon an enquiry
whether the evidence in question is reliable or not. This is the function of the trial
Magistrate and it might so happen that quashment of criminal proceedings before
commencement of trial would amount to stifling the proceedings before the
prosecution gets an opportunity to bring evidence in support of the accusation.”
65
Bangladesh v Iqbal Hasan Mahmud, 60 DLR 2008 AD 147.
66
Ghulam Mohammad v Mozammel Khan and others, 19 DLR 1967 SC 439.
67
Bangladesh v. Ten Kheng Hock, 31 DLR 1979 AD 69.
26
In Md. Shamsuddin alias Lambu and others v The State68 where the minority view expressed
by Mr. justice Badrul Haider Chowdhury, is as follows –
“When a prosecution arises out of ill motive or improper motive, the machinery of
administration of justice need not be available to such person.”
This principle has later been adopted in many cases, and references of which are given in this
study in many places. The moot point is, the purpose of law and judiciary are to ensure
administration of justice, not to satisfy one’s ill motive, malafide activity, greed, fraudulent
intention or personal enmity. Where there are glaring contradiction between contents of FIR
with that police report then contents of FIR are false and concocted. In order to make out a
case under section 561A for quashment the allegations in the FIR and finding in the charge-
sheet should be taken in their face value and accepted in their entirety. The judicial process
should not be allowed to be abused in such a way out of a vendetta and enmity for the sake of
upholding the confidence of the people in our justice delivery system.69 Disclosure of no case
from the prima facie reading of the FIR and Charge Sheet empowers the Court to exercise
jurisdiction under section 561A of the Code.
Where a proceeding is manifestly attended with malafide or malicious instituted with an

ulterior motive for wreaking vengeance on the accused and with a view to spite his due to
private and personal grudge.70 A Criminal Proceeding cannot be quashed on the basis of
defence materials which are still not part of the record.71 No scope to examine the
admissibility, relevance, sufficiency of materials. Mixed question of fact and law cannot be
resolved in an abstract manner without facts surfacing at the trial. 72 When exercising this
jurisdiction under section 561A, the High Court Division would not embark upon an enquiry
whether the evidence in question is reliable or not. This is the function of the trial Magistrate
and it might so happen that quashment of a criminal proceeding before commencement of
trial would amount to stifling the proceeding before the prosecution got an opportunity to
bring evidence in support of the accusations.73
The Court may allow rehearing in rare case by exercise of its inherent power to prevent
miscarriage of justice apparent on the face of the record.74 The Court should not be drawn an
68
Md. Shamsuddin alias Lambu and others v State and others, 40 DLR 1988 (AD) 69.
69
Kazi Khairuzzaman and others v State, 19 BLC 2014 HCD 51, 33 BLD 2013 HCD 57.
70
Dr. Kamal Hossain v State, 63 DLR 2011 HCD 204.
71
Rehela Khatun v Md. Abul Hossain, 1 BLC (AD) 176, 48 DLR (AD) 213; Shamol Chandra Das v State, 1
BLC (AD) 140, Shamal Alam Selim alias Sheikh Selim alias Anik Chowdhury v State, 13 MLR 219 (AD), M.
Sahabuddin v State, 11 BLC (AD) 206.
72
Moudud Ahmed v State, 48 DLR 1996 (AD) 42.
73
Farruk Ahmed v Abdul Kader, 38 DLR (AD) 18.
74
Gobed Ali v State, 7 BCR (AD) 181; Anu Yahaya Nurul Anowar v State, 1 MLR (AD) 362.
27
inquiry as to the truth or otherwise of the facts which are not in prosecution case. 75 There is
no scope of going into the question whether the witness in the judicial inquiry had told the
truth or not. It is only the trial stage the value of the materials on record could be
considered.76 The FIR, statements under section 161 CrPC, the charge sheet and charge are
not evidence. No comment on those materials is describable.77
The allegation made in the FIR, charge sheet statements of witnesses under sections 161 of
the Code and others materials on record are taken at their face value and accepted in entirety
do not constitute any offence alleged against the petitioner. The fact of the case is so
preposterous that no criminal case stands against the petitioner. In spite of that the learned
trial judge most illegally had framed charge against the accused petitioner, that the judicial
process should not be allowed to be abused in such a way out of vendetta and enmity for the
sake of upholding the confidence of the people in our justice delivery system and as such the
accused petitioner, is victim of a grave conspiracy and design. Having misread, misconceived
and mis-appreciated the materials on record, the learned Sessions Judge, Gopalgonj framed
charge as well as initiated the impugned proceedings of the case.78
The power thus being codified under Section 561A by which the High Court Division has
inherent power to make any Order or Orders as may be necessary to prevent the abuse of the
process of the Court or otherwise to secure the ends of justice. Thus, the power of the High
Court being undefined and indefinite the trend of judicial pronouncements are that this power
of the High Court must be exercised very sparingly and with due caution.79
In Ali Akkas v Enayet Hossain,80 as mentioned earlier it has been spelt out that in order to
bring a case within the purview of Section 561A for the purpose of quashing a proceeding,
one of the following conditions must be fulfilled –
“(1) Interference even at an initial stage may be justified where the facts are so
preposterous that even on admitted facts no case stands against the accused.
(2) Where the institution and continuation of the proceeding amount to an abuse of the
process of the Court.
(3) Where there is a legal bar against the initiation or continuation of the proceeding.
75
Hossain Md. Ersahd v State, 45 DLR (AD) 48; Jamil Khatun v State, 18 BLC (AD) 223.
76
Atiur Rahman v State, 8 BLT 2000 AD 176.
77
Moudud Ahmed v State, 3 BLT (AD) 224, 48 DLR (AD) 42.
78
Kamrul @ Kamruzzaman vs. State, 17 BLT 2009 HCD 350, 29 BLD 2009 HCD 437.
79
Engineer Afsaruddin Ahmed v State, 14 BLD 1994 HCD 445, 46 DLR 1994 HCD 496.
80
Ali Akkas v Enayet Hossain, 17 BLD 1997 AD 44, 2 BLC 1997 AD 16.
28
(4) In a case where the allegations in the FIR or the petition of complaint, even if
taken at their face value and accepted in their entirety, do not constitute the offence as
alleged.
(5) The allegations against the accused although constitute an offence alleged but
there is either no legal evidence adduced in support of the case or the evidence
adduced clearly or manifestly fails to prove the charge".
Now, the question is, what may be termed as preposterous. The ordinary meaning of
‘preposterous’ can be referred as contrary to reason or common sense; utterly absurd or
ridiculous. It refers to something which is “completely unreasonable and ridiculous; not to be
believed”81 and “contrary to nature, reason, or common sense”82. The recognized principle
for quashing of a criminal case by this Court by exercising its inherent power on the ground
of preposterousness is that a plain perusal of an FIR/petition of complaint shall inevitably
give an understanding to its reader that its version is so absurd that ex-facie it transpires to be
contrary to nature, reason or common sense. In the case of Syed Ehsan Abdullah v State,83 it
was observed that –
"The test is that taking the allegations and the complaint as they are, if the High Court
Division in exercising its inherent power without embarking upon an inquiry as to the
truth or falsehood of the allegations made against the accused person finds that no
offence is constituted, then there would be an occasion to bury the proceedings. The
authenticity or falsity of the statement made in the FIR/complaint should be decided
at the trial on taking evidence in support of the prosecution case and a complainant,
who has disclosed a prima facie case in his complaint, must be given an opportunity
of placing materials on which he bases his complaint before the Court through
producing evidences before quashing the proceeding."
A criminal proceeding can be quashed if the allegations made in the First Information Report
and the Charge Sheet or the Petition of Complaint does not constitute any criminal offence. It
is by now a settled proposition of law that 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.84
However, in reality there is hardly any case, preposterousness of which can be noticed from
the mere reading of the FIR/petition of complaint, because, generally, in a criminal case the
absurd nature of the prosecution version becomes surfaced only when the accused files an
application under section 241A or 265C of the Code for getting discharged from the
81
<https://dictionary.cambridge.org/dictionary/english/preposterous>
82
<https://www.merriam-webster.com/dictionary/preposterous>
83
9 ALR 2017 (1) 80.
84
Syed Mohammad Hossain v State, 48 DLR 1996 AD 87.
29
accusation, but it is trite in our criminal trial procedure that defence version should not be
taken into consideration by the trial Court at the stage of framing charge.85
In this connection, the case of Khijir Haider v State86 can be referred, wherein it has been
held, that the quashment of the proceedings under section 561A the stage before framing of
the charge is not permissible when the first information report or the complaint itself
discloses the offence alleged. In spite of the fact there is a scope for the accused-petitioner to
agitate his / her grievance at the time of hearing under section 241A or 265C, as the case may
be, as alternative remedy. The similar view has also been taken in the cases of Nazrul Islam v
State87 and Md. Maksudur Rahman alias Masud v State88. In view of the decisions referred to
above it is apparent that the inherent power invested with the High Court Division under
section 561A of the Code is not permissible to be invoked for quashment of the proceedings
at the stage before framing of the charge when the first information report or the petition of
complaint itself, prima facie, discloses offence as alleged.89 On the other hand, when the
allegation made in the first information report or the petition of complaint do not disclose any
offence, an accused should not be compelled to wait till the stage of hearing under section
241A.90
In Md. Ragib Hasan Khan @ Munu v State,91 Mr. Justice Siddiqur Rahman Mia summarized
the inherent power under section 561A in the following way –
“The inherent power, thus, can be exercised only for exercise of the three purposes
specifically mentioned in the section which are –
(a) the power is not to be resorted to if there is specific provision in the Code for the
redress of the grievance of the aggrieved party and the same not be exercised as
against the express bar of law engrafted in any other provision of the Code,
(b) the power can be exercised to prevent the abuse of the process of the court which
is to be exercised very sparingly with circumspection and in the rarest of rare cases
when exceptional features are brought to notice, and
(c) this power can be exercised only to secure the ends of justice when the injustice to
be remedied is grave in character and ends of justice are put to jeopardy and also to
correct patent illegalities.”
85
Aleya v State and others, 70 DLR 2018 HCD 303.
86
13 MLR 2008 (AD) 157.
87
13 MLR 2008 AD 184.
88
13 MLR 2008 HCD 261.
89
Nazrul Islam Mollah (Md.) v State, 15 BLC 2010 HCD 394.
90
Habib v State, 52 DLR 2000 HCD 105, Latifa Akhter v State, 51 DLR 1999 AD 159.
91
Md. Ragib Hasan Khan @ Munu v. State and another, 30 BLD 2010 HCD 353.
30
When the allegations are preposterous, the proceedings are abuse of the process of the Court,
and are opposed to law, and the allegations do not constitute an offence or there is no proof or
evidence on support of the charge, such proceedings can well be quashed under Section 561A
and not otherwise.92 Sometimes, it become difficult to determine whether the case is
preposterous or not, false or not, malafide or not. Sometimes, it requires evidences to prove.
When it requires or suggests proof with evidences, it attracts disputed question of facts.
It is a settled principle of law that a disputed question of fact cannot be decided by this Court
invoking, its jurisdiction under section 561A of the Code of Criminal Procedure. It is
contended by the learned Advocate for the accused-petitioners that the allegations alleged in
the petition of complaint are so preposterous-and absurd that a person of ordinary prudence
cannot take notice of it as offences. On going through the prima-facie allegations of cheating
and criminal intimidation, it is difficult to find out the truth from falsehood or falsehood from
the truth sitting in the forum under section 561A of the Code.93
One of the Division Benches of the High Court Division in Iqbal Hassan Mahmood alias and
Iqbal Hassan Mahmood Tuku v Government of Bangladesh and others, illustrated the
categories of exercising jurisdiction under Section 561A in this following manner –
"(a) Where the allegations made in the first information report or the complaint, even
if they are taken at their face value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the accused.
(b) Where the allegations in the first information report and other materials, if any,
accompanying the FIR do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of the Code except under an
order of a Magistrate within the purview of Section 155(2) of the Code.
(c) Where the uncontroverted allegations made in the F.I.R. or complaint and the
evidence collected in support of the same do not disclose the commission of any
offence and make out a case against the accused.
(d) Where the allegations in the F.I.R. do not constitute a cognizable offence but
constitute only a non-cognizable offence, no investigation is permitted by a Police
Officer without an order of a Magistrate as contemplated under Section 155(2) of the
Code.
(e) Where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the accused.
92
Anwarul Haque v. Md. Shahidul Islam and another, 1 BLC (AD) 17.
93
Tajul Islam and Another v State and another, 65 DLR 2013 HCD 336.
31
(f) Where there is an express legal bar engrafted in any of the provisions of the Code
or the concerned Act (under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(g) Where a criminal proceeding is manifestly attended with malafide and/or where
the proceeding is maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him due to private and personal
grudge.”94
Under Section 561A of the Code, this Court can examine the admitted documents of the
accused. The extraordinary power of this Court under Section 561A of the Code may be
exercised for the purpose specified therein, namely, (a) to give effect to any order under the
Code, (b) to prevent an abuse of the process of any Court of and (c) otherwise to secure the
ends of justice.95
Any person aggrieved can invoke jurisdiction under Section 561A of the Code. The area and
scope of Section 561A is confined only to criminal matters specifically provided and covered
under this Code. A person seeking jurisdiction under Section 561A must come with clean
hands. A fugitive cannot invoke jurisdiction under this Code without surrendering himself
before the process of law. This is a universal requirement. It applies to all jurisdictions, be it
writ, appellate, revisional or inherent. It is well settled that when a person seeks remedy from
a Court of law, either in writ jurisdiction or criminal appellate, revisional or miscellaneous
jurisdiction under Section 561A, she/he ought to submit to the due process of justice. Let it be
made clear to him, if it is not already known that the Court would not act in aid of an accused
person who is a fugitive from law and justice.96 It is also pertinent to mention that the
inherent power of the High Court Division under Section 561A of the Code can only be
invoked if the proceedings are under the provisions of the Code.97
Stages of applying jurisdiction under Section 561A
The jurisdiction under Section 561A is of an extraordinary nature intended to be used only in
extraordinary cases where there is no other remedy available and cannot be utilised where
there is other express remedy provided by the Code.98 There is no hard and fast rule for
94
Iqbal Hassan Mahmood alias and Iqbal Hassan Mahmood Tuku v Government of Bangladesh and others, 60
DLR (2008) 88.
95
Md Shokrana v State, 21 BLD 2001 HCD 296, 5 BLC 2001 HCD 611.
96
Mokbul Hossain v State, 15 BLC 2010 HCD 372.
97
Siddique Ahmed v Government of Bangladesh and others, 10 ADC 2013 AD 811, 21 BLT 2013 AD 23, 65
DLR AD 2013 8.
98
Md. Salimullah v State, 15 DLR 1963 SC 150.
32
determining the stage in which the jurisdiction may be invoked. There are examples where it
has been exercised in very initial stage. In many cases, it has been applied after framing the
charge before examination of witnesses. In some cases, it is exercised before judgment of
trial Court. There are also examples of applying it after the judgment. The common practice
is to invoke this jurisdiction after framing of charge and before examination of witness start.
Ordinarily criminal proceedings instituted against an accused person must be tried under the
provisions of the Code and the said proceedings should not be generally interfered with at an
interlocutory stage in exercise of the inherent jurisdiction provided under Section 561A of the
Code.99
Before taking cognizance of the offence by the competent court no proceeding is pending in
the eye of law and thus, there is no scope to a proceeding.100A criminal case starts from the
stage of taking cognizance. Unless cognizance is taken, the FIR named suspected persons is
not accused before the court in the eye of law. Where so criminal case exists before the court
in the eye of law, the question of quashing such a non-existent criminal case by involving
section 561A of the Code does not arise at all.101 However, there is contra view as well.102 In
unusual facts and circumstances or rare cases, quashing at initial stage is justified. 103 Delay in
holding process can be a ground in rare occasion where prosecution has exhausted all
processes to secure attendance of witnesses.104
In response to the question that when a criminal proceeding starts, our apex Court held that –
“Proceeding before a court starts when the Magistrate takes cognizance of an offence
on police report or on complaint. Before such cognizance, there is no proceeding that
may be quashed under Section 561A Cr. P. C. Process is issued only after taking of
cognizance. In the 28 DLR case this court considered as to when and under what
circumstances jurisdiction under Section 561A should be exercised and it was held
that interference can beamed even at the initial stage, when a mere perusal of the
complaint would indicate that no criminal case stands against the accused. In that case
there was no discussion as to when a proceeding start before a Court.
When a complaint is filed before a Magistrate he may at once take cognizance and
proceed under Chapter XVI of the Code of Criminal Procedure or he may simply
99
100
Syed Mohammad Hashem v State, 15 BLD 1995 AD) 115; Abdul Haque v State, 60 DLR 2008 AD 1;
Faridul Alam v State, 61 DLR 2009 AD 93.
101
Sadek Hossain v State, 18 BLC 2013 HCD 278.
102
Afia Khatun v Mobesser Ali, 47 DLR 1995 AD 62, 3 BLT (AD) 74.
103
Syed Mohammad Hossain v State, 15 BLD (AD) 115.
104
Bangladesh v Md. Amzad Ali, 56 DLR 2004 AD 119.
33
direct the police to investigate under Section 156A of the Code and in that case he
does not take cognizance of the offence.”105
It has been further observed that –
“On the lodging of the F. I. R. as case does not become a case pending in a court
within the meaning of clause (c) of S. 35 of Ordinance 24 of 1982. It is then a case
pending for investigation within the meaning of clause (d). After investigation and on
the submission of charge sheet before a court it would become a case pending in the
Court.”106
Therefore, 'Judicial Proceeding’ indicates a proceeding 'before a court starts after the
Magistrate takes cognizance of an offence on police report or on complaint. Before such
cognizance there is no proceeding that may be quashed under section 561A. Quashing of a
proceeding can be made even at the initial stage just upon taking of cognizance by the
Magistrate when facts and circumstances of a case justify it.107 It was further held that 'Re-
investigation' under the garb of' further investigation' is not contemplated in law. There
cannot be any re-investigation into a case after charge sheet has been submitted. Malafide
vitiates everything. Even a malafide investigation cannot be sustained and it is liable to be
struck down.108
The important analysis has been made in In the case of Shamsul Islam v Badiar Zaman109,
wherein it has been held as follows –
“It may be mentioned that the Privy Council in the case of Emperor VS. Nazir Ahmad
AIR (32) 1945 PC 18 approved the view taken in Madras case that the High Court
Division may interfere under Section 561A even during Police investigation if no
cognizable offence is disclosed and still more if no offence of any kind is disclosed
because in that case the police would have no authority to undertake an investigation.
In the case of N Mahmud Vs. M Ahmed, 1984 BLD (AD) 97=36 DLR (AD) 14,
Badrul Haider Chowdhury, J. referred to an earlier case Abdul Quader Chowdhury
Vs. State 28 DLR (AD) 39 and took it to be a settled provision of Law that there may
be cases where allegation in the First Information Report or the complaint, even if
they are taken at their face value and accepted in their entirely, do not constitute the
offence alleged and in such cases it would be legitimate for the High Court Division
to hold that it would be manifestly unjust to allow process of the Criminal Court to be
issued against an accused person. In that case Masud J. observed that proceeding
before a Court starts when the Magistrate takes cognisance of an offence on Police
report or on complaint. Before such cognizance, there is not proceeding that may be
quashed under Section 561A CrPC. Process is issued only after taking of cognisance.
105
Nasiruddin Mahmud and others v Momtazuddin Ahmed and others, 36 DLR 1984 AD 14.
106
Masu Sarder v Rashid Biswas and others, 37 DLR 1985 HCD 182.
107
Mubashwir Ali and others v State, 14 BLD 1994 HCD 566.
108
Mubashwir Ali and others v State, 14 BLD 1994 HCD 566.
109
48 DLR 1996 AD 87.
34
We are leaving this matter presently by pointing out that ordinarily the view taken by
Masud J. is correct and the same is being followed in our Court since long. But that is
not to say that the view expressed in 28 DLR (AD) 39, and referred to by Badrul
Haider Chowdhury, J. is not correct. There may be one case out of a thousand where
the High Court Division will be justified in interfering even at the initial stage before
taking of cognizance. But the usual and well-settled practice is that a criminal
proceeding can only be quashed after cognisance has been taken and process issued
thereupon subject to the fundamental principle that the power of quashing is and
should be very sparingly exercised and only to prevent the abuse of the process of the
Court.”
Exercise of the inherent jurisdiction under section 561A by the High Court Division depends
on the facts of each case. Its interference at the initial stage of a proceeding pending before a
Court is conditioned by the absolute necessity for such interference. But a pertinent question
may be posed as to when and under what circumstances the said jurisdiction can and should
be exercised by the High Court. The consensus of judicial opinion is that it is not possible,
desirable or expedient to lay down any inflexible rule which should govern the exercise of
this inherent jurisdiction. The exercise of this jurisdiction will depend upon the facts and
circumstances of each case. Interference even at an initial stage may be justified where the
facts are so preposterous that even on the admitted facts no case can stand against the accused
and that a further prolongation of the prosecution would amount to harassment to an innocent
party and abuse of the process of the Court.
In Abdul Quader Chowdhury and others110 our Apex Court Division has clearly spelt out the
categories of cases where the High Court Division should interfere to quash a criminal
proceeding –
preposterous that even on the admitted facts no case can stand against the accused.
(2) Where institution or continuance of criminal proceedings against an accused

person may amount to an abuse of the process of the court or when the quashing of
the impugned proceedings would secure the ends of justice.
(3) Where there is a legal bar against institution or continuance of a criminal case
against an accused person.
(4) In a case where the allegations in the First Information Report or the complaint,
even if they are taken at their face value and accepted in their entirety, do not
constitute the offence alleged and in such cases no question of weighing and
appreciating evidence arises.
110
35
(5) The allegations made against the accused person do constitute an offence alleged
but there is either no legal evidence adduced in support of the case or the evidence
adduced in support of the case or the evidence adduced clearly or manifestly fails to
prove the charge. This refers to a case at a trial stage and thereafter.”
Interference even at an initial stage may be justified where the facts are so preposterous that
even on the admitted facts no case can stand against the accused and that a further
prolongation of the prosecution would amount to harassment to an innocent party and
continuation of the proceedings will cause abuse of the process of the Court. It would also
interfere whenever there is any exceptional and extraordinary reason for doing so. Criminal
proceedings can be quashed if there is something on the record to show that the accusations
in the complaint do not disclose an offence, at all, or that evidence adduced in the case
discloses no offence as in that event, the process of the Court can be said to have been
abused. One of the tests to apply in order to determine is whether any particular case is of that
exceptional nature sufficient to convince the High Court Division that it is fit case for its
interference at an intermediate stage. Another test to be applied is to see whether it is allowed
to proceed. If the fact of this case is judged with the above mentioned tests, then it is a fit case
for interference in the interest of justice and to stop abuse of process of laws.111
Interference even at an initial stage may be justified where the facts are so preposterous that
even on the admitted facts no case can stand against the accused and that a further
prolongation of his prosecution would amount to harassment to an innocent party and abuse
of the process of the court.112 In a famous case deciding on the issue whether offence of
cheating can lie against partner or not, the Appellate Division dismissed the complaint at the
very initial stage even before the police report.113
In Rabeya Khanam v State,114 the High Court Division further held that the settled principle
of law is that to bring a case within the purview of Section 561A for the purpose of quashing
a proceeding one of the following conditions must be fulfilled –
preposterous that even on admitted facts no case stands against the accused.
(2) Where the institution and continuation of the proceeding amount to an abuse of the
process of the court;
111
Rabeya Khanam v State, 64 DLR 2012 HCD 467.
112
Maqbool Hussain Shah v Fayyaz Mahmood, 1995 P.Cr.LJ 1257, Mirza Naseem Baig v Muhammad Iqbal and
another, 1981 SCMR 315, Muhammad Farooq and others v State, 1992 P.Cr.LJ 864, Tahir-ul-Islam v State and
another, 1984 P.Cr.LJ 834, Tahir-ul-Islam v State, 1979 SCMR 94, Sh. M Taqi v State, 1991 P.Cr.LJ. 963.
113
Nasiruddin Mahmud and others v Momtazuddin Ahmed and another, 4 BLD 1984 AD 97, 36 DLR 1984 AD
14.
114
Rabeya Khanam v State, 64 DLR 2012 HCD 467.
36
(3) the facts disclosed either in FIR or charge-sheet is so preposterous that no
proceedings can be taken against him/her;
(4) The prosecution is legally barred.”
In the case of State v Lailun Nahar Ekram, 115 the Appellate Division interfered at the very
initial stage holding that we are mindful of the fact that during investigation by police usually
the Court does not interfere under Section 561A, but in the present case, in view of the facts
and circumstances as noticed above, we consider it a fit case to interfere at the stage of police
investigation to prevent the abuse of the process of the Court and to secure the ends of justice.
The aforesaid discussion and case references have provided some glimpses of exercising
jurisdiction under Section 561A in any stage including at the very initial stage though in a
limited manner. This scope has been more shortened down in TaeHung Packaging (BD) Ltd.
v Bangladesh116 wherein Mr. Justice Surendra Kumar Sinha delivered that –
“We find from the above discussions that the views expressed by the Judicial
Committee in Nazir Ahmed (AIR 1945 PC 18) hold the field till now and the apex
Courts of India, Pakistan and Bangladesh have been following the said opinions to
great respect. The functions of the judiciary and the police are complementary, not
overlapping and the combination of individual's liberty with a due observance of law
and order is only to be obtained by leaving each to exercise its own function-the
Court's function begins when a charge is preferred before it and not until then and,
therefore, the High Court Division can interfere under section 561A only when a
charge has been preferred and not before. The interference in exercise of powers
under Article 102 has been deprecated on repeated occasions and such exercise of
powers is justified only in exceptional cases as observed above.
Where the allegations in the FIR or Complaint even if they are taken at their face
value and accepted in their entirety do not prima-facie constitute any offence, or
where in the opinion of the Court chances of the ultimate conviction are bleak and no
useful purpose is likely to be served by allowing the criminal prosecution, or when the
power would advance the cause of justice or it would be an abuse of the process of the
Court, interference in such exceptional cases may be justified. This power of the
Court does not confer any arbitrary jurisdiction to act according to its whims. The
High Court Division would be loath and circumspect to exercise its extra-ordinary
power at an initial stage of the proceeding. The Court will not be justified in
embarking upon an inquiry as to the reliability or genuineness of the allegations made
in the FIR or Complaint.
It is noticeable that even in Swapan Kuamar (ibid), the Supreme Court of India while
maintaining the High Court's judgment expressed its anxiety to quash the proceeding
115
State, represented by the Deputy Commissioner, Gazipur v Mrs. Lailun Nahar Ekram, Managing Director,
Engineer and Consultants (Bd) Ltd., 15 BLT 2007 AD 185, 27 BLD 2007 AD 18, 62 DLR 2010 AD 283.
116
TaeHung Packaging (BD) Ltd. v Bangladesh, 33 BLD 2013 AD 359.
37
at the initial stage observing that if the Court interferes with the power of
investigation in a case where offence has been disclosed, the offender will be
unpunished to the serious detriment of the welfare of the society and the cause of
justice suffers. I fully agree with the above opinion. The principle behind it is that the
Court normally does not interfere with the investigation of a case where the offence
has been disclosed in the FIR or complaint. The tendency of interference at the stage
of investigation of a case is now on the rise which has not happened earlier even
though it has repeatedly been pointed out that such assumption is not correct. The
Courts should be weary of its possible consequence.”
The aforesaid case was heard by the Appellate Division comprising of their Lordships Chief
Justice Mr. Muzammel Hossain, Justice Surendra Kumar Sinha, Justice Abdul Wahhab Miah,
Justice Muhammad Imman Ali, Justice Mamtaz Uddin Ahmed and Justice Shamsul Huda.
Justice Surendra Kumar Sinha and Justice Abdul Wahhab Miah delivered their judgments
separately. Rest other judges agreed with the deliberation given by Justice Abdul Wahhab
Miah who did neither make any observation regarding the stage of invoking Section 561A
nor state anything in support of the conservative opinion given by his brother judge.
In Engineer Afsaruddin Ahmed v State,117 the High Court Division held that –
“On careful reading of the Section 561A and the long line of decisions cited above by
the respective parties, it becomes clear to us that the criminal proceedings instituted
against any accused person in the normal course are to be tried under the provision of
the Code and the said proceeding should not be generally interfered with at an
interlocutory stage, but there may be cases, where it may be possible and necessary
for the High Court to quash a Criminal Proceeding if it is found that the initiation and
continuation of the proceeding against the accused tantamounts to abuse of the
process of the Court and such proceeding is required to be quashed to secure the ends
of justice.”
Although inherent power of the High Court Division under Section 561A is generally
exercised for preventing an abuse of the process of the Court in respect of a pending
proceeding case; nevertheless the said power can also be exercised in respect of a proceeding
which has reached its finality after the conclusion of the trial when it is found necessary to
prevent an injustice. But this power should be exercised sparingly and in exceptional cases
where the offences alleged do not constitute any criminal offence or a conviction has been
based on no legal evidence or shockingly inadequate evidence.118 Likewise, it can be
exercised at the very initial stage on the grounds as discussed earlier. The stage is surely
important but it also depends upon the discretion of High Court Division who can apply the
117
118
Sohail Ahmed Chowdhury v State, 15 BLD 1995 HCD 452.
38
inherent jurisdiction at any stage for giving effect to any Order passed under this Code or for
preventing abuse of the process of the Court or for securing the ends of justice.
Power and nature of jurisdiction under Section 561A
The High Court Division has, in view of its general jurisdiction over all the criminal Courts
subordinate to it, inherent power to give effect to any Order of any such Court under the Code
and to prevent the abuse of process of any such Court, or otherwise to secure the ends of
justice. The power to quash a proceeding under this Section being in its nature extraordinary,
it should be exercised sparingly, carefully and only where such exercise is justified to prevent
the abuse of the process of the Court and to do the real and substantial justice for the
administration of which alone the Court exists.119
In exercising the jurisdiction under Section 561A, the Court would not embark upon an
enquiry as to whether the evidence in question is reliable or not. That is the function of the
trial Magistrate and ordinarily it would not be upon any party to invoke the High Court's
inherent jurisdiction and contend that on reasonable appreciation of the evidence the
accusation made against the accused would not be sustained.120
The power of the High Court Division to quash a criminal proceeding under Section 561A is
confined to cases where materials on record do not disclose a prima facie case to go for trial.
The power under this Section can be exercised to quash a particular proceeding or a part
thereof only when reading the petition of complaint or the FIR, as the case may be, the police
report and other materials, if any, it appears that there is no prima facie case to go for trial.
Insufficiency of materials cannot be a ground for quashing a proceeding even if the assertions
made by the accused petitioners have, not been controverted by filing an affidavit-in
opposition. The High Court Division cannot embark upon an enquiry to ascertain the
reliability either of the allegations made by the prosecution and of the assertions made by the
accused persons while deciding a case under section 561A of the Code.121
To prosecute a person without even any prima facie material is an abuse of the process of the
Court. If this court refuses to exercise its inherent powers vested in it under Section 561A and
cannot stop prosecution of a person against whom the prosecution could not produce any
prima facie material, the whole intent and purpose of Section 561A of the Code of Criminal
Procedure vesting this Court with inherent powers to prevent abuse of the process of the court
119
120
121
Mr. Justice Md. Ruhul Amin in Moudud Ahmed v State, 16 BLD 1996 HCD 36.
39
loses all its meaning. Therefore in a fit case, this power should be exercised for ends of
justice
The High Court Division has not only general power over the subordinate Courts in its
appellate and revisional jurisdiction, but also power under Section 561A to pass any Order to
prevent the abuse of the process of the Court, or otherwise to secure the ends of justice.
Though the inherent power of the High Court Division is undefined and unlimited but this
inherent jurisdiction should not be generally and indiscriminately invoked particularly when
some other remedy is available. The jurisdiction given under Section 561A is not an
alternative jurisdiction, nor it is an additional jurisdiction but it is a jurisdiction preserved in
the interest of justice to redress grievances for which no other procedure is available or has
been provided in the Code itself.122
Test of Section 561A
Jurisdiction under Section 561A is conferred to the High Court Division of Supreme Court of
Bangladesh. No subordinate criminal Court or Tribunal can exercise this jurisdiction.
Likewise, the apex court i.e. the Appellate Division of Supreme Court of Bangladesh cannot
apply this jurisdiction. This jurisdiction is exclusively to be exercised by the High Court
Division only who exercises it under the miscellaneous jurisdiction. Though there is no strict
requirement laid down in this Section that the jurisdiction is to be exercised upon application
of any party or suo moto at the instance of the Court itself, generally it is being applied upon
an application of a party.
Any order or judgment passed in exercise of miscellaneous jurisdiction under this Section is
appealable. Anyone being aggrieved by or dissatisfied with the order or judgment of the High
Court Division under Section 561A can file appeal before the Appellate Division under
Article 103 of the Constitution of the People’s Republic of Bangladesh. In exercise of the
appellate jurisdiction, the Appellate Division can test the order or judgment of the High Court
Division passed under Section 561A. The Appellate Division can also interpret and examine
the application of this Section case to case basis. The Appellate Division can adjudicate
whether the High Court Division has exercised its jurisdiction correctly. The Appellate
Division can travel anywhere with regard to application of this Section but cannot apply the
inherent jurisdiction under Section 561A directly as it is conferred only upon the High Court
Division.
Exercised upon application or suo moto
122
40
Though there is no mention in Section 561A that the power is to be exercised upon
application of any party or suo moto, generally it is exercised upon an application of the
party. The Bombay High Court Division once expressed –
“Therefore, in our opinion as S. 561A was enacted to emphasize the fact that the High
Court has the widest jurisdiction to pass orders to secure the ends of justice, S. 561A
must give the power to this Court to entertain applications which are not contemplated
by Criminal P.C. Therefore, if the High Court feels that ends of justice require that an
Order should be made in an application, although the application is not contemplated
by the Code, the High Court will entertain the application and make the necessary
orders to secure the ends of Justice.”123
In Abdus Samad (Md.) v State and others,124 the High Court Division issued suo moto Rule in
the following terms –
“"Let a Suo-Moto Rule under section 561A of the Code of Criminal Procedure be
issued calling upon 1) Miss Maksuda Khanam, Additional Chief Judicial Magistrate,
Feni, 2) Public Prosecutor, Feni, 3) Mr. Syed Abul Hossain, Assistant Public
Prosecutor, Feni 4) Mr. Mohiuddin Ahmed, Police Inspector, Officer-in-Charge,
Fulgazi Police Station, Feni and 5) Mr. Md. Kowsar Hamid, SI Fulgazi Police Station,
Feni to show cause as to why appropriate legal actions should not be taken against
them for the aforesaid deliberate mistakes and illegality leading to the interference
and manipulation of the criminal justice system of this country in the aforesaid case
and/or such other or further order or orders be passed as to this Court may seem fit
and proper".”
Subsequently, the Rule was disposed of by the Court vide judgment and order dated
18.11.2013. Earlier in State v Md. Zahangir Alam-Officer-in-Charge125, the High Court
Division exercising its inherent jurisdiction under Section 561A issued suo moto Rule and
subsequently made it absolute. This Rule was issued basing on a newspaper report. A detail
of this case is provided in the Appendix.
While issuing suo moto Rule under Section 561A, can the High Court Division act as a Court
of cognizance – the extent of suo moto Rule under this section once discussed in Abdul
Mannan Bhuyia v State and others126.
The fact of the case in brief was that “two criminal appeals being Nos. 24 and 25 of 1999
have been filed against the judgment and order dated 13.08.1999 passed by the High Court
123
State of Bombay v Nilkanth Shripad Bhave and another, A.I.R. 1954 Bombay 65.
124
19 BLC 2014 HCD 171.
125
14 BLT 2006 HCD 156, 25 BLD 2005 HCD 611.
126
28 BLD 2008 AD 54.
41
Division in Criminal Miscellaneous Case No.668 of 1999 (suo moto) making the Rule
absolute. Since both the appeals involved common question of law and facts they are being
disposed of by this judgment. The High Court Division after reading the daily Ittefaq dated
10 to 12 February, 1999 issued a suo moto Rule on 15.02.1999 under Section 561A of the
Code of Criminal Procedure upon the appellant of Criminal Appeal No. 24 of 1999, who at
the relevant time was General Secretary, Bangladesh Nationalist Party and others to show
cause as to why activities for pro-hartal and anti-hartal should not be declared as cognizable
offence and the Criminal Courts and the police should not be directed to take action
accordingly.”
Basing on the facts, the Appellate Division arrived at the following findings –
“(a) In the absence of any proceeding pending in any inferior Criminal Court or
before it the High Court Division had no jurisdiction under Section 561A of the Code
of Criminal Procedure to issue a suo moto Rule upon the opposite parties in the Rule.
(b) The High Court Division had no Constitutional or Judicial power to legislate or
create of its own a cognizable offence.
(c) Hartal if enforced through force or violence or threat of force or violence will not
only be illegal but will Constitute cognizable offences punishable under the Penal
Code and other penal laws of the country and any Government worth the name will be
duty bound to protect the people by bringing to book the offenders regardless of what
party they belong.
(d) No issue was raised in this appeal about the legality or desirability of hartal. The
virtue and vices of hartal is a political question and this court in exercise of its judicial
self restraint declines to enter into such political thicket particularly in absence of any
Constitutional imperative or compulsion.”
There are some other references too where the High Court Division issued suo moto Rule
under Section 561A. In the Daily Star and Protham Alo Patrika v State,127 the High Court
Division took an effective step for ensuring the proper administration of justice by relieving
one learned public prosecutor for conducting the case and also by directing Police to perform
the duties in accordance with law. Regarding the learned public prosecutor the Court stated
that –
“A public prosecutor is not expected to show a thirst to reach the case in the
conviction of the accused somehow or other irrespective of the true facts involved in
the case nor he is expected to show unperturbed in one case and to show interest in
particular cases of his choice. If he remains busy with other cases, he could have
deputed another public prosecutor for conducting this case. He is not expected to
conduct all the cases pending for trial. The expected attitude of the public prosecutor
while conducting prosecution must be couched in fairness not only to the court but to
127
21 BLD 2001 HCD 179.
42
the accused as well. Even if the defense lawyer over looked a vital fact, the public
prosecutor has the responsibility to bring it to the notice of the court if it comes to his
knowledge. Normally we do not interfere with the tasks of the Public Prosecutors as
to how he conducts the cases on behalf of the prosecution which is exclusive
jurisdiction of the State but in a case in which there are allegations of committing
murder in the office against some Law enforcing personnel and the image of an
efficient Branch of Police Department which has acquired earlier is shaken, this court
cannot overlook them even after publication of repeated articles in news papers
alleging serious allegations against him.”
Regarding the role and duty of police, the Court contended that –
“The administration of the criminal Law is entrusted with the police. The most
obvious function of the police is to locate the person who has committed the crime
and to arrest such person. But somehow or other in this country it seems that
confidence is lacking. It is the individual character of the policemen that Counts a
good deal. In this case as observed, there are allegations of serious nature against
some police personnel. From a perusal of the record and the discussions made above,
we are satisfied that the learned public prosecutor is neither diligent nor sincere
enough to the estimation of the bereaved family, and to the court below. We are also
satisfied that the learned Public Prosecutor is not giving proper attention to the case
and he remains perturbed in spite of publication of reports making serious allegations
against him. Therefore, we are of the opinion that ends of justice will be met, if, he is
relieved of the case and the prosecution of this case is entrusted to a responsible
public prosecutor of the State who will be sincere in discharging his duties. Although
this Rule was issued for appointing a special public prosecutor in his place, we agree
with the views expressed by the learned Deputy Attorney General that if a special
public prosecutor is appointed in this case, there may arise complication in conducting
the case. Learned Deputy Attorney General submits that besides the public
Prosecutor, there are Additional Public prosecutors and Assistant Public Prosecutors
who have been performing their responsibilities at Dhaka efficiently. Accordingly, we
direct the Solicitor, Law, Justice and Parliamentary Affairs and the Deputy
Commissioner. Dhaka, to appoint a public prosecutor in this case from among the
Additional Public Prosecutors, Assistant Public Prosecutors and the panel of
Advocates enlisted for conducting prosecution, appointed by the State.”
So far ensuring the attendances of the witnesses are concerned in a criminal case is
concerned, the Court explained the role of Police in the following manner by interpreting the
relevant provision of law –
“Before parting, we would like to make some observations about the responsibilities
of the investigation agencies in general. We have noticed in this case and in some
other cases that the investigating officers did not follow up the case properly after
submission of police reports under Section 173(1) CrPC. It seems to us that they
thought that they are relieved of their responsibilities after completion of investigation
in a case. It might be due to their ignorance of Law or for any other obvious reason.
The police officer who has investigated a case has a statutory obligation for ensuring
43
the attendance of the witnesses at the trial under sub-Section (2) of Section 171
CrPC.”128
Therefore, it can be said that our High Court Division is conscious about issuing suo moto
Rule under its inherent jurisdiction under Section 561A in appropriate cases. The Court can
issue suo moto or limits its own jurisdiction. Suo moto Rule cannot be issued when there is
no pending proceeding.129 This is totally discretionary matter of the Court. Whether to be
issued suo moto or upon any application of any party, the Court will decide in order to give
effect to any order under this Code, or to prevent abuse of the process of any Court or
otherwise to secure the ends of justice.
Without filing any discharge petition, can section 561A be invoked?
The scope of filing discharge petition under Sections 265C and 241A is a very important one
under criminal justice system for preventing frivolous, preposterous, malafide, fraudulent,
false and fictitious cases. There is no hard and fast rule that without filing a petition of
discharge under Section 241A or Section 265C, as applicable, the aggrieved party cannot
invoke jurisdiction under Section 561A. However, an accused contesting the case properly
during trial stage is expected to submit discharge petition in due course of law. It is his/her
legal entitlement to file such petition, and when the case is fixed for charge hearing, the
accused can submit discharge petition. No Court can prevent or restrain or disentitle the
accused to file such petition unless the accused by his own negligence or inertia misses the
date / stage for filing such application for discharge.
It is the cardinal responsibility of a learned Advocate to inform his / her client and make him
/her understand the importance of filing discharge petition. Because, filing of discharge
petition is considered as a good step. It gives an opportunity to show clean hands and
bonafide intention of the accused to show his / her sincerity and respect towards the process
of law and Court. It gives a better footing for invoking jurisdiction under section 561A
claiming that the accused has exhausted all other alternative recourses and through his / her
discharge petition he / she tried to prove before the Court that the continuation of the case is
an abuse of the process of the Court and the accused should be discharged from the case for
ends of justice. The statements produced in the discharge petition and the documents
produced therewith entitle the accused to submit the same before the High Court Division as
well under Section 561A either by way of calling the LCR (Lower Court Record) or by
obtaining certified copies of the same from the trial Court below for producing the same
128
For details, please see the appendix.
129
Amanullah Kabir and Abdul Mannan Bhuiyan v State, 13 MLR (AD) 150.
44
before the High Court Division. Failure to take the opportunity of filing discharge petition in
accordance with law surely a minus point for the accused which makes his position a bit
weaker before the High Court Division while challenging the case during trial stage or before
judgment.
It has been settled in the decisions reported in 50 DLR (AD) 115, 48 DLR 102, 50 DLR 301,
50 DLR 551, 2000 BLD (AD) 50 that in order to relieve the burden of the High Court
Division with frivolous cases, sections 241A and 265C were included in the Code of
Criminal Procedure for enabling the accused persons to place their cases before the learned
Magistrate or trial Court in order to come out of the proceeding.130
Section 265C in Chapter XXIII of the Code speaks of discharge of an accused in a trial
before Court of Sessions, and Section 241A in Chapter XX speaks of discharge of an accused
in a trial by a Magistrate. These are two independent sections of the Code which deal with
discharge of an accused brought for trial in respect of cases triable by a Court of Sessions and
by a Court of Magistrate. These two Sections indicate that when an accused is brought for
trial before a Court of law, the Court upon hearing the parties and on consideration of the
record of the case and the documents may discharge the accused. These two Sections are
having nothing to do with quashing of a proceeding. Section 561A is an independent inherent
power of the High Court Division and this power can be exercised in case of abuse of process
of court and for securing the ends of justice and or to give effect to any order under the
Code.131
Difference between original jurisdiction and section 561A
Any person aggrieved can invoke jurisdiction under Section 561A of the Code so far the
Code prescribes so. As mentioned earlier, jurisdiction under Section 561A is inherent in
nature though not an original jurisdiction. It is neither original nor appellate nor revisional
jurisdiction. It confers a jurisdiction itself. It is as it is. It is a miscellaneous jurisdiction of the
High Court Division only in respect of criminal matters as covered by the Code in addition to
appellate or revisional or other miscellaneous jurisdiction. It is also different from the writ
jurisdiction as conferred upon the High Court Division under Article 102 of our Constitution.
Whenever it is found that an appeal or the inherent power under Section 561A of the Code
provides an equally efficacious remedy for a matter, any petition in this respect filed under
Article 102 of the Constitution would be misconceived. His remedy, if any, under the facts
130
AKM Iftekhar Ahmed and another v State, 59 DLR 2007 HCD 646.
131
Latifa Akhter and others v State and another, 19 BLD 1999 AD 20.
45
and circumstances of the case, would be under the Code and not otherwise. An application
under Section 561A of the Code, under the inherent power of the High Court Division, would
provide an equally efficacious remedy to that of the extraordinary power of the Court, as
such, an application under Article 102 would be misconceived and is liable to be
dismissed.132
Jurisdiction under Article 102(2), as a whole, is known as extraordinary jurisdiction and the
same is to be availed of only when there is 'no other equally efficacious remedy' available.
The framers of the Constitution have intended that the people at first must search for and
approach an appropriate legal forum other than the Constitutional Court. It is only then the
Constitutional Court should be availed of when the citizen will find that the State has not
created any legal forum for them for the aspired remedy. Thereafter, subject to the
'satisfaction' of the Court, a writ petition may be entertained.133
Likewise, the jurisdiction under Section 561A is of an extraordinary nature intended to be

used only in extraordinary cases where there is no other remedy available. It is of a limited
scope and cannot be utilised where there is another express remedy provided by the Code. In
the exercise of the inherent jurisdiction under this Section the High Court Division can
neither exercise the powers of a Court of appeal nor can it enhance a sentence nor can it even
re-consider the question of sentence.134
In this regard, it is important to mention that our apex Court consistently discarded the writ
petitions challenging the criminal proceeding settling the ratio in the case of Chairman, Anti-
Corruption Commission and another v Enayetur Rahman and others,135 and Government of
Bangladesh and another136. In the aforesaid cases, the apex Court consistently held as under
–
“The exercise of extraordinary jurisdiction by the High Court Division to examine the
legality of a criminal proceedings initiated under general laws is deprecated. The main
thrust is whether if the process of the Court of law constituted under the general law is
being abused, a writ of certiorari is maintainable. The High Court Division's power
under writ jurisdiction to quash criminal proceedings should be exercised sparingly in
rarest cases On perusal of the impugned judgment we noticed that the High Court
Division in fact exercised its power under section 561A of the Code of Criminal
Procedure in the garb of a writ jurisdiction. If the High Court Division feels to
exercise its writ jurisdiction there must have been good and sufficient reason to by-
132
Siddique Ahmed v Government of Bangladesh, 33 BLD 2013 AD 129.
133
Jamal Uddin v Major General Abdus Salam and others, 34 BLD 2014 HCD 60.
134
Md. Samiullah v State, 15 DLR SC 150, Nasir Mia (Md.) v State, 39 BLD 2019 HCD 46, 70 DLR 2018 HCD
801.
135
64 DLR 2012 (AD) 14.
136
65 DLR 2013 (AD) 246.
46
pass the alternative remedy provided by the statute. The writ jurisdiction is meant for
doing justice where it cannot be done in any other forum."
Therefore, so far extraordinary nature is concerned, both Article 102 and section 561A
possess exceptional jurisdiction. However, the former one is the original jurisdiction of the
High Court Division under the Constitution while the later is the miscellaneous jurisdiction
under the Code. In terms of nature of guaranteeing reliefs, procedures, scope, jurisdiction,
power and application, both are quite different. In some cases, even in respect of criminal
matters Section 561A may not be available but Article 102 can be invoked.137 On the other
hand, remedy under Article 102 can be refused on ground of availability to invoke
jurisdiction under Section 561A.138 Nevertheless, entertaining criminal matters in writ
jurisdiction is discouraged generally. In exceptional cases where there are no other alternative
remedies or no remedy under existing criminal laws, still writ can lie and the controversy is
still going on.139
In other civil or criminal matters, original jurisdiction implies where the suit or case can be
initiated or lodged at the first instance. For example : a criminal case can be lodged with the
nearby Police Station or Magistrate Court / Tribunal having power to register or take
cognizance. The Court having power to try the case is the original or trail Court for that case.
No case can be filed under Section 561A before the High Court Division where there is no
case pending either before the cognizance Court or trial Court or appellate Court or revisional
Court. In any situation if the cognizance Court or Tribunal refuses to take cognizance of any
case or try any case, the aggrieved party can invoke jurisdiction under Section 561A
following the due course of law where there is no other efficacious remedy is available.
137
For one example : In Siddique Ahmed v Government of Bangladesh, 33 BLD 2013 (AD) 129, the Appellate
Division held that –
“Since no equally efficacious remedy is provided under any other provisions of law, the persons who
are aggrieved by the orders of the Martial Law Courts, may in appropriate cases, invoke the
extraordinary powers of the High Court Division under Article 102(2)(a)(ii) of the Constitution.
The High Court Division, however, must be satisfied that:
a) there is a genuine grievance.
b) the order, act and things done, complained of, could not be taken under the normal circumstances, by
a proper authority,
c) the proceedings complained of, ended in a miscarriage of justice,
d) there is an over-all failure of justice.
138
Ibid.
139
State of Hariana v Bhajan Lal, AIR 1992 SC 604, Government of the Peoples Republic of Bangladesh v
Iqbal Hasan Mahmood Tuku, 60 DLR AD 2008 147, MA Hai v TCB, 40 DLR 1988 AD 206, Siddique Ahmed v
Bangladesh and others, 31 BLD 2011 HCD 84, 63 DLR 2011 HCD 565.
47
Difference between appeal and section 561A
Appeal is the continuation of trial / original case140 but Section 561A though arises out of the
original case not a continuation of the original case. Section 561A is a different proceeding
arising out of the original case but specially filed and run before the High Court Division.
Appeal can be filed as of right as vested under the statute, but Section 561A is discretionary
power which depends upon the satisfaction and discretion of the Court itself. In appeal, the
appellate Court enjoys ample jurisdiction including re-assessing and re-examining all the
facts, evidences and law points afresh like the trial Court, but section 561A only authorizes
the High Court Division to apply its inherent jurisdiction to the limited extent for limited
purposes as specially mentioned in the Section i.e. in three situations (i) to make such orders
as may be necessary to give effect to any Order under this Code, or (ii) to prevent abuse of
the process of any Court , or (iii) to secure the ends of justice.
Further, under Section 561A the High Court Division cannot sift the evidence in its
extraordinary jurisdiction like the Court of appeal. This Court can neither assess the evidence
nor give any benefit of doubt even in favor of the convict petitioner.141
Under section 561A, the High Court Division cannot remand a case back to the trial Court or
appellate Court. Because, the power of sending the case on remand is available to the
appellate authority or even in the revisional forum, where no appeal lies and the Court is yet
to come across any instance where the extra-ordinary power under Section 561A has been
used for the purpose of securing conviction of an accused by setting aside an order of
acquittal. The High Court Division exercising power under Section 561A is not supposed to
embark upon an inquiry to ascertain sufficiency, reliability and admissibility of evidence on
record.142
Thus the power, scope, jurisdiction and nature of relief of appeal and section 561A are
different and distinctive. It is to be remembered that where there is alternative forum of
appeal, without exhausting the same, an application under section 561A is not maintainable.
Inherent jurisdiction under section 561A cannot be used as a weapon of avoiding other
alternative remedy as discussed above. It cannot be invoked even if the right to appeal is
conditional and not unfettered one.
140
Bangladesh and another v Md. Salimullah, 3 BLD 1983 AD 10.
141
Zakir Hossain v State, 14 BLC 2009 HCD 739.
142
Rezia Khatun v State, 24 BLD 2004 HCD 183, 56 DLR 2004 HCD 208.
48
Provisions under section 138A of the Negotiable Instruments Act 1881 restricted the right to
prefer appeal, against an order of sentence under section 138(1), by imposing a precondition
to deposit not less than 50% of amount of dishonoured cheque in trial court, otherwise appeal
is not maintainable. But convict petitioner has filed an application under section 561A
without preferring an appeal and without complying with pre-conditions laid down under said
section, apparently to avoid depositing 50% of amount of dishonoured cheque . Therefore,
the petition filed under section 561A is also not maintainable on ground that an alternative
forum is available under section 138A and convict petitioner had waived his right to prefer an
appeal, subject to fulfillment of condition laid down in section 138A. It is settled law that, an
appeal is a creation of a statute. Besides, when right to prefer an appeal is qualified by a
precondition to deposit not less than fifty percent of amount before trial court or by any other
pre-condition, then petition under Section 561A is not maintainable.143
In a different situation, where the convict person failed to prefer appeal in time and there is
no scope for condoning the delay, then the aggrieved party again falls without any alternative
remedy. In such situation, jurisdiction under Section 561A can be invoked but not as a
general recourse. In such cases, issue of granting bail can also be considered by the High
Court Division. The scope of Section 561A is limited here too as discussed earlier. This is
interpreted narrowly by our apex Courts. One reason is to bring the convict appellant within
the purview of law and comply therewith. It is also for preventing the convict person from
misusing the provision of law, otherwise after pronouncement of sentence against him/her,
he/she would flee or hide himself/herself for an indefinite period of time as much he/she
prefers, and then come to Court at his/her whim or being arrested by invoking jurisdiction
under section 561A. This will disturb the justice system. It will encourage tyranny and
arbitrariness of the convict person. It will be a sheer disrespect to the process of law and
Court. It will widen the scope of uncleanness of the hand of the convict which will give birth
to a sheer abuse of the process of the Court.
However, this is always not intentional. The failure to file appeal within time may arise out of
compelling circumstances which are not intentional. The reasons can be bonafide. The trial
can be concluded without total knowledge of the convict. The convict may not be properly
instructed or informed by his/her learned Advocate. There can be other exceptional
circumstances which are bonafide and unintentional in nature. All these situations cannot be
narrowed down altogether. It depends upon the facts and circumstances of each case.
Therefore, in such cases it is ultimately the High Court Division to decide applying its
discretionary power and judicial mind whether to entertain or not for securing the ends of
143
Md. Atikuk Rahman v State, 36 BLD 2016 HCD 581, 38 BLD 2018 HCD 20.
49
justice or for preventing the abuse or for giving effect the Order under the Code. In case of
corrum non judice, total absence of evidence or case of no evidence, judgment can be
interfered under section 561A.144
Difference between Jurisdiction under Section 561A and Sections 435 read with 439
There is no dispute that section 561A is a non-obstanate general provision and Section 439(4)
is also a non-obstanate special provision of the Code.145 It cannot be accepted that a party
who has been unsuccessful in revision before the Sessions Judge under Section 439A is
totally debarred from invoking the jurisdiction of the High Court Division under Section
561A of the Code.146
However, having regard to fact that the petitioners did not challenge the order of framing
charges against them by filing revisional application under Section 439 but, they filed
applications under Section 561A to quash the entire proceeding. In such facts and
circumstances, the Court opined that they because unable to exercise the power under
Section 561A to interrupt or divert the ordinary course of Criminal Procedure as laid down in
the Code.147
In the first case of Amirul Islam v Mujibur Rahman,148 the question was whether in spite of
the bar to second revision, the High Court Division can exercise its inherent power under
Section 561A and it was held that the inherent jurisdiction of the High Court Division would
be available even to a party who had lost in revision before the Sessions Judge; in that case,
which arose from a proceeding under Section 145 of the Code before a Magistrate, the crucial
question was what was " actual possession of the land in dispute". The first party to the said
proceeding contended that sometime before the dispute as to possession arose, the second
party was his bargadar, but when the bargadar stopped giving him the share of barga-crop and
claimed to have purchased the land from wife, he took back possession and was in actual
possession at the time of drawing up of the proceeding. The Magistrate, on evidence, found
the first party “in actual possession", rejected the second party's claim that it was the 1st
party's constructive possession only through his bargadar and then passed the: final Order
144
Sher Ali v State, 2 BLT 1994 AD38, 14 BLD 1994 AD 84, 46 DLR 1994 AD 67, Abdullah-Al-Mahmud
Ripon v State, 6 MLR (AD) 259, Abdul Khaleq Khader v State, 14 BLD (AD) 115.
145
Mafizuddin and Others v Alauddin and another, 2 BLT 1994 HCD 53, 14 BLD 1994 HCD 45, 46 DLR 1994
HCD 75.
146
Shamsuddin @ Shamsuddoha and another v Mvi. Amjad Ali and others, 24 BLD 2004 AD 230.
147
Mahbub Ahmed and others v Securities and Exchange Commission, 32 BLD 2012 HCD 165.
148
45 DLR 1993 AD 9.
50
declaring the 1st party to be in actual possession". The second party challenged this Order
before the Sessions Judge by a revisional application under Section 439A but the application
was rejected and the Magistrate's Order was upheld. The second party then challenged the
Order of the Sessions Judge before the High Court Division under Section 561A and the High
Court Division, in exercise of the inherent power under Section 561A reversed the
Magistrate's final Order and quashed the proceeding under Section 145 upon a finding that
the second party was in actual possession of the land. The first party challenged the High
Court Division's Order in appeal by special leave; the appeal was allowed and the High Court
Division's Order was set aside on the ground that it exceeded its inherent jurisdiction as the
Magistrate's final Order as to possession was based on proper consideration of evidence and
that there was no scope for the High Court Division to exercise its inherent jurisdiction. In
that appeal, the High Court Division's power under Section 561-A was also challenged, but
that contention was rejected by this Court which held that the application under Section 561A
was quite maintainable. In this connection, this Court, however, referred to the limited scope
of Section 561-A and observed that this inherent power is neither an additional power nor an
alternative power of the Court, that this power is to be exercised very sparingly keeping itself
within the bounds of this provision and that a revision petition cannot be brought in the
camouflage of a petition under Section 561A.149
This question has been elaborately discussed in Md. Sher Ali case150 by the Appellate
Division in Criminal Appeal No. 1 of 1994. The High Court Division delivered its judgment
forwarding the following reasons –
(i) Section 439(4) is a special provision and Section 561A is a general provision, of
the Code and where there is in the same statute a specific provision and also a general
one --- the special provision will prevail.
(ii) Section 561A is an earlier provision in the statute, whereas, Subsection (4) of
Section 439 is a later provision in the statute and as such, the provision of the later
statute shall supersede "the earlier" one;
(iii) When anything is prohibited, everything, by which it is reached, is also
prohibited, that is, which cannot be done directly cannot be done indirectly".
(iv) After Amendment of Section 439, the High Court Division and the Sessions
Judge have become equal in power as to revision and as such, a judgment passed by
the Sessions Judge is, as if, a judgment of the High Court Division itself and this
being the position in Law, the High Court Division cannot alter, review or revise its
149
Md. Sher Ali and others v State and another, 2 BLT 1994 AD38, 14 BLD 1994 AD 84, 46 DLR 1994 AD 67.
150
Md. Sher Ali and others v State and another, 2 BLT 1994 AD38, 14 BLD 1994 AD 84, 46 DLR 1994 AD 67.
51
judgment in view of Section 369 of the Code which prohibits any alteration of a
judgment after it is pronounced in open Court.
In response to the aforesaid reasons, the Appellate Division held that (judgment delivered by
then Chief Justice Shahabuddin Ahmed) –
“We find none of these reasons tenable. Firstly, Section 439(4) is not a special Law in
relation to Section 561A; for, a Law is special if it relates to particular persons or
things or operates on a particular place or district. Section 439(4) of the Code is not of
this kind. Secondly, Section 439(4), though it is a later provision than Section 561A,
there is no conflict between them and both of them can stand together and as such
there is no question as to implied repeal of the earlier statute by the later one. Thirdly,
the maxim that what cannot be done directly cannot be done indirectly, is not
applicable in this case, simply because. Section 561A directly applies to a case if it
attracts the specific conditions set out thereby. Fourthly, the idea of the High Court
Division that both the Courts -one under Section 439(4), the other under Section
439A--are equal in power and the judgment of the one is the judgment of the other,
appears to be grotesque displaying perversity of thought. It may be mentioned here
that Section 561A has been put under Chapter XLVI of the Code as "Miscellaneous";
so an application under this Section must be registered as a Miscellaneous Case and
not as a Revision Case under Section 439(1) or under both the Sections. Registering
such an application under Sections 439/ 561A sometimes creates confusion.”
The Appellate Division further observed that –
“The High Court Division has been given power of revision under Section 439(1) of
the Code. Under this Section, the High Court Division may exercise, in its discretion,
any of the powers conferred on a Court of Appeal, by an Amendment brought in By
Ordinance No. 49 of 1978, with effect from 1 June 1979, this power has also been
given to the Sessions Judge under Section 439A. Thus revisional jurisdiction has been
concurrently conferred on the High Court Division and the Sessions Judge. Sub-
Section (2) of Section 439A provides that a decision of the Sessions Judge on a
revisional application to him is "final in relation to the person" who has filed this
application. This indicates clearly that the Sessions judge's decision is not final in
relation to a person who has not filed the revisional application to the Sessions Judge,
but has been impleaded therein as opposite party. Therefore he is free to go to any
appropriate forum to challenge the Sessions Judge's decision; but he cannot go to the
High Court Division with another revisional application under Section 439(1) of the
Code as this revisional application - better known as second revision -is expressly
barred by Section 439(4). This Section, that is. Sub-Section (4; of Section 439. says
that "nothing in this Section shall be deemed to authorise the High Court Division "to
entertain any proceeding in revision with respect to an Order made in the Session
Judge under Section 439A."
In clear language the Appellate Division further held that the "total bar" in Section 439 (4) of
the Code, as spoken of by the learned Judges is only against further revision that is revision
52
under Section 439(1) of the Code and not against the Court's inherent jurisdiction which is
altogether different from any other jurisdiction under the Code. The High Court Division, on
the one hand, willfully disregarded this Court's decisions and on the other hand flouted
Article 111 of the Constitution. This cannot be countenanced and must be disapproved
strongly.
A distinction here should be made. When a revision is filed before the Session Court and if it
fails or succeed by any judgment or order passed by the Session Court, the aggrieved party
can invoke jurisdiction under Section 561A in case of having no other alternative remedy
further. But, when a revision is filed before the High Court Division and if it fails or succeeds
by any judgment or order, the aggrieved party cannot invoke jurisdiction under section 561A
challenging the same judgment or order passed by the High Court Division, though
challenging the order or proceeding s/he can take alternative recourse. It is because; one
judgment or order passed by the High Court Division in any jurisdiction cannot be challenged
before the same Court in another jurisdiction. It will create a total tyranny, disrespect and
anomalies amongst the different benches of the High Court Division. It cannot happen. This
is totally against the Constitutional spirit. It is a violation of the unitary character of our High
Court Division, thus Supreme Court of Bangladesh as mandated under Article 100 151 of the
Constitution of the People’s Republic of Bangladesh and the landmark Eight Amendment
Case152. However, the fact of being unsuccessfulness in revision does not debar the party to
come afresh under section 561A in appropriate cases with clean hands and bonafide intention.
Conclusion
To conclude, some of the Rulings from year to year are given below for understanding the
thorough development of Section 561A of the Code of Criminal procedure, 1898 with the
passage of time. The discussion of this inherent jurisdiction of the High Court Division is a
vast one and for obvious reasons cannot be concluded instantly. The use and interpretation of
Section 561A has been exploring by the prudent legal minds in academic and legal practices.
Thereby, the horizon of Section 561A is endless.
______________
151
Articles 100 provides that “The permanent seat of the Supreme Court shall be in the capital, but sessions of
the High Court Division may be held at such other place or places as the Chief Justice may, with the approval of
the President, from time to time appoint.”
152
Anwar Hossain Chowdhury v Bangladesh, 41 DLR 1989 AD 165 (popularly known as ‘the 8th Amendment
case’).
53
Some Rulings (Year to Year)
1952
Sono and two others vs The Crown, 8 DLR WP Karachi 117 (Mr. Constantine, C.J,
decided on 10.03.1952) : The High Court has no inherent powers to set aside the judgment
and order for restoration of appeal where the advocate unable to attend court on the date duly
notified for hearing.
1955
Qaribullah and others vs Nawabzada Md. Ismail Khan, 7 DLR (W.P.C Peshwar) 60
(Mr. Md. Shafi, Actg. C.J) : It is impossible to imagine that a Court has no power to do
justice, or redress a wrong, merely because there is no specific provision to meet the
requirements of a particular case. Under section 561A, this Court has ample power to make
such order as may be necessary to give effect to any order under this Code, or to prevent
abuse of the process of any Court, or otherwise to secure the ends of justice. Possession of
land given to the complainant may be restored under section 561A when the accused is
acquitted.
1960
Muhammad Rafi Parvez vs The State, 12 DLR (W.P. Lahore) (1960) 73 (Mr. Abdul
Hamid, J, decided on 23.06.1960) : Prolongation of proceedings inside the Court over a
period of four or five years' would no doubt constitute such an abuse, if prolongation of
proceedings is occasioned by unnecessary adjournments granted by the Court, on account of
which the accused remains under harassment for long periods, such unnecessary
adjournments do constitute abuse of process of Court. But a delay in instituting proceeding
for wants of legal sanction, or for want of completion of investigation appears to stand on a
different footing. If delays of this type are allowed to bar prosecution, law of limitation will
stand projected in criminal proceedings. High Courts by their own authority would be placing
time-limits of undefined periods upon the prosecution of criminal offences. It is obvious that
Law of Limitation is not known to criminal jurisprudence and it is necessary that criminal
proceedings should be outside that law, otherwise the accused will be able in many cases to
earn exemption from prosecution by placing secretly obstacles in the way of investigation
and thereby preventing it from completion within reasonable time.
Director of Pak. Flotilla Co. Ltd. vs Abdus Salam and others, 14 DLR (1962 ) 23 (Mr.
Rahman, J, decided on 29.06.1960) : The pendency of the proceeding under clause (c) of
sub-section (1) of section 195 of the said Code in no way affects the disposal of the
application under section 561A. Neither the Pak Flotilla Company nor any Director of the Pak
Flotilla Company was either a party to the proceeding before the learned Judge or a witness
in the case- remark made by judge, which almost amounts to a Coding that the Pak Flotilla
Company had manufactured the documents- expunged.
1961
Haji Matiur Rahman Chowdhury vs The State, 13 DLR (1961) 731 (Mr. Baquer, J,
decided on 11.05.1961): There could be no jurisdiction for restricting the wide scope of
section 561-A of the Code even when this Court is convinced that the procedure followed by
the District Magistrate was not the right procedure as laid down by the Code.
54
1962
Muhammad Samiullh and another vs The State, 15 DLR (SC) (1963) 150 (Mr.
Hamoodur Rahman, J, decided on 02.1962) : The jurisdiction under section 561A of the
Criminal Procedure Code is of an extraordinary nature intended to be used only in
extraordinary cases where there is no other remedy available and cannot be utilised where
there is other express remedy provided by the Code of Criminal Procedure.
1964
M. S. Khawaja vs State, 17 DLR (SC)(1965) 153 (Mr. Cornelius, C.J, decided on
27.01.1964) : Abuse, as attracting the inherent power of the Court, must be "abuse of the
process of any Court," and "the investigation stage" is generally speaking, outside the
purview of the Court, and rarely involves employment of any Court process. Further, "the
ends of justice" to secure which the inherent power may be invoked, have reference to the
purposes which the judicial process is intended to secure, and it is difficult to include the
actions of investigating agencies within the scope of judicial process. On the other hand, it is
possible to agree with the observation that the circumstances of each case, in which the
inherent power is invoked, must be examined with case to determine whether the judicial
proceeding is really intended to "secure the ends of justice" or is really "an abuse of the
process of the Court." To quash a judicial proceeding in order to "secure the ends justice"
would involve a finding that if permitted to continue, that proceeding would defeat the ends
of justice, or in other words, would either operate or perpetuate an injustice. To find an
"abuse," it should be necessary to see in the proceeding, a perversion of the purpose of the
law such as to cause harassment to an innocent party, to bring about delay, or where the
machinery of justice is engaged in an operation from which no result in furtherance of justice
can accrue, and similar perverse results.
Haji Sultan Ahmed and others vs The State, 16 DLR (1964) 325 (Mr. A.S. Chowdhury,
J, decided on 29.05.1964): The High Court may in exercise of its inherent power under
section 561A, of the Code of Criminal Procedure can cancel a bail granted by itself or a court
of Session.
1965
Nezamuddin Ahmed vs The State, 17 DLR (1965) 628 (Mr. Talukdar, J, decided on
19.02.1965) : Session Court in appeal while acquitting on a charge under section 411 P.P.C.
failed to pass an order of disposal of property under section 517 which he could have done.
High Court in exercise of its inherent power under section 561A passed the order.
Abdul Jalil Bepari and another vs The State, 17 DLR (1965) 70 (Mr. A.S. Chowdhury,
J, decided on 03.06.1964) : Charge framed under section 420 P.P. Code- Accused acquitted
on that charge-Upon the same allegation fresh charge was framed under section 468-
Proceeding quashed.
1967
Ghulam Muhammad vs Muzammal Khan and others, 19 DLR (SC) (1967) 439 (Mr.
Hamoodur Rahman, J, decided on 06.04.1967) : The inherent jurisdiction given by Section
561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction
preserved in the interest of justice to redress grievance for which no other procedure is
available or has been provided by the Code itself. The power given by this section can
55
certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure
as laid down in the procedural statute.
Raja Haq Nawaz vs Mohammad Afzal and others, 19 DLR (SC) (1967) 369 (Mr.
Cornelius, C.J, decided on 01.05.1967) : Quashment of proceedings at so early a stage gives
an unfortunate impression of stifling of criminal prosecutions, by exercise of an extraordinary
power which is given for the dispensation of complete justice, in the forms provided by law.
1969
Mukunda Lal Biswas vs The State and another 21 DLR (1969) 616 (Mr. A.M. Sayem, J,
decided on 06.06.1969) : delay of 2 years in supplying identifying particulars of the accused
person when the initial complaint did not bear either his full name or his description- No
ground to quash proceedings against him.
1971
A.K. Khan and another vs Chairman, Second Labour Court 25 DLR (1973) 192 (Mr.
Abdul Hakim, J, 16.11.1971): The power to be exercised under section 561A CrPC is highly
discretionary. The court is unable to give any relief to the petitioners in exercise of such an
extra-ordinary and discretionary power as they themselves have disrespected the Court
complained of. The prayer for quashing is liable to be dismissed.
1974
Solicitor, Government of Bangladesh vs A. T. Mridha 26 DLR (AD) (1974) 17 (Mr.
Muhammad Abdullah Jabir, J, decided on 07.03.1974): Resort to the inherent powers of
the High Court to quash proceedings u/s 561A when barely two months has passed since the
start of investigation and the collection of evidence by the police was not complete,
deprecated.
Tozammel Hossain Sardar and others vs State 27 DLR (1975) 36 (Fazle Munim, J,
decided on 30.08.1974): Quashment of proceedings against certain persons when the
investigation not yet complete even though the F.I.R. mentioned no name nor witnesses so far
examined named them-Held: not proper.
Abu Tayab Md. Mashood and Tipu vs The State, 27 DLR (1975) 93 (Fazle Munim, J,
30.08.1974) : Quashing of proceedings not legally permissible when investigation by police
is pending and some offence is disclosed in the F.I.R.
1976
Abdul Quader Chowdhury and others vs The State, 28 DLR (AD) (1976) 38 (A.F.M.
Ahsanuddin Chowdhury, J, decided on 10.02.1976) : Inherent jurisdiction should not be
invoked where some other remedy is available - Jurisdiction given by section 561A is not an
alternative jurisdiction nor an additional jurisdiction but it is a jurisdiction preserved in the
interest of justice to redress grievances for which no other procedure is available or has been
provided by the Code itself - This power cannot be so utilized as to interrupt or divert, the
ordinary course of criminal procedure as laid down in the Code - Ordinarily criminal
proceedings instituted against an accused person must be tried under the provisions of Code
and the said proceedings should not be generally interfered with at an interlocutory stage in
exercise of the inherent jurisdiction provided under sec- 561A of the Code - Further, it is not
56
possible, desirable or expedient to lay down any inflexible rule which should govern the
exercise of this inherent jurisdiction - Exercise of this jurisdiction will depend upon the facts
and circumstances of each case - Interference even at an initial stage may be justified where
the facts are so preposterous that even on the admitted facts no case can stand against the
accused and that a further prolongation of prosecution would amount to harassment to an
innocent party and abuse of process of court.
The Appellate Division clearly spelt out the categories of cases where the High Court
Division should interfere under Section 561A of the Code of Criminal Procedure. In that
decision, the Appellate Division observed as follows:
a) Interference even at an initial stage may be justified where the facts are so preposterous
that even on the admitted facts, no case can stand against the accused;
b) Where institution or continuance of criminal proceedings against an accused person may
amount to an abuse of the process of the Court or when the quashing of the impugned
proceedings would secure the ends of justice;
c) Where there is a legal bar against institution or continuance of a criminal case against an
accused person;
d) In a case where the allegations in the First Information Report or the Complaint, even if
they are taken at their face value and accepted in their entirety, do not constitute the offence
alleged and in such cases, no question of weighing and appreciating evidence arises; and
e) The allegations made against the accused person do constitute an offence alleged; but there
is either no legal evidence adduced in support of the case or the evidence adduced clearly or
manifestly fails to prove the charge
Salimuddin Ahmed vs The State, 28 DLR (1976) 187 (Shahabuddin Ahmed, J, decided
on 11.11.1975) : Whether High Court Division has jurisdiction to entertain this application
for quashing the proceedings under section 561A of the Code of Criminal Procedure pending
before a Special Tribunal under the Special Powers Act, 1974? Held- after its Amendment by
Act LIX/74 High Court Division has so jurisdiction u/s 561A of the Code of Cr. P. C. to
quash the proceeding pending before the Special Tribunal.
1977
Abdul Ali and another vs The State, 30 DLR (AD) (1978) 58 (per Mr. Bhattacharya, J
(dissenting), decided on 30.06.1977) : Power as envisaged in section 561A of the Cr.P.C. is
an extraordinary power which is inherent in the High Court for doing justice but such power
is to be used extremely cautiously and that solely for advancing the cause of justice. It is also
a statutory principle that a criminal proceeding started against certain person should not be
thwarted or interrupted at an interlocutory stage but should be allowed to proceed to the
finding determination by the Court as to the guilt or innocence of the said person according to
the relevant low applicable to the case. In an appropriate case, however, the court should not
be deterred from exercising the said power, if such exercise serves the cause of justice.
1978
Bangladesh vs Tan Kheng Hock, 31 DLR (AD) (1979) 69 (Mr. Ruhul Islam, J, decided
on 29.03.1978) : Whether Judges of High Court committed error in quashing proceedings in
exercise of inherent power under Section 561A of Cr PC - Held, Section 561A of Cr PC did
57
not confer a new power upon High Court - High Court could not exercise its inherent power
unless it was for doing Justice - High Court acted in excess of its Jurisdiction under Section
561A of Cr PC - High Court was not competent to examine propriety of charge sheet but it
could be done at a proper stage - High Court quashed proceedings in erroneous exercise of its
inherent power.
Section 561A does not confer a new power upon the High Court. All that this section does is
that it declares that such inherent powers as the High Court may possess have not been taken
away or abridged by any of the provisions of the Code of Criminal Procedure. The High
Court is not given nor did it ever possess, unrestricted and undefined power to make any
order, it might be pleased to consider, was in the interest of Justice. Its inherent powers are
much controlled by principle and precedents as are its expressed powers conferred under the
statute. The High Court can not exercise its inherent power unless it is absolutely necessary
for carrying out the other provisions of the Code or for doing Justice that is, to prevent abuse
of the process of any court or otherwise to secure the ends of Justice.
1979
Nuru Bepari alias Nurul Islam Bepari and others alias Habib Howlader vs State and
another, 31 DLR (1979) 241 (Mr. Mohammad Habibur Rahman, J, decided on
09.03.1979) : High Court Division’s powers exercisable u/s 561A Cr.P.C. to quash
proceeding pending before a Special Tribunal or to set aside any order passed by it taken
away by section 30(1) of the Special Powers Act.
Salimuddin Ahmed vs State, 32 DLR (AD) (1980) 103 (Mr. Badrul Haider Chowdhury,
J, decided on 19.11.1979) : Appeal filed for challenging order whereby High Court Division
discharged the Rule holding that it has no jurisdiction for quashing criminal proceeding
pending before Special Tribunal under Section 561A of Cr. PC - Whether in view of Articles
109 and 114 of the Constitution a Special Magistrate is a Court subordinate to the High Court
Division - Whether the proceedings pending before the Special Magistrate is amenable to the
jurisdiction of the High Court Division for quashing under section 561A of the Cr. PC - Held,
as decided in Bangladesh vs Shahjahan Siraj, High Court Division under Section 561A can
exercise its limited jurisdiction in the proceedings pending before the Special Tribunals.
1980
Bangladesh vs Shajahan Seraj, 32 DLR(AD) 1: This is the constitutional set-up as laid
down in Article 114 of the Constitution. This Article read with Articles 115 and 116 of the
Constitution makes all other Courts and Tribunals which may be established by or under any
legislation sub-ordinate to the High Court. Also, as the High Court Division has, under
Article 102 of the Constitution, the power to interfere with the proceedings of such Tribunals,
it cannot be said that they are not inferior to the High Court Division. I am, therefore, of the
view, that the High Court Divison can, under Section, 561-A exercise its limited jurisdiction
in the proceedings before the Special Tribunals.
Abul Bashar Talukdar and others vs State, 32 DLR (1980) 182 (Mr. Abdur Rahman
Chowdhury, J, decided on 29.01.1980) : There is no doubt that in exercise of the power
under section 561A of the Code of Criminal Procedure this Court has ample inherent powers
to prevent the abuse of the process of the Court or otherwise to secure the ends of Justice. But
the exercise of the inherent power must necessarily depend on the facts and circumstance of
each particular case. In the instant case, we do not think it would be proper for us to embark
58
upon an enquiry whether the materials on record are credible or not. That is clearly the
function of the trial Court. Such interference, in the facts and circumstances of a particular
case may amount to stifling of a proceeding before the prosecution has an opportunity to
adduce evidence in support of its accusation.
1981
Md. Shafiqullah vs State, 33 DLR (1981) 297 (Mr. Chowdhury A.T.M. Masud, J,
decided on 10.03.1981) : Limitation does not apply to criminal prosecution. When the State
initiates prosecution for a criminal offence, such prosecution is to be deemed to have been
commenced and continued in the public interest, as a duty of the State, and this is not to be
lightly interfered with under s.561-A Cr. P. C. Mere delay is not sufficient to establish abuse
of the process of the court. When, however, a case drags on for years together, for no fault of
the accused and the delay in the trial is shocking to the very basis of justice, proceeding may
be quashed. The circumstances connected with the delay will have to be examined in each
case to determine whether the delay constitutes an abuse of the process of the court, or not.
1982
M.G. Towab, Air-vice Marshal (Rtd) vs The State, 34 DLR (1982) 371 (Mr. Abdur
Rahman Chowdhury, J, A.T.M. Afzal, J, decided on 07.06.1982) : (per Mr. Abdur
Rahman Chowdhury, J) If a beneficial section such as 561A of the Code is not applied for
saving innocent citizens from vexatious proceedings and harassment, then it would be
rendered completely nugatory and redundant for, all practical purposes. This beneficial and
extraordinary powers should be applied not to stifle the prosecution but to stifle any attempt
to persecute an innocent citizen and be exercised ex-debito justiciae to do real and substantial
justice for the administration of which alone the Courts exist. (per A.T.M. Afzal, J.) The
principle is well-entrenched that the usual course of the administration of criminal justice in
the manner provided by the Cr.P.C. should rarely be interrupted and this court should be
extremely reluctant to interfere in a case before the evidence is gone into by the trial court
unless it can be said that the allegations, even if true or believed, do not disclose any offence.
It is only in very limited cases that upon coming to a finding as to "abuse of process of Court"
or to 'secure ends of justice' as indicated in the case referred to above that a proceeding may
be quashed at an interlocutory stage in exercise of the inherent power of this Court.
M. G. Towab Air Vice-Marshal (Rtd) vs The State, 34 DLR (1982) 390 (Mr.
Mohammad Habibur Rahman, J, decided on 30.06.1982) : In exercise of the power under
section 561A Cr. P.C. this Court cannot convert itself into a trial Court and embark upon an
inquiry to find out the veracity of various such new statements made by the accused in an
affidavit - in - reply.
1982
Kari Palan Mia & others vs The State, 35 DLR (1983) 118A (Mr. Abdur Rahman
Chowdhury, J, decided on 14.12.1982) : Court must step in to render, as far as it can,
substantial justice where there is no other specific legal remedy for a legal right and the
inherent power should be exercised EX DEBITO JUSTICIAE to do real and substantial
justice for the administration for the alone which the court exist.
59
Akhtar Rahman vs State and others, 35 DLR (1983) 100 (Mr. Abdur Rahman
Chowdhury, J, decided on 20.08.1982) : The allegations made in petition of complaint do
not disclose any offence against the accused petitioner and appears to be a frivolous and
vexatious proceeding-quashed.
Makhlekur Rahman Accd. vs The State, 35 DLR (1983 ) 72 (Mr. Abdur Rahman
Chowdhury, J, decided on 14.10.1982) : Proceedings pending for 11 years disclosing gross
dilatoriness- proceedings quashed for gross abuse of the process of court.
1983
Nasiruddin Mahmud and ors vs Momtazuddin Ahmed and another, 36 DLR (AD)
(1984) 14 (Mr. B.H. Chowdhury, J; Munin CJ, Masud & Mohsen Ali, JJ concurring,
decided on 20.06.1983) : Whether a partner can be charged by his copartner for breach of
trust and cheating--once it is held that it was a partnership business and the complainant and
the accused were partners then such prosecution cannot be maintained--If the prosecution for
criminal misappropriation cannot be maintained the prosecution for cheating cannot also be
maintained--The initial intention to deceive was not alleged even by the complainant because
the complainant himself said that in order to help the accused he lent the money though he
did not enter into partnership till then--In view of this the conclusion the proceeding must be
quashed.
Abdul Bari vs Md. Abul Hashem Majumder and Others, 40 DLR (1988) 301 (Mr.
Sultan Hossain Khan, J, 05.10.1983) : Facts alleged in the F.I.R. do not disclose any
criminal offence. Transaction being of civil nature the continuation of proceeding against the
petitioner is an abuse of the process of the court.
1984
Mrs. Saleha Khatoon vs State, 39 DLR (1987) 109 (Mr. Anwarul Hoque Chowdhury, J,
decided on 06.08.1984) : The High Court would be extremely reluctant to interfere in a case
where a competent court came to the view that a prima facie case, unless it could be shown
that the charge-sheet on its face, even if believed, did not disclose any offence.
Rita Kundu v Akbar Ali and others, 6 BLD 1986 HCD 185 (Mr. Md. Altaf Hossain, J,
decided on 19.11.1984) : When a criminal proceeding amounts to abuse of the process of the
court or for securing ends of justice a criminal proceeding can be quashed -The exercise of
inherent jurisdiction of the High Court Division depends upon the facts and circumstances of
each case and no inflexible rule can be laid down for its exercise- There was serious
apprehension of immediate breach of peace and case of emergency was made out and the
petitioner was entitled to an order under sub section (4) of section 145 Cr, P.C. and she got
such an order - The order should be restored by setting aside the impugned order which was
found to be illegal Code.
Alhaj Mamtaj Meah vs The State, 1988 BLD 64; 38 DLR (1986), 152 (Mr. Fazlay
Hossain Mohammad Habibur Rahman, J., Decided on 30.01.1986) : The High Court
Division in exercise of its inherent powers cannot embark upon an enquiry to ascertain
whether the prosecution case or the defence case is true.
60
1985
Sultan Ahmed Matbar vs The State and another, 37 DLR (1985) 185 (Mr. Md. Abdul
Jalil, J, decided on 11.01.1985) : In a case where there is an abuse of the process of the court
the High Court Division may exercise the jurisdiction vested in it u/s. 561A of the Code of
Criminal Procedure and interfere with the order passed by the Sessions Judge u/s. 439A of
the same Code for the ends of justice in order to prevent the abuse of the process of the court.
Shafiqur Rahman vs The State, 37 DLR (1985) 167 (Mr. Fazle Hussain Mohammed
Habibur Rahman, J, decided on 08.01.1985) : Extra-ordinary power of the High Court
Division cannot he invoked by a person, after becoming unsuccessful in an application under
section 439A Cr.P.C. except for specific purposes set out in' that section.
Abul Hossain vs The State, 37 DLR (1985) 59 : “High Court Division’s jurisdiction to
interfere with the tribunals judgment or order under section 561A of the Cr.Pc code to
prevent abuse of process of Court. In the case of Bangladesh-Vs-Shajahan Seraj reported in
32 DLR(AD) 1, by a majority decision it has been held that although this Court has no power
to revise any order, judgment or sentence passed under the Special Powers Act, but this Court
has urisdiction under section 561A of the Cr.P.C. in an appropriate case under the Special
Powers Act to prevent the abuse of the process of any Court to secure the ends of justice.”
1986
Farruk Ahmed vs Abdul Kader Chowdhury and Others, 38 DLR (AD) (1986) 18 (Mr.
Badrul Haider Chowdhury, J, 10.07.1985) : As per the law established by precedent, when
exercising jurisdiction under section 561A of CrPC the High Court would not embark upon
an enquiry whether the evidence in question is reliable or not as this is the function of the trial
Magistrate and it might so happen that quashing of a criminal proceedings before
commencement of trial would amount to stifling the proceedings before the prosecution got
an opportunity to bring evidence in support of the accusations- In view of GD entry and the
FIR it could not be said that the proceeding against the respondents will be an abuse of
process of Court-the quashing of the proceeding by HCD was illegal.
1987
Abul Hasnat Bepari vs Md. Hasan Ali, 39 DLR (1987) 109 (Mr. Syed Misbahuddin
Hossain, J, decided on 06.08.1984) : It will be an abuse of the process of law when the
complaint does not disclose any offence and the dispute can at best be a civil one.
Md. Shamsuddin and Others vs The State and Others, 40 DLR(AD) (1988) 69 (Mr.
Shahabuddin Ahmed, J; M.H. Rahman and A.T.M. Afzal, JJ, concurring, decided on
05.07.1987) : The High Court Division got inherent power under section 561A Crl. P.C. to
make such orders as may be necessary "to prevent abuse of the process of any court or
otherwise to secure the ends of justice". This power may be exercised only in those cases
which are not covered by any specific provision of the Code. The inherent power of the court
is undefined and indefinite and as such it must be exercised very sparingly and with great
caution.
61
1988
Moslemuddin Dhali & others vs Helaluddin Dhali and others, 41 DLR (1989) 120
(Mustafa Kamal, J, decided on 08.12.1988) : The learned Additional Sessions Judge has
not exercised any power under section 561A of the Code of Criminal Procedure rather under
section 435/439A, it cannot be said that the view of the learned judge is so perverse that his
order should be interfered with.
Khalilur Rahman vs State, 41 DLR (1989) 385, (Mr. Md. Abdul Jalil, J, 07.03.1988) : It
is proper to exercise the inherent power under section 561A, the exercise of which is not
restricted by any clause like section 439. In section 439 of the Code there is a bar as sub-
section (4) of the section provides to the effect that in an appealable case the party who has
right to appeal cannot invoke section 439. But there is no such restriction in section 561A.
Fatema Begum @ Urmila Rani vs Gageswar Nath & the State, 46 DLR (1994) 651 (Md.
Abdul Jalil, J, decided on 15.03.1988) : The Exercise of power under section 561A has not
been held to be totally barred against an order passed by the learned Sessions Judge under
section 439A of the Code. It is to be seen whether the petitioner invokes the court’s revisional
jurisdiction under the grab of an application under s. 561A. If the condition of s. 561A is
fulfilled, court may exercise its power u/s 561A.
1989
S.M. Khaliuf Rahman and others vs The State, 42 DLR (AD) (1990) 62 (Mr.
Shahabuddin Ahmed, J, decided on 22.03.1989) : Mere plea of right of private defence
cannot be a ground for quashing the criminal proceeding for, such plea is to be established by
the accused who take it. A criminal proceeding is liable to be quashed only if the facts alleged
in first information report or complaint petition, even if admitted, do not constitute any
criminal offence, or the proceeding is barred by any specific provision of law. Where
disputed facts are involved evidence will be necessary to determine the issue. The appellants
have of course produced an order of temporary injunction against the complainant's party;
this must be considered along with other evidence during the trial. Their application for
quashing the proceedings is found to have been rightly refused by the High Court Division.
Mosharraf Hossain (Md.), Haidar Ali (Md.), Abdul Quddus alias Q.A. Quddus, Abdul
Wahab (Md.), Isarul Haque (Md.) vs The State, 42 DLR (1990) 213 (Mr. Syed
Misbahuddin Hossain, J, decided on 05.07.1989) : The sword of prosecution hanging over
the head of accused peitioner for nearly 10 years without any fault5 on their part and they are
suffering economically, mentally and socially- It is sheer abuse of the process of the court
and accordingly the proceeding is to be quashed in respect of them.
1990
Hussain Mohammad Ershad vs The State, 43 DLR (AD) (1991) 50 (MH Rahman, J,
decided on 26.02.1990) : It was asserted that the FIR was itself lodged by the complainant
after receiving an order from the Home Ministry and not on his own. A prosecution cannot be
quashed just because it was initiated at the instance of the Home Ministry. The question of
possession can only be decided on evidence and not on submission on law as to what
constitutes possession. The question whether the proceedings should be quashed or not
62
should be decided on the facts alleged in the FIR and charge-sheet. The accused’s general
denial that the facts disclosed in the FIR are not true will not do. To succeed the accused must
show that the facts alleged by the prosecution do not constitute any offence or that the
prosecution is otherwise barred by law.
Zakir Hossain and others vs The State, 43 DLR (AD) (1991) 102 (MH Rahman, J,
decided on 12.03.1990) : In the facts of the case as in point of time the civil suit was
instituted before the filing of the FIR and the questioned documents in their originals are yet
to be produced and examined by the civil court. The criminal proceeding where the
documents are claimed as forged, may, in the interest of justice, be stayed till the disposal of
the civil suit.
Syed Ali Mir and another. vs Syed Omar AH and another, 42 DLR (AD) (1990 ) 240 =
10 BLD (AD) 168 (Mr. A.T.M. Afzal, J, decided on 13.05.1990) : High Court Division was
not at all justified in finding "that dispute though arose from a business transaction but for
that alone it cannot be said that same is of a Civil nature" - Ingredients of offence of cheating
or of misappropriation have not been properly considered by High Court Division in context
of facts alleged in petition of complaint. Alleged amount said to have fallen due to
complainant having accrued in course of a long business transaction, whole allegation in
petition of complaint, even if true, cannot form basis of any Criminal proceeding, much less
for cheating, for, alleged liability incurred is essentially civil in nature - To hold otherwise
would be to ignore realities of business transactions and to encourage civil claims to be
brought into criminal courts under some contrivance for purpose of putting pressure for re-
payment of alleged dues which necessarily got to be settled and sorted out in civil court -
Proceeding pending against appellants quashed.
Aga Kohinoor Alam vs State and another, 3 BLC (1998) 204 (Mr. Amin-ur-Rahman
Khan, J, decided on 13.05.1990) : The present dispute in not a civil dispute. The complaint
petition bears allegations of offence of cheating and forgery, so criminal proceedings cannot
be said to be without any basis nor the said proceeding can be held to be liable to be quashed.
Atiqur Rahman vs A.K.M. Fazlul Hoque, 43 DLR (1991) 49 (Mr. M.S. Ali, J, decided on
11.06.1990) : Whether the untrue statement of the accused regarding his imported goods on
which he has intentional or unintentional, bonafide mistake or a case of absence of
knowledge is for the trial court to decide on the basis of evidence that would adduced- if the
pending proceeding is stopped at this stage it would amount to stifling the proceeding in
limine.
Md. Jamir Sheikh vs Fakir Md. A. Wahab and another, 43 DLR (1991) 417 (Mr.
Habibur Rahman Khan, J, decided on 17.07.1990) : Mere reading of the petition of
complaint we are satisfied that the initiation and continuation of the criminal proceeding
against the accused petitioner will amount to abuse of the process of the Court and to secure
the ends of justice the proceeding is liable to be quashed.
Dr. Md. Abdul Baten vs The State, 43 DLR (1991) 60 (Mr. Habibur Rahman Khan, J,
decided on 27.06.1990) : The party in a revision case filed under Section 439A of the Code
is debarred from agitating the point before the High Court Division under Section 439 of the
Code but the power has been restricted by any clause of Section 439 or by any Law if it is
considered necessary to prevent the abuse of the process of the Court otherwise to secure the
63
ends of justice. This is a fit case where the aid of Section 561A of the Code of Criminal
Procedure can be appropriately invoked there being no scope for a second revision.
1991
Al-haj Md. Serajuddowlah vs The State, 43 DLR (AD) (1991) 198 (Mr. A.T.M. Afzal, J,
decided on 16.01.1991) : Court will be loath to stifle a prosecution at the initial stage unless
facts are such as would attract inference that even upon admitted facts no case can be made
out and continuation of the proceeding would be an abuse of the process of the court.
Hussain Mohammad Ershad vs The State, 43 DLR (1991) 150 (Mr. Habibur Rahman
Khan, J, Decided on 14.02.1991) : The decision in this case having depended on findings of
facts as to whether the seized arms were recovered from the possession of the petitioner,
whether the same came within the exception provided for and covered by amnesty, if any,
declared by the Government, the extra-ordinary power to prevent the abuse of the process of
the court is not required to be exercised.
The State vs Satya Narayan Sarder, 43 DLR (1991) 529 (Muhammad Ansar Ali, J,
decided on 03.04.1991) : Inherent power though unlimited, should be exercised only in cases
when no other alternative remedy is generally available under the Code. In the peculiar facts
and circumstances of the case, any interference with the impugned order of the learned
Magistrate at this belated stage will not serve any of the purposes as defined under section
561A rather such interference may cause undue harassment to the opposite party and defeat
Muhammadullah and 4 others vs Makbul Ahmed and State, 44 DLR (1992) 107 (Abdul
Bari Sarker, J, decided on 13.05.1991) : It is not the complainant’s case that his share
certificates were not made ready within time. Once the share certificates are completed and
made ready within time, liability of the accused persons ends. Non-delivery of the share
certificates to the complainant is not an offence and the proceeding is liable to be quashed.
SM Shafiul Azam and others vs The Director of Labour and others, 44 DLR (1992 ) 582
(Md. Badruzzaman, J, decided on 11.06.1991) : The Labour Court, being a Court
subordinate to the High Court Division, the petitioner could pray for quashing the criminal
case in question before the appropriate criminal Bench of this court under section 561A of the
Code of Criminal Procedure if it was necessary to prevent the abuse of the process of the
court or to secure the ends of justice. The petitioners have efficacious remedy under the Code
of Criminal Procedure.
Anwar Hossain Monju vs The State, 43 DLR (1991) 447 (Anwarul Hoque Chowdhury,
J, decided on 10.07.1991) : The extraordinary jurisdiction of the High Court Division must
be exercised very sparingly and carefully and in the exercise of its jurisdiction, High Court
would not embark upon an enquiry as to whether the evidence is reliable or not. This is the
function of the trial court. The inherent jurisdiction of the High Court can be and will be
exercised when there is a legal bar for institution and continuance of a case or when the
allegation made in the F.I.R, or a petition of complaint on the fact of it does not disclose any
criminal offence. The case of the petitioner does not fall under any of the categories.
Accordingly, proceeding was not quashed.
64
1992
Mozahar Ali vs Lal Mia Talukder, 2 BLC (1997) 581 (Mr. Abdul Bari Sarker, J,
decided on 22.04.1992) : The sessions Judges are not ex-officio Special Judges and unless
they are appointed under section 3(1) of the Criminal Law Amendment Act, 1958 by
notification made in the official gazette they cannot try cases as Special Judges, however, it
cannot be ground for quashing the proceeding. The case should be sent the Divisional
Special Judge, Khulna for disposal instead of trying the same by the Sessions Judge,
Jhalakati.
Abul Bashar vs The State, 44 DLR (1992) 391 (Mr. Abdul Bari Sarker, J, decided on
07.05.1992) : there was no allegation that the petitioner intentionally put any person in fear of
any injury to that person or any other person and thereby dishonestly induces the person so
put in fear to deliver any property to the accused, etc. and the impugned proceeding is
quashed.
Anisul Islam Mahmood vs The Government of the People's Republic of Bangladesh,

represented by the Secretary, Ministry of Home Affairs and another, 44 DLR (1992 ) 1
(Fazle Hussain Mohammad Habibur Rahman, J, decided on 27.08.1991) : The inherent
jurisdiction of the High Court Division under Section 561A of the Code of Criminal
Procedure cannot be said to be an alternative remedy to this Court's writ jurisdiction under
Article 102(2) of the Constitution, as inherent discretionary jurisdiction U/S. 561A Cr. P.C.
cannot be said to be an equally efficacious remedy.
Mr. M.M. Rahamatullah vs The State, 44 DLR (1992) 576 (Mr. Habibur Rahman Khan,
J, decided on 24.09.1992) : The inherent jurisdiction should not be invoked where some
other remedy is available. The jurisdiction given by section 561A is neither an alternative
jurisdiction nor an additional jurisdiction but it is a jurisdiction preserved in the interest of
justice to redress grievances for which no other procedure is available or has been provided
by the Code itself. This power cannot be so utilised as to interrupt or divert the ordinary
course of criminal procedure as laid down in the Code.
Hussain Mohammad Ershad, former President vs The State, 45 DLR (AD) (1993) 48
(Mr. M.H. Rahman, J, decided on 26.11.1992) : In a proceeding under Section 561A Cr.
P.C. the High Court Division cannot embark upon an enquiry to ascertain the truth or
otherwise of the prosecution case or of facts which are not in the prosecution case. When a
prima facie case is disclosed, there is no legal impediment for the proceeding to continue.
Tofazzal Hossain Chowdhury vs Mir Amanullah and others, 45 DLR (1993) 263 (Mr.
Muhammad Ansar Ali, J, decided on 19.11.1992) : Allegations as made out in this case very well
create both Civil and Criminal liabilities and it is for the complainant to choose any or both of the
forums to redress his grievances. The continuation of the proceeding cannot amount to any abuse of
the process of the Court, rather it will be sheer stifling of the proceeding of the case to the prejudice of
the prosecution.
AKM Mohinus Saleh and others vs State, 45 DLR (1993) 386 ( Mr. Habibur Rahman Khan, J,
decided on 31.08.1992) : Despite the earlier order of rejection of the prayer for quashment of the
criminal proceeding the subsequent application will not operate as a bar for exercising the inherent
injurisdiction of the High Court under section 561A CrPC.
65
Zahurullah (Md) vs Nurul Islam & Others, 48 DLR (1996) 386 (Mr. Md. Ansar Ali, J.
decided on 16.11.1992) : Sessions Judge has acted illegally and without jurisdiction in
quashing the proceeding of the case pending in the Court of Sadar Upazila Magistrate in
exercise of his power under section 439A of the Code of Criminal Procedure because the
power of quashing a proceeding of a criminal case is only available under section 561A CrPC
and not under section 439A of the Code of Criminal Procedure.
Md. Soleman vs A. Barek Khalifa and Others, 46 DLR (1994) 298 (Mr. Muhammad
Abdul Mannan, J, decided on 02.12.1992) : Remedy under Section 561A Cr. P. C. is
available to a party in an appropriate case even after the Sessions Judge exercised his power
under Section 439A of Cr. P. C.
Hussain Mohammad Ershad, former President vs The State, 1994 14 BLD (AD) 178; 45
DLR (AD) (1993) 48 (Mr. M.H. Rahman, J., decided on 26.11.1992) : In a proceeding
under Section 561A Cr. P.C. the High Court Division cannot embark upon an enquiry to
ascertain the truth or otherwise of the prosecution case or of facts which are not in the
prosecution case. When a prima facie case is disclosed, there is no legal impediment for the
proceeding to continue
Asrarul Hossain vs Zahiruddin Ahmed and others, 1992 12 BLD 622 (Mr. Md.
Mozammel Haque, J., Decided on 07.07.1992) : A proceeding at its earliest stage can he
quashed if the facts are preposterous and the facts taken in their entirely do not constitute any
offence under any law.
1993
Shafiuddin Khan vs The State and another, 45 DLR (1993) 102 (Mr. Kazi Ebadul
Hoque, J, decided on 06.01.1993) : The accused cannot challenge the entire criminal
proceeding at this stage when the case case is ripe for trial having taken specific defence at
the stage of charge-framing as the petition of complaint show prima facie case of initial
intention to deceive.
Arifur Rahman alias Bablu vs Shantosh kumar Sadhu and another, 46 DLR (AD)
(1994) 180 (Mr. MH Rahman, J, decided on 09.05.1993) : Complainant in good faith
delivered the jute on the accused’s inducement of payment and specific promise to pay the
balance within three years, it cannot be said that there was no prima facie case against the
accused. The High Court Division correctly refused to quash the proceeding.
Mofazzal Hossain Mollah and others vs The State, 45 DLR (AD) (1993) 175 (Mr.
Shahabuddin Ahmed, C.J, 10.05.1993) : Section 561 A has only reiterated the Court's
inherent power to give effect to any order under the Code of Criminal Procedure "to prement
the abuse of the process of any Court or otherwise to secure the ends of justice". The fact that
the accused were tried and found guilty and then unsuccessfully filed an appeal and a revision
application cannot be a ground for refusing to exercise the Court's power under Section 561A
Cr.P.C.
Engineer Afsaruddin Ahmed vs The State, 46 DLR (1994) 496 (Mr. Habibur Rahman,
J, decided on 15.07.1993) : The inherent power of the High Court is undefined and unlimited
but this inherent jurisdiction should not be generally and indiscriminately invoked
66
particularly when some other remedy is available. The jurisdiction given under section 561A
is not an alternative jurisdiction nor it is additional jurisdiction but it is a jurisdiction
preserved in the interest of justice to redress grievances for which no other procedure is
available or has been provided in the Code itself.
Mir Mohammad Ali vs State and Md. Giasuddin vs State, 46 DLR (1994) 175 (Mr.
AKM Sadeque, J, decided on 11.05.1993) : Whether inherent jurisdiction of this Court can
be invoked under section 561A of the Code of Criminal Procedure in respect of cases from
which appeals are barred by law of limitation- In the memo or in the submission no ground
has been taken that the Tribunal had no jurisdiction to try the case or that the Tribunal arrived
at absurd or preposterous conclusions from the evidence on record. Section 561A of the Code
of Criminal Procedure cannot be conceived to give the, High Court the jurisdiction to retrieve
the cases from moratorium after they have been barred by limitation. The section 561A of the
Code of Criminal Procedure has not given any new jurisdiction to the High Court to override
other laws. It is easy to see that this Court cannot have any inherent jurisdiction to strike
down the law of limitation.
Mubashwir Ali and others vs State, 46 DLR (1994) 535 (Mr. AKM Sadeque, J, decided
on 06.09.1993) : Proceedings can be quashed even at the initial stage and even at the stage
when cognizance is taken by the magistrate in a case, when fact and circumstances
demand.Proceeding 'before a court starts after the Magistrate takes cognizance of an offence
on police report or on complaint. Before such cognizance there is no proceeding that may be
quashed under section 561A Cr.P.C.
Haji Obaidul Hoque and another vs The State and another 1992 12 BLD 169 (Mr.
Habibur Rahman Khan, J., Decided on 14.08.1991) : (i) The High Court has the general
jurisdiction over all the criminal courts subordinate to it and the said power having been
codified in the schedule, the High Court Division has inherent power under the Code of
Criminal Procedure to give effect to any order of any such court subordinate to it and can
quash a criminal proceeding to prevent the abuse of the process of any such court, or
otherwise, to secure the ends of justice. (ii) It is not possible, desirable or expedient to lay
down any inflexible rule which should govern the exercise of this inherent jurisdiction, the
exercise of this jurisdiction will depend upon the facts and circumstances of each case
1994
Md. Sher Ali and others vs The State and another, 46 DLR (AD) (1994) 67 (Mr.
Shahabuddin Ahmed, C.J, decided on 08.03.1994) : The High Court Division exercises its
inherent power under Section 561A independent of any other powers. Although the High
Court Division cannot entertain any application under section 439 (1) from a decision of the
Sessions Judge under Section 439A. stilt in a fit case, it can interfere with the Sessions
Judge's order by invoking its inherent power. This inherent jurisdiction is available even to a
party who has lost in revision before the Sessions Judge.
Section 561A Cr. P.C. is neither an additional power nor an alternative power of the Court
and this power is to be exercised very sparingly only in appropriate cases within the bounds
of the provisions of this Section. While Section 439 confers revisional power. Section 561A
reiterates the inherent power of the Court
67
Engineer Afsaruddin Ahmed vs The State, 47 DLR (AD) (1995) 10 (Mr. Shahabuddin
Ahmed, C.J, decided on 19.06.1994) : Even though a Minister is found to be found
personally interested in a criminal case against the accused-appellant, yet this by itself is not
sufficient to conclude that the specific allegations against the Appellant are false. The High
Court Division was right in holding that the question of malafidies could be determined only
on taking evidence at the trial and was justified in refusing to quash the proceeding.
Afia Khatoon vs Mobasswir Ali and others, 47 DLR (AD) (1995) 62 (Mr. A.T.M. Afzal,
J, decided on 13.07.1994) : Although quashing of a criminal proceeding at the stage of
submission of charge sheet is not and should not generally be permitted, particularly when it
discloses commission of offences, yet under special circumstances quashing of a proceeding
at this stage is permissible in the interest of justice.
Abdul Malek vs State, 1 BLC (AD) (1996) 231 (Mr. M.H. Rahman, J, decided on
05.09.1994) : Whether the petitioner without competitive tender, without verifying the
market price, without approval of the concerned Ministry of the Government made the
questionable purchase by abusing his position as the Administrator of the Corporation in
order to obtain for himself or for any other person pecuniary advantage is to be decided on
evidence at the trial.
Lutfar Rahman (Md.) vs Khadiza Khatoon and Others, 1 BLC (AD) (1996) 182 (Mr.
Shahabuddin Ahmed, C.J, decided on 23.08.1994) : It appears from the complaint-petition
that from the very beginning of the marriage demands for money were being made and that
Taka 50,000 was demanded as a dowry for the last time. Whether this demand constitutes
"dowry" can be determined on evidence during trial. The High Court Division also took the
view that since no question of lack of jurisdiction has been raised, it is not a fit case for
quashing the proceeding.
Fazlul Hoque Bhuiyan (Md.) and Others vs State, 1 BLC (AD) (1996) 181 (Mr. Latifur
Rahman, J, decided on 08.11.1994) : The allegation as made out in the FIR it has been
prima facie made out that the accused petitioners were engaged in the production or
adulteration of drug and medicine and, as such, a prima facie case has been made out against
them. The question as to whether the persons were really engaged in manufacturing
Adulterated Ampicillin at the relevant time is a matter to be decided on evidence at the time
of trial and hence the question of quashing the proceeding does not arise.
Farhad Hossain vs Mainuddin Hossain Chowdhury, 46 DLR (1994) 127 (Mr. Kazi
Ebadul Hoque, J, decided on 27.02.1994) : Whenever a party in criminal proceeding wants
to quash a proceeding he can move this Court directly without going through the intermediary
proceeding before the Sessions Judge under sections 435/438 of the Code if the petition falls
within the purview of section 561A of the Code.
Wahida Khan vs Shahar Banoo Ziwar Sultan and State, 48 DLR (1996) 286 (Mr. K M
Hasan, J, decided on 15.05.1994) : If a forged document has been used in a proceedings in
any court except on the on the complaint of court or some other court to which it is
subordinate, criminal court should not take cognizance on a private complaint. The want of
complaint u/s 195 is incurable and the lack of it vitiates the whole trial.
68
Dr. Ahmed Sharif vs State and another, 49 DLR (1997) 100 = 1 BLC (1996) 563 (Mr.
AKM Sadeque, J, decided on 01.08.1994) : The power to be exercised under section 561A
CrPC is highly discretionary. Such an extraordinary and discretionary power cannot be
exercised in favour of the persons who have themselves disrespected the Court complained
of. The petitioners who have flouted the order of the lower Court and declined to appear
before that Court. In these circumstances it is difficult to entertain application for quashing of
proceedings before surrender.
Abdul Malek vs State, 1 BLC (1996) 446 (Mr. Md. Abdul Karim, J, decided on
02.08.1994) : Upon scrutiny of the First Information Report and the charge-sheet in the
instant case, it cannot be said that no prima facie case appears or the prosecution is barred by
law or that the court has no jurisdiction to try the case, it is not a case where interference by
this court is called for to secure the ends of justice or to prevent an abuse of the process of the
court.
Abu Bakar and others vs State, 46 DLR (1994) 684 (Mr. KM Hasan, J, decided on
11.08.1994) : Resort to the provisions of section 561A of the Code of Criminal Procedure
should not be lightly made, as this would circumvent the due process of law. Every
prosecution for an offence is deemed to have been commenced in public interest and as a
duty of the State and the High Court will only in rare cases interfere in exercise of its inherent
jurisdiction if it is satisfied that resort to criminal proceeding "is doing something which is
not warranted by law."
Moudud Ahmed vs The State, 1996 16 BLD 36 (Mr. Naimuddin Ahmed, J, decided on
01.12.1994) : The power of the High Court Division to quash a criminal proceeding under
section 561A Cr.P.C. is confined to cases where materials on record do not disclose a prima
facie case to go for trial. The power under this section can be exercised to quash a particular
proceeding or a part thereof only when reading the petition of complaint or the F.I.R., as the
case may be, the police report and other materials, if any, it appears that there is no prima
facie case to go for trial. Insufficiency of materials cannot be a ground for quashing a
proceeding even if the assertions made by the accused petitioners have, not been controverted
by filing an affidavit-in opposition. The High Court Division cannot embark upon an enquiry
to ascertain the reliability either of the allegations made by the prosecution and of the
assertions made by the accused persons while deciding a case u/s 561A of the Code
Dr. Ahmed Sharif vs The State and another, 1997 17 BLD 235 (Mr. A.K.M. Sadeque, J.,
Decided on 01.08.1994) : The power to be exercised under section 561A of the Code is
highly discretionary. Such an extraordinary and discretionary power cannot be exercised in
favour of the persons who have themselves disrespected the Court complained of.
1995
Syed Mohammad Hashem alias Hashim vs State, 48 DLR (AD) (1996) 87= 3 BLT (AD)
(1995) 129 (A.T.M. Afzal, C.J, decided on 11.06.1995) : There may be cases where
allegation in the First Information Report or the complaint, even if they are taken at their face
value and accepted in their entirety, do not constitute the offence alleged and in such cases it
would be legitimate for the High Court Division to hold that it would be manifestly unjust to
allow process of the Criminal Court to be issued against an accused person. Proceeding
before a Court starts when the Magistrate takes cognisance of an offence on Police report or
on complaint. There may be one case out of a thousand where the High Court Division will
69
be justified in interfering even at the initial stage before taking of cognizance. But the usual
and well-settled practice is that a criminal proceeding can only be quashed after cognisance
has been taken and process issued thereupon.
Anwarul Haque vs Md. Shahidul Islam & another, 1 BLC 1996 (AD) 17 (Mr.
Ismailuddin Sarker, J, decided on 2.08.1995) : When the allegations are preposterous, the
proceedings are abuse of the process of the Court, and are opposed to law, and the allegations
do not constitute an offence or there is no proof or evidence on support of the charge, such
proceedings can well be quashed under Section 561A and not otherwise.
Ahmed vs The State, 48 DLR (AD) (1996) 42= 16 BLD (AD) 27=1 BLC (AD) 30 (Mr.
Mustafa Kamal, J, decided on 02.11.1995) : In exercising power under section 561A the
High Court Division is only to see if there are prima facie allegations disclosing criminal
offences. The admissibility, relevance, propriety or sufficiency of materials collected by the
prosecution are matters for the trial court to decide on taking evidence as all these fall outside
the ambit of sections 242 and 561 A of the Code of Criminal Procedure.
Aminul Islam vs Rokeya Begum and Others, 2 BLC (AD) (1997) 60 (Mr. Mohammad
Abdur Rouf, J, decided on 22.11.1995) : It was submitted that the petition of complaint
does not disclose any material which constitutes an offence under section 493 of the Penal
Code and that no offence under section 313 of the Penal Code has also been disclosed against
the petitioner. upon reading the petition of complaint the Court is satisfied that it was not a
proper case where the High Court Division could have rightly exercised its inherent power
under section 561A and quash the proceeding. Further, in a revision the petitioner had no
vested right of being heard.
Shamol Chandra Das vs State and Others, 1 BLC (AD) (1996) 140 (Mr. Mohammad
Abdur Rouf, J, decided on 23.11.1995) : We cannot but maintain the same view as has been
taken by the High Court Division that a prima facie case of criminal offence has been clearly
made out therein. The learned Judges of the High Court Division rightly held that in a
proceeding under section 561A Cr.P.C. the High Court Division has little scope to scrutinise
the truth or otherwise of any document or other evidence which may be used as defence in a
criminal proceeding. Principles of law enunciated the case of Ali Nur vs Syed Omar Ali, 10
BLD (AD) 168 do not fit in the facts and circumstances of the present case. Therefore, in our
view the impugned judgment and order do not warrant any interference.
Sohail Ahmed Chowdhury vs State, 47 DLR (1995) 348 (Mr. Habibur Rahman Khan, J,
decided on 21.03.1995) : A memo of appeal filed but not admitted for hearing as it was
found barred by limitation can be allowed to be converted to a miscellaneous case under
section 561A of the Cr.P.C. and can be disposed of by the same bench without issuing a Rule
afresh, for ends of justice.
Nur Mohammad Khan vs Abdul Jabber Munshi and Others, 1 BLC (1996) 17 (Mr.
Mohammad Gholam Rabbani, J, decided on 22.03.1995) : Whether the petitioner was
duty bound to pay the fine imposed by the village Court. In this case the petitioner is avoiding
payment of the fine imposed by a competent court constituted under the law of the land. The
power under section 561A Cr.P.C. should be exercised to do real justice for the
administration of which alone this court exists. This court cannot help a person who is
flouting an order of a court on mere technical point of law and thereby helping him in
avoiding the payment of the fine.
70
Liton vs State and others, 48 DLR (1996) 102 (Mr. Md. Gholam Rabbani, J, decided on
29.03.1995) : The law is by now well-settled that the High Court Division of the Supreme
Court has the widest and comprehensive power under section 561A of the Code of Criminal
Procedure to pass any orders or order either on an application or suo motu. A person accused
in a criminal case can only prefer an application under section 561A for quashing the said
proceeding if he becomes previously unsuccessful in his application either under section
265C or 241A; otherwise his application under 561A shall be premature.
Maksudur Rahman Hilaly and others vs State, 47 DLR (1995) 314 (Mr. Kazi Ebadul
Hoque, J, decided on 04.04.1995) : A litigant should not allowed to move this court u/s
561A of the Code when other remedy is available to him under this Code.
Fazlul Haz Sikder vs State, 1 BLC (1996) 173 (Mr. Syed Amirul Islam, J, decided on
13.04.1995) : Inherent jurisdiction can be exercised even after delay in filing the criminal
appeal is not condoned. It is a case of no evidence at all so far it relates to the petitioner and if
the impugned judgment is maintained it will amount to an abuse of the process of the court.
Moudud Ahmed vs State, 48 DLR (1996) 108 (Mr. AM Mahmudur Rahman, J, decided
on 09.05.1995) : In exercise of its jurisdiction under section 561A CrPC this court has not at
all authorised to embark upon the discussion on evidence and to arrive at a decision as that
will be prejudicing the whole matter and will influence the mind of the trial Court. Even if the
seized documents placed before the court was seized illegally the court cannot do but
consider those, as those are relevant to the matter in issue.
Santosh Bhusan Das and others vs State, 47 DLR (1995) 519 (Mr. Kazi Ebadul Hoque,
J, 24.05.1995) : Interference of this Court in exercise of its inherent power under section
561A of the Code at the initial stage of investigation or before taking cognizance or framing
of charge will be justified only when this Court finds that the allegations made in the First
Information Report or petition of complaint do not constitute the offence alleged against the
accused or that on the admitted facts no case can stand against the accused or there is legal
bar against the institution or continuance of a criminal proceeding against the accused person
for the alleged offence.
Abu Yusuf Mia (Md.) and Others vs Md. Khorshed Anwar, 1 BLC (1996) 553 (Mr. Kazi
Ebadul Hoque, J, decided on 28.06.1995) : Allegations appear to attract the element of
offence under section 420 of the Penal Code though cognizance was taken and charge was
framed under sections 406/423/109 of the Penal Code. Court is competent to alter or amend
the charge at any stage of the proceeding before pronouncing the judgment. We, therefore,
find no illegality in the impugned order framing charge against the accused persons though
under also some wrong sections of the Penal Code.
ARM Rafiqul Islam vs State, 1 BLC (1996) 531 (Mr. Md. Tafazzal Islam, J, decided on
09.07.1995) : The allegations as made in the First Information Report, even taken as it is, the
same does not disclose any offence under section 409 and section 5(2) of the Anti Corruption
Act, 1947 and there is also nothing to show that the petitioner was entrusted with the money
which is alleged to have been paid in excess or amount or that the petitioner has domain over
the said amount or tha the petitioner misappropriated the said amount for his own benefit or
benefit of others. Continuation of the proceeding is nothing but an abuse on the process of the
court and as such liable to be quashed.
71
Abdur Rashid alias Rashid and others vs State, 16 BLD 1996 HCD 113, 3 BLT 1995 HCD
242 (Mr. Mahmudul Amin Chowdhury, J, decided on 11.07.1995) : Accused persons
cannot be tried twice for the same offence- Instead of submitting charge-sheet against the
petitioners under section 412 of the Penal Code a separate proceedings under the Arms Act
has been initiated knowing fully well that the recovered fire-arm is an alamat of the dacoity
case. It is not the case of the prosecution that the same was not recovered in the dacoity case
and it was not taken away during dacoity. As the rifle was recovered during investigation of
the earlier dacoity case and that too from the accused of that dacoity case there cannot be any
separate proceeding and that too from the accused of that dacoity case there cannot be any
separate proceeding- proceedings quashed.
Abdus Samad (Md). and Others vs State, 1 BLC (1996) 63 (Mr. Md. Mozammel Haque,
J, decided on 12.07.1995) : A Legal advisor cannot be made liable the offence of forgery
and criminal breach of trust for giving legal opinion- accused was a legal Adviser of the
vested and non-resident property. On the basis of the opinion given by the legal Adviser and
all other relevant papers and documents, the Additional Deputy Commissioner (Rev.),
became satisfied and recommended for release of the aforesaid property from the list of
vested property. Thereafter, the matter was inquired into by the Ministry and after
considering the relevant papers and documents the Ministry itself became satisfied that the
property in question is not a vested or abandoned property. It further appears that several
complaints were made against this property of the aforesaid company and different organs of
the Government inquired into the same. But all the agencies of the Government submitted
favourable reports in favour of releasing the same. Being a Legal Adviser he gave his opinion
for releasing the property in favour of the Nepali company and we fail to understand how a
case under the aforesaid, sections will lie against a legal adviser who had not done anything
with regard to execution of the deed of agreement for sale. On the face of the record it
appears that the ingredients of the aforesaid section of the Penal Code are totally absent in
respect of the accused. As such, this proceeding against him is liable to be quashed.
Serajul Islam and others vs Fazlul Hoque and others, 47 DLR (1995) 480 (Mr. Kazi
Ebadul Hoque, J, 20.07.1995) : This Court has inherent jurisdiction to set aside its own
judgment to secure ends of justice or to prevent abuse of the process of any Court under
section 561A of the Code of Criminal Procedure.
Sohail Ahmed Chowdhury vs State, 47 DLR (1995) 482 (Mr. Habibur Rahman Khan, J,
decided on 25.07.1995) : This section corresponds to section 151 of the Code of Civil
Procedure and proceeds with the almost similar principle. Inherent jurisdiction of the High
Court Division which is generally exercised for preventing the abuse of the process of the
court in respect of the pending proceeding can also be invoked in appropriate cases for
securing the ends of justice in respect of a proceeding which has reached its finality after the
conclusion of trial.
Khorshed Alam vs Azizur Rahman & another, 48 DLR (1996) 36 (Mr. Kazi Ebadul
Hoque, J, decided on 13.08.1995) : In a Rule for quashing the proceedings the court cannot
enter into the merits of the allegations. Even if the accounts of the company were audited and
approved by the share-holders the same cannot exonerate the persons in charge of the
management of the company from facing trial on the allegation of misappropriation of the
fund of the company.
72
Shahidullah Kazi, Amjad Hossain vs State, Abul Kasem 48 DLR (1996) 178 (Mr. Kazi
Ebadul Hoque, J, decided on 24.08.1995) : Submission of charge-sheet beyond the
specified time of 30 days under the Santrash Mulak Aparad Daman Ain is illegal and, as
such, this proceedings cannot proceed in the Santrash Mulak Daman Tribunal.
Jasimuddin (Md) and 2 Others vs Md. Humayun Kabir, 48 DLR (1996) 578 (Mr. Kazi
Ebadul Hoque, J, decided on 28.08.1995) : Since the jurisdiction of the criminal Court to
draw up proceedings under section 145 of the Code is ousted as the civil Court is in seisin of
the subject matter of the dispute the entire proceeding in question appears to be without
jurisdiction.
Syed Khalilulla Salik alias Juned vs Haji Md. Rahmat Ullah and State, 49 DLR (1997)
16 (Md. Badruzzaman, J, decided on 29.11.1995) : Since the complainant petitioner did not
disclose the nature of the document allegedly created by the petitioner in the petition of
complaint or at the time of framing of the charge, we are inclined, to find that the allegations
made in the petition of complainant do not constitute the offence punishable under section
465 of the Penal Code and as such the impugned proceeding is liable to be quashed.
Sohail Ahmed Chowdhury vs The State, 1995 15 BLD 452 (Mr. Habibur Rahman Khan,
J., Decided on 27.07.1995) : Although inherent power of the High Court Division u/s 561A
Cr.P.C. is generally exercised for preventing an abuse of the process of the court in respect of
a pending proceeding hut nevertheless the said power can also he exercised in respect of a
proceeding which has reached its finality after the conclusion of the trial when it is found
necessary to prevent an injustice. But this power should be exercised sparingly and in
exceptional cases where the offences alleged do not constitute any criminal offence or a
conviction has been based on no legal evidence or shockingly inadequate evidence.
Md. Iftekharul Alam vs The State and another, 1995 15 BLD 188 (Mr. Mohammad
Gholam Rabbani, J., Decided on 19.03.1995) : It is well-settled that the High Court
Division has the widest and most comprehensive power under Section 561A of the Code to
pass any order or orders either on an application by a party or suo motu to prevent an abuse
of the process of the Court or otherwise to secure the ends of justice. This is the inherent
power of the Court which is exercised in the interest of justice.
Fazlul Haq Sikder vs The State, 1995 15 BLD 364 (Mr. Syed Amirul Islam, J., Decided
on 13.04.1995) : When in a case there is no legal evidence on record to justify the conviction,
the impugned order of conviction and sentence clearly amounts to an abuse of the process of
the court and as such the same is liable to be quashed.
1996
Habibur Rahman (Md.) and Others vs State and Others, 1 BLC (AD) (1996) 146 (Mr.
Mohammad Abdur Rouf, J, decided on 04.01.1996) : Upon a plain reading of the petition
of complaint it is clear that the initial intention of cheating and the elements of criminal
breach of trust have very well been alleged therein and, as such, on the face of these
allegations it is difficult to say at this stage that no prima facte case has been alleged to have
been committed by the petitioners under sections 406/420 of the Penal Code. The learned
73
Judges of the High Court Division upon proper consideration of the material facts rightly
discharged the Rule.
Tamizul Haque Vs Anisul Haque, 1 BLC (AD) (1996) 169 (Mr. A.T.M. Afzal, C.J,
decided on 16.01.1996) : It is difficult for the Court to put any emotive consideration on the
balance when the question at issue is one of law. The question is whether the proceeding is
barred under any law or amounts to an abuse of the process of the Court for any reason which
is judicially acceptable. Having considered all the submissions made on behalf of the
petitioner we have not found any good reason for answering the question in the affirmative.
The High Court Division, in our opinion, has on correct principles decided the matter and
rightly refused to quash the proceeding.
Abual Hossain Abu vs State, 1 BLC (AD) (1996) 173 (Mr. Mohammad Abdur Rouf, J,
decided on 12.03.1996) : High Court Division upon perusal of the petition of complaint held
that a prima facie case of abetment of the alleged offences against the petitioner has been
disclosed therein and that the provision of Criminal Law Amendment Act, 1958 has also
made abetment of the alleged offences punishable. In our opinion in the facts and
circumstances of the case, the learned Judges rightly refused to quash the proceeding.
Sayed Abu Zafar vs State and another, 1 BLC (AD) (1996) 188 (Mr. B B Roy
Chowdhury J, decided on 03.06.1996) : When a prima facie case is made out and the case
is at the trial stage, the trial court, should be allowed to proceed with the case and the
prosecution should not be stifled.
Kabir alias Bakiruddin and others vs State, 2 BLC (AD) (1996) 178 (Mr. Bimalendu
Bikash Roy Chowdhury, J, decided on 26.06.1996) : The allegation disclosed ingredients
of offence under sections 25B and 25D of the Special Powers Act, 1974 under which sections
the accused-petitioners had already been charged. As such, facts clearly justify the order of
the High Court Division refusing to quash the proceeding.
Champak Ranjan Saha vs Authorised Officer, Khulna Development Authority and

others, 1 BLC (AD) (1997) 110 (Mr. Mohammad Abdur Rouf, J, decided on 03.07.1996)
: While discharging the Rule for quashing the order of the personal appearance the High
Court Division directed to demolish the unauthorized construction in question. While the
proceeding under section 12(1) of the Building Construction Act is still pending in the Court
of the Chief Metropolitan Magistrate, Khulna and awaiting decision on merit as to whether
any direction will at all be necessary upon the KDA to dismantle the alleged unauthorized
construction which was not the subject matter under consideration before the High Court
Division in the revision case and accordingly, the impugned unwarranted directi on was
expunged.
Khondaker Mahtabuddin Ahmed and others vs State, 49 DLR (AD) (1997) 132
(Bimalendu Bikash Roy Choudhury, J, decided on 04.07.1996) : There is a prima facie
case of criminal offence against the petitioners and others. Again there is nothing in law
precluding a criminal case on account of a civil suit pending against the petitioners on the
same facts. The criminal case stands for the offence, while the civil suit is for realisation of
money. Both can stand together- petition dismissed.
74
Habibur Rahman vs Md. Fazlur Rahman and another, 2 BLC (AD) (1997) 152 (Mr.
Mohammad Abdur Rouf, J, decided on 25.07.1996) : In the petition of complaint it is
alleged that all the accused persons have misappropriated the money of the school. The
complainant has also made the same allegation under section 200 CrPC. The High Court
Division has rightly refused to quash the proceeding.
Rahela Khatun vs Abul Hassan and others, 48 DLR (AD) (1996) 213= 5 BLT (AD)
(1997) 22 (Mr. Mustafa Kamal, J, decided on 06.08.1996): Criminal proceeding cannot be
quashed on basis of defence materials which are still not part of materials for prosecution -
High Court Division deviated from well-known norm of disposal of application for quashing
criminal proceeding by taking into account defence version of case - In quashing these
proceedings, High Court Division exceeded bounds of jurisdiction under Section 561A of
CrPC - Appeal allowed.
Noor Jahan Begum and another vs State, being represented by the Deputy
Commissioner and another, 49 DLR (AD) (1997) 106 (Mr. Mustafa Kamal, J, decided
on 30.10.1996) : The complainant has the option to activate prosecution of the petitioners
under the Immigration Act, 1982 as well, but if the allegations contain the ingredients of an
offence or offences under the Penal Code, which are not triable, far less exclusively triable,
by a special Court, the complainant's case before the Magistrate cannot be stifled by
quashing.
Rafique (Md.) vs Syed Morshed Hossain and another, 50 DLR (AD) (1998) 163= 5 BLT
(AD) (1997) 57 (Mohammad Abdur Rouf, J, decided on 03.11.1996) : In the first
information report the petitioner clearly stated that for business purpose he had paid Taka to the
accused and he got back part of the paid Taka. Nothing was stated in the First Information Report that
the accused-respondent denied that he would not pay the balance amount to the petitioner. No
allegation of initial deception has also been alleged in the First Information Report. The learned
Judges of the High Court Division rightly quashed the proceeding.
Ali Akkas vs Enayet Hossain and others, 1 BLC (AD) 16, 17 BLD(AD) 44 (Mr. Latifur
Rahman, J, decided on 05.11.1996) : In the quashing proceedings, the High Court Division
is only to see whether there are materials on record to show that the allegations made in the
First Information Report and the charge-sheet do in fact constitute an offence and not beyond
that. It cannot at this stage perform the function of a trial court in quashing the proceeding.
their Lordships held: "the settled principle of law is that to bring a case within the purview of
section 561A for the purpose of quashing a proceeding one of following conditions must be
fulfilled:
(1) Interference even at an initial stage may be justified where the facts are so preposterous
that even on admitted facts no case stands against the accused;
(2) Where the institution and continuation of the proceeding amounts to an abuse of the
process of the court;
(3) Where there is a legal bar against the initiation or continuation of the proceeding;
(4) In a case where the allegations in the FIR or the petition of complaint, even if taken at
their face value and accepted in their entirely, do not constitute the offence alleged; and
75
(5) The allegations against the accused although constituted an offence alleged but there is
either no legal evidence adduced in support of the case or the evidence adduced clearly or
manifestly fails to prove the charge."
Golam Md. Abdul Awal Sarkar and others vs State, 49 DLR (1997) 95 (Mahfuzar
Rahman, J, decided on 29.01.1996) : No ingredient on the face of the records; private
persons cannot be tried under sections 4(2) and 5(2) of the Anti-Corruption Act, 1947, as
such, proceedings quashed.
A.K.M. Rafiqul Islam VS State, 17 BLD (1997) 198 (Mr. Md. Tafazzul Islam, J, decided
on 9.07.1996) : Civil and criminal litigation going on between the parties had disclosed a
breach of contract which could not give rise to criminal prosecution. Amount could be
recovered through the suit pending adjudication before a competent Court of law. Promise
broken by the accused was not a criminal offence. Continuation of criminal proceedings
against the accused amounted to an abuse of the process of the court in circumstances and the
same were quashed accordingly.
Md. Manik @ Akkas Khan v The State, 2 BLC (1997) 418 =2 MLR (1997) 98 (Mr.
Badrul Islam Choudhury, J, decided on 12.12.1996) : Quashing proceeding in the stage of
investigation- As alleged victim girl was above the age of 18 years on the alleged date of
occurrence and she sworn affidavit before a Notary Public stating that she had voluntarily at
her free will had gone in accordance with Muslim law of Marriage and in support of that a
copy of the Marriage has been filed. There is no prima facie ingredients to proceed with the
case under section 366 of the Penal Code or under the Oppression of Women and Children
(Special Enactment) Act- proceeding quashed.
1997
Ansarul Haque vs Abdur Rahim and 4 others, 49 DLR (AD) (1997) 145= 5 BLT (AD)
(1997) 118 (Mr. A.T.M. Afzal, C.J, decided on 29.01.1997) : It appears that dispute arose
between two business colleagues. There has been claim and counter-claim between the
parties and admitted money suits have been filed by each of them which are pending. It
cannot be said that the High Court Division was wrong in holding and acting on the premises
that the dispute between the parties arising out of a joint work should be settled in the civil
Court and the criminal Court should not take cognisance of such dispute.
Alamgir (Md.) vs State, 3 BLC (AD) (1998) 72 (Mr. Mustafa Kamal, J, decided on
02.12.1997) : The accused-petitioner was convicted under section 385 of the Penal Code and
sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Taka 3,000.00 in
default to suffer rigorous imprisonment for 6 months. The accused-petitioner did not prefer
any appeal there from. He filed an application under section 561A Cr.P.C. after about 11
months of the judgment. The High Court Division rightly found that the accused-petitioner
was a fugitive from justice and, as such, he was not entitled to get any relief.
Ansar Ali (Md.) vs Manager, Sonali Bank, 3 BLC (AD) (1998) 86 (Mr. Latifur Rahman,
J, decided on 23.06.1997) : From the petition of complaint it is found that co-accused loanee
in collusion with the present petitioner who was a guarantor sold/removed the mortgaged
properties kept in the custody of the loanee. There being such averment in the petition of
complaint the proceeding cannot be quashed as has been rightly found by the learned Judges
of the High Court Division.
76
Mokaddesh Mondal and others vs State and others, 50 DLR (AD) (1998) 186= 6 BLT
(AD) (1998) 145 (Mr. A.T.M. Afzal, C.J, decided on 11.12.1997) : Whether in the facts of
a particular case a higher section is attracted can be considered at the time of framing of
charge. It is not necessary to amend the charge-sheet to include a higher offence.
Imam Anwar Hossain vs Dr. Hasmat Ara Begum and State, 2 BLC (1997) 152 (Mr.
Mahmudul Amin Chowdhury, J, decided on 05.01.1997) : On perusal of the FIR, charge
as well as charge-sheet it appears that the opposite party has succeeded in making out a
strong prima facie case against this petitioner. That the petitioner has not made any payment
are all matters of evidence. Whether any payment has been made to and whether there was
any account are to be decided by procuring evidence by the trial Court cannot be considered
in an application under section 561A of the Code of Criminal Procedure.
Abdul Khalique vs State, 2 BLC (1997) 423 (Mr. Mahfuzur Rahman, J, decided on
26.01.1997) : Trial in absentia without publication vitiates the trial- The petitioner was tried
in absentia and during the trial the Tribunal admittedly did not fulfil the requirement of
section 27(6) of the Special Powers Act by publishing at least in two daily newspapers. Trial
vitiated with respect to the petitioner. In exercise of the inherent power the High Court
remand the case to the trial court for giving an opportunity to the petitioner to cross-examine
the PWs and to try the case with respect to the petitioner only in accordance with law.
Kamrul Islam (Md) vs Atikuzzaman, 49 DLR (1997) 258= 2 BLC (1997) 227 (Mr. Md.
Abdul Karim, J, decided on 30.01.1997) : Where a prima facie case of criminal offence has
been clearly made out, the High Court Division in a proceeding under section 561A CrPC has
little scope to scrutinise the truth or otherwise of any document or other evidence which may
be used as a defence in a criminal proceeding.
Md. Alamgir Hossain alias Alamgir vs The State, 49 DLR (1997) 630= 17 BLD (1997)
478 (Mr. Mahmudul Amin Chowdhury, J, decided on 22.05.1997) : It is well settled that
sitting in this jurisdiction under section-561A of the Code of Criminal Procedure this court
cannot appreciate or sift the evidence adduced from the side of the prosecution. So, it cannot
be found that there is no evidence in this case. The petitioner has failed to substantiate his
case that there is no evidence against him before the Tribunal.
A convict may invoke the jurisdiction of the High Court Division under Section 561A Cr.
P.C. if he can make out a case of coram-non-judice of the trial Court or that the facts alleged
do not constitute any criminal offence or that the conviction has been based on no legal
evidence or otherwise for securing the ends of justice.
Nurul Islam vs State and another, 49 DLR (1997) 464 (Mr. Md Abdul Karim, J, decided
on 03.07.1997) : The first information report in the instant case prima facie discloses an
offence, as such, we find no illegality in taking cognisance of the offence by the learned
Magistrate. Institution of a money suit for recovery of the money will not stop prosecution for
an offence committed in the eye of law.
Moniruzzaman (Md.) and Others vs State, 2 BLC (1997) 413 (Mr. Badrul Islam
Chowdhury, J, decided on 13.07.1997) : On perusal of the of the petition of complaint, we
find that there is no allegation of taking dowry by the husband or any of his relations. The
77
allegation is of demanding dowry with threat to divorce the complainant if the demand is not
satisfied. So the activities of the accused petitioners come within the mischief of section 4 of
the Dowry Prohibition Act and not under section 3. As such, the Magistrate committed
illegality in framing charge under section 3 of the Dowry Prohibition Act against accused
petitioner Nos. 2-5. He should have framed charge under section 4 against all the accused
persons of the case. Therefore, so far as it relates to framing of charge against petitioner Nos.
2-5 under section 3 is set aside and the learned Magistrate is directed to frame charge under
section 4 against these petitioners and then proceed with the trial.
Major (Retd) M Khairuzzaman vs State, 50 DLR (1998) 283 = 2 BLC (1997) 646 (Mr.
Md. Mozammel Hoque, J, decided on 30.10.1997) : The Chief Metropolitan Magistrate is
avoiding to pass an order on flimsy grounds and as such the question of approval by the
District Magistrate does not arise in such peculiar circumstances. The petitioner had no other
alternative but to invoke the inherent Jurisdiction under section 561A of the Code of Criminal
Procedure for ends of Justice. The petitioner was an army personnel, served Bangladesh
Embassy in different countries, he was Director-General of the Ministry of Foreign Affairs
leading a superior mode of living. He is entitled to have the Division-I or Class I status in the
jail as under-trial prisoner under the provisions of Paragraph 910 of the Jail Code.
Sabdul Ali (Md.) vs Md. Mabed Ali Sarker, 50 DLR (1998) 146 (Md. Gholam Rabbani,
J, decided on 20.11.1997) : Magistrate converted the proceeding into a proceeding which he
was not permitted to assume in view of the pendency of the civil suits instituted by both the
parties against each other. Criminal proceeding is required to be quashed to secure the ends of
justice so that title may be set at right once and for all by the civil Court.
AKM Rafiqual Alam vs State, 50 DLR (1998) 265 (Mr. Kazi Ebadul Hoque, J, decided
on 08.12.1997) : It appears that the notice for the talak was issued about one month before
the service of the notice not to speak of expiry of 90 days as provided under section 7 to
make the pronouncement of talak effective. In view of the same, the application is summarily
rejected.
Shainpukur Holding Limited vs Security Exchange Commission, 3 BLC (1998) 148 (Mr.
Kazi Ebadul Hoque, J, decided on 09.12.1997) : Since a duly constituted Enquiry
Committee is its report opined that the accused person had contravened the provisions of the
section 17 of the Ordinance and the Magistrate on being satisfied about the same had taken
cognizance against the accused persons they would get chance to defend themselves and as
such no failure of justice has occasioned in taking cognizance against them.
Md. Alamgir Hossain alias Alamgir vs. The State, 17 BLD 1997 HCD 478 (Mr. Md.
Tafazzul Islam, J, decided on 22.05.1997) : It is well settled that sitting in this jurisdiction
under section-561A of the Code of Criminal Procedure this court cannot appreciate or sift the
evidence adduced from the side of the prosecution. So, it cannot be found that there is no
evidence in this case. The petitioner has failed to substantiate his case that there is no
evidence against him before the Tribunal.
1998
Abul Bashar and another vs Hasanuddin Ahmed and others, 51 DLR (AD) (1999) 14
(Md. Abdur Rouf, J, decided on 15.01.1998) : Where the matter is in seisin of the civil
Court, no criminal proceeding can be continued on the said allegations.
78
Mowlana Md. Yusuf vs State and another, 3 BLC (AD) (1998) 171 (Mr. ATM Afzal,
C.J, decided on 29.07.1998) : A Magistrate’s Court at Gopalganj has taken cognizance
rightly or wrongly of offences under sections 295A and 298 of the Penal Code. The
respondent is certainly at liberty to question the authority of the Magistrate to take
cognizance of the offences alleged but before so doing there is an obligation cast upon the
respondent to show obedience to the order of the court for appearance. The respondent was
free to appear before High Court if he felt insecure to appear in the Court at Gopalganj, pray
for bail and further ask for whatever reliefs he thought were appropriate by the filing
appropriate applications. The respondent did not adopt any of the courses above. It was
clearly the duty of the High Court Division to reject the quashing petition filed by the
respondent and the High Court Division would not have had to indulge in gratuitous exercise
of power in giving the directions and passing the orders in giving the directions and passing
the orders which the appellant has alleged to have been one-sided without hearing either the
complainant-appellant or the court concerned.
Latifa Akhter and others v. State and another, 51 DLR (AD) (1999) 159 (Mr. Latifur
Rahman, J, decided on 6.12.1998) : The criminal proceedings as well as the civil
proceedings cannot lie simultaneously in respect of the same dispute arising out of the
contractual work and the criminal proceedings being the abuse of the process of law are liable
to be quashed.
Rustom Ali (Md) Matubbar alias Alam vs Mohammad Salahuddin and another, 50
DLR (1998) 301 (AK Badrul Huq, J, decided on 02.03.1998) : The accused-petitioner, if
he would have felt aggrieved, against the order passed by the learned Magistrate framing
charge against him, could have invoked the jurisdiction of the Sessions Judge under section
439A for the relief. But instead of that, he invoked the inherent jurisdiction of the High Court
Division in an application under section 561A of the Code. Rule discharged.
Shamsur Rahman alias Shamsu Moral and another vs State, 51 DLR (1999) 338 (Mr.
AM Mahmudur Rahman, J, decided on 12.02.1998) : The petitioners' case may be
considered at the time of hearing of the appeal arising out of the same judgment and order
appealed by other co-accused. A person having had prayed for rejecting of his petition or
appeal cannot be given such latitude to invoke the aid of section 561A CrPC.
Nazrul Islam (Md.) vs State, 3 BLC (1998) 246 (Mr. A.K. Badrul Huq, J, decided on
22.03.1998) : Tribunal got the jurisdiction to hold the trial, the facts alleged against the
accused petitioner did constitute criminal offence and the conviction had not been, also,
based upon 'no evidence'. The ends of justice, therefore, do not demand the acquittal of the
petitioner. Since it cannot be said that there is no foundation for the conviction and sentence
upon the petitioner and also its maintenance is not in consonance with the dispensation of
criminal justice, inherent power under section 561A of the Code of Criminal Procedure
cannot be exercised to quash the impugned judgment.
Abdul Hai vs State, 50 DLR (1998) 551 (Mr. Kazi Ebadul Hoque, J, decided on
18.03.1998) : From the petition of complaint we find no allegation of initial deception on the
part of the accused petitioner or entrustment of any property by the complainant to the
accused petitioner. From the allegations made in the petition of complaint we find that claim
of the complainant was attempted to be settled amicably but due to the non-cooperation or
79
reluctance of the petitioner and his appointed engineer complainant could not realize his
claim as amicably settled. Thus the dispute between the parties prima facie appears to us to
be of civil nature. Ingredients of the offence of cheating and criminal breach of trust having
not been disclosed in the petition of complaint the same is liable to be quashed.
Montas Mia vs State, 3 BLC (1998) 308 (Mr. Kazi Ebadul Hoque, J, decided on
10.05.1998) : Admittedly petitioner was not known to the informant PW 1 who stated that
witnesses saw the accused fleeing and disclosed his name. PW 5 and PW 6 are the two
attesting witnesses of the seizure list. None of them stated that they recognized the petitioner
while fleeing away leaving his basket nor disclosed his name to the informant. They merely
proved their signatures in the seizure list Ext 2. In cross-examination PW 5 stated that he did
not know from whom seized cloths were recovered. On the other hand, PW 6 stated that he
knew nothing about the occurrence. In view of the above stated evidence Special Tribunal
was not justified in convicting the petitioner merely relying upon hearsay evidence of the
informant PW 1, though his abscondence since lodging of the FIR raised prosecution of guilt
against him. Had there been any evidence of his recognition at the time of occurrence there,
then his conviction would have been justified. We, therefore, impugned judgment is quashed.
Shahidul vs State, 51 DLR (1999) 222 = 7 BLT (1999) 142 (Mr. Md. Hassan Ameen, J,
decided on 13.08.1998) : Offence charged appears to have not been proved inasmuch has
been disproved against the accused petitioner and, as such, the impugned judgment and order
of conviction and sentence passed against the accused petitioner cannot he sustained.
Anwar and Others vs State, 3 BLC (1998) 363 (Mr. Mohammad Gholam Rabbani, J,
decided on 14.05.1998) : Allegation in the First Information Report that the petitioners
demanded subscription from Arman is contradicted by the statement of PW 1 in the witness-
box by stating that the petitioner demanded subscription from the shopkeeper Rafique and
Arman obstructed the petitioner from making such demand and consequently Arman was
assaulted by the petitioner. It appears from the charge framed against the petitioners that it
was alleged that the petitioners demanded subscription from Arman. But the prosecution gave
out a different case from that stated in the charge. Furthermore, we find that Rafique was not
examined at all in this case. The charge brought against the petitioner was not proved at all
and, as such, the impugned order of conviction and sentences are found to be illegal. In the
result, the Rule is made absolute, impugned Judgment and order are set aside. Petitioners are
found not guilty of the charge and they are acquitted.
Abu Taleb vs State, 3 BLC (1998) 292 (Mr. Md. Hasan Ameen, J, decided on
19.05.1998) : It also appears from the record that no seizure list witness have been examined
in this case nor the prosecution has come with a reasonable explanation for their absence. So
it is presumed that had the seizure list witnesses been examined they would not have
supported the prosecution case. In this case prosecution is found to have examined 7
witnesses who are none but police personnel and that those police men are directly under
control and command of the police officer who lodged the suo motu FIR in this case. So, in
such circumstances evidence of these P.Ws. should be swallowed with a grain of salt.
Further,' it appears the provision of section 103 of the Code of Criminal Procedure was not
complied with. Since the search and recovery was not conducted in presence of independent
witness, the prosecution case does not find leg to stand upon. The absence of seizure list
witness together with absence of incriminating article allegedly recovered from the
control/possession of the accused petitioner and others has made the whole prosecution case
80
unworthy to believe and, as such, the impugned judgment and order of conviction cannot
sustain. As such, the impugned judgment and order of conviction is quashed.
Md. Shokrana vs The State, 2000 (8) BLT (HCD) 299; 2001 21 BLD 296 (Mr. A.B.M.
Khairul Haque, J. Decided on 06.07.1998) : Under section 561A of the Code this Court can
examine the admitted documents of the accused. The extraordinary power of this Court under
section 561 A of the Code may be 'exercised far the purpose specified therein, namely, (a) to
give effect to any order under the Code, (b) to prevent an abuse of the process of any Court of
and (c) otherwise to se cure the ends of justice. The process of law must not be used as the
engine of harassment. If it is found to be so abused, it will be imperative on the part of the
High Court Division to interfere and quash such proceedings in exercise of its inherent
jurisdiction.
1999
S.M. Anwar Hossain vs Md. Shafiqul Alam (Chand) and another, 51 DLR (AD) (1999)
218=19 BLD (AD) 166= 8 BLT (AD) 90 = 4 BLC (AD) 106 (Mr. A.T.M. Afzal, C.J,
decided on 03.02.1999) : The cheque in question was issued by the appellant on 21.12.1995
which was presented for encasement on 23.12. 1995 but it was dishonoured on the same day
whereupon the complainant issued notice to the appellant on 24.12.1995 for payment of
money for which the cheque was issued following the clause (b) to the proviso to section 138
of the Act. On receipt of the said notice the appellant informed on 4.1.1996 that he had lost
the cheque written in the complainants name and made a GD Entry in that behalf. The cause
of action for prosecution will arise under clause (c) of the proviso to Section 138 on the
failure of the appellant to pay the amount within 15 days of the receipt of the notice of the
complainant. Relying on the complainant's own case it is contended on behalf of the appellant
the accused-appellant must be fixed with notice for payment at least from 4.1.1996 and after
the expiry of 15 days from that date i.e: from 19.1.1996 the cause of action should be taken to
have arisen due to non-payment within the said period and complaint was required to be filed
within one month from 19.1.1996 in compliance with clause (b) of section 141 of the Act.
Admittedly the petition of complaint was filed long after that date i.e., on 18.4.1996 and thus
cognizance could not be taken upon such complaint. The subsequent allegations will not save
the limitation because the requirement under the law is that the complaint has to be filed
within one month of the data on which the cause of action arises under clause (c) of the
proviso to section 138 of the Act and hence the impugned proceeding is quashed.
Moulavi Abdul Bari and another vs The State and others, 53 DLR (2001) 410 = 21 BLD
2001 HCD 383 (Mr. Abu Sayeed Ahammed, J, decided on 18.02.1999) : In quashing a
criminal proceeding the Court is considered only with the question of a prima facie case
against the accused If intention to deceive or to commit criminal breach of trust is prima facie
established, there is no question of quashing the proceeding simply because of the pendency
of a civil suit between the parties.
Md. Abdul Rouf @ Nayan vs The State & another, 53 DLR (2001) 283 = 21 BLD 2001
HCD 255 (Mr. Md. Hamidul Haque, J, decided on 15.07.1999) : The deal in question
being part of a normal business transaction and the accused having admittedly received goods
on credit on payment of a portion of the price thereof, the non-payment of the balance does
not constitute a criminal liability under section 406 or 420 of the Penal Code. The liability is
purely of a civil nature.
81
Habib (Md) and another vs State represented by the Deputy Commissioner, 52 DLR
(2000) 105 (Mr. Md Hamidul Haque, J, decided on 17.08.1999) : When the allegations
made in the First Information Report or petition of complaint do not disclose any offence, an
accused should not be compelled to wait till the stage of hearing under section 241A comes.
Allegations made in the First Information Report do not disclose any offence under section
406 and 420 against the present petitioners and, as such, the proceeding is liable to be
quashed.
2000
Shohid Miah vs The State, 53 DLR (AD) (2001) 11 = 20 BLD (AD) (2000) 265 (Mr. A.M.
Mahmudur Rahman, J, decided on 14.05.2000) : Where in a proceeding has been initiated
legally in a competent court and it cannot be shown that such proceeding, if is allowed to
continue, will be "abuse of process of Court" and need be quashed "for ends of justice"
dispensation of personal appearance of the accused before such court does not fall within the
meaning of section 561A of the Code.
Major General (Retd) Mahmudul Hasan vs State, 52 DLR 612 (Mr. Md. Hamidul
Haque, J, decided on 18.05.2000) : Allegation of giving instruction over telephone cannot
be the basis of proceeding against the petitioner under section 186 of the Penal Code. The
indentity of caller cannot be proved and as such continuation of the proceeding shall be abuse
of the process of the court.
Motaleb Hossain (Md.) vs Stathe and another, 53 DLR (2001) 198 (Mr. Md. Hamidul
Haque, J, decided on 25.05.2000) : The transaction between the parties was a business
transaction and the amount fell due after accounts at the end of the transaction. The liabilities,
if any, may be considered a civil liability only. The petition of complaint does not disclose
any offence under sections 406 and 420 of the Penal Code, as such, the proceeding is liable to
be quashed.
Bibhu Ranjan Das vs Hakim Ali and others, 53 DLR (2001) 114 = 9 BLT 2001 HCD 99
(Mr. AKM Shafiuddin, J, decided on 13.06.2000) : Our statutes do not contain provision
dealing expressly with the question of expunging of an offending part from a judgment.
However, it is generally thought that the superior courts of the Subcontinent, in the exercise
of its inherent power under section 151 of the Civil Procedure Code and section 561A of the
Criminal Procedure Code can expunge objectionable materials from the judgments and orders
passed by the courts below. Our Appellate Division as well as the Supreme Court of Pakistan
and the Supreme Court of India have recognised their power to expunge objectionable
material from the judgment and order of the subordinate Court.
Habibur Rahman Hawlader vs State and another, 55 DLR (2003) 199 (Mr. Md
Munsurul Haque Chowdhury, J. decided on 29.06.2000) : There is nothing in law
specifying that a cheque can be presented only once within six months from the date of
issuance and 15 days time for serving notice demanding money shall be counted from the
date of return on first presentation. We have carefully examined the language of section 138
of said Act. In our view, such a cheque may be presented to the bank more than once but the
cheque must be presented to the bank within the period of six months from the date on which
it is drawn or within the period of its validity. In the present case cheques were presented to
82
the bank twice well within six months from the date it was drawn. In the instant case
computation of 15 days for serving notice should be done from the date on which the cheques
lastly returned by the bank, hence, rule discharged.
Azibor Mollick vs State, 52 DLR (2000) 576 (Mr. Md Hamidul Haque, J, decided on
09.08.2000) : The conviction not based on any legal evidence rather relying on the statement
of the victim recorded under section 164 was not legal. Judgment under Nari-o-Shishu
Nirjatan Daman Ain quashed.
Abdur Rahman Dhali and others Vs The State, 10 MLR (2005) 108 (Madam Farah
Mahbub, J, decided on 1.09.2004) : Civil and criminal case on the same matter: Where the
same matter is the subject of a civil suit and a criminal proceeding and there is risk of a
conflict between the decisions of two courts, the High Court can in the exercise of its inherent
power order stay of proceedings till the final decision in the civil suit.
Shuinya @ Suruj Ali vs State, 53 DLR 527 (Mr. Md Hamidul Hoque, J, decided on
01.11.2000) : There is little scope of evaluating the evidence in detail in a proceeding under
section 561A. However, if it can be shown that the conviction is based on 'no evidence', the
conviction may be set aside.
2001
Abul Fazal (Md) alias Abul Fazal alias Badal and another vs State, 53 DLR (AD) (2001)
100 (Mr. Md. Ruhul Amin, J, decided on 05.02.2001) : Contention that there cannot be
three separate cases out of a single transaction a is of no substance since from the materials
on record it-is seen they have been put on trial for the alleged commission of offences under
the ordinary law as well as under the Special Law. Offences alleged to have been committed
as same are under the Special Law undoubtedly same are not triable by the ordinary court of
criminal jurisdiction since the law itself provides for trial of the offence as alleged to have
been committed under the Special Laws by the courts as have been set up for trying the said
special cases and not by the Court having general jurisdiction to try criminal cases under the
Penal Code, and, as such, holding of trial of the offences in the special court and ordinary
court cannot be considered beyond the law.
Islami Bank Bangladesh Ltd. vs Muhammad Habib and others, 55 DLR(AD) (2003) 19
= 21 BLD (AD) (2001) 123= 10 BLT (AD) (2002) 65 (Mr. Mohammad Gholam Rabbani,
J, decided on 22.08.2001) : The allegation in the F.I.R. was not that the god own owner
delivered the goods simply on the request of the accused guarantor, but it was further alleged
that the delivery was made on the promise of the guarantor that he would replace the stock to
be delivered within a short period. It is a well-settled principle that a person who abets the
actual perpetration of the crime at the very time when it is committed is a 'principal of the
second degree'. There is, however, no distinction between 'principal in the first degree' and
'principal in the second degree.' Under Section 111 of the Penal Code an abettor is liable for a
different Act if that was probable consequence of the abetment. Thus we finally conclude that
the High Court Division on a wrong notion proceeded to decide the issue before it and
overlooked the relevant laws and consequently came to the wrong conclusion.
Abdul Mannan Sarker (Md) vs State and others, 53 DLR (2001) 565 = 6 BLC 2001 HCD
450=9 BLT 2001 HCD 417 (Mr. Md Munsurul Haque Chowdhury, J, decided on
83
5.01.2001) : There is nothing in the FIR that at the time of taking loan the petitioner made
any promise with the complainant that he will return the money within a specific time or date
and we also do not find any allegation of inducement for getting the loan money from the
complainant. The accused took the money from the informant as loan for business purpose
and, as such, in the allegation we do not find any ingredient of entrustment or that the money
was taken with any specific promise or inducement. Thus, in the absence of such definite
allegation it cannot be held that taking of money as loan and subsequent failure or refusal by
itself shall constitute criminal offence. Proceeding under section 406 and 420 is liable to be
quashed.
Daily Star and Protham Alow Patrika vs State, 53 DLR (2001) 155 = 9 BLT 2001 HCD
91 (Mr. SK Sinha, J, decided on 28.01.2001) : Normally we do not interfere with the tasks
of the public prosecutors as to how he conducts the cases on behalf of the prosecution but this
court cannot overlook them even after publication of repeated articles in newspapers alleging
serious allegations against him.
M.A. Mazid vs Md. Abdul Motaleb, 56 DLR (2004) 636= 10 BLT 2002 HCD 459
(Madam Nazmun Ara Sultana, J, decided on 03.07.2001) : Admittedly, in this present case
the cheque was presented to the bank after expiry of 6 months from the date of drawing of the
cheque. So, obviously this case under section 138 of Negotiable Instruments Act is not
maintainable in view of the restriction imposed by proviso (a) to the said section.
Satya Narayan Podder vs The State, 53 DLR (2001) 403 = 21 BLD 2001 HCD 427 (Mr.
Md. Hamidul Haque, J, decided on 11.07.2001) : Even though the case is pre-mature and it
was filed before the expiry of 15 days from the date of receipt of notice, the proceeding is not
liable to be quashed. The purpose and intention of the amended Act is to stop practice of
issuing cheque is favour of a party without fear of any legal consequences if the cheque is
dishonored. Though the case was filed before expiry of 15 days time, the accused had the
opportunity to make the payment within 15 days. Had such payment been made within 15
days even after filing of the complaint, in that case, the proceeding could be quashed. As he
failed to make the payment, the complainant cannot file a fresh case because no Court will be
able to take cognizance as the same case will be beyond time as provided in clause (b) of
section 141 of the Act.
Delower Hossain @ Ali Hossain Bhuiyan vs State, 54 DLR (2002) 114 (Mr. Altaf
Hossain Khan, J, decided on 12.12.2001) : From the evidence on record that it is neither a
case of no evidence nor the trial of the case was held without jurisdiction. Furthermore, the
petitioner was a fugitive in the eye of law and that has stood as an impediment in getting the
boon of the prescribed law on which this petition was moved. This court cannot sift the
evidence like the court of appeal nor this court can assess the evidence or to give any benefit
of doubt even if he is entitled in exercising the power under section 561A of the Code of
Criminal Procedure.
2002
Monzur Alam (Md) vs State and another, 55 DLR (AD) (2003) 62 (Mr. K.M. Hasan, J,
decided on 13.02.2002) : It is a settled law that criminal proceeding can be proceeded
independently of the civil suit. Moreover, since there is a prima facie case the criminal cases
84
cannot also be quashed. Therefore, the High Court Division did not commit any illegality or
made arty error in law.
Abdus Salam vs Md Munshi Rashed Kamal & another, 54 DLR (2002) 234 (Altaf
Hossain Khan, J, decided on 10.03.2002) : admittedly there was a transaction between the
parties and the accused petitioner issued the cheque in question but the law of limitation
stands as an impediment to proceed further with the instant case in view of clause (b) of
section 138 and clause (b) to section 141 of the Act. It is to be noted that time is a great factor
of human life of his/her mundane affairs specially when it comes into play for legal purpose.
Delwar Hossain Sowdagar vs State, represented by the Deputy Commissioner, 55 DLR

(2003) 5 (MA Aziz, J, decided on 07.08.2002) : Since there is a claim and counter-claim
between the parties this criminal case should not be allowed to proceed otherwise it would
amount to an abuse of the process of court. The impugned proceedings should in all fairness
be quashed giving the parties an opportunity to sort out their respective claims in the civil
Court.
Md. Hasibul Bashar vs Mrs. Dilshed Huda, 55 DLR (2003) 200 = 23 BLD 2003 HCD 286
(Mr. Md. Ali Asgar Khan, J, decided on 29.10.2002) : The questions when the cheque was
presented to the Bank for the first time cannot be decided in this application under section
561A of Cr.P.C. which is a disputed question of fact. The fact as to whether payment was
made or not is also a disputed question which can be decided only by the trial Court.
Md. Khoka Mollah vs The State, 8 BLC (AD) (2003) 176; 2002 22 BLD (AD) 229 (Mr.
Abu Sayeed Ahammed, J., Decided on 20.05.2002) : When a conviction and sentence was
passed against a particular accused by the Special Tribunal upon trial of the case and no
appeal could be preferred within the prescribed time as provided under the Special Powers
Act, 1974 but if the conviction is based on no evidence or the trial court had no jurisdiction to
try the offence then and then only the conviction and sentence can be quashed under section
561A of the Code
2003
Yasinullah vs State, 55 DLR (2003) 393 (Mr. MM Ruhul Amin, J, decided on
06.01.2003) : The Second FIR lodged is still under investigation and no police report has yet
been submitted and as such, it is not a judicial proceeding pending before a court. The same
cannot be quashed under section 561A of the CrPc. It will be up to the court to decide which
one of the police reports he would accept after the considering the entire circumstances and
facts of the case.
Amir Hossain vs M.A. Malek and Others, 56 DLR (AD) (2004) 146= 1 ADC (2004) 38
(Mr. K.M. Hasan, J, decided on 15.04.2003) : Convict respondents admitted about loan
issuance of cheques by him and dishonour of those cheques by bank - Service of notice by
complainant petitioner also proved and admitted - All legal requirements present to bring
offence under Section 138 of NI Act - Trial court took cognizance and framed charges -
Convict respondents knew about trial, as he himself filed application for adjournment before
Magistrate on ground of filing of application for quashing of proceeding - He absconded after
obtaining bail - High Court Division erred in passing impugned judgment and order - Appeal
allowed.
85
Khondaker Fazlul Haque and another vs State, 57 DLR (2005) 166 (Mr. SM Dastagir
Husain, J, decided on 05.01.2003) : In a proceeding under section 561A this court cannot be
drawn in an enquiry as to the truth or otherwise of the facts which are not in the prosecution
case. In this case whether other co-accused had any role in the transaction or whether they
abetted the principal offenders are the questions involved which can only be decided on
taking evidences.
Ashraf Miah (Md) vs State, 55 DLR (2003) 509 (Mr. Md Ali Asgar Khan, J, decided on
17.03.2003) : The proper remedy in such a case lies in filing a suit in the Civil Court and not
a criminal proceeding as the allegations made in the first information report does not disclose
any criminal offence. More so, the allegation as made in the first information report discloses
a Civil liability for which the Criminal Proceeding cannot but be quashed.
Md. Azad Hossain vs State, 56 DLR (2004) 602 (Mr. Mirza Hussain Haider, J, decided
on 05.05.2003) : High Court Division must not hesitate to exercise it is inherent power to
prevent the abuse of the process of the court and to secure ends of justice to protect an
innocent from being unnecessarily harassed and punished. The present petitioner has been put
behind the bars illegally as he is not the real convict and the learned Judge of the Special
Tribunal failed to appreciate this aspect and illegally rejected the present petitioner's prayer
and passed the order of issuing custody warrant which is sheer abuse of the process of court
causing failure to secure ends of justice.
Amal Cabraal vs Golam Murtaza, 55 DLR (2003) 492 (Mr. SK Sinha, J, decided on
10.05.2003) : Disputed facts cannot be decided when exercising a jurisdiction under section
561A of the Code of Criminal Procedure. This is a function of the trial Court which would
decide appropriately those facts on the basis of the evidence which will be adduced by the
parties in the case. The petitioners are enjoying the privilege of anticipatory bail for more
than four years against whom there is no allegation of misuse of privilege of bail. On
consideration of the facts of the given case, we are of the view that the petitioners should be
allowed to enjoy such privilege till the conclusion of the trial of the case.
Begum Khaleda Zia vs State, 55 DLR (2003) 596 = 11 BLT 2003 (HCD) 466 (Mr. Md
Joynul Abedin, J, decided on 10.09.2003) : Criminal intention is sine qua non for an
offence under section 5(1) of the Prevention of Corruption Act, 1947. When a decision is
taken collectively or even individually by following the rules of procedure or the rules of
business criminal intention behind such decision should not normally be inferred. If any loss
is incurred or suffered on account of such decision, that can at best give rise to a civil liability
and not a criminal liability.
Shabbir Ahmed Chowdhury vs The State, 2004 24 BLD 182 (Mr. Gour Gopal Shaha, J.
Decided on 02.07.2003) : Sufficiency or insufficiency of evidence against the accused cannot
be a matter for investigation under section 561A of the Code.
Dewan Mominul Mouzdin vs The State, 8 BLC (2003) 440; 2003 23 BLD 634 (Mr. Md.
Ali Asgar Khan, J. Decided on 20.05.2003) : The accused petitioner filed an application
under section241A of the Code of Criminal Procedure and before passing of any order moved
this court under section 561A. An application under section 561-A of the Code can be
maintained at any stage of hearing of the proceeding as the allegation against the accused in
86
the F.I.R. and Charge-sheet do not constitute the offence alleged and prolongation of the
prosecution would amount to abuse of the process of the court
2004
Jahangir Alam (Md.) vs State, 56 DLR (AD) (2004) 217 (Mr. Syed J.R. Mudassir
Husain, C.J, decided on 09.03.2004) : In order to secure the ends of justice sentence is
modified. Maintaining the conviction, the sentence of imprisonment for is modified to 10
(ten) years rigorous imprisonment and to pay a fine of Taka 5,000 in default to suffer
rigorous imprisonment for 6 (six) months more.
Bangladesh vs Md. Amjad Ali Mridha and Others, 56 DLR (AD) (2004) 119 (Mr. Md.
Ruhul Amin, J, decided on 30.03.2004) : Delay in concluding the trial is due to
circumstances over which the prosecution has no control or factors which are outside the
control of the prosecution or the delay that has occurred is not a deliberate act of delay on the
part of the prosecution in that case delay shall not be a ground for quashing of the proceeding.
Once quashing of proceedings of criminal case on the ground of delay is made general that
shall certainly destroy whole concept of administration of criminal justice and finally will
lead to anarchy.
State vs Md Arab Ali, Ex-Manager, Rupali Bank and others, 57 DLR (AD) (2005) 102
(Md Ruhul Amin, J, decided on 10.08.2004) : Merely on ground of delay criminal
proceeding is not liable to be quashed - proceedings can be quashed only in case of
exceptional nature - Present case is not of exceptional nature calling for quashing on ground
of delay - High Court Division erred in quashing proceeding impugned.
S. Ashraf Ali vs Md. Ahsan Habib and others, 56 DLR (2004) 169= 12 BLT 2004 HCD
252 (Mr. Md. Ashfaqul Islam, J, decided on 28.01.2004) : The conduct of the parties,
absence of proper accounting it becomes clear that the whole allegation as depicted in the
complaint is an outcome of a typical partnership business transaction which is absolutely civil
in nature and, as such, continuation of criminal proceeding against the petitioner on that score
would certainly tantamount to abuse of the powers of the court and law and, as such, it should
be quashed.
Mohammad Syed vs State and Others, 56 DLR (2004) 210 (Mr. Md. Ali Asgar Khan, J,
decided on 17.02.2004) : The matter of ownership should be fought out before the trial Court
during the time of trial and which cannot be considered in an application under section 561A
of the Code of Criminal Procedure. The learned Metropolitan Magistrate including the
learned Additional Metropolitan Sessions Judge after due consideration of the claim and
counter-claim of the accused petitioner and opposite party No. 2 informant and in considering
the papers submitted by the parties passed the impugned order. We do not find any ground to
interfere with the impugned order.
Md. Nurul Islam Babul vs The State, 56 DLR (2004) 347= 24 BLD 2004 HCD 205 (Mr.
Md. Awlad Ali, J, decided on 04.04.2004) : The prayer for remand was made when the
accused-petitioner had already been in jail custody. The prayer for remand could be made
when the accused is brought before the Magistrate within 24 hours and before sending him to
jail. We direct the Chief Metropolitan Magistrate/ Metropolitan Magistrate not to entertain
any application for making the accused-petitioner shown arrest in other case which shall be
87
forthcoming and not to make any Order for sending the accused-petitioner on remand from
jail custody or for authorizing the detention of the petitioner in police custody for a period of
two months from date, so that the petitioner on being informed about any other cases can
voluntarily surrender before any competent Court.
Nurul Huq Ruzbu vs State and Others, 3 BLC (1998) 374 (Mr. Md. Sirajul Islam, J,
decided on 23.04.1998) : A major amount of money has already been paid leaving a small
amount to be paid by the accused-petitioner to the complainant. The learned Advocate for the
petitioner has assured that the remaining amount will be paid as soon as the matter is
disposed of. After making a thorough calculation into the matter, whatever amount is found
to have remained unpaid should be paid within 10 days from the receipt of this order.
Considering the above facts and circumstances of the case, we do not find any mens rea on
the part of the accused-petitioner nor do we find any ingredients of sections 406/420 of the
Penal Code in this case. The complaint-petition also does not disclose any specific offence
under those sections. We find that it is a fit case for quashment.
Atiqur Rahman Chowdhury (Md.) vs State, 3 BLC (1998) 473 (Mr. A.B.M. Khairul
Haque, J, decided on 14.07.1998) : Admittedly the petitioner was arrested within
Bangladesh and six miles away from the border. There is no prima facie evidence on record
that he went to India and returned therefrom, let alone selling of any gold anywhere.
Admittedly he was in possession of Taka 1,35,000.00. But no evidence of any offence is
disclosed in connection with the said Bangladesh currency, The allegations as described in
the FIR or in the charge-sheet do not disclose any offence either under the Special Powers
Act or any other law. The facts, as appears in the record, do not constitute any offence under
any law. As such, the proceeding is an abuse of the process of court and for ends of justice
liable to be quashed. The amount of Taka 1,35,000.00 is also liable to be returned to the
petitioner as the said Bangladeshi currency is not subject matter of any offence. Hence,
proceeding quashed.
M.M. Ishak vs State and Others, 56 DLR (2004) 516 (Mr. A.K.M. Fazlur Rahman, J,
decided on 25.07.2004) : Nowhere in the first information report of the instant case there is
allegation of causing hurt by the accused husband or his parent, guardian or anybody on his
behalf to the informant wife. There is no allegation that on any particular date and time in any
manner the accused husband or anybody caused hurt to the informant wife for dowry. In
paragraph 10 of the first information report it is alleged that while the informant wife and the
accused husband were living peacefully with their daughter the other accused persons coming
to their residence on a pleasure trip created trouble over different issues and for that the
accused husband beat the informant wife. Here there is no allegation of assaulting the wife by
the accused husband for dowry. In paragraph 11 of the first information report it is alleged
that on 20-6-2003 the accused husband at the ill advice of the other accused persons
demanded dowry of Taka 3 lac and as the informant wife expressed her inability to meet such
demand, the accused husband continued with the torture on her as before. Here also there is
no allegation to causing hurt. Thus in the first information report there is no allegation of
causing hurt or injury (AvnZ ev AvNvZ Kiv) by the accused husband to the informant on any date
and time in any manner for dowry. There is vague and unspecific allegation of torture (wbh©vZb)
(Mental or physical torture (wbh©vZb) and causing hurt or injury (AvnZ Kiv ev RLg Kiv) are not the
same act. The allegation of torture does not mean causing hurt. Thus the vague and unspecific
allegation of torture made in the first information report does not attract an offence under
section 11(kha) of the Ain. So, no prima facie case under section 11(kha) of the Ain has been
88
made out. Moreover, no complicity of accused Abu Raihan, the petitioner of Criminal
Miscellaneous Case No. 2000 of 2004, in torturing the informant wife by the accused
husband has been alleged in the first information report. So, the allegations made in the first
information report, even if are taken as true, do not constitute an offence punishable under
section 11(kha) or 11(kha)/30 of the Ain. Therefore, the proceeding should not be allowed to
be continued.
Md. Ayub Ali vs Md. Abdul Khaleque and The State, 56 DLR (2004) 489= 24 BLD 2004
HCD 543 (Mr. Sheikh Rezowan Ali, J, decided on 28.07.2004) : Court in exercise of its
jurisdiction under section 561A of the Code may quash a proceeding in cases of (a) facts not
disclosing any offence, (b) coram non-judice, (c) bar of law, (d) lack of legal evidence
adduced and for securing the ends of justice. Proceeding initiated under section 46(a) of the
Excise Act, 1909 against the convict petitioner was protected under section 56 of the
Narcotics Control Act, 1990. It was not barred by law.
Abdur Rahman Dhali and others vs State, 57 DLR (2005) 17 (Madam Farah Mahbub,
J, decided on 01.11.2004) : When the allegation made in the first information report or
petition of complaint or in the charge-sheet are taken at their face value and accepted in their
entirety do not prima facie constitute any offence making out a case against the accused; they
should not be compelled to face the trial which amounts to abuse of the process of the court
and the same is also to be prevented by invoking the inherent power under section 561A of
the Code of Criminal Procedure.
Rezia Khatun vs The State, 2004 24 BLD 183; 56 DLR (2004) 208 (Mr. Khondker Musa
Khaled, J. Decided on 13.03.2004) : Where there is specific provision in the Code of
Criminal Procedure in sections 435/439, the inherent power of this court under section 561A
cannot be invoked in the instant case, as this extra ordinary power is neither appellate power,
nor revisional power, nor a power of review. We have not come across any case where this
extraordinary power has been used for securing conviction of an accused by setting aside an
order of acquittal
2005
State vs Md. Nasim and others, 57 DLR (AD) 114 (Mr. Amirul Kabir Chowdhury, J,
decided on 27.03.2005) : From the FIR It appears that contents thereof even if accepted in its
entirety no prima facie case is disclosed and the High Court Division did not commit any
illegality in quashing the proceedings.
AHS Rahman vs State, 58 DLR (AD) (2006) 63 (Mr. Mohammad Fazul Karim, J,
decided on 15.06.2005) : First information report discloses a prima facie case against the
accused-petitioner and to that effect the charge-sheet has been submitted, No substance in the
submission for quashing the proceedings.
Anarul Islam (Md) and others vs State and another, 58 DLR (AD) (2006) 76 = 15 BLT
(AD) (2007) 269 (Mr. Mohammad Fazul Karim, J, decided on 23.11.2005) : The
Managing Director and Chairman of a company, the trustees of the fund of the company,
could not be prosecuted for misappropriation of the fund of the company and cheating the
other directothers As such, proceeding quashed.
89
Nasim (Md) and another vs State, 57 DLR (2005) 546 (Mr. Sharifuddin Chaklader, J,
decided on 04.01.2005) : The first information report and charge-sheet disclose a prima facie
case against the accused petitioners and the prosecution is not legally barred.
Monirul Islam (Md) vs State and others, 60 DLR (2008) 59 (Mr. Sharif Uddin
Chakladar, J, decided on 08.05.2005) : From the reading of the complaint and plaint of the
suit that same allegations were before the criminal Court as well as before the civil Court,
since there is a decree in civil Court as per decision of 14 DLR (SC) 14, 45. DLR (AD) 31
and 51 DLR (AD) 14, where the matter is in seisin of the Civil Court no criminal proceeding
can be continued.
Firoz Hossain Shah (Md) vs State, 58 DLR (2006) 361 (Mr. Sharifuddin Chaklader, J,
decided on 16.11.2005) : From the reading of the first information report as well as plaint
that the same allegations were made before the criminal Court as well as before the civil
Court. Since there is a decree in civil Court as per decisions of 14 DLR (SC) 18 and 51 DLR
(AD) 14 where the matter is in seisin of the civil Court, no criminal proceeding can be
continued on the said allegations.
2006
Mahamudur Rahman vs Md Matiur Rahman, 62 DLR (2010) 367 (Mr. Sharif Uddin
Chakladar, J, decided on 25.01.2006) : It appears that the said transaction was made under
an agreement and the narration of fact in the first information report indicates also breach of
terms of the agreement had crept up from business transaction. It also appears from the first
information report that considerable amount, has already been paid by the accused petitioner.
We are of the view that is no criminal intention to cheat or to deceive the informant by the
petitioner has been made out by the informant. If from a reading of the first information
report it comes up the allegations disclose civil liability then the proceeding can be quashed.
A Wadud Member and another vs State, 59 DLR (2007) 586 (Mr. Sharifuddin
Chaklader, J, decided on 02.02.2006) : Allegations made in the first information report,
found prima facie true on investigation by police and the learned Magistrate being satisfied,
framed charge, in such situation evidence is required to settle whether the accused petitioners
are guilty of the allegations or not. It has been settled by the Appellate Division that when
evidence is required to settle the allegation, proceeding cannot be quashed.
Md. Aminuddin, son of Sayeeduddin vs The State, 58 DLR (2006) 294 = 26 BLD 2006
HCD 433 (Mr. Md. Abdul Quddus, J, decided on 26.04.2006) : The police report was filed
in a C.R. Case directly before Magistrate and as such said report cannot be treated to be one
under section 173 of the Code of Criminal Procedure as required under section 27(1) of the
Nari-O-Shishu Nirjatan Daman Ain. Upon the said report, the Tribunal had no. legal or
procedural scope to take direct cognizance against the accused-petitioner under section 9(1)
of the Act having treated the same report to be one required under section 27(1) of the Ain,
hence, proceedings quashed.
Abdul Kadir Chowdhury vs Kowser Ahmed & another, 60 DLR (2008) 17 (Mr. Sheikh
abdul Awal, J, decided on 26.07.2006) : The proceeding of the case at any stage may be
quashed even at the initial stage before taking of cognizance where allegations in the first
90
information report or the Complaint even if they are taken a their face value and accepted in
their entirety, do not constitute offence alleged.
Bhaskar Chakraborty vs State, 59 DLR (2007) 325 (Mr. ATM Abdur Rahman, J,
decided on 15.08.2006) : FIR has sufficiently disclosed the element of criminal offence and
since the accused petitioner has not approached this Court with clean hands, he is not entitled
to any redress from this Court.
Mr. S.M. Abdul Hai and others vs The State and another, 11 BLC (2006) 722; 2006 26
BLD 606 (Mr. Surendra Kumar Sinha, J., Decided on 19.07.2006) : The police have a
statutory duty in the matter of investigation in cognizable offences and they are conferred
with wide power to form their opinion in a case, and to submit their report after investigation,
that this Court does not have any power to interfere with such investigation by the police, that
the inherent power of this Court can be exercised in an appropriate case when no offence of
any kind is disclosed, and that the police have no authority to undertake an investigation if
the F.I.R discloses a non-cognizable offence
2007
The State vs Mrs. Lailun Nahar Ekram, Managing Director, Engineer and Consultants
(Bd) Ltd. (BCBL), 62 DLR (AD)(2010) 283 = 27 BLD (AD) (2007) 18 = 15 BLT (AD)
(2007) 185 (Mr. M.M. Rahul Amin, J, decided on 17.01.2007) : No prima facie case was
made out against the respondent in the First Information Report and the District Anti-
Corruption Officer without examining the necessary papers of the authority (IPSA) specially
bill No. 4 lodged the first information report. We are mindful of the fact that during
investigation by police usually the Court does not interfere under section 561A of the Code of
Criminal Procedure, but in the present case, in view of the facts and circumstances as noticed
above, we consider it a fit case to interfere at the stage of police investigation to prevent the
abuse of the process of the court and to secure the ends of justice.
Faridul Alam vs State and another, 61 DLR (AD) (2009) 93 = 27 BLD (AD) (2007) 140 =
16 BLT (AD) (2008) 51 (Mr. Amirul Kabir Chowdhury, J, decided on 18.02.2007) : This
is not a case which is barred by any Law nor this is a case in which the contentions of the
complaint, even if admitted in its entirety, no offence is disclosed. The stage of considering
the evidence has also not yet reached as the recording of evidence has not even started.
Abdul Huque and others vs State, 60 DLR (AD) (2008) 1= 16 BLT (AD) (2008) 63 (Mr.
Md Tafazzul Islam, J, decided on 27.03.2007) : A proceeding cannot be quashed unless
cognisance in respect thereof has been taken and process issued and application under section
561A of the Code of Criminal Procedure are quite premature and so the High Court Division
should not enter into the first information report and the charge sheet in order to appreciate
whether the facts alleged therein constitute any offence or not.
Mark Parco, MD, APL (Bangladesh) Pvt. Ltd and others vs State, 60 DLR (2008) 45
(Sharifuddin Chaklader, J, decided on 15.04.2007) : It appears from the plaint and also
from the petition of complaint that even cause of action described in both litigations are on
the same date, but it appears that the suit was filed earlier than the petition of complaint. In
the decisions reported in 57 DLR (AD) 14, 45 DLR (AD) 31, 23 DLR (SC) 14 it has been
held that on the self-same averments if the suit be filed earlier in that case criminal
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proceeding is to be treated as initiated only for harassment of the accused persons who are
defendants in the suit. In the other way, it may be said that when civil Court is in seisin of any
matter, criminal Court should keep, its hands off from such matter.
Sheikh Hasina and others vs State, 60 DLR (2008) 2017 (Mr. Nozrul Islam Chowdhury,
J, decided on 06.09.2007) : Court should normally refrain from giving a prima facie decision
in a case where the entire facts are incomplete and hazy, moreso when the evidence has not
been collected and produced before the court and issues involved, whether factual or legal,
are of immensity and cannot be seen in their true perspective without sufficient material. Yet
no hard and fast rule can be laid down for exercise of this extraordinary jurisdiction.
Iqbal Hassan Mahmood alias and Iqbal Hassan Mahmood Tuku vs Bangladesh and
others, 60 DLR (2008) 88 (Mr. Md. Abdur Rashid, J, decided on 05.12.2007) : What can
be done under section 561A of the Code of Criminal Procedure cannot be denied to be done
under Article 102 of the Constitution to prevent the abuse of the process of a Court of law or
to secure the ends of justice. The power that is inherent with this Division under section 561A
of the Code of Criminal Procedure is not denied under Article 102(2) of the Constitution for
issuing certain direction or declaration where the facts and circumstances demand. Such
power that is exercised in wider perspective under the authority of the Constitution, the
supreme law of the land under which said Code of Criminal Procedure is allowed to be
followed in investigation and prosecution of the criminal cases, is more efficacious.
2008
Bangladesh vs Iqbal Hasan Mahmood, 60 DLR (AD) (2008) 147= 5 ADC (2008) 811= 28
BLD (AD) (2008) 205 = 16 BLT (AD) (2008) 313 (Mr. Md. Joynul Abedin, J, decided on
20.05.2008) : Launching of criminal cases against any person under sections 165 and 166 of
the Income Tax Ordinance is a separate and independent proceedings of the ones provided for
assessment and realisation of penalty as outlined above. The Deputy Commissioner of Taxes
may initiate criminal proceeding under sections 165 and 166 of the Ordinance even without
reopening any closed assessment of any assessment year in an appropriate case.
Ram Krishna Nath (Ram Babu) vs State and another 60 DLR (2008) 266 (Mr.
Khademul Islam Chowdhury, J, decided on 30.01.2008) : The Special Tribunal accepted
the Final Report and discharged the accused petitioner with direction upon the concerned
authorities to return the seized articles including the money to the accused petitioner as
aforesaid. After rejection of the prayer for further investigation by the Tribunal, the charge
sheet is then submitted by the police in the second case accusing the accused petitioner on the
self-same occurrence is malicious, calculated to victimise and harass the accused petitioner
and further proceeding in the case will be an abuse of the process of the Court.
Nizamuddin Mahmood vs Abdul Hamid Bhuiyan and another, 60 DLR (AD) (2008)
195= 5 ADC (2008) 891 (Mr. Md. Abdul Matin, J, decided on 17.06.2008) : Date of
receipt of notice is a question of fact to be ascertained at time of trial - Non-disclosure of such
fact in complaint petition cannot render proceeding under Negotiable Instruments Act to be
quashed.
Ishaque (Md) alias Md Ishaque vs State, 60 DLR (2008) 650 (Mr. Md. Emdadul Haque
Azad, J, decided on 06.03.2008) : It is settled that Court has no power to issue any
92
summon/warrant whose name has not been brought on record. Learned Magistrate cannot
issue any summon or warrant of arrest against the accused petitioner but. it was issued
dragging the accused petitioner in a proceeding in which the accused petitioner is in no way
connected, as such, it is an abuse of process of the Court. It also appears from the order sheet
that proceeding drawn against the accused petitioner is neither supported from the petition of
complaint nor supported by the materials on record. It appears that concerned learned
Magistrate issued summon or warrant of arrest whimsically, unconsciously and illegally only
to harass the accused petitioner. We have found the instant proceeding against the accused
petitioner is the product from the queer mind of the learned Magistrate.
Shafiqul Islam (Md) vs State, 61 DLR (2009) 280 (Mr. Sharifuddin Chaklader, J,
decided on 19.03.2008) : Proceedural law is generally applied retrospectively. The cases
before us, it appears neither cognizance has been taken nor charge was been framed as such it
cannot be said that proceeding was pending before the learned Magistrate, when the law
comes into operation.
Hanif (Md) vs State and another, 60 DLR (2008) 634 (Mr. Syed Md. Ziaul Karim, J,
decided on 16.04.2008) : Proceeding of criminal case stayed for one year till disposal Civil
suit for Specific Performance of Contract based on Bainapatra.
Abul Kalam Azad vs State, 60 DLR (2008) 470= 17 BLT 2009 (HCD) 505 (Mr. SM Ziaul
Karim, J, decided on 18.05.2008) : A party aggrieved by the order of discharge passed by
the Magistrate can move to the Superior Court against such order in which case the Superior
Court may pass order to consider the materials for the prosecution but cannot direct the
Magistrate to frame charge.
Shahida Khatun and another vs Zafrul Hasan, 61 DLR (2009) 270 (Mr. Syed Md. Ziaul
Karim, J, decided on 18.05.2008) : According to complaint, accused/petitioner totally
denied receipt of trucks by agreement and refused to pay outstanding installments, question
of civil liability does not arise - Fact that accused/petitioners already paid entire money with
Bank, absolutely defense materials and still same are not part of record - Be that as it may,
proposition of law is now well settled that on basis of defense plea or materials, criminal
proceedings should not be stifled before trial, when there is a prima facie case for going to
trial - Moreover this court find that trial of case has already commenced and complainant was
examined as PW 1 and in such view of facts, quashing of proceedings is not permissible.
Jalaluddin (Md) and others vs State and another, 60 DLR (2008) 581 (Mr. SM Ziaul
Karim, J, decided on 29.05.2008) : If anyone is aggrieved by an order of discharge passed
by a Magistrate, he can move the Superior Court under section 436 of the Code of Criminal
Procedure under for further enquiry but the Superior Court cannot direct the Magistrate to
take cognizance of a case irrespective of the fact whether it is triable by a Magistrate or
exclusively by the Court of Sessions. The Superior Court can merely order the further
enquiry but cannot direct for taking cognisance of the offence.
Shamsul Alam alias Babul vs State and another, 60 DLR (2008) 677 (Mr. SM Ziaul
Karim, J, decided on 10.06.2008) : Whether the accused received the legal notice or not, it
is merely a disputed question of fact and the same should be decided in the trial. On the basis
of defence plea or materials the criminal proceedings should not be stifled before trial, when
there is prima facie case going trial.
93
Liton Bhuiyan (Md) vs State, 61 DLR (2009) 277 (Mr. Sikder Maqbul Huq, J, decided on
28.08.2008) : Section 36 and 41 not put any embargo on the power of a Power Officer to
make search, seizure or to arrest any person or to investigate into a case and there is also
nothing in the said Ain requiring a Police Officer to obtain prior permission of the Director
General of Madak Drabya Niantron Adhidaptor to investigate into a case or to search, seize
and to arrest any person who has committed or is committing or is likely to commit an
offence under the said Act.
Ayub Ali alias Mukul vs State, 61 DLR (2009) 52 (Mr. Sheikh Abdul Awal, J, decided
on 14.10.2008) : There is nothing in the first information report that at the time of talking
loan the accused-petitioner made any promise with the informant that he will return the
money within a specified time and we also do not find any allegation of inducement for
getting the loan money from the informant. Rather we find from the first information report
that the accused-petitioner took the money from the informant as loan for business purpose
and as such we do not find any ingredient of entrustment or that the money was taken with
any specific promise or inducement. Thus, in absence of such definite allegation it cannot be
held that taking of money as loan and subsequent failure or refusal by itself shall constitute
criminal offence. Proceeding under section 406 and 420 quashed.
Habibur Rahman Molla vs State, 61 DLR (2009) 1= 29 BLD 2009 HCD 227 (Mr.
Mohammad Anwarul Haque, J, decided on 20.11.2008) : The provisions as to enquiry,
rule 7 of the Anti Corruption Commission Rules, 2007 comes to play before lodging the
F.I.R. under section 154 of the Code of Criminal Procedure. Before recording a case under
section 154 of the Code any activities under taken by the Anti-Corruption Commission is to
be considered as an "administrative act" which can not be brought for "judicial scrutiny"
under section 561-A of the Code in as much as the words " any court " employed in section
561-A must be understood to mean a "criminal court". The power conferred under section
561-A of the Code cannot be lightly exercised in order to defeat and delay the normal
procedure or to bid farewell to the alleged offender against whom specific allegation is
available to commit a punitive offence only on "hyper technical" ground. Where evidence of
17 witnesses have already been recorded by the trial court the application for quashment of
the criminal proceeding under section 561A of the Code cannot be also entertained
Ahmed Zamal Masum v State, 15 BLC 2010 HCD 346 (Mr. Siddiqur Rahman Miah, J,
decided on 3.12.2008) : The facts and circumstances of the case does not inspire the
confidence of this Court as to the success of the case against the accused petitioner. There
appears no chance of success to bring home the guilt of the accused and continuation of
proceeding under such circumstances will be held to be misuse of the process of the Court
and of the law.
Md. Karamot Ali alias Rafique alias Rafiqul Islam vs The State, 2009 29 BLD 250 (Mr.
Md. Rais Uddin, J. Decided on 30.07.2008) : This is not an appeal and there is little scope
to evaluate the evidence in details like an appeal in a proceeding under section 561A of the
Code of Criminal Procedure. This jurisdiction under section 561 A of the Code can be
invoked, if it can be shown that the case is one of no evidence or Coram non judice or is
barred by law or is an abuse of the process of the court, or it is necessary for securing the
ends of justice.
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Shamsul Alam alias Babul vs The State and another, 2008 28 BLD 495; 60 DLR (2008)
677 (Mr. Syed Md. Ziaul Karim, J., Decided on 10.06.2008) : The inherent power under
section 561A can be invoked at any stage of the proceedings even after conclusion of trial, if
it is necessary to prevent the abuses of the process of the Court or otherwise to secure the
ends of justice.
2009
Khandaker Abul Bashar vs State and another, 63 DLR (AD) (2011) 79 (Mr. A.B.M.
Khairul Haque, J, decided on 02.11.2009) : No legal impediment to file a criminal case
even if a civil suit is pending on the selfsame allegations provided the ingredients of the
offence are present.
Shahnewaz Karim (Md) vs State, 62 DLR (2010) 67= 18 BLT 2010 (HCD) 5 (Mr.
Siddiqur Rahman Miah, J, decided on 13.04.2009) : There is no denying the fact, that the
seized taxi cab is being damaged for keeping the same idle in an open place and is being
destroyed causing huge pecuniary loss. The trial of the case will not be hampered if the taxi
cab is given in the Jimma to its original owner with condition to produce the same before the
Court as and when it will be required. In view of the above provisions of section 516A of the
Code, the Court is entitled to release the property in the Jimma of the claimant to save the
same from gradual damage being exposed to sun and rain.
Salahuddin Ahmed vs State, 62 DLR (2010) 351 (Mr. Khondker Musa Khaled, J,
decided on 05.07.2009) : There may be rare cases where the High Court Division may be
justified in interfering even at the initial stage before taking cognizance in the proceedings
under section 561A of the Code of Criminal Procedure. But the fact of those cases does not
fall within the category of the present one in any manner. There may be rarest of rare cases,
where no offence is at all disclosed and there is no shadow of doubt that allowing
continuation of the proceeding would be sheer abuse of the process of the Court. We do not
consider it to be a case of such category to quash the proceeding at the initial stage prior to
the taking cognizance against the accused-petitioner.
Sheikh Mashuk Rahman vs State and another, 62 DLR (2010) 28 (Mr. Md. Rezaul
Hasan, J, decided on 16.08.2009) : The liability created under section 138 of the NI Act,
1881 is a strict liability, that only requires proof of the factum of dishonour of the cheque in
question and compliance of the procedural pre-conditions for launching the prosecution under
that section. No alibi is available, in such case, to the accused, except a case that the cheque
in question had become stale before it was dishonoured or that the procedural preconditions
were not complied with in the manner and within the time specified under the relevant
provision of the NI Act or that the signature of the drawer was forged or that the cheque in
question was a lost cheque; which are all based on facts to be proved by adducing evidence
before the trial Court. Mens rea need not be proved, nor the accused in entitled to the
presumption of innocence in such a case. Nor the availability of civil or any other alternative
forum would stand as a bar in launching a prosecution under section 138 of the NI Act, 1881.
Mere presence of the arbitration clause does bar launching of a criminal case, if the complaint
discloses a prima facie case.
Noor Jamal vs State and another, 63 DLR (2011) 531 (Mr. Siddiqur Rahman Miah, J,
decided on 18.08.2009) : Non disclosure of the date of receipt of notice under section
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138(1)(b) of the Negotiable Instruments Act is a question of fact which will be decided at the
time of trial after evidence and thus non-disclosure of date of receipt of notice and
consequently the failure to disclose the cause of action cannot render the proceedings under
section 561A of the Code of Criminal Procedure liable to be quashed.
Veena Khaleque and others vs State, 61 DLR (2009) 762 (Mr. Md. Azizul Haque, J,
decided on 20.08.2009) : Out of a contract of service between the employer and employee,
whatever its kind may be, if a sum of money as salary, allowance, emolument etc is due to
the employee to be paid by the employer, the former has a right to get it from the latter, who
owes it to the former, but this right is always a civil or statutory right to be enforceable in a
Civil Court or a Labour Court or the like. In such a case, question of criminal liability does
not arise at all. Thus, we are of the view that the facts depicted in the petition of complaint do
not disclose the offence under sections 406/420/109 of the Penal Code or any other offence
against the accused petitioners and therefore, allowing continuation of the proceedings in the
above CR case will be a sheer abuse of process of court which should be prevented for the
ends of justice.
Abeda Chowdhury vs State and another, 63 DLR (2011) 118 (Mr. Siddiqur Rahman
Miah, J, decided on 29.10.2009) : Since there is no legal bar against the initiation, framing
of charge, and continuation of the proceedings and, as such, the proceedings do not amount to
an abuse of the process of the Court.
M Fransis P Rojario alias Babu vs State, 62 DLR (2010) 355 (Mr. Md. Delwar Hossain,
J, decided on 15.12.2009) : The proceedings of the instant case are barred by law, is liable to
be quashed even at the initial stage before taking cognizance. Proceedings under sections
406/408/ 409/ 420/34 of the Penal Code is hereby quashed.
K.M. Nurul Islam and another vs The State, represented by the Deputy Commissioner,
Dhaka, 2009 29 BLD 470 (Mr. Sheikh Abdul Awal, J., decided on 10.05.2009) : Be that
as it may, the proposition of law is well settled that civil claim or civil dispute to be settled
and sorted out in Civil Court, it cannot be brought in criminal Court as a contrivance to put
pressure upon a party. This is the rarest of the rare cases, like one "out of a thousand", where
even at the initial stage we can interfere in exercise of the inherent jurisdiction provided
under section 561-A of the Code to secure the ends of justice.
2010
Barrister Mainul Hosein vs Md Ali Hossain and another 62 DLR (2010) 38 (Mr. Md.
Azizul Haque, J, decided on 18.02.2010) : Petitioner willfully failed to implement decision
of Second Labour Court, Dhaka by not reinstating complainant in service - Facts narrated in
petition of complaint constitute offence under Sections 54 and 55 of Ordinance - No reason to
quash proceeding.
Ka Bi Ma Iftekhar Anam vs State & another, 63 DLR (2011) 338 (Mr. Siddiqur
Rahman Miah, J, decided on 28.02.2010) : It is settled law that criminal proceeding can be
preceded independently of the civil suit. As such, there is no legal bar against the taking
cognizance and framing charge and initiation and continuation of the proceedings.
Sheikh Hasina Wazed alias Sheikh Hasina vs State and another, 63 DLR (2011) 40 (Mr.
Md. Shamsul Huda, J, decided on 11.03.2010) : If the criminal proceedings in a particular
96
case is in respect of an offence alleged to have been committed by an accused person and it
manifestly appears that there is a legal bar against the institution or continuance of the said
proceedings the High Court would be justified in quashing the proceedings on that ground.
Cases may also arise whether the allegations in the First Information Report or the complaint,
even if they are taken at their face value and accepted in their entirety, do not constitute the
offence alleged, in such cases no question of appreciating evidence arises; it is a matter
merely of looking at the complaint or the First Information Report to decide whether the
offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to
hold that it would be manifestly unjust to allow process of the Criminal Court to be issued
against the accused person.
Syeda Sajeda Chowdhury vs State, 62 DLR (2010) 441 (Mr. Md. Shamsul Huda, J,
decided on 24.03.2010) : Since the continuation of the present case is an abuse of the
process of the Court, this Court should not keep silent and waiting for trial where the basic
ingredients of the offence is absent from the materials on record and allowing to continue
proceeding will be an abuse of the process of the Court.
Habibur Rahman Mollah vs State and another, 62 DLR (AD) (2010) 233 (Mr. Surendra
Kumar Sinha, J, decided on 04.04.2010) : Disputed facts can only be decided on evidence
at the trial. This is not a case that the allegations as disclosed in the first information report
and the police report do not disclose any offence. If accepting the allegations made and
charges levelled on their face value, the Court had come to the conclusion that no offence
was disclosed, the matter would have been different.
Sheikh Hasina Wazed alias Sheikh Hasina vs State and another, 63 DLR (2011) 162
(Mr. Md. Shamsul Huda, J, decided on. 13.04.2010) : Absence of proper sanction cuts the
root of the case and taking of cognizance by learned Special Judge is without Jurisdiction and
the proceeding is liable to be quashed.
Sarwar Hossain Moni vs State and another, 63 DLR (2011) 510 (Mr. Md. Fazlur
Rahman, J, decided on. 06.05.2010) : The accused-petitioner admitted the loan and
admittedly he issued the cheque in favour of the complainant and the cheque was presented to
the bank within its validity and the said cheque was admittedly dishonoured by the bank for
insufficient of fund and that a notice under section 138(1)(b) of the Negotiable Instrument
Act, 1881 was given by the complainant which was received by him and the accused-
petitioner did not affect payment Within the statutory period. Thus, all the legal requirements
are present to bring the offence under section 138 of the Negotiable Instrument Act, 1881.
The Court below rightly took cognizance of the offence and framed charge
Habibur Rahman Mondal (Md) and others vs State and another, 63 DLR (2011) 23 (Mr.
Khondker Musa Khaled, J, decided on 24.05.2010) : No scope to say that no specific
allegation is available in the first information report for the purpose of attracting any criminal
offence and initiation of criminal proceeding against the accused-petitioners under section
409 of the Penal Code. during investigation of a first information report case, a proceeding
should not be stifled without allowing proper investigation into the allegation, save and
except in a very rare type of cases which are found to be so preposterous that the allegations
if accepted to be true in its entirety, does not constitute any offence.
97
Dr. Kamal Hossain and others vs State, 63 DLR (2011) 204 (Mr. Md. Shamsul Huda, J,
decided on 25.05.2010) : There is no first information report in the eye of law and the charge
sheet is nothing but an outcome of perfunctory investigation, which do not disclose any
offence against the petitioners. Moreover, charge sheet being a police report is not admissible
in evidence and as such the case has no legs to stand. This is nothing but an abuse of the
process of the Court and, it can be safely held this case is preposterous one and barred by law
and outcome of the evil desire of the then ruling Government being dictated and guided by
the Four Parties alliance and as such continuation of the proceedings will be an abuse of the
process of the Court.
Mahbub Alam vs Commissioner, Customs, Excise and VAT, Sylhet and others, 62 DLR
(2010) 395 (Mr. Md. Azizul Haque, J, decided on 06.06.2010) : Gold recovered is
offending article within meaning of Section 561A and 517 of CrPC - Special Tribunal is
seized with trial of smuggling case as Special Tribunal Case - No other department or
authority but Special Tribunal alone can dispose of article recovered either under Section
516A or 517 of CrPC - Customs Department has no authority to dispose of gold and other
articles recovered so long smuggling case lies in domain of Special Tribunal
Arman Hossain vs The State, 2010 30 BLD 495 (Mr. Rezaul Hasan, J, decided on
22.08.2010) : The questions of fact which the parties are entitled to prove at the time of trial
cannot be decided while exercising jurisdiction under section 561A of the Code of Criminal
Procedure. The grounds taken in the petition and the submission that this petitioner had no
manner of involvement with the aforesaid deal and that he did not receive the goods etc. are
all questions of fact which the parties are entitled to prove at the time of trial and these facts
cannot be decided while exercising jurisdiction under section 561A of the Code.
Hasura Begum vs Bangladesh and others, 63 DLR (2011) 195 (Mr. Muhammad Imman
Ali, J, decided on 24.08.2010) : Whenever any written or oral information is placed before
any Officer-in-charge of any Police Station it is his bounden duty to reduce the information
into writing, in other words to record the FIR and set the information in motion forthwith and
to initiate investigation.
2011
Siddique Ahmed vs Government of Bangladesh and Others, 65 DLR (AD) (2013) 8= 10
ADC (2013) 811= 21 BLT (AD) (2013) 23 (Mr. A.B.M. Khairul Haque, C.J, decided on
15.05.2011) : convictions made by various Martial Law Courts, illegally constituted under
Martial Law Proclamations and Regulations and not under CrPC - Inherent power of High
Court Division under CrPC cannot be invoked - No equally efficacious remedy is provided
under any other provisions of law - Persons aggrieved by orders of Martial Law Courts may
invoke extraordinary powers of High Court Division - Trial and conviction of appellant
declared illegal and void - Appeal allowed.
Joynal Abedin vs State, 64 DLR (2012) 393 (Mr. Siddiqur Rahman Miah, J, decided on
05.05.2011) : Tribunal got the jurisdiction to hold the trial and the facts alleged against the
accused-petitioner did constitute criminal offence and the conviction had not been, also,
based upon ‘no evidence’. The ends of justice, there-fore, do not demand the acquittal of the
petitioner.
98
Golam Mahbub (Md) Vs State and another, 64 DLR (2012) 44 (Mr. Quazi Reza-ul
Hoque, J, decided on 09.05.2011) : If anyone’s right with regard to re-election for the
position of Directorship is infringed, he should have sought redress under the provisions of
Banking Companies Act, 1991 and the Companies Act, 1994. Any denial of right to
reelection cannot be agitated through sections 406 and 420 of the Penal Code. Remedies are
available either through complaint to the Registrar of Joint Companies, as it is a Bank, to the
Bangladesh Bank or seeking remedy before the Company Bench of the High Court.
Shahnaj Begum Munni vs State and another, 63 DLR (2011) 279 (Mr. Moyeenul Islam
Chowdhury, J, decided on 12.05.2011): It has to be established that the cheque was issued
to discharge, either in whole or in part, a legally enforceable debt or liability. The accused-
petitioner had never any debt or liability to discharge. It is the husband of the accused-
petitioner who had the debt or liability to discharge. The liability or debt of the husband of
the accused-petitioner cannot be thrust on to the shoulder of the accused-petitioner. Given
this scenario, if the accused-petitioner is made liable for the debt or liability of her husband,
that will go against the spirit of the mandate of section 138(1) of the Negotiable Instruments
Act.
Tarun Majumder and another vs State, 64 DLR (2012) 279 (Mr. Mr. Siddiqur Rahman
Miah, J, decided on 23.06.2011) : Since the seized rice is perishable item which be damaged
if it is kept in the open palce during the rainy season and there is no chance of early disposal
of the case. So justice will be met if the seized rice can be given in the custody of the
accused-petitioner.
Raj Kumar Khetan vs Mercantile Bank Ltd. and another, 64 DLR (2012) 272 (Mr.
Siddiqur Rahman Miah, J, decided on 24.08.2011) : There is no legal bar against the
initiation and continuation of the proceedings and as such, the proceedings do not amount to
an abuse of the process of the court.
Md. Muntasir Hossain MD, Unipay 2U (BD) vs State and another, 64 DLR (2012) 177
(Mr. Salma Masud Chowdhury, J, decided on 25.08.2011) : From the plain reading of the
first information report it cannot be said that no prina-facie case could be detected against the
accused persons. The prosecution as stated I the first information report has got prina-facie
ingredients of the offences alleged. The exact nature of the offence against the petitioners can
only be thrashed out upon a trial.
Bahauddin Haider vs State, 63 DLR (2011) 561 (Mr. Md. Ashfaqul Islam, J, decided on
03.10.2011) : It is apparent that at a very initial stage i.e. right after the lodging of the FIR the
petitioner obtained the Rule and stay before taking cognizance by a competent Court and, as
such, an application under section 561A of the Code of Criminal Procedure should be
considered to be a premature one. Truth or otherwise of the allegation as against the accused-
petitioner in the FIR could only be decided in the trial on evidence.
Shahjahan vs State, 64 DLR (2012) 49 (Mr. Moyeenul Islam Chowdhury, J, decided on

01.12.2011) : Not a single prosecution witness testified that incriminating arms and
ammunitions recovered from possession and control of petitioner - Tribunal below not
justified in law in passing impugned order of conviction and sentence against petitioner -
Trial of petitioner held in absentia all through -Petitioner not aware of proceedings because of
non compliance with provisions of Section 27(6 ) of Act, 1974 - Publication of order of
99
Tribunal in 'Daily Chuadanga Barta' did not satisfy requirement of Section 27 (6) of Act,
1974 - Petitioner prejudiced though no fault of his own - Unless provisions of Section 27 (6)
of Act, 1974 strictly complied with by Tribunal below, it cannot assume any jurisdiction with
regard to trial of petitioner - So it cannot be said that petitioner invoked extra-ordinary
jurisdiction of High Court Division under Section 561A of CrPC with unclean hands - Rule
made absolute - Impugned judgment and order quashed.
Begum Khaleda Zia vs State and another, 64 DLR (2012) 1 (Mr. Khondoker Musa
Khaled, J, decided on 12.12.2011) : When exercising jurisdiction under section 561A of the
Code of Criminal Procedure, this court cannot embark an enquiry as to whether allegations
and materials on record are reliable or not. Those are purely functions of the trial court.
Whether the Prime Minister had withdrawn money with malafide intention allowing others to
misappropriate or she was involved in the alleged offences in the discharge of her official
power as a public servant are factual aspects and subject matter of adjudication by the trial
court.
Mahbub Ahmed and Others vs Securities and Exchange Commission,

EX/BDHC/0406/2011 (M. Enayetur Rahim, J, Decided on 23.11.2011) : The jurisdiction
given by section 561A is neither an alternative jurisdiction nor an additional jurisdiction but it
is a jurisdiction preserved in the interest of justice to redress grievances for which no other
procedure is available or has been provided by the code itself. This power cannot be so
utilised as to interrupt or divert the ordinary course of Criminal procedure as laid down in the
Code.
Md. Akram Ali, Professor vs The State, Criminal Misc. Case No. 11484 of 2007 (Mr.
A.K.M. Asaduzzaman, J, decided on 04.05.2011) : Perusing the annexures it appears that
by using the deed in question dated 23.6.1998 the present petitioner has already filed a suit
for partition against the informant of the case and the said suit is still pending before the Civil
Court, which means the petitioner, has already used the deed in question in competent civil
court and the matter is pending before there. In the premises in view of section 195(1)© of
the Code of Criminal Procedure, no court shall take cognizance of any offence relating to a
document produce or given any evidence to any court to which it has been used otherwise a
complaint in writing of such Court, or of some other Court to which such Court is
subordinate. But the informant of the case although being the party in the said civil suit filed
a case against the petitioner on the same document which is under domain of a civil court, in
the premises no criminal case can be entertained other than a complaint in writing of such
Court, or of some other Court to which such Court is subordinate is respectable and the
proceeding can not thus be proceeded in view of section 195(1)© of the Code of Criminal
Procedure. Thus since the case is barred under law, which is a clear abuse of the process of
the court and is liable to be quashed. In the premises the impugned framing of charge against
the petitioner is apparently illegal and without jurisdiction.
Md. Juwel Shikdar vs The State, Criminal Misc. Case No. 20859 of 2010 (Mr. Sheik Md.
Zakir Hossain J, decided on 04.05.2011) : ‡dŠR`vix Kvh©wewai 561-G avivi weavb Abyhvqx
`wÛZ Av‡`k evwZ‡ji †ÿ‡Î wZbwU welqB we‡ePbvq cÖvavb¨ cvB‡e, h_v; ÒAvBbMZ mvÿ¨ cÖgv‡Yi
AfveÓ Ges ÒAv`vjZ MV‡b ÎæwUÓ (Quoram-non-judice) Ges ÒAvB‡bi Aceënvi hvnvi d‡j
b¨vq wePvi e¨vnZ|Ó Av`v‡ì D‡cvi³ Av‡jvPbvq I D‡jøwLZ wm×v‡šÍ Bnv my¯úó cÖZxqgvb †h, AÎ
†gvKÏgviq Zvnvi †Kvb e¨Z¨q N‡U bvB|
100
D‡cvi³ Av‡jvPbvi wfwË‡Z †dŠR`vix Kvh©wewai 561-G avqvq AšÍwbwn©Z ÿgZv m¤ú‡K© m‡eŸ©v”P
Av`vj‡Zi w`K wb‡`©kbv my¯úó nIqv m‡Z¡I Avgiv †dŠR`vix Kvh©wewai 561-G avivi Awc©Z
AšÍwb©wnZ ÿgZv cÖ‡qv‡Mi †ÿ‡Î Av‡iv GKUz †ekx AMÖmi nBqv AÎ gvgjvi wel‡q we¯ÍvwiZ Av‡jvPbv
ch©v‡jvPbv Kwi‡Z eva¨ nBqvwQ, †Kbbv AÎ iæj ïbvbxKv‡j ìLv¯ÍKvix c‡ÿ iæjwU mg_©b Kwiqv
e³e¨ Dc¯’vcb Kivi ‡Kn wQ‡jb bv| †mB Rb¨ hvnv‡Z AveviI b¨vq wePvi e¨vnZ nIqvi ARynvZ
DÌvwcZ bv nq ZvB b¨vq wePv‡ii ¯^v‡_©B †dŠR`vix Kvh©wewai 561-G avivi ìLv‡¯Í ìLv¯ÍvKvixi
`Û/ mvRv evwZ‡ji †h mKj †nZzev` ìLv‡¯Í D‡jøL Av‡Q Zvnvi mKj¸wj Avgiv avivevwnKfv‡e
†gvUvgywU wePvi we‡kølY KwiqvwQ Ges †m‡ÿ‡ÎI ìLv¯ÍKvix PZz_© I cÂg †nZzev` GiI †Kvb
†hŠw³KZv LyuwRqv cvB bvB|
Z‡e, mvwe©K we‡PPbvq we‡kl UªvBey¨bvj Gi iv‡q †Kvb µzwU wePz¨wZ wKsev ìLv¯ÍKvixi †dŠR`vix
Kvh©wewai 561-G avivi weav‡bi AvIZvq BwZc~‡e© DwjøwLZ m‡e©v”P Av`vj‡Zi wm×v‡šÍi Av‡jv‡K
†Kvb my‡hvM cvIqvi AeKvk Av‡Q ewjqv GB Av`vjZ g‡b K‡i bv| we‡kl UªvBeybv‡ji GB ÒDrK…óÓ
(ìLv¯ÍKvixi wbKU ZwK©Z) Av`vj‡Zi fvlvq “Rich Judgment” wU hw` ÒZ_¨ mg„× e¯‘wbô
DrK…óÓ ivq nBZ, Z_v ìLv¯ÍKvixi †evaMg¨ fvlvq cÖ`Ë nBZ, Zvnv nB‡j ìLv¯ÍKvix‡K nvB‡KvU©
†`wL‡Z nBZ bv ev Zuvnv‡K †KW nvB‡KvU© †`Lv‡bvi `ytmvnm KwiZ bv, ìLv¯ÍKvixi †evaMg¨ fvlvq
ivqwU cÖPvwiZ nB‡j Zvnvi Z_¨ DcvË, cwi‡k‡l Dcmnsnv‡I cÖ`Ë mvRv †Kb Zvnv‡K cÖ`vb Kiv
nBqv‡Q, wZwb wK mwZ¨B †`vqx? D³ mvRv mwVK wK †ewVK? Zvnv Dcjw× Kwi‡Z mÿg nB‡Zb|
†m‡ÿ‡Î nqZev ìLv¯ÍKvix GB Awa‡ÿ‡Î mvRv evwZ‡ji Av‡e`b Kwi‡Zb bv ev nvB‡Kv‡U© Avwm‡Zb
bv Ges we‡kl UªvBey¨bv‡ji GB gZ ÒZ_¨ mg„× e¯‘wbô DrK…óÓ ivqwU wePvi cÖv_©xi wbKU mZ¨B
gyj¨vwqZ nBZ| Avgv‡ì mgv‡R cÖPwjZ GKwU cÖPjb Av‡Q ÒevsMvjx‡K nvB‡KvU© †`Lv‡bvÓ mgq
cwieZ©b nBqv‡Q wKš‘ evsMvjx‡K nvB‡KvU© †`Lv‡bvi cÖeYZv GLbI cwieZ©b nq bvB| hvnv AZ¨šÍ
`yt‡Li Ges †e`bvi| wePvicÖv_©xi †evaMg¨ fvlvq wePvi Kvh© cwiPvjbv bv nIqvq GLbI †evaMg¨Zvi
Afv‡e evsMvjx ¯^vaxbvZvi GZ ermi ciI nvB‡KvU© †`Lvi KiæY AwfÁZvi bvMcvk nB‡Z evwni
nB‡Z cv‡ib bvB| GLbI nq K_vq bq K_vq evsMvjx‡K nvB‡KvU© †`Lv‡bvi gZ Ae¯’vi wkKvi nB‡Z
nq, Avi GB wkKv‡ii †Uvc wnmv‡e ZuvnvivB eëüZ nb hvnv‡ì‡K MYcÖRvZš¿x evsjv‡`‡ki
msweav‡bi 7bs Aby‡”Q‡` cÖRvZ‡š¿i mKj ÿgZvi gvwjK wnmv‡e AwfwnZ Kiv nBqv‡Q| ZvB RvwZi
RbK e½eÜz †kL gywRei ingvb Gi 15 †deªæqvix 1971 mv‡j evsjv GKv‡Wgxi Abyôv‡bi D‡Øvabx
fvl‡Yi K_v AvRI RvwZ‡K Pigfv‡e bvov †`q, †mw`b wZwb †NvlYv w`qvwQ‡jb:-
ÒAvwg †NvlYv KiwQ Avgv‡ì nv‡Z †hw`b ÿgZv Avm‡e †mw`b †_‡KB †`‡ki me©¯Í‡i evsjv
fvlv Pvjy n‡e| evsjv fvlvi cwÛ‡Ziv cwifvlv ˆZwi Ki‡eb Zvici evsjv fvlv Pvjy n‡e, †m
n‡e bv| cwiflvweìv hZLywk M‡elYv Kiæb| Avgiv ÿgZv †bqvi m‡½ m‡½ evsjv fvlv Pvjy
K‡i †è| †m evsjv hw` fzj nq, Z‡e fzjB Pvjy n‡e, c‡i Zv ms‡kvab Kiv n‡e|Ó
wePvicÖv_©x Zuvnvi wb‡Ri †evaMg¨ fvlvq wePvi bv cvIqvq †evaMg¨Zvi Afv‡e wm×všÍ wb‡Z weåvšÍ
nIqvq Av`vjZ¸wj‡Z GZ gvgjv †gvKÏgvi RU| GB RU Lyj‡Z cv‡i ïaygvÎ wePvi cÖv_©x‡ì
†evaMg¨ fvlvq Zvnv‡ì wePv‡ii evYx cÖKvk Ges cÖPvi, Zvnv bv nB‡j †mB wPi cwiwPZ gg©‡e`bvi
evYx evieviB cÖwZaŸwbZ nB‡e| ÒwePv‡ii evYx wbf…‡Z Kvu‡`Ó | ìLv¯ÍKvix hw` wb‡R Zvnvi GB
`Ûv‡`k wb‡RB Abyaveb ev ü`qv½g, m‡e©vcwi eywS‡Z cvwi‡Zb Zvnv nB‡j eZ©gv‡b GLwZqv‡i ZwK©Z
ivq P¨v‡jÄ Kwiqv GB gvgjv `v‡qi Kiv nB‡Z weiZ _vwK‡Zb ewjqv Avgiv wek^vm Kwi|
101
2012
Sohrab Ali Dewan vs State, 64 DLR (2012) 106 (Mr. Md. Emdadul Huq, J, decided on
01.01.2012) : Whether extension of period of investigation made by Magistrate was lawful -
Held, initial time limit for conclusion of investigation was sixty days from when FIR was
lodged - Said time limit expired - Expiry of sixty days time limit went unnoticed by
Magistrate - Extension made by Magistrate and Sessions Judge, after lapse of initial time
limit for investigation, were no extension in eye of law - Therefore, submission and
acceptance of the charge sheet, consequent cognizance taken by Courts below and charge
framed were based on legal void - All these actions were illegal, and continuation of trial
would be abuse of process of Court.
Md. Nurussafa vs State and another, 64 DLR (2012) 80= 32 BLD (2012) 110 (Mr.
Moyeenul Islam Chowdhury, J, decided on 04.01.2012) : It is manifestly clear that the trial
Court cannot be given a goby by short-circuiting the procedure and giving a damn about the
judicial norms by way of direct surrender of the petitioner to the High Court Division after
framing of charge. On this point, the law is fairly-settled. This type of direct surrender before
the High Court Division for the first time after submission of police report or after framing of
charge by an accused will be "de hors" the law giving rise to judicial indiscipline and
anarchy. In any view of the matter, the settled law cannot be unsettled. What we are driving
at boils down to this: there is no scope for venturing into judicial extravagance, or for that
matter, judicial adventurism in this regard.
Mohammad Ali vs State and another, 64 DLR (2012) 426 (Mr. Md Anwarul Haque, J,
decided on 10.01.2012) : Since account payee cheque mentioned in complaint-petition had
not lost it's character as negotiable instrument, same could be easily brought within mischief
of any cheque mentioned in Section 138(1) of Act - Petitioner as drawee submitted impugned
account payee cheque in Bank where accused-petitioner had been maintaining his account but
same had been bounced for want of sufficient fund - Thus, there was nothing which would
not go to fulfill requirements of law as contemplated in Section 138(1) of Act.
Sadiul Alam vs State, 64 DLR (2012) 146 (Mr. Md. Nazrul Islam Talukder, J, decided
on 11.01.2012) : Whether proceeding initiated against Petitioner for offence punishable
under Sections 406/420 of Code liable to quashed - Held, accused-petitioner never denied
payment of loan amount along with interest to bank and, as such, it appears that there was no
offence of cheating under Section 420 of Code against accused-petitioner - No element of
initial intention of deception, which constitutes offence of cheating against accused-petitioner
- Mere delay in payment of loan money or refusal to pay same did not amount to
misappropriation and same constitutes no offence under Section 406 of Code - Therefore,
allegations against accused-petitioner did not disclose any offence of cheating and criminal
breach of trust against him.
Mahmudur Rahman Nazlu vs State and another, 64 DLR (2012) 179 (Mr. M. Enayetur
Rahim, J, decided on 22.01.2012) : Unless law is strike down or amended we have no
authority or scope to interfere with the proceeding or to quash the same on the ground that the
existing law is bad one or inconsistence with its object, in exercising the power under section
561A of the Code of Criminal Procedure.
102
Monir Hossain vs State and Another, 65 DLR (2013) 413 (Mr. Md. Anwarul Hoque, J,
decided on 03.03.2012) : Petition filed for quashing of proceedings for trial under Sections
34, 302, 307, 323, 324 and 326 of BPC - Whether Petitioner made out case for quashing of
proceedings - Held, Petitioner has tried to invoke jurisdiction only on factual aspect which
could not be considered by Bench in a forum under Section 561A of CrPC - It was to be
decided during course of trial by Sessions Judge on basis of evidence adduced by
prosecution.
Akkas Ali Sarder vs State, 64 DLR (2012) 483 (Mr. Siddiqur Rahman Miah, J, decided
on 04.03.2012) : Sessions Judge had no jurisdiction to entertain any revision against order of
acquittal - Revision was filed in wrong forum and Sessions Judge exercising wrong
jurisdiction set-aside order of acquittal and sent case back on remand on flimsy ground -
Prosecution had totally failed to prove case - Therefore, order of acquittal was quite right and
justified.
Mostafa vs State, 64 DLR (2012) 544 (Mr. Md. Rezaul Haque, J, decided on 18.03.2012)
: It is clear that none of the witness has supported the evidence of PW 1, the informant. It also
appears to us that though the accused person was apprehended by the police as per evidence
of the prosecution witnesses but no arms or ammunitions were recovered from this petitioner.
In an arms case the absolute, control and conscious possession of the incriminating article is
mandatory for convicting any person, but in the instant case we do not find any such
evidence. Thus, we are of the view that it is a case of no evidence, accordingly, the order of
conviction and sentence under the said section of the Arms Act cannot be sustained, as such,
the judgment and order of conviction and sentence is not maintainable in the eye of law and
liable to be quashed.
Rabeya Khanam v State, 64 DLR 2012 HCD 467 (Mr. Siddiqur Rahman Miah, J,
decided on 15.03.2012) : It appears from the evidence on record that the accused petitioner
Rabaya Khanam is retired professor of Botany of a government college who is 67 years old
lady and her husband was a prominent Advocate of Faridpur Bar Association. Is it possible
on the part of such old lady professor to abduct a ordinary man who was taken from Faridpur
to Rajbari by microbus and she herself injured by Chinese axe on the head of the informant.
No ground was shown by the informant as to why she will be so barbarous against the
informant and the informant has totally failed as to what enmity lies with her for which she
will do such heinous work. It was also not disclosed in the FIR that under what capacity the
informant lodged complaint against the accused petitioner before the wakf Administrator
which resulted the alleged occurrence, which shows that the informant is being used as a tool
by some persons out of grudge and enmity just to harass and humiliate the petitioner.
The allegation against the petitioner was investigated by Md. Serajul Islam, Officer-in-
Charge, Rajbari Police Station, who submitted final report marked annexed 'A' stating that no
evidence was found in support of the allegation. The earned Magistrate without considering
the facts that the accused petitioner is a retired professor of Botany of a Government college
who comes of a highly respectable Muslim family, who is 67 years old lady and now she has
been suffering from various diseases, framed charge against the accused petitioner under
section 326/307 of the Penal Code. The allegation that she along with other co-accused
abducted the informant by a microbus from Faridpur district to Rajbari district and caused
herself injure by Chinese axe on the head of the informant is preposterous allegation and
being absurd cannot be believed in view of the nature of allegation and the police also
103
submitted the Final Report in the case, having found no evidence in support of the
prosecution case against the petitioner which prove that the allegations against the accused
petitioner are false and concocted. The learned Magistrate framed charged against the
petitioner without considering the materials on record judiciously which will appear from the
order itself which is no speaking order in nature and nothing was mentioned about the
materials warranted framing charge against the petitioner. The learned Magistrate did not
consider the facts of the case. It is also not disclosed in the FIR that under what capacity the
informant lodged complaint against the accused petitioner before the wakf Administrator
which resulted the alleged occurrence which shows that the informant is being used as a tool
by some persons out of grudge and enmity just to harass and humiliate the petitioner. Thus it
clearly appears from the above discussion that the allegations brought against the accused
petitioner are frivolous and vexatious which should be stopped initially without abusing the
process of the court.
Anti-Corruption Commission vs Unipay 2U Bangladesh Ltd., 64 DLR (2012) 444 (Mr.

Md Reazul Haque, J, decided on 22.03.2012) : The first information report and charge-
sheet it cannot be said that no prima-facie case could be detected against the accused persons.
Money Laundering is deemed as a financially based crime. It has potentially devastating
economic security and social consequences. From the facts and circumstances discussed
herein above it is clear that the learned Metropolitan Sessions Judge has relied upon the
modified order of the Hon'ble Judge in Chamber of the Appellate Division which has no
existence at present as the petition for leave to appeal as well as the Writ Petition (from
which the petition for leave To appeal had been arisen) were dismissed for non-prosecution.
So, the ad-interim order passed in connection with those have met its natural death. So, the
impugned order passed in revisional application is an abuse of the process of the Court.
Foyez Ahmed vs State, 64 DLR (2012) 257 (Mr. Moyeenul Islam Chowdhury, J, decided
on 18.04.2012) : Present petition filed against judgment and order of conviction passed by
Upazilla Nirbahi Officer and Executive Magistrate convicting Appellant under Section 189 of
Code - Whether impugned conviction of Petitioner was without jurisdiction and null and void
- Held, alleged offence was neither committed nor unfolded at spot in presence of Executive
Magistrate - Executive Magistrate must take cognizance of certain offences instantly at spot
and award appropriate sentences to offenders - Executive Magistrate committed illegality of
highest magnitude in taking cognizance of alleged offence and convicting petitioner under
Section 189 of Code at place other than spot - Therefore, impugned conviction of Petitioner
was without jurisdiction and null and void.
Md. Ehsanullah and Others v The State, 32 BLD 2012 HCD 447 (Mr. Siddiqur Rahman
Miah, J, decided on 15.07.2012) : When prima facie case has been made out, it is
appropriate to decide the matter taking evidence. In such case, if interfered it will be the gross
miscarriage of justice. The High Court should be extremely reluctant to interfere in a case
where a competent court has to the view that a prima facie case is disclosed and had framed
Charges. The petitioners have prayed for quashing the proceedings invoking inherent
jurisdiction of this court. The power to be exercised under section 561A CR. P.C. is highly
discretionary. Such an extraordinary and discretionary power cannot be exercised in favour of
the persons against whom prima facie case is made out.
104
Kartick Chandra Das and another vs State, 64 DLR (2012) 458 (Mr. Md. Mozibur
Rahman Mia, J, decided on 17.06.2012) : Argument that Investigating Officer was not
endorsed to investigate into allegation in terms of provision of Section 20(2) of Act, 2004
bears no merit - Contention that no sanction had been accorded to prosecution to prosecute
accused-petitioner was not sustainable - Prosecution witness No. 1 had already been
examined and also cross examined leaving no scope to interfere with trial.
Md Ismail vs State, 64 DLR (2012) 473 (Mr. Siddiqur Rahman Miah, J, decided on
14.06.2012) : Magistrate should use his discretion in refusing to entertain fresh petition and
to acquit accused - Order of acquittal passed under Section 247 of Code being appealable
which lies to High Court only, Sessions Judge/ Additional Metropolitan Sessions Judge, had
no jurisdiction to entertain revision which was not maintainable - Thus, revisional proceeding
being not maintainable before Sessions Judge, proceeding was before court which was
quorum non-judice - Therefore, impugned order setting aside acquittal was void abinitio.
Abdur Razzak Liton vs State and Others, 66 DLR (2014) 334 (Mr. Md. Nazrul Islam
Talukder, J, decided on 20.06.2012) : The allegations brought against the accused-
petitioner are factual matters which require to be resolved on taking evidence. Since the
excavator was in possession of the accused-petitioner prior to filing of the case and since it
was recovered from the possession of the accused-petitioner, justice will be met if it remains
with the accused-petitioner until the allegations brought against him are proved on evidence.
Ali Haider Chowdhury vs State and Another, 65 DLR (2013) 116 (Mr. Md. Nazrul
Islam Talukder, J, decided on 08.11.2012) : There was no document which indicated that
government directed Management Board to sell out abandoned properties for welfare of
people - Accused was abusing his official position and manipulated tender for sale of
abandoned properties for benefit for himself - Petitioner participated in tender for sale of
abandoned properties - Petitioner was a beneficiary of illegal transaction - Prima facie
allegation of abetment in manipulating tender for sale of abandoned properties has been
disclosed against Petitioner - In absence of surrender before process of Court application filed
under Section 561 of Cr PC by Petitioner was incompetent and not maintainable - Impugned
proceedings initiated against Petitioner under Sections 109 and 409 of BPC could not be
quashed and same were maintainable in eye of law
Soumitra Sankar Das and Another vs The State and Another, 2013 33 BLD 91 (Mr.
Moyeenul Islam Chowdhury, J. Decided on 01.02.2012) : The Proceedings of a criminal
case cannot be quashed on the basis of defence materials.
Nobendu Das alias Ronju vs State, Criminal Misc. Case No. 10245 of 2005 (Mr. Md.
Ruhul Quddus, J, decided on 29.02.2012) :Learned Judge of the Tribunal found the
petitioner guilty of offence under section 10 (2) of the Ain, which provides punishment for
attempting to murder on demand of dowry. We have carefully examined all other provisions
of the Nari-o-Shishu Nirjatan Damon (Bishesh Bidhan) Ain, 1995. Section 11 of the same
provides punishment only for infliction of grievous injury on demand of dowry, but the Ain
does not provide anywhere any punishment for infliction of simple injury on demand of
dowry. It is the cardinal principle of interpretation of statute that provisions of any penal law
or that of any special law should be construed strictly. Since the Nari-o-Shishu Nirjatan
Damon (Bishesh Bidhan) Ain, 1995 is a special penal law and it provides no punishment for
infliction of simple injury on demand of dowry, the Tribunal constituted under the said Ain,
105
therefore, had no jurisdiction to try the present case. It could at best be tried by an ordinary
criminal court. The petitioner has already undergone the trial and served out imprisonment
for nearly seven years. We do not think it just and proper to remand the case to be tried by a
court conferred with jurisdiction.
Lavlu Gazi vs State and another, Criminal Misc. Case No. 17012 of 2006 (Mr. Md.
Ruhul Quddus, J, decided on 22.02.2012) :In the present case, charge has not yet been
framed. If there is no affidavit in compliance with section 27 (1 Ka) of the Ain, or that the
prosecution materials are not that much satisfactory to proceed against the petitioner or any of
the accused, they can file a proper application at the time of framing charge. But in any view
of the matter the proceedings, where the petition of complaint discloses specific allegations
against the petitioner, cannot be quashed at this stage. We also do not find that the Tribunal in
taking cognizance of offence against the petitioner has ever misused the process of Court, or
that continuance of the proceedings in the present case would defeat justice.
Md. Amir Hossain vs The State, Criminal Misc. Case No. 267 of 2005 (Mr. Md. Ruhul
Quddus, J, decided on 10.06.2012) : The scope of quashment of a judgment under section
561A of the Code is very narrow and limited. In the present case, learned Judge of the
Tribunal considered the evidence on record and passed the impugned judgment and order of
conviction and sentence. Although a discrepancy is there in the evidence of P.W.3 regarding
the time of seizure of alamats, it does not adversely affect the prosecution case. When the
ejahar was lodged on the following day of occurrence i.e. 14.9.1998, evidence of P.W.3 that
the alamats were seized immediately after the occurrence in the night on 13.9.1998 appears to
be made out of forgetfulness. However, there is no scope to say that the judgment is based on
no evidence or passed in total non-consideration of evidence. It is also not the case that the
Metropolitan Special Tribunal had no jurisdiction to try the case or that it was not properly
constituted. The impugned judgment and order, therefore, do not suffer from any illegality or
infirmity and calls for no interference by this Court in exercise of its inherent power under
section 561A of the Code.
Sirajuddin Sarkar vs Md. Fazlul Haque and others, Criminal Misc. Case No. 3734 of
1998 (Mr. Md. Ruhul Quddus, J, decided on 02.04.2012) :There is no hard and fast rule
that a criminal case should be stayed pending disposal of a civil suit in relation to same
subject matter. Each case is to be decided on its own merit. It has been settled in number of
cases that indefinite postponement of a criminal case is against the policy of law. When there
is no time-limit for disposal of the miscellaneous cases, stay of the instant criminal case for
uncertain period would definitely prejudice the criminal proceedings and on laps of unlimited
time, it will be difficult to ascertain the truth. Indefinite postponement of a criminal case is
thus undesirable (reliance placed on 6 BLD 315, 25 DLR 331, 22 DLR 502). Even on same
facts both civil and criminal cases can proceed simultaneously. This view lends support from
Md. Monzur Alam Vs. The State and another, 11 BLT (AD) 156 and Shahidullah Patwary
Vs. State, 35 DLR (AD) 281. When both civil and criminal case on same subject matter can
proceed simultaneously, there is no justification to keep the criminal proceedings stayed for
an indefinite period on the reason of pendency of civil cases. Under the above facts and
circumstances, we are of the view that the learned Additional Sessions Judge committed
wrong in staying the proceedings for an indefinite period and as such the impugned judgment
and order should not sustain in law. In the result, the Rule is made absolute.
106
M.A. Gani vs The State and another, Criminal Misc. Case No. 4896 of 2005 (Mr. Md.
Ruhul Quddus, J, decided on 28.05.2012) : In the present case no civil litigation reportedly
has been initiated to address the grievance of the complainant. Since both civil and criminal
case on same fact can proceed simultaneously, there can be no wrong in proceeding with a
prior criminal case. Moreover, charge has not yet been framed in the present case. In such
position, the petitioner has ample opportunity to approach the trial Court with an application
for discharge, whereupon the trial Court can also see whether the materials before it are
satisfactory to proceed against him.
Md. Abdul Quader vs The State and another, Criminal Misc. Case No. 3663 of 1997
(Mr. Md. Ruhul Quddus, J, decided on 28.03.2012) : Under the facts and circumstances,
we do not find any illegality in the proceedings or in taking cognizance of offence against the
petitioner. Moreover, the charge has not yet been framed in the present case. The petitioner
has ample opportunity to pray for his discharge by filing an application before the trial Court.
At this stage there is no reason to interfere with the roceedings by this Court in exercise of its
inherent power under section 561A of the Code of Criminal rocedure.
Ruhul Kuddus Talukdar Dulu vs The State, Criminal Misc. Case No. 14338 of 2008
(Mr. Mohammad Ullah, J, decided on 18.07.2012) : We have gone through the decision of
this Court in the case of Salma Sahadat -vs.-State reported in 14 BLC (2008), 26 as referred
to by Mr. Huq, the learned Advocate for the ACC. That case was with regard to quashment of
a proceeding where only a First Information Report was filed and investigation was going on.
The issue of satisfaction of the Commission and the legal requirement of a notice for
prosecuting an offence under section 27(1) were only an incidental issue in that case.
Moreover, after decision of the Appellate Division passed in the case of Anti-Corruption
Commission-vs.- Dr.Mohiuddin Khan Alamgir reported in 62 DLR (2010) (AD), 290 the
observation made in the 14 BLC case is not applicable in the present facts and circumstance
of the instant case. Finally we hold that the notice dated 18.02.2007 issued by the Secretary
of the Anti Corruption Commission was without any lawful authority and that it was not a
notice in the eye of law therefore any proceeding based on the said notice can not be allowed
to continue. In the result, the Rule is made absolute.
Md. Abul Kalam Azad and another vs The State, Criminal Misc. Case No. 15405 of
2007 (Mr. Mohammad Ullah, J, decided on 03.09.2012) :When the case is preposterous
and there is no material basis for framing the charge, the proceeding against the petitioner
after framing charge can be challenged under 561A.
2013
Shafiqul Alam (Md) vs State, 65 DLR (2013) 83 (Mr. Khondker Musa Khaled, J,
decided on 10.01.2013) : It is not accepted contention that a criminal proceeding cannot be
quashed before the stage of framing charge. It is rather a settled decision of our apex Court by
many judicial pronouncements that a criminal proceeding starts from the date of taking
cognizance and if it is found that the allegations made in the FIR or petition of complaint do
not disclosed any prima-facie case against the accused-petitioner, continuation of such
proceeding would be useless and preposterous. An application for quashing under section
561A of the Code of Criminal Procedure is well maintainable from the date of initiation of
the case by taking cognizance. However, prior to the taking of cognizance, there is hardly any
107
existence of a criminal proceeding in the true sense of term and, as such, an application for
quashing of such proceeding is not entertain-able. There is no allegation and material to show
prima-facie case against the accused-petitioner and as such, the impugned criminal
proceeding is liable to be quashed.
Ok-Kyung Oh v State and others, 18 BLC (2013) 621 (Mr. Md. Nazrul Islam Talukder,
J, decided on 30.01.2013) : Criminal - Quashing of proceedings - Discharge - Sections
241A, 561A of Code of Criminal Procedure (Code) - Sections 341/379/506(II) of Penal Code
- Petitioners application for discharge rejected vide impugned judgment - Accused-Petitioner
and her husband are Korean citizens who established Company in Bangladesh by making
huge investments - Subsequently relationship between them became strained due to family
disputes and company matters - Company litigations ensued between them that lead of
passing of injunctive orders against Petitioner's husband - Petitioner complained violation of
such order to concerned authorities - In the above backdrop whether act of Petitioner could be
said to constitute offence under sections charges with and what whether impugned
proceedings initiated against Accused-Petitioner and others should be quashed - Held, law
imposes legal duty upon every person aware of commission of any offence or of intention of
any other person to commit any offence to give information thereof forthwith to nearest
Magistrate or Police-Officer - In instant case, Accused-Petitioner gave information to
concerned authority for commission of cognizable offences by her husband in breach of
injunctive order - By this act, Accused-Petitioner has not committed any punishable offence,
rather has escaped herself from commission of punishable offence by providing necessary
information - Impugned proceeding preposterous and abuse of process of Court and
accordingly quashed - Rule accordingly made absolute.
Mohidul Islam vs State, 66 DLR (2014) 108= 1 CLR (2013) 450 (Mr. Khondker Musa
Khaled, J, decided on 17.01.2013) : Defence materials cannot be considered in a quashing
proceeding. This is not such a case where allegation even if acceptable in their entirety, do
not constitute any offence or there is any legal impediment in the way of initiation and
continuation of the impugned criminal proceeding. As such, the Rule issued on this
application under section 561A of the Code of Criminal Procedure has no merit to sustain.
Badsha Mia vs State, 65 DLR (2013) 189 (Mr. Siddiqur Rahman Miah, J, decided on
20.02.2013) : The allegations made in the FIR even if are taken its face value and accepted in
their entirety do not constitute an offence punishable under sections 406/420 of the Penal
Code. It is not the case that the seized tin sheets were entrusted with the petitioner for
distribution as relief goods which they misappropriated using the same for his own
consumption. So the alleged act of the petitioners do not attract section 406 of the Penal
Code. There is no application of section 420 of the Penal Code against the petitioners as there
is no allegation that they obtained the tin sheet fraudulently inducing anybody to part with the
same to him. Moreover, the proceeding cannot continue against the petitioner alone as the
abettor of the offence of criminal breach of trust punishable under section 406 of the Penal
Code without the principal offender of such offence.
Ahmed Akbar Sobhan @ Shah Alam vs State, 65 DLR (2013) 218= 21 BLT (2013) 268
(Mr. Siddiqur Rahman Miah, J, decided on 20.02.2013) : Since there is legal bar against
initiation and continuation of proceedings and, as such, proceeding amounts to an abuse of
108
process of Court - Prima facie ground and, as such, application under section 561 A of Cr.
P.C. for quashing proceeding shall be maintained.
Mahmudur Rahman vs State and Another, 65 DLR (2013) 437 (Mr. Sheikh Hassan Arif,
J, decided on 27.05.2013) : Notice under section 26(1) of Act, 2004 does not in any way
vitiate proceeding commenced pursuant to same - Moreover, when Petitioner is getting or
trying to obtain benefit of ad-interim orders then other party in civil suit, is also entitled to get
same benefit - Allegations do disclose offence punishable under Section 26(2)(Ka) of Act,
2004 for non-submission of wealth statement by Petitioner - Thus, impugned proceeding is
not barred by law, therefore, no legal reason to interfere.
Zahidul Islam vs Kamal Hossain and Others, 66 DLR (AD) (2014) 180 (Mr. Md. Abdul
Wahhab Miah, J, decided on 23.07.2013) : The legislature has not created any absolute bar
in filing a petition of complaint before expiry of thirty days of the receipt of the notice issued
under clause (b) of the proviso to section 138 as created in case of filing a petition of
complaint after expiry of one month of the date on which the cause of action arises under
clause (c) of the proviso to section 138. Filing of a petition of complaint alleging the
commission of an offence punishable under section 138 of the Act, 1881 before expiry of
thirty days from the date of receipt of the notice as stipulated in clause (c) of the proviso to
the section as it happened in the instant case, at best, can be said premature and that
prematurity shall be cured the moment the period of thirty days expire and the payment of the
dishonoured cheque is not made within the said period. And in spite of the filing of the
petition of complaint prematurely, there would be no bar on the part of the drawer of the
dishonoured cheque to make the payment of the amount of such cheque to the payee or, as
the case may be, to the holder in due course of cheque within thirty days as stipulated in
clause (c) of the proviso to section 138 and filing of a petition of complaint prematurely, in
no way, can be a ground to oust a payee or, as the case may be, to the holder in due course of
the cheque from proceeding with his case to haul up a person here the respondent who
commits an offence punishable under the section and to quash a criminal proceeding arising
out of such petition of complaint.
S.M. Redwan and Others vs Rezaul Islam and Others, 66 DLR (AD) (2014) 169 = 35
BLD (AD) (2015) 35 (Mr. Hasan Foez Siddique, J, decided on 09.10.2013) : Cheques
were issued by respondent which were returned with endorsement, "payment stopped by
drawer" - Those were returned unpaid because amount of money standing to credit of that
account was insufficient to honour of cheque - This is rebuttable presumption - Defence can
be considered at time of holding trial and not in application for quashing proceedings - High
Court Division erred in quashing instant proceedings before recording evidence.
Tajul Islam and Another vs State and Another, 65 DLR (2013) 336 (Mr. Md. Nazrul
Islam Talukder, J, decided on 27.11.2013) : Fact alleged in petition of complaint prima-
facie attracts elements of offence of cheating punishable under section 420 of Penal Code -
Moreover, accused-Petitioners did not obtain regular bail after expiry of period of
anticipatory bail and, as such, they become fugitive from proceedings in eye of law - Thus,
impugned proceedings initiated against accused-Petitioners under sections 406/420/506/109
of Penal Code cannot be quashed and that same are very much maintainable and sustainable
in the eye of law.
109
Alhaj Golam Rasul Belal vs Habibullah Shakir and Others, 2015 35 BLD (AD) 107 (Mr.
Md. Muzammel Hossain, C.J, decided on 11.06.2013): Exercise of jurisdiction under
inherent power as envisaged under section 561A of the Code of Criminal procedure to have
the criminal procedure quashed is an exception rather than a rule and the case for quashment
must be treated as the rarest of rare cases so that it can't scuttle or burry a prosecution case on
flimsy and unfounded reasons. The High Court Division, though, is clothed with inherent
power to quash a proceeding or to make such order or orders as may he necessary for the
ends of justice that power should be exercised in appropriate case, sparingly and cautiously.
Mr. Younusuzzaman Badal vs The State and another, 2015 35 BLD (AD) 107 (Mr. K.M.
Kamrul Kader, J, decided on 27.05.2013): Section 140 of the Negotioble instrument Act;
Whether a particular command, expressed in a primary or secondary legislation, conveys
andatory direction or not, is a question of construction. In resolving the dichotomy, we are
required to detect the intention of the author/authors of the instrument. If it be a primary
legislation, we try to unveil the intention of the legislators, while we would make endeavour
to
trace the intention of the framers of the sub-ordinate legislation, if the instrument is a
secondary legislation.
Rear Admiral M. Nurul Islam, NCC, PSC (Retd.) and others vs The State and another,
Criminal Misc. Case No. 2334 of 2004, 2395 of 2004, 6339 of 2004 and 3987 of 2004 (Mr.
K.M. Kamrul Kader, J, decided on 14.02.2013): The First question is as to whether or not
the inherent power under section 561A of the Code of Criminal Procedure can be invoked at
any stage of the proceeding even at an initial stage, if it is necessary to prevent the abuse of
the process of the court or otherwise to secure the ends of justice. The inherent power of this
Court under section 561A of the Code of Criminal Procedure can be invoked at any stage of
the proceeding even at an initial stage. We find support of this contention in the case of
Abdul Quader Chowdhury vs. The State, 28 DLR (AD) (1976) 38. Similar view was taken in
another decision of our Apex Court in the case of Ali Akkas Vs. Enayet Hossain and others,
17 BLD (AD) (1997) 44.
2014
Abdul Wahed Gaffar vs The State and Others, 68 DLR (AD) (2016) 218= 13 ADC
(2016) 175=4 CLR (2016) 1 (Mr. Mohammad Anwarul Haque, J, decided on 06.04.2014)
: It is fact that mere physical possession of the counterfeit notes in not an offence punishable
under section 25A of the Special Powers Act but the intention as it transpires from the F.I.R.,
facts, circumstances on record and the other evidence it has become clear to us that this
criminal proceeding cannot be quashed at this stage of hearing because it needs evidence to
be recorded by the court during the course of trial to establish the intention of keeping huge
quantity of counterfeit note in the apartment.
Yunus vs State and Others, 67 DLR (2015) 97 (Mr. Nazrul Islam Talukder, J, decided
on 13.08.2014) : Disputed questions of fact cannot be decided invoking the jurisdiction under
section 561A of the Code of Criminal Procedure and it is the function of the trial Court which
will decide the factual aspects of the case on taking evidence.
110
Md. Milon Hossain vs State and another, Criminal Misc. Case No. 9301 of 2012 (Mr.
Sheikh Md. Jakir Hossain, J, decided on 19.11.2014) : AvcxjKvix e³e¨ nB‡Z‡Q NUbvi
c~‡e© 2 `yB ZvjvK w`qv‡Qb Ges Z…Zxq Zvjv‡Ki c~‡e© wfKwU‡gi wcZv GRvnviKvjx wnmv‡e AÎ gvgjv
`v‡qi Kwiqv‡Qb| Zvjv‡Ki KvMRcÎI AvcxjKvix wb¤œ Av`vj‡Z Dc¯’vcb Kwiqv‡Qb| GB e³e¨
we‡ePbvq cªwZqgvb ‡h, gvgjvwU‡Z Z_¨MZ we‡iva (question of fact) ‡hgb cÖKU †ZgbB †h Z_¨
Dc¯’vcb Kiv nBqv‡Q Zvnv Awfhy³-AvcxjKvixi Dc¯’vwcZ welq/Z_¨ (defence material) e‡U,
hvnvi we‡iva †hgb wb®úwË nB‡Z cv‡i †Kej gvÎ mvÿ¨vw` MÖn‡Yi c‡i hLb Awfhy‡³i `vwLjxq D³
Z_¨-DcvË mv‡ÿï Ask wnmve Av`vj‡Z AvBbvbyM M„wnZ nB‡e| Bnvi c~‡e© Zvnv we‡ePbvq wbqv
†dŠR`vix Kvh©wewai 561-G avivi weavb Abyhvqx AÎ gvgjvi wePvi Kvh©µg evwZ‡ji GLwZqvi †Kvb
Av`vj‡Zi bvB hvnv Dc‡iv³ Awfg‡Zi Av‡jv‡K m‡e©v”P Av`vj‡Zi gxgvswmZ wm×všÍ|
Md. Mosarraf Hossain vs State and another, Criminal Misc. Case No. 29511 of 2010
(Mr. K.M. Kamrul Kader, J, decided on 24.04.2014) : We find that during investigation,
the investigating officer did not found any concealment in his wealth Statement. The accused-
petitioner in his wealth statement as well as in his Income Tax Return and revised return
showed his entire income and properties, the investigation officer admitted the same in his
Charge sheet.
The final question is as to whether or not ACC afforded reasonable time to submit his wealth
statement. It is apparent from FIR that ACC issued a notice upon the accused-petitioner
asking him to submit his wealth statement in person within 72 hours, according to the
provision of Section 15 (Gha) (2) of Emergency Powers Rules, 2007, However, allegations
against the petitioner was not made under sub-section 5 of section 15 (Gha) of the aforesaid
Rules rather allegation was made and charge was framed against him under section 26(2) and
27(1) of the ACC Act, 2004. To bring home charge under sections 26(2) and 27(1) of the
ACC Act, 2004, ACC must follow the procedure as laid down in Section 17 of the Anti-
Corruption Commission Rules, 2007. The ACC acted in breach of Rule 17 of the ACC Rules
in relation to the sending notice to the accused petitioner. We also find that 72 hours cannot
be considered as reasonable time to submit wealth statement as there are provision of
punishment if the Notice receiver failed to submit it or file inaccurate statement. We find
support of this contention in the case of Anti-Corruption Commission Vs. Dr. Mohiuddin
Khan Alamgir and others, reported in 62 DLR (AD) (2010), wherein our Apex Court held-
“Besides, the notice dated 18-2-2007 was not a notice required by law, the notice directed the
respondent No. 1, a detenu, to submit return of his assets within a period of 72 hours, is itself
a worst example of arbitrary action on the part of the concerned authority. A notice must
allow a reasonable time to check-up the details of the assets of a person, if necessary, on
examination of his records and after consultation with his lawyers and other concerned
persons. Section 26 certainly does not envisage a notice upon a person who is in detention
and he is not expected to give any details of his assets within the time specified. The person
concerned must be afforded a fair and reasonable opportunity to respond to the notice,
otherwise, it is no notice in the eye of law. A notice issued under section 26 of the Act to a
detenu, away from his hearth and home, cannot be said to be a fair and bonafide exercise of
power.”
Under such circumstances, we are of the view that the allegations have been made against the
accused petitioners are preposterous and no offence under sections 26(2) and 27(1) of the
111
ACC act, 2004 has been disclosed in the instant proceeding. We find that the ACC has
deliberately and meticulously hyperboles the materials and facts as contained in the F.I.R.
and charge sheet in order to prosecute the accused petitioner for harassments.Under the facts
and circumstances of the case and the observation made above, we find substance in the
submissions made by the learned advocate for the petitioner. Accordingly, the rule is made
Absolute.
Md. Shahdat Hossain vs State and another, Criminal Misc. Case No. 3006 of 2010 (Mr.
K.M. Kamrul Kader, J, decided on 04.06.2014) : Investigating Officer submitted Charge-
Sheet on 10.3.2008 after 13 months of lodgment of the FIR. However we are of the view that
these provisions are directory only not mandatory. In the case of Syeda Sajeda Chowdhury
Vs. The State, in Criminal Miscellaneous Case No. 42595 of 2012 this Division held that:
“So far as Rule 10 is concerned, we can, however, not be in agreement with the petitioner’s
contention, because, in our introspection, for the reasons stated above, commands made
through
Rule 10 are directory only.”
The final question is as to whether or not a criminal proceeding against the accused should be
quashed, when Government exonerated him from the departmental proceeding. A
departmental proceeding was started against the accused-petitioner on the self same alleged
offence. The accused-petitioner was suspended on 18.03.2007 in connection with the instant
case. The accused-petitioner has been discharged from the departmental proceeding on
18.8.2008 as the allegation against him was not proved. The order of suspension of the
accused-petitioner has been withdrawn on 04.11.2012. Now he has been discharging the duty
as Assistant Commissioner in the Nejarat Section of the office of Deputy Commissioner,
Chittagong. In the case of “Mohammad Jahangir Hossain Howlader Vs. Chief Metropolitan
Magistrate, Dhaka and others” 26 BLD (HCD) 2006, 83 it was held that:-
“The case in hand is the rarest of rare cases in which the writ jurisdiction can reasonably be
invoked. The special feature of this case is that the Ministry of Finance, Internal Resources
Division, constituted a high powered committee consisting of the three high officials who in
their report found that the petitioner had performed his duty in accordance with law. On the
basis of that report, the Government exonerated the petitioner from the departmental
proceeding. The Government, however, has allowed a criminal case to proceed against the
petitioner on the self-same occurrence. Such an attitude of the Government in two different
forums cannot be accepted. Since the Government exonerated the petitioner from the
departmental proceeding we find that the criminal proceeding so far as it relates to the
petitioner should be quashed in the facts and circumstances of the instant case.”
Under such circumstances, we are of the view that the allegations have been made against the
accused petitioner are preposterous and no offence under section 409 of the Penal Code and
section 5 (2) of the Prevention of Corruption Act 1947 has been disclosed in the instant
roceeding. We find that the ACC has deliberately and meticulously hyperboles the materials
and facts contained in the F.I.R. and charge sheet in order to prosecute the accused petitioner
for harassments. Under the facts and circumstances of the case and the observation made
above, we find substance in the submissions made by the learned advocate for the petitioner.
Accordingly, the rule is made Absolute.
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2015
Anti-Corruption Commission vs Mehedi Hasan and Others, 67 DLR (AD) (2015) 137
(Mr. Syed Mahmud Hossain, J, decided on 11.02.2015) : Allegations of abetment against
respondent No. 1 in manipulating tender for sale of abandoned properties prima facie found
to be true in police report - Said report submitted by investigation officer duly empowered by
Anti-Corruption Commission - Respondent No. 1 is beneficiary of illegal transaction -
Aforesaid elements certainly attract ingredients of abetment in manipulating tender for sale of
abandoned properties - High Court Division not justified in quashing proceedings.
Anti-Corruption Commission vs A.A.M. Habibur Rahman and Others, 67 DLR (AD)

(2015) 278 (Mr. Hasan Foez Siddique, J, decided on 12.04.2015) : Allegations against
respondent prima facie found to be true - Non implicating any person as accused in
proceeding cannot be ground for quashing proceeding of charge-sheeted accused - Prima-
facie case established against charge-sheeted accused - High Court Division not justified in
quashing proceedings.
Sharif vs State, 69 DLR (AD) (2017) 41= 4 CLR (2016) 8 (Mr. Hasan Foez Siddique, J,
decided on 31.08.2015) : In an application under section 561A of the Code of Criminal
Procedure, there is little scope to scan the evidence, of witnesses and that since it is not a case
of no evidence it is difficult to interfere with the judgment and order passed by the Tribunal.
In view of the evidence and, the conclusion arrived at by the High Court Division, the
judgment and order impugned here do not call for any interference by this Division.
Anti-Corruption Commission vs Rezaul Kabir and Others, 68 DLR (AD) (2016) 291= 14
ADC (2017) 173= 4 CLR (2016) 61 (Mr. Hasan Foez Siddique, J, decided on 03.11.2015)
: Proceeding cannot be quashed depending on alleged procedural error in method of
collection of evidence - High Court Division failed to distinguish allegation of demands,
acceptance and attempts to accept gratifications and those with procedure to collect evidence
- Erroneously quashed impugned proceedings.
M. Shamsul Islam and Others vs State and Others, 67 DLR (2015) 294 (Mr. Md. Moinul
Islam Chowdhury, J, decided on 03.03.2015) : In dealing with an application under section
561A a court may take into consideration the hardwork on the part of prosecution at different
stages before initiation of a proceeding by way of taking cognizance by a court below
because ends of justice is not a one way traffic, i.e. for accused only, but also for victims of
an offence, therefore any interference might be similar to uproot a growable tree without
waiting to see what kind of fruit or flower it could produce as a grown up tree in course of
time. This kind of application should not be allowed in order to delay the proceeding to reach
its conclusion on merit expeditiously.
Begum Khaleda Zia vs Anti-Corruption Commission and Others, 68 DLR (2016) 1= 36

BLD (2016) 27= 24 BLT (2016) 26 (Mr. Md. Nuruzzaman, J, decided on 18.06.2015) :
Allegation against petitioner that she otherwise abused her office or abetted others to use
office for any illegal gain within meaning of criminal misconduct as defined in Section 5(1)
of Act, 1947 or her alleged involvement as an abettor under Section 109 of Penal Code
cannot be determined in a separate criminal proceeding and same must be adjudicated in
instant proceeding by Special Judge appointed under section 5 of Act, 1958 - In view of facts,
circumstances, this court do not find any merit in Rule.
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Giasuddin-Al Mamun vs State and Others, 68 DLR (2016) 67 (Mr. Ruhul Quddus, J,
decided on 15.09.2015) : Quashment of a criminal case for non-supplying of certified copy
of any document, which is not available in record, is not legally acceptable.
2016
Abu Sayeed Chowdhury vs State and Others, 68 DLR (2016) 169 (Mr. A.K.M.
Asaduzzaman, J, decided on 17.01.2016) : The Artha Rin Suit is for realization of money
and the instant criminal case under section 138 of the Negotiable Instruments Act is for the
offence committed by the petitioner on dishonoured the cheque. In view of the above settled
law of our Appellate Division, since the criminal proceeding can be proceeded independently
of the civil suit, there is no bar to proceed with the instant criminal proceedings.
Mohammad Hasan vs The State, 68 DLR (2016) 225 (Mr. A.K.M. Asaduzzaman, J,
decided on 19.01.2016) : When the cheque was dishonoured by the bank on the ground of
'insufficiency of fund' in the respondent's account, a proceeding under section 138 of the N.I.
Act cannot be frustrated merely on a technical ground.
Alhaj Md. Harun and Others vs The State and Others, 68 DLR (2016) 535= 36 BLD
(2016) 200 (Mr. A.K.M. Asaduzzaman, J, decided on 01.02.2016) : In a case under section
138(1) of the Negotiable Instruments Act, 1881, the offence is not deemed to have been
committed against the state. The proceeding is initiated by the 'payee', or a 'holder in due
course', who has proprietary right and interest in the property of the dishonoured cheqaue.
The state is not a necessary party, though it may be a property party in such a case. N.I. Act
case is unlike a case filed under Penal Code etc. This distinction will be more clear from the
fact that, for preferring appeal against the judgment and order of sentence passed under N.I.
Act, not less than 50% of the amount due under dishonoured the cheque has to be deposited
in the trial court, unlike in the case of preferring an other appeal against conviction. In a case
under N.I. Act, cost may be awarded to the aggrieved party for causing financial hardship,
leading a person or a family to the verge of ruination, for harassment and inflicting mental
agony on frivolous grounds or by resorting to deelatory tactics or on issues of law already
settled by the Appellate Division, i.e. when the accused-petitioner does not come in clean
hands for seeking justice, but with collateral purpose.
Mozahar Sowdagor (Md.) and Others vs State and Others, 69 DLR (2017) 204 (Mr.
A.K.M. Asaduzzaman, J, decided on 03.02.2016) : In view of the terms as used by the
legislature "it is proved" it is clear that mere statement in petition of complaint, it is not
enough to held a person, responsible of Company or the other manager, secretary or other
officer of the Company, guilty - It needs to be proved by way of evidence - So long evidence
is not adduced against those persons, they cannot be held guilty - Determination of a person
having consent or connivance of, or is attributed to or any negligence on his part during the
business of a Company or not is a disputed question of fact and can only be determined upon
taking evidence during trial - This question of fact is out of the ambit of the Jurisdiction of
High Court Division, conferred under Section 561A of the Code of Criminal Procedure - No
scope to decide the said question of fact, sitting under Jurisdiction of section 561A of Code.
Md. Golam Farque vs Md. Selim Reza and another, Criminl Misc. Case No. 42518 of
2014 (Mr. Md. Farid Ahmed Shibli, J, decided on 11.08.2016) :
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Mere non-disclosure of facts in the petition of complaint cannot be a valid cause to make the
entire proceedings liable to be quashed:
All particulars relating to the date of receipt or the manner of service of the legal notice
including other relevant parenthetical information are bundle of facts and any discourse on
those facts or their unerring decision requires in-depth scrutiny and threshing of the evidence
to be produced in trial. So, mere non-disclosure of those facts in the petition of complaint
cannot be a valid cause to make the entire proceedings liable to be quashed, which in true
sense will deprive the complainant to prove his case on evidence.
Mohammad Hasan vs The State, Criminl Misc. Case No. 2352 of 2016 (Mr. A.K.M.
Asaduzzaman, J, decided on 19.01.2016) :Whether a notice has been published in a daily
Bangla National Newspaper having wide circulation or not is obviously a matter of fact and
can be decided on merit after taking evidence by the trial court. If a daily national newspaper
is very much available in around the area where the accused usually resides or having
business can be said to have wide circulation. Howeversince this is absolutely a discretion of
the trial court to determine the question about the wide circulation of the daily newspaper, we
are of the view that this question of fact is out of the ambit of jurisdiction under section 561A
of the Code of Criminal Procedure, and can not be quashed. In a number of cases it has
already been settled that the inherent powers under section 561A of the Code, under the
following categories of cases, wherein such power could be exercised either to prevent abuse
of the process of any court or otherwise to secure the ends of justice,
1) ‘Where the allegations made in the first information report or the complaint, even
if they are taken at their face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against the accused.
2) Where the allegations in the first information report and other materials, if any,
accompanying the FIR do not disclose a cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
3) Where the uncontroverted allegations made in the FIR or complaint and the evidence
collected in support of the same do not disclose the commission of any offence and make out
a case against the accused.
4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only
a non-cognizable offence, no investigation is permitted by a police officer without an order of
a Magistrate as contemplated under section 155(2) of the Code.
5) Where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the accused.
6) Where there is an express legal bar engrafted in any of the provisions of the Code or
the concerned act (under which a criminal proceeding is instituted) to the institution and
continuance of the proceedings and /or where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7) Where a criminal proceedings is manifestly attended with mala fide and/or where the
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proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to private and personal grudge.’
Md. Sirajuddwla vs The State and another, Criminl Misc. Case No. 2893 of 2016 (Mr.
Zafar Ahmed, J, decided on 20.11.2016) :The accused-petitioner did not make any
application before the trial Court for adjournment of the criminal proceedings. In the instant
applications, he has invoked the inherent power of the High Court Division under section
561A of the Cr.P.C. to quash the criminal proceedings. We have already held that the
criminal proceedings under the Act, 1881 cannot be throttled on the ground of pendency of
the Artha Rin Suit. In the instant applications, the petitioner has not made any prayer for
adjournment of the criminal proceedings till disposal of the Artha Rin Suit.
The inherent power of the High Court Division can be exercised: (a) to make such
orders as may be necessary to give effect to any order under the Code, or (b) to prevent abuse
of the process of any Court, or (c) to otherwise to secure the ends of justice. It is now settled
principle of law established through judicial pronouncements that the inherent power has to
be exercised sparingly with circumspection and in the rarest of rare cases. For the reasons
discussed above, the case in hand, in our view, falls within the category of rarest of rare cases
where an order of stay of the criminal proceedings under the Act, 1881 during pendency of
the Artha Rin Suit which are between the same parties and over the same loan transactions,
should be passed to give effect to section 344 of the Cr.P.C. in order to prevent abuse of the
process of the Court and to secure the ends of justice.
2017
Didarul Alam vs State and Others, 71 DLR (2019) 629 (Mr. A.K.M. Abdul Hakim, J,
decided on 28.03.2017) : The petitioner brought this case of quashment with an oblique
motive, knowing fully Well that they had no valid ground to get the proceeding quashed. It
therefore, transpires that the petitioner initiated the instant proceeding, either with an intent to
avoid repayment, or at least to procrastinate the proceeding initiated by the creditor
complainant. But in this way the petitioner caused wasting of money and time of the
complainant party, and also reached undesirable tax on the court's valuable but limited time,
this being the situation, we feel it necessary to pay off the petitioner by their own coin.
Hence, considering, the conduct of the petitioner as vexatious aimed at delaying the sessions
case, the opposite-party No. 2 should be awarded with cost for loss.
Khandker Latifur Rahman vs The State and Others, 70 DLR (AD) (2018) 25= 14 ADC
(2017) 515 (Mr. Md. Abdul Wahhab Miah, J, decided on 30.03.2017) : Whether High
Court Division could award levy costs against accused - Held, High Court Division did not
mention any provision in awarding costs - High Court Division should have discretion to
award costs against a party under a very extraordinary and exceptional circumstances in a
judicious manner and not in contradiction with any of specific provisions of Cr. PC - High
Court Division was not justified to award costs against accused as no extraordinary
circumstances existed - There was nothing on record that there was suppression of any fact -
High Court Division acted illegally and without jurisdiction in awarding costs.
Zubaida Rahman vs The State and Others, 69 DLR (2017) 562= 37 BLD (2017) 344 (Mr.
Obaidul Hassan, J, decided on 12.04.2017) : Since no cognizance has yet been taken in this
case as per section 4(1) of the Criminal Law Amendment Act, (Act XL of 1958), and there
116
are specific allegations in the First Information Report (FIR) and charge sheet against the
petitioner, truthfulness of the accusation needs to be proved by taking evidence, and thus we
are not inclined to quash the FIR at this stage.
Mamun (Md.) vs State, 70 DLR (2018) 148 (Mr. Muhammad Khurshid Alam Sarkar, J,
decided on 09.05.2017) : High Court might grant stay of conviction only in exceptional and
rare circumstances where non-grant of stay would lead to injustice and irreversible
consequences - Appellant must file a separate application for staying operation of conviction
- Appeal as continuation of trial would not bear notion of remaining innocent until disposal of
appeal - Appellant's application was not in form and misconceived - Appellant must file
separate application detailing reason/s for suspension of sentence - Appellate Court was duty
bound to objectively assess matter and record reasons for conclusion that case warrants
suspension of sentence.
Nurul Huda (Md.) vs State and Others, 69 DLR (2017) 486= 37 BLD (2017) 538 (Mr.
Sheikh Abdul Awal, J, decided on 25.05.2017) : On a reading of the petition of complaint it
is difficult to hold that there is any legal bar or the continuation of the impugned proceeding
will amount to an abuse of the process of the Court. Further, the proposition of law is by now
well settled that on the basis of the defence plea or materials, the criminal proceedings should
not be stifled before trial, when there is a prima-facie case for going to the trial. The petition
of complaint undoubtedly discloses that the accused petitioner is liable for the offence under
section 138 of the Negotiable Instrument Act. In framing charge, the learned Additional
Metropolitan Sessions Judge did not commit any illegality whatsoever.
Begum Khaleda Zia State and Others, 70 DLR (AD) (2018) 99= 15 ALR (AD) (2019)
188 (Mr. Mirza Hussain Haider, J, decided on 28.05.2017) : For quashing a proceeding
under section 561A of the Code, the High Court Division has scope only to see whether there
are materials on record showing that the allegations made in the FIR and the charge sheet,
constitute an offence. If there be any such material the proceeding shall not be quashed, in
that case the trial Court will decide the case on the basis of evidence to be adduced by the
parties in the case. On perusal of the statements made in the FIR and the charge sheet it
appears that there are some materials which may constitute offence punishable under sections
409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947
considering which the High Court Division held that 'there is clear and strong prima facie
case of dishonest misappropriation of public property or otherwise disposal of public property
in violation of law constituting offence punishable under sections 409/109 of the Penal Code
read with section 5(2) of the Prevention of Corruption Act, 1947'.
Shamim Howlader (Md.) vs State, 70 DLR (2018) 776 (Mr. Muhammad Khurshid Alam
Sarkar, J, decided on 10.08.2017) : There is certain guideline laid down for conducting
cases under special laws such as on receiving record from Magistrate, if accused, who is on
bail, does not turn up before Tribunal, Tribunal must fix a date for appearance of accused - If
accused, then, does not appear before Tribunal on fixed date, then Tribunal shall direct surety
to produce accused - After exhausting above steps, if accused does not turn up, then Tribunal
shall proceed to complete trial as expeditiously as possible - After pronouncement of
judgment and order of conviction and sentence, Tribunal shall remind accused that accused
will get only 30 (thirty) days to prefer an appeal, failing which, no application under section
561A of Cr.PC shall be entertained by High Court Division - Judge of Tribunal, then, shall
ensure that accused-turn-convict has understood cautionary directive outlined by this Court
117
above that if Advocate does not inform his client about conviction and his right of preferring
appeal within 30 (thirty) days, then Advocate puts him/herself at a risk of facing allegation of
professional negligence in carrying out her/his duties - Judge of Tribunal, then, shall record in
Order Sheet that s/he has brought to notice of Advocate above cautionary directive - In result,
Rule is discharged.
Shah Kutub Uddin Talukder vs State, 70 DLR (2018) 618 (Mr. Muhammad Khurshid
Alam Sarkar, J, decided on 18.10.2017) : Sessions Judge wrong to opine that difficulties
may arise for Magistrate to conduct judicial inquiry due to lacking expertise in medical and
ballistic issue - Wrongly held that PBI of police department should carry out further
investigation - Impugned judgment and order passed by Sessions Judge in Criminal Revision
arising out of case under Sections 302 and 34 of Penal Code set aside - Rule made absolute.
Dr, Zubida Rahman vs The State and another, Criminal Misc. Case No. 4397 of 2008
(Mr. Obaidul Hassan, J, decided on 14.02.2017) : From the above fact it appears to us that
the truthfulness of the allegation brought against the petitioner can only be ascertained by
taking evidence, thus at this stage the FIR cannot be quashed. Since the charge sheet has not
yet been accepted by the Court, in the eye of law there is no proceeding pending against the
petitioner and until and unless the Court takes cognizance there is no any scope to exercise
the extraordinary power of the High Court to quash the proceeding. In this regard the case of
Durnity Daman Commission vs. Engineer Mosharaf Hossain reported in 21 BLC(AD)211 is
relevant. Now let us see how the petitioner without surrendering before the Court invoked the
criminal miscellaneous jurisdiction of this Court: On 07.04.2008 their Lordships in the High
Court Division ordered that “The petitioner appears in Court in person. The application is
heard in part. Mr. Anisul Huq, the learned advocate for Dudak assisting the State prays for
1(one) day time. The prayer is allowed. The personal appearance of the petitioner Dr.
Zubaida Rahman is dispensed with. Let this application come up in the list on 08.04.2008 for
further hearing and order”, on 08.04.2008 their Lordships issued the Rule, the petitioner’s
appearance has been dispensed with by the order of this Court.
True she did not obtain bail from any Court or she was not in custody at the time of issuance
of the Rule, but nevertheless she remained present before this Court when her application was
placed and this Court dispensed with her appearance. From the charge sheet it appears that no
process was pending against the petitioner at the time of issuing Rule. The investigation
officer in column no.3 of the charge sheet has mentioned that ""µwgK 1 Gi Avmvgx Zv‡iK ingvb
ewY©Z` gvgjvq †MÖdZvi n‡q eZ©gvb †K›`ªxq KvivMvi, XvKvq AvUK Av‡Qb| µwgK 2 I 3 Gi Avmvgx h_vµ‡g RyevB`v
ingvb Lvb Ges ˆmq`v BKevj gv›` evby-‡K †MÖdZvi Kiv nq bvB| Zv‡ì weiæ‡× Iq‡i›U I ûwjqv Ges †µvKx
c‡ivqbv (WP & A) Bmy¨ Kivi Rb¨ weÁ Av`vj‡Z cÖv_©bv Kiv nq|'' which clearly shows that at the time
of issuing Rule no process was issued from any Court of law, thus unerringly it can be said
that at the time of issuing Rule the petitioner was not fugitive. The decision given in the case
of Anti Corruption Commission vs. Dr. HBM Iqbal Alamgir reported in 15 BLC (AD) 2010
Page-44 does have any manner of application in this case. The observation given by their
Lordships in the said case runs as follows: “Admittedly the writ petitioner was a fugitive
from justice on the date he moved the writ petition. He was away from the country and
craved permission of the court to affirm affidavit on his behalf by one H.B.M. Shoave
Rahman. The permission was given and the learned Judges issued rule nisi as above.
It is now settled that a fugitive from justice is not entitled to obtain a judicial
order defying the process of the court. Beside, the learned advocates who move applications
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for the fugitives shall also have to face the consequence of committing contempt of court.
This principle is being followed for over 60 years in this sub continent. References in this
connection are Chand Shah Vs. Crown, 8 DLR (FC) 24, Gul Hassan Vs. State reported in 21
DLR (SC)109, Anti-corruption Commissioner and others vs Mahmud Hassan and others 61
DLR (AD)17.
Admittedly, the writ petitioner was convicted in absentia by the judgment and
order dated 13 March, 2008 by the Special Judge, First Court, Dhaka. Naturally, the learned
Special Judge issued warrant for the execution of the sentence under section 389 of the Code
of Criminal Procedure at the time of delivery of judgment, an the writ petitioner moved the
petition on 17th September, 2008 when there was warrant for the execution of the sentence.
We failed to understand in the backdrop of the case, how the learned Judges of the Division
Bench could even entertain the writ petition on behalf of a fugitive from justice, ignoring the
long settled principles being followed by the courts? If this process is allowed, the fugitives
from justice either convicted or not will be emboldened and despite processes have been
issued, they will defy the processes of the courts and in such cases, the administration of
criminal justice will be crumpled. We cannot conceive of a more flagrant violation of this
principle that a convict who seeks the interference of the sovereign to obtain revision of a
judicial order must submit to the court instead of engaging himself in setting that judicial
order at naught. It is well settled that when a person seeks remedy from a court of law either
in writ jurisdiction or criminal appellate, revisional or miscellaneous jurisdiction under
section 561A of the Code of criminal Procedure he ought to submit to the due process of
justice. Let it be made clear to him, if it is not already known that the court would not act in
aid of an accused person who is a fugitive form law and justice.”
A ‘fugitive’ is someone who is running away or hiding intending to avoid being arrested. But
it does not appear from the record that process was issued by a competent Court of law for
securing petitioner’s arrest and as such no question of evading execution of process arises.
Thus, and since petitioner’s personal appearance was dispensed with by this Court she cannot
be considered as a ‘fugitive’. It has already been observed that the petitioner’s appearance
was dispensed with by this Court and till 08.04.2008 no warrant or summon has been issued
from any Court of competent authority in connection with this case we are constraint to hold
that the petitioner is not a fugitive in the eye of law, the present case is clearly distinguishable
with the case of Dr. H.B.M. Iqbal reported in 15 BLC (AD) 210. Section 561A of the Code of
Criminal Procedure confers wide power, true. But the well settled proposition is that in
exercising this power the court requires being more cautious and this power in a matter of
quashment of proceedings is to be exercised sparingly. Exercise of this inherent power relates
to onerous and more diligent duty of the Court.
Only when the Court, in light of facts and circumstances is justifiably prompted to conclude
that there would be manifest injustice or there would be abuse of the process of the Court if
such power is not exercised, it can make it convinced that the proceedings need to be
quashed. As the power under section 561A of the Code of Criminal Procedure is conferred in
order to secure due dispensation of justice, this Court has to be extremely circumspect on
issuing order in intervention of a case. But what we see in the matter in hand? It transpires
that on lodgement of FIR investigation started and on conclusion of investigation police
report recommending prosecution of the petitioner was submitted and the matter was at the
stage of taking cognizance of offences alleged. At this stage, we do not deem it just to
interfere with the proceedings by exercising power vested in section 561A. Only the Court of
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competent jurisdiction can arrive at decision whether cognizance of offence is to be taken, on
appraisal of materials before it. Besides, in exercising power vested in section 561A of the
Code of Criminal Procedure there has been no room to resolve the truthfulness of the
arraignment particularly when police report has been submitted after concluding investigation
recommending prosecution of the petitioner. This Court does have power to interfere with the
proceedings at its any stage only where the facts involving the arraignment are appear to be
preposterous and when no case appears to stand against the accused petitioner and the further
continuation of such proceedings would indisputably cause an abuse of the process of the
Court.
But the matter in its entirety impels to conclude that reliability of the accusation against the
petitioner can be well adjudicated only in trial on the basis of evidence to be tendered by the
prosecution when the petitioner must have due opportunity of being defended and to refute
the arraignment brought against her, if cognizance of offence is taken and trial commences on
framing charge by the Court of competent jurisdiction. However, since no cognizance has yet
been taken in this case as per section 4(1) of the Criminal Law Amendment Act, (Act XL of
1958), and there are specific allegations in the First Information Report (FIR) and charge
sheet against the petitioner, truthfulness of the accusation needs to be proved by taking
evidence, and thus we are not inclined to quash the FIR at this stage. The decisions cited by
Mr. A.J. Mohammad Ali do not have any manner of application in this case. There will be
opportunity for the petitioner to prove herself innocent by cross-examining the prosecution
witnesses, if any. We do not think the allegation brought against the petitioner is
preposterous, thus the Rule is discharged.
2018
Aleya vs State and Others, 70 DLR (2018) 303 (Mr. Muhammad Khurshid Alam
Sarkar, J, decided on 20.02.2018) : It did not appear that prosecution story was
preposterous - Proceedings could not be quashed on ground of preposterousness - Payee was
required to satisfy Court conditions at time of taking cognizance - Complainant placed
cheque within six months of its issuance of cheque and same was presented for encashment -
Requirement of Section 138 of Act has been satisfied - Initiation of proceedings on basis of
second notice was not legal and taking cognizance of complaint by Magistrate was also not
legal - Continuation of proceedings was an abuse of process of Court - Proceedings quashed.
Nasir Mia (Md.) vs State, 70 DLR (2018) 801= 39 BLD (2019) 46 (Mr. Md.
Shohrowardi, J, decided on 29.05.2018) : It is found that P.Ws. 2, 3 and 4 who are local
respectable persons of locality of crime site corroborated evidence of PWs 1 and 5 to 7 who
are police personnel as regards recovery of arms from possession of convict and their
evidence remains unshaken during cross-examination -Therefore, this court is of view that
prosecution successfully proved charge up to hilt against convict petitioner under Section
19A and 19(f) of Arms Act - In view of above, this court do not find any valid ground for
quashing judgment and order of conviction and sentence passed by trial Court.
Moinul Hoque Chowdhury and Others vs State and Others, 70 DLR (2018) 533 (Mr.
Md. Akram Hossain Chowdhury, J, decided on 02.07.2018) : To invoke the jurisdiction
under section 561A as to while apparent from the face of the FIR or complaint the facts and
allegation against the accused petitioner is found as a preposterous one and there has been a
legal bar to proceed the proceeding and in as much as while there has been a corum non-
120
judice. Whereas, in the instant case the accused petitioners straight way moving to this Court
under section 561A of the Code of Criminal Procedure, at the very initial stage of the case,
stayed the whole proceeding of the case; even though there has been some specific
allegations against them and while the other co-accused were in absconding against whom
the warrant of arrest was pending.
Firozul Islam vs State and Others, 70 DLR (2018) 744= 27 BLT (2019) 68 (Mr. Sheikh
Abdul Awal, J, decided on 08.08.2018) : The extra-ordinary power of the High Court
Division under section 561A of the Code of Criminal Procedure cannot be invoked by a
person after becoming unsuccessful in an application under section 439A of the Code of
Criminal Procedure except for some specific purposes set out in the provision itself, that is, to
give effect to any order under the code or to prevent the abuse of the process of any Court or
to secure the ends of justice which are totally absent in the present case inasmuch as we do
not find anything in the impugned judgment and order that requires our interference for
preventing abuse of the process of the Court or securing the ends of justice and in that view
of the matter this miscellaneous case under section 561A of the Code of Criminal Procedure
is hit by sub-section (4) of section 439 of the Code of Criminal Procedure and on this score
also the instant rule is liable to be discharged.
Md. Mujib-ud Doula Bhuiyan vs The State and Others, 71 DLR (2019) 634= 27 BLT
(2019) 79 (Mr. S.M. Kuddus Zaman, J, decided on 12.12.2018) : Since a plain reading of
the petition of complaint does not prima-facie disclose the existence of an offence punishable
under sections 406 or 420 of the Penal Code against the accused-petitioner further
continuation of the same would cause unnecessary harassment to the accused-petitioner and it
would be a sheer abuse of process of the Court. Therefore, the proceeding of the case is liable
to be quashed to secure the ends of justice.
Syed Galib Ahmed and another vs The State and another, Criminal Misc. Case No.
11914 of 2008 (Mr. Md. Nazrul Islam Talukder, J, decided on 25.11.2018) :
It is worthwhile to mention that the extraordinary or inherent powers as given in Section
561A of the Code of Criminal Procedure do not confer any arbitrary power, authority and
jurisdiction on the Court to act or to perform anything by its own way of thinking and
procedure save and except the settled principles of law. The disputed questions of facts are
the matters of trial and evidence and the same can only be examined, resolved and decided by
the learned trial judge taking evidence from the witnesses of the respective parties of the case.
It is important to note that the inherent jurisdiction under Section 561A of the Code of
Criminal Procedure, though undefined, indefinite and wide, has to be exercised sparingly,
carefully and with caution in a rarest of the rare case to do real and substantial justice for
which the Court exists. It is now well settled that the allegations that have been brought
against the accused-petitioners and others are disputed questions of facts which require to be
proved before the trial court on taking evidence from the witnesses of the respective parties.
Furthermore , as per contention of the learned Advocate for the accused - petitioners ,
the accused-petitioner s have been implicated in this case out of political rivalry and political
reasons. This is also a matter which can only be considered by the learned trial judge at the
time of trial of the case. At this stage, the power and jurisdiction of this court under Section
561A of the Code of Criminal Procedure is limited to ascertaining the truth or otherwise of
the allegation . Under the aforesaid facts and circumstances, we are not at one with the
learned Advocate for the accused-petitioner that the allegations disclosed in the F.I.R and the
charge-sheet are preposterous and the same do not disclose any offences under Sections
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409/109 of the Penal Code read with under Section 5(2) of the Prevention of Corruption Act,
1947. According to the averments of the FIR, charge-sheet and confessional statements, the
prosecution has made out a clear case of corruption and abetment against the accused-
petitioners and others and, as such, our considered view is that the allegations that have
been brought against the accused-petitioners and others are not preprosterous rather the
prosecution materials disclose prima-facie case against the accused-petitioners and others and
for these reasons, it needs scrutiny of the allegatins taking evidence from the witnesses of the
respective parties. Therefore, on this count, the Rule is liable to be discharged, as the
submissions of the learned Advocates for the accused-petitioners in this regard fall flat.
Md. Aynul Haque alias Abdul Manan vs The State and another, Criminal Misc. Case
No. 20550 of 2014 (Muhammad Khurshid Alam Sarkars, J, decided on 15.02.2018) :
Now, following resolution of this Court that both the impugned Orders are liable to be
quashed, what becomes the present status of this case and what is the next course of action to
be taken by the Court below: (i) should there be an order by this Court to conduct further
enquiry under Section 436 of the CrPC or (ii) by exercising the power of this Court under
Section 561A CrPC, should it be sent back to the learned CJM to consider afresh the Judicial
Enquiry Report upon independently analyzing the statements of the JWs or (iii) should this
Court direct the cognizance-taking Magistrate to take cognizance against the persons whose
complicity in the alleged offence is apparent the JWs, exercising its inherent power under
Section 561A of the CrPC?
Section 436 of the CrPC is placed within Chapter XXXII, which, mainly consists of Section
435, 435, 439 & 439A, under the caption “Of Reference an Revision” Had this petition been
filed directly before this Court, bypassing the Court of Sessions Judge’s revisional forum, for
revising the order passed by the Magistrate with a prayer “to direct the CJM to make further
enquiry into the informant/complainant’s complaint, part of which has been dismissed under
Section 203 of the CrPC” (wordings employed in Section 436 of the CrPC), then, in view of
the dismissal of complaint against some of the accused without recording independent
findings and reasonings by the Magistrate, it would have been incumbent upon tis Court to
allow the prayer requiring the CJM of gaibandha to make further enquiry int the complaint.
Evidently, this application has not been filed before this Court for revision. Due to the
prohibition imposed upon this Court by Section 439(4) of the CrPC, this Court cannot
entertain a second revision against the Order of the revisional Court.
It has been submitted by the learned Advocate for the accused that the High Court Division or
the Sessions judge is not competent to direct the Magistrate to make further enquiry is a fit
case, but the present case is not a fit case to order so. In an effort to substantiate the above
submissions, the cases of Bangladesh Vs Yakub Sardar 40 DLR (AD) 53 have been referred
to by the learned Advocate for the accused. Let us discuss the facts and legal issues of the
cited cases. In the case of Yusuf A. Hasan Vs RezaulFirdus 48 DLR (AD) 53, the accused
was a Government servant and when he had written about the complainant’s corruption to his
higher authority, the complainant filed a defamation case under Section of the Penal Code.
Since the accused had done it in his official capacity, the law requires that the complainant
must obtain approval from the Government for filing this kind of case. Thus, there was no
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scope for the Magistrate to take cognizance against the accused without, first, seeing the
government’s sanction to prosecute the accused and, consequently, the complaint was
dismissed and, in course of adjudication of the matter by the Appellate Division, the Apex
Court, while upholding the order for further enquiry into the complaint, made an observation
that neither the Sessions Judge not the High Court Division can direct the Magistrate to take
cognizance of an offence. In the other referred case, namely. Bangladesh Vs Yakub Sarder 40
DLR(AD)246, the issue before the Apex Court was, whether the Sessions Judge is employed
to direct a Magistrate to send the case to him for trial when the Magistrate dismissed the
complaint under Section 203 of the CrPC. In disposing of the case, while the Apex Court
indicated that had the High Court Division exercised its inherent power, there would have an
occasion to examine the issue as to whether the High Court Division is competent to direct
the Magistrate to issue summon against the accused towards sending the accused to the trial
Court. Thus, the facts of the afore-referred cases going different facts of this case and, more
importantly, the issues taken up by the Apex Court for adjudication in the afore-citied cases
being not similar, the ‘ratio’ laid down therein is not applicable in this case.
While it is a settled principle of law, which is being consistently followed by us, that in an
appropriate criminal revisional application, direction of further enquiry should be made by
the Sessions Judge or the High Court Division upon receiving an application under Section
436 of the CrPC into any complaint which has been dismissed under Section 203 or 204(3) of
the CrPC, or into the case of any person who has been discharged from an offence, however,
in this case, since the informant/complainant did not have the scope of approaching this Court
invoking its revisional jurisdiction for revising the Order passed b the Magistrate, does he
deserve an order of further enquiry int his complaint under Section 561A of the CrPC? The
answer thereto now requires to be searched, for, the present application, has been filed under
Section 561A of the CrPC and the same being maintainable, as has been geld in the case of
Sued Ehsan Abdulah Vs State 2017(I) L&J 135 by this Court after revisiting scores of case-
continent, the inherent power of this Court may well be involved for securing the ends of
justice, either to order for further enquiry or for fresh consideration of the materials available
before the Magistrate of for directing to take cognizance of the offence against the accused
who have not been proposed to be prosecuted by the IO and also by the Enquiring Magistrate.
Now, let us see what types of ends of justice would be met it this Court directs for further
enquiry. Since it would be unfair to direct further enquiry by any police officer after carrying
out a Judicial Enquiry, logically, there may be a further Judicial Enquiry by a different
Enquiring Magistrate. What are the steps the new Enquiring Magistrate would take;
presumably s/he may visit the relevant places and may take additional evidence form some
more witness. However, it is unlikely that by visiting the relevant pace/s after 9(nine) years of
the occurrence, the new Enquiring Magistrate is going to obtain any useful information and
also any additional witnesses. Therefore, it would be a futile exercise to carry out a further
Judicial Enquiry. It follows that there may be an order by this Court to the CJM for
consideration of the statements of the JWs afresh in an expectation to judiciously asses the
said statements and thereby independently pass an order, either, of taking cognizance of the
123
offence against the persons named in the police report & Judicial Enquiry Report together
with the persons named in the petition of complaint, or, of being in agreement with the
recommendations made by the IO and the Enquiring Magistrate dropping off the manes of the
four accused.
Now, a pertinent question comes up for consideration by this Court as to what would happen
if the new cognizance-taking Magistrate passes the same order which was passed by the
previous cognizance-taking Magistrate. The answer is that the informant is to approach this
Court again and, pursuant thereto, this Court also would pass the same order again. So.
ultimately, there would be repeated exercise at the cost of putting the informant at
harassments. With the above hypothetical scenario the question that pops-up is that is this
Court helpless in this kind of situation to direct the Magistrate to take cognizance against the
persons whose complicity in the alleged murder is apparently evident in the statements of the
JWs or the statements made by the witnesses under Sections 161 & 164 of the CrPC or by the
accused under Section 164 of the CrPC or in any other prosecution materials?
The power of taking cognizance of an offence against any accused is vested in the
Magistrates by the Legislature vide Section 190 of the CrPC and therefore, it is the
Magistrate who should be satisfied as to whether cognizance is to be taken or not against any
person, be s/she is Recommended by the IO/Enquiring Magistrate or not and thus, the
function of taking cognizance being the exclusive business of the Magistrates, passing an
order of direction upon the Magistrate to take cognizance is beyond the competence of the
Sessions Judge and High Court Dividion in exercising their appellate or revisional
jurisdiction. However, by exercising power under Section 561A of the CrPC, in a fit and
proper case, which may be found in the rarest of rare cases, the High Court Division is well
competent to direct the Magistrate to take cognizance towards securing the ends of justice.
For example, form the prosecution materials when any one with ordinary prudence would be
able to sum up that 1+ 1 becomes 2, making the above result to be 1.50 or 2.50 by a
Magistrate would be a perverse decision and, in that scenario, interference by the High Court
Division exercising its inherent power would be quite justified. Similarly, when it is vividly
before the Magistrate that s/she did not have any option other than to take cognizance of an
offence against any accused, passing an order of non-prosecuting the said accused will be a
perverse one.
After carrying out careful examination of the provisions of Sections

190,200,202,203,435,436,439,439A and 561A of the CrPC, we are of the view that upon
receiving the Naraji petition against the police report if a Judicial Enquiry is conducted and
on consideration of the police report, Judicial Enquiry Report and other prosecution
materials, the Magistrate does not take cognizance of an offence against any accused by
dismissing the Naraji petition (complaint) wholly/party under Section 203 of the CrPC and
the informant-complaint seeks to revise the order directly form the High Court Division
without preferring a revision before the Court of Sessions Judge, the High Court Divisions
proper order would be to direct further enquiry. But when the informant-complaint takes
recourse to the inherent power under Section 561A of the CrPC, irrespective of the fact
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whether the petitioner invoked the inherent power directly or after exhausting the revisional
forum of the Court of sessions Judge, on the ground that there is no need for further enquiry
in the backdrop of availability of the evidence already obtained through Judicial Enquiry, the
High Court Division is not powerless to direct the CJM or the concerned against whom prima
facie evidence is very much evident in the Judicial Enquiry Report subject to the condition
that the High Court division is satisfied that the order of the Magistrate in dismissing the
Naraji (complaint) entirely/party waw perverse or ex-facie wrong being manifestly at
variance with the evidence which the enquiring Magistrate obtained. The rationale behind
holding the above view is that when the informant, upon disagreeing with the outcome of the
investigation by the police, opts for Judicial Enquiry and the Judicial Enquiry reveals
commission of an offence against the accused named in the complaint petition, but the
Magistrate does not take cognizance, there is no need to conduct further enquiry as the
informant-complainant is not raising grievance against the Judicial Enquiry; the
complainant’s grievance in the said situation is only against the Order of the cognizance-
taking Magistrate. And when the CJM/the concerned Magistrate would be asked to consider
the Judicial Enquiry Report afresh and, pursuant thereto, if the Magistrate passes the self-
same order, sending back the matter to the CJM/concerned Magistrate would turn t be an
exercise in futility.
However, in this case, we are not passing any order directing the CJM or the concerned
Magistrate to take cognizance, for, we are of the view that ends of justice would be met if we
direct the CJM to hear the issue of taking cognizance upon judiciously evaluating the
evidence available in the file, in particular, the statements of the JWs and, thereby, pass an
appropriate order of taking cognizance of the alleged offences against all the accused or a
few, either under Section 190(1) of the CrPC or dismiss the Naraji petition (complaint)
wholly/party under Section 203 of the CrPC.
Before parting with this Judgment, this Couet finds it to be its Constitutional duty under
Article 109 of the Constitution to set down some guidelines for the learned Sessions Judges
who deal with the criminal revision applications against the Orders and also, for the learned
Magistrates with an expectation that they would endeavour to be accurate in passing Judicial
Orders and help the Judiciary to save invaluable working hours, which are being spent in
dealing with Revisional and Miscellaneous matters and , thereby, establish and uphold the
majesty and magnanimity of the Judiciary.
Guidelines for the learned Sessions Judges:
(i) In exercising the criminal revisional power bestowed upon the learned Sessions Judges,
they should not shrug off their duty and responsibility of revising the impugned
Judgement/order by simply agreeing or disagreeing with the lower Court’s Judgement/Order.
(ii) They are statutorily obligated to delve deep into the question of law in the context of the
given facts of the concerned case and, then, record own view/s reflecting their independent
performance and competence.
125
(iii) They must be judicious and quick in disposing of the revisional matters field against any
Order so that the general people cannot blame the judiciary that the enquiry of trial of a case
is delayed due to the poor and slow performance of the Courts.
(iv) Immediately before retirement from service, while many of the servants of this country
passes a tendency to be dereliction of their respective duties and work in a cavalier fashion,
the learned District and Sessions Judges must not hold the aforesaid mentality, rather they
should be more serious in performing their duties at such juncture of their service, so that
their junior colleagues, the Supreme Court, the Advocates and the Court-staff remember them
forever with admiration.
(v) They should put in their best efforts to earn recognition from the citizenry that the
Judiciary is the most dynamic and patriotic organ of the State, being named and run by
honest, brilliant, vigilant and skilled officers.
(vi) In collaboration with the CMM/CJM, they shall hold, at least once in a month, a Judicial
conference with all the Judges and Magistrates at the office of the District/Metropolitan
Sessions Judge with a view to knowing the hurdles/problems they are facing in carrying out
their performance and, then, seek to find solution the light of the provisions of (1) Civil Rules
and orders and (2) Criminal rules and Orders. There should be a special session in the
conference, where the Sessions Judges and CMM/CJM shall share the interpretations on the
provisions of procedural laws of the land (namely, CPC& CrPC) settled by the Apex Court.
Guidelines for the learned Magistrates who would be assigned for conducting Judicial
Enquiry:
(i) While the primary duty of an Enquiring Magistrate is to take statements form the
witnesses whose names are citied in the petition of complaint/Naraji petition, s/he should also
take statements form the persons who appear to the Enquiring Magistrate to be relevant
witnesses.
(ii) An Enquiring Magistrate should endeavour to visit and inspect the place of occurrence, if
it transpires to her/him to be useful for the purpose of ascertaining the veracity of the
allegations made in the complaint/Naraji petition.
(iii) In preparation of the Judicial Enquiry Reports, an Enquiring Magistrate should record the
demeanour of the JWs, if there was something noticeable, in addition to starting her/his own
findings and opinion on the works done by her/him.
(iv) An Enquiring officer must try to complete the judicial enquiry within the shortest
possible time.
Guidelines for the learned Magistrates who take cognizance:
(i) In taking cognizance, a Magistrate must minutely, examine all the available prosecution
materials, namely, FIR, sketch map, Index, seizure list, medical certificate, post-mortem
126
report & Inquest report (in case of homicidal offence), the statements made by the witnesses
under Sections 161 & 164 if the CrPC, the statements/confessions made by the accused under
Section 164 of the CrPC, case deary, for, the police report under Section 190 (1)(b) of the
CrPC does not mean only the report prepared by the IO, but it also includes all the materials
mentioned above. And if there is any Judicial Enquiry, the cognizance-taking Magistrate
must examine all the materials of the Judicial Enquiry Report, which include the statements
of the JWs, findings and observations on the seized goods/articles seen by the won eyes of
the Enquiring Magistrate, on the crime spot/other places visited and inspected under Section
539B CrPC and other incriminating materials.
(ii) In a CR Case, be it based on oral/written petition or Naraji petition, when a Magistrate

takes statement under Section 200 CrPC, s/he should precisely record the statements of the
complainant from which any one may be able t understand the nature of the allegation.
(iii) A Magistrate should be satisfied from the statements made under Section 200 CrPC that
there is prime facie ingredient to take cognizance of any offence.
(iv) If it is a complaint under Section 138 of the NI, Act, a Magistrate must follow the
guidelines laid down in the case of Aleya Vs the State 12ALR 2018(1) HCD 90.
(v) A Magistrate must get satisfaction his/her own before taking cognizance of an offence
against anyaccused not recommended/proposed by the I/O or the Enquiring Magistrate, s/he
is not competent to drop off any person against whom charge-sheet has been filed and/or
recommendations have been made by the Enquiring Magistrate.
In the result, the Rule is made absolute and the Judgement and order 09.01.2014 passed by
the learned Senior Sessions Judge, Gaibandha in Criminal Revision No. 271 of 2012 and,
also, the Judgement and Order dated 24.07.2012 passed by the learned Senior Judicial
Magistrate, Gaibandha in G.R. Case No. 205 if 2009 (Gobindgonj) arising out of Gohindgonj
Police Station Case No. 22 dated 11.05.2009 (at present Sessions Case No. 372 of 2012)
taking cognizance against the charge-sheeted accused persons under Sections 302/201/34 of
the Penal Code and discharging the non-sent-up accused persons in the charge-sheet after
holding Judicial Enquiry, are hereby set aside.
In view of the fact that this case has run a zigzag course for a period of nearly 9 years, it
would be wise for the learned CJM, Gaibandha to have the hearing on the issue of taking
cognizance of the alleged offence against the dropped off accused person on proper
evaluation of the evidence of the JWs, either the CJM her/himself or by an experienced
Judicial Magistrate. The hearing should be aimed at getting prima faciesatisfaction as to
whether there are materials for prosecuting any accused, not for making an assessment of
convicting the accused. The Magistrate shall be at liberty to take cognizance of an offence
against all of the accused or only against whom s/he is satisfied that there is/are ingredient/s
to prosecute. But it is to be remembered by the Magistrate that s/he is not empowered to drop
off the accused against whom the I/O and the Enquiring Magistrate have recommended for
prosecution.
127
The learned District and sessions Judge, Gaibandha is directed to hold a judicial conference
within 15 (fifteen) days of the receipt of this Judgement and Order with all the learned Judges
of the Gaibandha Judgeship and the learned Judicial Magistrates of Gaibandha with an aim to
educate and instruct them about the guidelines laid down by this Court by this Court in this
Judgement well as the guiding principles set our in the Judgement passed by this Court in the
case of Aleya Vs the State reported in 12 ALR 2018(1)HCD 90 and, thereafter, submit a
compliance report before the Registrar General of the Supreme Court of Bangladesh within 7
(seven) days of holding the aforesaid judicial conference.
2019
Iftekhar Hossain Chowdhury vs State, 71 DLR (2019) 307 (Mr. Mohi Uddin Shamim, J,
decided on 27.02.2019) : The sanction granted by the Government empowering the
informant we are of the view that the sanction is not relevant in the instant case, as the law
has debarred a person to lodge an FIR under section 420 of the Penal Code who is not
actually cheated. Therefore, the instant proceeding basing on an unlawful FIR is a sheer
abuse of the process of law and, as such, it is liable to be quashed.
Nure Alam Siddique vs State and Others, 71 DLR (2019) 570 (Mr. Md. Moinul Islam
Chowdhury, J, decided on 02.04.2019) : The legislature intended to realize the borrowed
money from a defaulter primarily by exhausting the Artha Rin Adalat Ain through selling the
property on auction under the mortgage deed and thereafter for the remaining amount of the
borrowed money thereafter, a schedule bank would be allowed to use the collateral security
of a cheque (issued for realization of the remaining amount of the borrowed money).
Barrister Md. Aminul Hoque vs The State and another, Criminl Misc. Case No. 20352
of 2009 (Mr. Md. Nazrul Islam Talukder, J, decided on 25.02.2019) : It is important to
note that the inherent jurisdiction under Section 561A of the Code of Criminal Procedure,
though undefined, indefinite and wide, has to be exercised sparingly, carefully and with
caution in a rarest of the rare case to do real and substantial justice for which the Court exists.
It is now well settled that the allegations that have been brought
against the accused-petitioner and others are disputed questions of facts which require to be
proved before the trial court on taking evidence from the witnesses of the respective parties.
Furthermore, as per contention of the learned Advocate for the accused-petitioner, the
accused-petitioner has been implicated in this case out of political rivalry and political
reasons. This is also a matter which can only be considered by the learned trial judge at the
time of trial of the case. At this stage, the power and jurisdiction of this court under Section
561A of the Code of Criminal Procedure is limited to ascertaining the truth or otherwise of
the allegation. Under the aforesaid facts and circumstances, we are not at one with the learned
Advocate for the accused-petitioner that the allegations disclosed in the F.I.R and the charge-
sheet are preposterous and the same do not disclose any offences under Sections 409/109 of
the Penal Code read with under Section 5(2) of the Prevention of Corruption Act, 1947
……. ……. …….
It appears from the preamble of the Anti- Corruption Commission Act, 2004 that an
independent Anti-Corruption Commission has been created and established for the purpose of
prevention of corruption and other corrupt practices in the country and for conducting inquiry
and investigation of corruption and other specific offences and for matters incidental thereto.
In order to fulfill the purposes and objects of the Anti-Corruption Commission Act, 2004, the
128
Commission is competent to take any action incidental or ancillary to investigation including
the further investigation in respect of the offences specified in the schedule of the Anti-
Corruption Commission Act, 2004 if the initial report is found to be biased or otherwise
incomplete or defective. Moreover, Section 17(K)(M) of the Anti-Corruption Commission
Act,
2004 has also empowered the Commission to perform any function to achieve the purposes
and objectives of the law relating to the prevention of corruption which necessarily includes
further investigation within the residuary power given by Section 19(1)(Cha) of the
Anti-Corruption Commission Act, 2004. The power and scope of further investigation has
also been settled in the case of Abdus Salam Master alias Salam Vs. State reported in 36 DLR
(AD) 58. Similar view has also been expressed in the decision taken in the case of Monjur
Morshed Khan and others vs Durnity Daman Commission and another reported in
70DLR(AD)(2018)120 wherein it was held that “the investigation of crime is carried out
dehors the mandate contained in the court containing Sections 154-173 of the Code and that
the further investigation is a statutory right of the investigating agency under Section
173(3B)”. It is further held in that decision that “since the order of discharge neither amounts
to an acquittal nor to a final order, the accused can be proceeded against for the same offence
on the basis of supplementary report submitted on holding further investigation or on the
basis of naraji petition filed by the informant/complainant. It is no longer res integra that the
court, if exigent to do so, to espouse the cause of justice, can trigger further investigation
even after a final report is submitted”. In view of the above, we have no hesitation to hold the
view that there is no bar to holding further investigation into the allegation/s by the Anti-
Corruption Commission with and without any order from the court of any Judicial
Magistrate/Special Judge as the case may be if the Commission is satisfied to the effect that
the earlier investigation initially done by the first investigation officer failed to take proper
and appropriate steps in collecting the materials and documents and recording the evidence
having direct bearing upon the alleged offence/s and further investigation is needed for
ascertaining the truth or falsehood of the offences resorting to Section 19(1)(Cha) which is a
residuary power given by the legislature to the Commission in order to achieve the purpose
and object of the Anti-Corruption Commission Act, 2004.
Md. Nazmul Huda vs The State and another, Criminl Misc. Case No. 25615 of 2019
(Mr. M. Enayetur Rahim, J, decided on 03.02.2019) : when upon an inquiry by a
competent person the allegations made against an accused is prima facie found to
be true then the concerned accused should not be given a go by merely on any hiper technical
issue.
Md. Shofiqul Islam vs The State and another, Criminl Misc. Case No. 10085 of 2016
(Mr. M. Enayetur Rahim, J, decided on 10.04.2019) :
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Awa‡ek‡b D³ AvB‡bi 11(M) avivwU Av‡cvl‡hvM¨ Kivi Rb¨ cÖ‡qvRbxq AvBb ms‡kva‡bi Rb¨ miKv‡ii wbKU
mycvwik Kiv nq|
D³ Kg© Awa‡ek‡b AskMÖnbKvixiM‡Yi AwfgZ wQj †h, †h‡nZz †hŠZz‡Ki Rb¨ ¯¿x‡K gviwc‡Ui AšÍiv‡j
AwaKvsk †ÿ‡ÎB ¯^vgx-¯¿xi g‡a¨ cvi¯úvwiK fzj †evSveywS, ewbebv bv nIqv wKsev Ab¨ †Kvb †jb‡`b ev cvwicvwk^©K
Ae¯’v we`¨gvb _v‡K| D³ avivi Acivamg~n Av‡cv‡li gva¨‡g wb®úwË Kiv n‡j gvgjvi msL¨v D‡jøL‡hvM¨ nv‡i K‡g
hv‡e| G‡Z K‡i UªvBey¨bvj mg~n gvgjvi RU †_‡K †hgb GKw`‡K iÿv cv‡e Ab¨w`‡K weev`gvb N‡i kvwšÍ wd‡i
Avm‡e| (m~Ît cªwZ‡e`b- RvZxq wePvi wefvMxq m‡¤§jb, 2016, c„ôv-40)
D‡cvi³ mycvwik wbweo ch©v‡jvPbvq Zv wØ-g‡Zi †Kvb my‡hvM Av‡Q e‡j Avgiv g‡b Kwi bv| eis Dc‡iv³
mycvwik eZ©gbv mvgvwRK Ges gvgjvR‡Ui †cÖÿvc‡U AZ¨šÍ ev¯Íe m¤§Z Ges Zv ev¯Íevqb mg‡qi `vex|
GgZve¯’vq bvix I wkï wbh©vZb `gb AvB‡bi 11(M) avivi Aciv‡ai aib ev cÖK…wZi m‡½ †hŠZzK wb‡iva
AvB‡bi 3 I 4 avivi Aciva Ges `Ûwewai aviv- 323, 324, 325-Gi Av‡cvl‡hvM¨ Acivamg~‡ni cÖK…wZ I ¸iæZ¡
we‡ePbvq wb‡q cvwievwiK I mvgvwRK k„•Ljv I kvwšÍ mywbðZ Kivi cvkvcvwk gvgjv RU wbim‡bi ¯^v‡_© Dc‡iv³ bvix
I wkk~ wbh©vZb `gb AvB‡bi 11(M) avivi AcivawU AbwZwej‡¤^ Av‡cvl‡hvM¨ Kivi j‡ÿ¨ mswkøó AvBbwU ms‡kvab
Kiv cÖ‡qvRb|
Avgiv, †dŠR`vix Kvh©wewai 561-G avivi GLwZqvi I cÖ‡qv‡Mi mxgv‡iLv Ges G wel‡q wewfbœ †gvKÏgvq
we‡klZt Avãyj Kv‡ì †PŠayix Ms ebvg ivóª, 28 wWGjAvi(GwW), c„ôv-38, Avjx Av°vm ebvg Gbv‡qZ †nv‡mBb, 17
weGjwW (GwW) c„ôv-38, Avjx Av°vm ebvg Gbv‡qZ †nv‡mBb, 17 weGjwW (GwW) c„ôv-4 Ges evsjv‡`k ebvg
kvnRvnvb wmivR, 32 wWGjAvi (GwW) c„ôv-1-G cÖKvwkZ gvgjv mg~‡n Avcxj wefv‡Mi wm×všÍ, ch©‡eÿY I `„wófw½
m¤ú‡K© m‡PZb|
AvB‡bi cÖ‡qvM Ges Gi e¨vL¨v hvwš¿K n‡Z cv‡i bv| AvB‡bi kvm‡bi g~j jÿ¨B n‡jv Acivaxi kvw¯Í wbwðZ
Kivi cvkvcvwk mgv‡R k„•Ljv Ges kvwšÍ mywbwðZ Kiv| cvwievwiK ev `v¤úZ¨ Rxe‡b ¯^vgx-¯¿xi g‡a¨ fzj †evSveywS I
g‡bvgvwjb¨ A¯^vfvweK †Kvb NUbv bq| †hŠZz‡Ki `vexmn †h‡Kvb ARynv‡Z ¯^vgx KZ©„K ¯¿xi Dci kvwiixK wbh©vZb
wbtm‡›`‡n wb›`bxq Ges Mwn©Z Aciva| GZ`&m‡Ë¡I D³ Aciva msMV‡bi c‡i hw` ¯^vgx I ¯¿x wb‡R‡ì g‡a¨
fzj‡evSveywSi Aemvb NwU‡q `v¤úZ¨ Rxeb Ae¨vnZ ivLvi msKí e¨³ K‡ib ev iv‡Lb †m‡ÿ‡Î AvB‡bi weavb hZB
KwVb †nvK bv †Kb GKwU msmvi iÿv Kivi PvB‡Z †mwU eo n‡Z cv‡i bv| GKwU msmvi †f‡½ †Mj Zvi cvwievwiK I
mvgvwRK †bwZevPK w`K my`~i cÖmvix| G‡Z ïay ¯^vgx-¯¿xi mvgvwRK, cvwievwiK I A_©‰bwZK wech©B N‡Ubv, Zuv‡ì
mšÍvb GgbwK wbKU AvZ¥xq ¯^R‡bi Dc‡iI Gi Mfxi †bwZevPK cÖfve c‡o, hv cyib Kiv Lye KwVb n‡q c‡o| GB
ev¯ÍeZvq Avgv‡ì DwPr n‡e b¨vqwePvi wbwðZ (to secure ends of justice) Kivi ¯^v‡_© AÎ gvgjvi eZ©gvb ev¯Íe
Ae¯’v we‡ePbvq wb‡q GKwU msmvi I ìLv¯ÍKvix-Awf‡hvMKvixwbi wkï mšÍv‡bi my›ì fwel¨r wbwðZ Kivi j‡ÿ¨
†dŠR`vix Kvh©wewai 561-K avivi cÖ`Ë ÿgZve‡j cÿØ‡qi Av‡cv‡li AwfcÖvq‡K ¸iæZ¡ w`‡q `wÛZ ìLv¯ÍKvixi `Û
evwZj Ges mvRv gIKzd Kiv | GB ÿgZv cÖ‡qvM Ki‡j AvB‡bi ¸iæZi †Kvb e¨Z¨q n‡e e‡j Avgiv g‡b Kwi bv|
iÿYkxj `„wófw½ wb‡q AvB‡bi hvwš¿K cÖ‡qv‡M hw` GKwU msmvi †f‡½ hvq, mšÍvb‡K gv-evev †_‡K c„_K K‡i †d‡j-
Z‡e wK Zv b¨vqwePv‡ii cwicwš’ n‡e bv! Avgv‡ì g‡b ivL‡Z n‡e †h, †dŠR`vix Kvh©wewai aviv 561G aviv wePvivaxb
wel‡q b¨vqwePvi wbwðZ Kivi Rb¨ †h‡Kvb Av‡`k cÖ`v‡bi ÿgZv nvB‡KvU© wefvM‡K w`‡q‡Q|
AwaKš‘, Avgiv wePvwiK UªvBeÿbv‡j Dcw¯’Z mvÿ¨ ch©v‡jvPbv K‡iwQ| D‡cvi³ mvÿ¨ ch©v‡jvbvq Avgiv g‡b
Kwi bvix I wkï wbh©vZb `gb AvB‡bi 11(M) avivi ìLv¯ÍKvix‡K `Û cÖ`v‡bi Rb¨ ch©vß AvBbMZ mvÿ¨ (legal
evidence)-Gi Afve we`¨gvb|
AZGe, mvwe©K Ae¯’v we‡ePbvµ‡g bvix I wkï wbh©vZb `gb UªvBey¨bvj-1, PÆMÖvg KZ…©K ìLv¯ÍKvix‡K cÖ`Ë
ZwK©Z `Û I mvRv evwZj K‡i Aciv‡ai `vq †_‡K ìLv¯ÍKvix‡K Ae¨nwZ †`qv n‡jv Ges Zuv‡K Rvwgbbvgv †_‡K
Ae¨nwZ †`qv †nvK|
evsjv‡`k miKvi c‡ÿ gwnjv I wkï welqK gš¿Yvj‡qi mwPe-‡K bvix I wkï wbh©vZb `gb AvBb-2000 Gi&
11(M) avivi Aciva Av‡cvl‡hvM¨ Kivi j‡ÿ¨ AÎ ivq I Av‡`k cÖvwßi 6(Qq) gv‡mi g‡a¨ cÖ‡qvRbxq AvBb ms‡kvab
130
Ges mwPe, †jwRm‡jwUf I msm` welqK wefvM, AvBb wePvi I msm` gš¿Yvjq‡K G wel‡q cÖ‡qvRbxq mn‡hvwMZv
cÖ`v‡bi wb‡`©k †`qv n‡jv| [¸iæZ¡ cÖ`v‡bi Rb¨ ‡iLv †`qv n‡q‡Q]
AÎ iv‡qi Av‡jv‡K bvix I wkï wbh©vZb `gb UªvBeyy¨bvjmg~n bvix I wkï wbh©vZb `gb AvBb-2000 Gi aviv
11(M)-Gi Aciva cÿMY m¤§Z n‡j Av‡cv‡li gva¨‡g wb®úwË Ki‡Z cvi‡eb|
GLv‡b D‡jøL Kiv cÖvmw½K I m½Z n‡e †h, fviZxq mycÖxg †KvU© wekvKv Ges Ab¨ ebvg †óU Ad ivR¯’vb
gvgjvq mywbw`ó© AvB‡bi Abycw¯’wZ‡Z Kg©‡ÿ‡Î bvix‡ì cÖwZ Ô‡hŠb nqivbxÕ-Gi msÁv wba©viY µ‡g Kg©‡ÿ‡Î †hŠb
nqivbx cÖwZ‡ivaK‡í KwZcq wb‡`©kbv I wbqg (Guidelines and Norms) cvj‡bi Av‡`k cÖ`vb K‡ib| H iv‡q
fviZxq mycÖxg †KvU© mKj Kg©‡ÿ‡Î bvix‡ì ¯^v_© myiÿvi Rb¨ iv‡q cÖ`Ë bxwZgvjv I wbqg (Guidelines and
Norms) h_vh_fv‡e cvj‡bi wb‡`©kbv w`‡q Kg©‡ÿ‡Î †hŠb nqivbx msµvšÍ h_vh_ AvBb (sustainable
legislation) cÖeZ©b bv nIqv ch©šÍ mK‡ji Dci bxwZgvjv I wbqgmg~n eva¨Ki I Kvh©Ki (binding and
enforceable) n‡e g‡g© Av‡`k †`b|
evsjv‡`k RvZxq gwnjv AvBbRxex mwgwZ ebvg evsjv‡`k miKvi gvgjvq, 14 weGjwm, c„ôv-694-G nvB‡KvU©
wefvM, fviZxq mycÖxg †Kv‡U©i Dc‡iv³ gvgjvi ivq we‡ePbvq wb‡q mywbw`©ó †Kvb AvBb bv _vKvq Kg©‡ÿ‡Î †hŠb nqivbx
cÖwZ‡iv‡a Ò‡hŠb nqivbxÕiÓ msÁv Ges KwZcq wb‡`©kbv cÖ`vb K‡ib| D³ iv‡q D‡jøL Kiv n‡q‡Q †ht
“these directives are aimed at filing up the legislative vacuum in the nature of law declared by
the High Court Division under the mandate and within the meaing of Article 111 of the
Constitution.”
D‡cvi³ bRximg~‡ni Av‡jv‡K GUv wØavnxb ev wbtms‡Kv‡P ejv hvq †h, AvBb ms‡kvab bv nIqv ch©šÍ AÎ
iv‡qi wb‡`©kbv I Awfg‡Zi Av‡jv‡K bvix I wkï wbh©vZb `gb AvBb- 2000-Gi 11(M) avivi Aciva AvBb ms‡kvab
bv nIqv ch©šÍ Av‡cvlg~‡j wb®úwË‡Z UªvBey¨bvj m¤ú~Y©iƒ‡c GLwZqvievb n‡eb|
The State vs Md. Firoz Alam and others, Criminl Misc. Suo-Motu Rule No. 11921 of
2003 (Obaidul Hassan, J, decided on 13.02.2019) : The long standing practice in this
country is that whenever a Judge of any Division of the Supreme Court visits any district
town, the District Judgeship makes arrangement for his Lordship’s reception and looks after
his Lordship during his stay, but in the case of his Lordship Mr. Justice Syed Amirul Islam
there has been a sudden and surprise departure from that practice. The aforesaid acts and
omissions are manifestation of the obstinate, arrogant and insolent attitude of the District
Judge, Feni. The aforesaid conducts, acts and omissions amount to grossest form of contempt
and thereby the said officials have shown disrespect to this Court and his Lordship and
attempted to undermine the dignity, authority and prestige of this Court. By the aforesaid
conducts and omissions they have undermined the authority, dignity, prestige and the
sanctity of this august seat of justice, which is one of the three organs of the Republic. This
sort of insolence and arrogance on the part of the sub-ordinate judicial officer/staff cannot
and should not be overlooked as these are not only undisciplined acts, but are also
contemptuous. As per Article 109 of the Constitution of the People’s Republic of
Bangladesh, the High Court Division shall have superintendence and control over all courts
and tribunals subordinate to it. As per Article 116 of the Constitution, the control (including
the power of posting, promotion and grant of leave) and discipline of persons employed in the
judicial service and magistrates exercising judicial functions shall vest in the President and
shall be exercised by him in consultation with the Supreme Court. From the above
constitutional provisions it is clear that the control over the judiciary lies with the High
Court Division of the Supreme Court. The provision of Article 116 of the Constitution is
being exercised by a General Administration (GA) committee of the Supreme Court
consisting of 3/4 Judges of the High Court Division headed by the Hon’ble Chief Justice.
This committee primarily deals with the posting, promotion and granting of leave of the
judges of the subordinate judiciary. Ultimately, the proposal of the GA committee has to be
placed before the full Court and the full Court after much discussion takes decisions. From
131
the above constitutional provision and the practice of the Supreme Court it is obvious that the
Supreme Court Judges are the controlling authority of the Judges in the subordinate judiciary.
……. …….. …….
It is to be noted that whenever any Judge visits any place within the country or the embassies
of the country in abroad the office of the Judge goes with him. Meaning thereby a Supreme
Court Judge is a Judge for whole time for whole of the country. Thus, whenever any Supreme
Court Judge goes to any District whether on an official tour or private tour the concerned
District Judgeship is usually kept informed by the office of the Registrar General of the
Supreme Court of Bangladesh about his Lordship’s tour programme. The District and
Sessions Judge is usually asked to make the tour program of the concerned Judge comfortable
and smooth in co-ordination with the Deputy Commissioner (DC) of the respective District.
The Police Supers are also directed to ensure the security of the Judge on tour. To provide
adequate security, the Police Super of the respective District takes measure. The security of
the visiting judges has been ensured by issuing various circulars from the concerned Ministry
to the District level officers and other officials concerned.
….. ….. ……
On 16.06.2012 the Cabinet Division by another circular informed all the Deputy
Commissioners and the Divisional Commissioners to follow the Warrant of Precedence in
toto for providing the protocol service to the VIPs. The contents of the said circular runs as
follows:
Ò‡Rjv mdiKvix AZxe ¸iæZ¡c~Y© e¨w³ (wfAvB)MY‡K cÖ‡UvKj cÖ`v‡bi †ÿ‡Î Iqv‡i›U Ae wcÖwm‡WÝ ûeyû Abymi‡Yi
Rb¨ gvbbxq mycÖxg †Kv‡U©i nvB‡KvU© wefvM m`q wb‡`©kbv w`‡q‡Qb|
02| Dch©y³ wb‡`©kbv h_vh_fv‡e ev¯Íevq‡bi Rb¨ mKj †Rjv cÖkvmK‡K Aby‡iva Kiv hv‡”Q|
03| G wel‡q Zuvi †Rjvi cywjk mycvi, †Rjv ch©v‡qi Ab¨vb¨ cÖkvmK‡K Kg©KZ©v I Dc‡Rjv wbe©vnx AwdmviMY‡K
Riæwi wfwË‡Z AewnZ Kivi Rb¨ Aby‡iva Kiv nj|”
From the above circulars it is very clear that the government has provided adequate logistical
support to the Supreme Court Judges while they are on tour either official or private.
Whenever we visit any District we observe that usually the Deputy Commissioner or his
representatives, Superintendent of Police or his representative remains present at the place of
lodging of the visiting Judge. We have also observed that the District and Sessions Judge or
Additional District and Sessions Judge usually remain present when the Judges visit the
District Head Quarter or Upazila Head Quarters or any other place of the country. Sometimes
there may be departures from the common practice and norm, which is not desirable at all.
Everyone responsible for providing protocol service for the VIPs, particularly the District and
Sessions Judge, Deputy Commissioner, Police Super of the respective District should keep in
mind that Judges of the Supreme Court are high ranking VIPs of the country. As per Warrant
of Precedence, 1986 the Judges of the Appellate Division of the Supreme Court of angladesh
rank in serial No.8 i.e. equivalent to the State Ministers and the Judges of the High Court
Division of the Supreme Court of Bangladesh are in serial No.9, they enjoy the status of
the State Ministers. Thus, it is expected from all concerned that the protocol provided to the
State Ministers must be provided to the Judges of the Supreme Court (both Divisions).
The government by issuing various circulars has given directions to the DCs and SPs of the
District to provide proper protocol service. But unfortunately till this date no circular has
been issued neither from the Office of the Registrar General nor from the Ministry of Law
Justice and Parliamentary Affairs as to how the protocol service should be provided to the
Supreme Court Judges by the District Judgeship, when their Lordships are on tour to any
District on official or private visit. Nobody should forget that a Supreme Court Judge
is not a mere individual. He is the Judge of Highest Judiciary of the country. He carries a
132
constitutional entity and grace of the highest judicial forum, one of constitutional organs of
the State as well with him. Showing deliberate disregard to any of Supreme Court
Judges by act, conduct or omission thus indisputably a conscious blow to it which impacts
adversely on public perception. The facts unveiled demonstrate quite clearly that
the contemnor No.1, for couple of years, did not feel the urge to get himself righted and seek
apology before this Court for his unceremonious act and omission deliberately shown to his
Lordship, during his visit at Feni. We want to conclude that the contemnor No.1 Md.
Firoz Alam despite being aware about the visit of the Honorable Judge Mr. Justice Syed
Amirul Islam felt inspired, not by any fair cause, to disgrace him and the entity attached to
him, by his grave extreme discourteous act, conduct and inaction. This is a sheer audacity as
well on the part of the contemnor. Such downright disregard towards the Judge of the Highest
Court of the country can never go unpunished. Paying no attention or unexplained failure to
pay due attention to the visit and presence of a Supreme Court Judge when he stays in the
territorial jurisdiction of a certain judgeship rather taints the elegance of the Supreme
Judiciary. Chiefly the District Judge, the head of District Judgeship is obviously obliged to
make the honour and elegance of the Supreme Court Judge visible to all by attending him,
without affecting judgeship’s work. A Circular is thus expected to be designed
intending to provide guidance to the District Judge and other Judges holding judicial office of
the sub-ordinate judiciary, the Circular must relate to standards of conduct of judges of the
sub-ordinate judiciary for application during the visit of Supreme Court Judges in the
territory of Bangladesh. It has become a common practice of the office of Registrar General
that they send the tour programme of the Judge of the Supreme Court to the concerned
District and Sessions Judge of a District and to the Deputy Commissioner, to provide
protocol service to the visiting Judge. We are of the view that there should be a proper
circular from the office of the Registrar General and the Ministry of Law, Justice and
Parliamentary Affairs to the District and Sessions Judges to provide protocol service
remaining present at the place of lodging of the visiting Judge. Accordingly, the office of the
Registrar General of Bangladesh Supreme Court and the Secretary, Ministry of Law, Justice
and Parliamentary Affairs, Law & Justice Division, Dhaka are hereby directed to issue a
circular to all the District and Sessions Judges of the country for ensuring and providing
proper protocol to the visiting Judges of the Supreme Court. The circular should contain the
following directions. 1. At the time of visiting any District head quarter by a Supreme Court
Judge in holidays at least one judicial officer holding the status of a District and Sessions
Judge/Additional District and Sessions Judge shall receive the judge at the circuit house or
any other place of lodging of the visiting Judge within the District town. If the District Judge
is present in the District head quarter he must make a courtesy call on to the Hon’ble Judge of
the Supreme Court. 2. If the visit of the Supreme Court Judge occurs during weekdays during
office time, the Judge in-Charge, Nejarat will attend the visiting Judge. But after Court hour
the District Judge or in his absence at least one judicial officer having the status of District
Judge/Additional District Judge will make a courtesy call on to the visiting Judge at his
lodging within the District town. 3. If the visiting Supreme Court Judge stays in an Upazilla
town or in any village, the Judge in-Charge, Nejarat or a senior staff of the judgeship
shall attend him. 4. At the time of departure of the Judge from the visiting station District and
Sessions Judge/Additional District and Sessions Judge must remain present along with
Deputy Commissioner or his representative and Police Super or his representative of the
respective District.
2020
133
Mohammad Amir Ali Mostafa vs Shah Md. Nurul Alam and others, Criminal Appeal
No.38 of 2010 (From the judgment and order dated 27.03.2008 passed by the High Court
Division in Criminal Miscellaneous Case No.2033 of 2008), (Mr. Obaidul Hassan, J,
decided on 1.12.2020) : From the materials on record, it appears that the certified copy of
the disputed deed being No.19974 dated 31.10.2005 was produced before the Court, not the
original copy of the deed. Only the production of the certified copy of the alleged deed
cannot attract the provision of Section 195(1)(c) of the Code of Criminal Procedure, 1898.
To attract the provision of Section 195(1)(c) of the Code, the original copy of the deed
should have been produced before the Court, because the genuineness of the said claim
i.e. the alleged deed is a forged deed and the involvement of the accused persons in the
creation of the forged deed is subject to proof by examining the witnesses. When the
certified copy of a deed was produced on a claim that the deed was forged and the original
copy was not produced, then it was not possible to determine the genuineness of the
certified deed. So, the proceeding of C.R. Case No.1966 of 2005 is not barred under Section
195 of the Code of Criminal Procedure.
As the learned Metropolitan Magistrate took cognizance against the respondents No.1-3,
they should have filed application under Section 241A of the Code of Criminal Procedure
for discharge. Fact remains charge was not framed against the respondents till filing of the
Criminal Miscellaneous Case No.2033 of 2008. Without exhausting the procedure the
respondents were not entitled to make application for quashment of the said criminal
proceeding. When a competent Court or Tribunal takes cognizance of an offence, then it can
be said to be pending and at that stage, the accused has to exhaust all the procedures he is
entitled to, before making application for quashment of the proceeding.
The power of quashment of the proceeding under Section 561A of the Code of Criminal
Procedure, 1898 lies with the High Court Division true, but before exercising this power the
High Court Division must be satisfied that the other available remedies have been exhausted
by the applicant. It was held in the case of Habibur Rahman Mollah (Ex-Member of
Parliament, Dhaka 4) Vs State and another [62 DLR (AD) 233] that, “Inherent power of the High
Court Division is generally exercised where no other remedy is available for obtaining justice in
the cause-it should not be invoked where another remedy is available. This power has not been vested
upon the High Court Division where another remedy is available. This is an extraordinary power and is
exercised in extraordinary circumstances in the interest of justice.” In the present case, the
respondents No.1-3 had other remedy available before making application for quashment of
the proceeding i.e. making prayer for discharge under Section 241A of the Code of
Criminal Procedure, 1898.
On the other hand, the appellants filed Title Suit No.1 of 2006 for declaration of the
disputed deed of gift as illegal, unlawful, void and be of no legal effect on 01.01.2006, the
C.R. Case No.1966 of 2005 was lodged on 08.11.2005. The respondents filed Title Suit
No.504 of 2005 for declaration of title and recovery of possession on 30.11.2005 where both
the civil suits instituted subsequent to the C.R. Case No.1966 of 2005. Besides, the C.R.
Case was started based on judicial inquiry and with a specific cause of action.
It is a settled principle of law that if there are criminal cases and civil suits between the same
parties in respect of the same properties, even then it cannot be a bar to the continuation of
the criminal proceeding i.e. the criminal proceeding will run in its own way. It was held in
the case of State Vs Sailendra Chandra Borman [13 BLC (AD) 65] that, “pendency of a civil
134
suit cannot bar the proceedings of criminal case for criminal offence.” The same observation was
given by our Appellate Division in the case of Khandaker Abul Bashar Vs State and another
[63 DLR (AD) 79] “There is no legal impediment to file a criminal case even if a civil suit is pending
on the selfsame allegations provided the ingredients of the offence are present.” It was also held
in the case of Khondoker Mahtabuddin Ahmed and others Vs State [49 DLR (AD) 132] that,
“There is nothing in law precluding a criminal case on account of a civil suit pending against
the petitioners on the same facts.”
In consideration of the above discussion, we are of the view that only because of the subject
matter of the criminal case and civil litigation being the same, it will not be a bar for
continuation of the criminal proceeding, rather the criminal case will run in its own way. In
this case, the respondents should have exhausted the procedure of Section 241A of the Code
of Criminal Procedure before making application for quashing of C.R. Case under Section
561A of the Code.
It appears that the High Court Division has not considered the aforesaid facts as well as the
legal aspects of the case while passing the judgment and order quashing the proceedings of
C.R. Case No.1966 of 2005 thereof. Rather, it appears that the judgment and order passed by
the High Court Division was not justified and misconceived. The judgment and order
passed by the High Court Division in Criminal Miscellaneous Case No.2033 of 2008 on
27.03.2008 is absolutely erroneous. The quashment of C.R. Case thereof cannot also be said
to be lawful. Thus, we are constrained to interfere.
The appeal is thus allowed and the judgment and order of the High Court Division dated
27.03.2008, passed in Criminal Miscellaneous Case No.2033 of 2008 is set aside and the
proceedings of C.R. Case No.1966 of 2005 be restored to its original number.
Rokib @ Rakibur Rahman vs The State, Criminl Misc. Case No. 37799 of 2017 (Mr.
Mustafa Jaman Islam, J, decided on 08.10.2020) : It is pertinent to note that the legal
provisions for quashing of proceeding of criminal cases under section 561A of the Code. The
several decisions of our Apex Court in this regard ought to be guided by following twin
objectives, as laid down- i) To Prevent abuse of the process of the court. ii) To secure ends of
justice. The power under section 561A of the Code must be exercised very sparingly with
circumspection and in rarest of the rare cases. Exercise of inherent power under section 561A
is not the Rule but it is an exception. The exception is applied only when it is brought to the
notice of the court that grave miscarriage of justice could be committed if the trial is allowed
to proceed when the accused would be harassed unnecessarily if the trial is allowed to linger
when prima facie it appears to court that the trial would likely to be ended in acquittal.
135

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Issue 2 Volume 1 (September 2021)

Essence of Section 561A of the Code of Criminal Procedure, 1898

Black & White Law Issue

To all the dedicated souls who have contributed to

Black & White Law Issue

Background of the Study

Section 561A : Saving of inherent power of High Court Division

Nothing in this Code shall limit or affect

Nature of Inherent Power

In Emperor v Khwaja Nazir Ahmed,10 it was held that –

In M.S. Khawaja v State, 12 it has been laid down –

Quashing a proceeding or giving remedy to any extraordinary situation where there is no

Orders as may be necessary

Giving effect to any Order under this Code

Relying on this, the Court held that –

Preventing abuse of the process of any Court

“Distinction between absence of evidence legally unsustainable or inconsistent with

If the criminal proceedings in a particular case is in respect of an offence alleged to

Securing the ends of justice

When no other alternative

Scope of this jurisdiction

Where a proceeding is manifestly attended with malafide or malicious instituted with an

Stages of applying jurisdiction under Section 561A

It has been further observed that –

(2) Where institution or continuance of criminal proceedings against an accused

Power and nature of jurisdiction under Section 561A

Test of Section 561A

Exercised upon application or suo moto

Without filing any discharge petition, can section 561A be invoked?

Difference between original jurisdiction and section 561A

Likewise, the jurisdiction under Section 561A is of an extraordinary nature intended to be

The Appellate Division further observed that –

Anisul Islam Mahmood vs The Government of the People's Republic of Bangladesh,

Champak Ranjan Saha vs Authorised Officer, Khulna Development Authority and

Delwar Hossain Sowdagar vs State, represented by the Deputy Commissioner, 55 DLR

Shahjahan vs State, 64 DLR (2012) 49 (Mr. Moyeenul Islam Chowdhury, J, decided on

Mahbub Ahmed and Others vs Securities and Exchange Commission,

Anti-Corruption Commission vs Unipay 2U Bangladesh Ltd., 64 DLR (2012) 444 (Mr.

Anti-Corruption Commission vs A.A.M. Habibur Rahman and Others, 67 DLR (AD)

Begum Khaleda Zia vs Anti-Corruption Commission and Others, 68 DLR (2016) 1= 36

After carrying out careful examination of the provisions of Sections

Guidelines for the learned Sessions Judges:

Guidelines for the learned Magistrates who take cognizance:

(ii) In a CR Case, be it based on oral/written petition or Naraji petition, when a Magistrate

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