WELCOME TO MY PRESENTATION

ON
O.P. NUMBER: 02

38TH FOUNDATION TRAINING COURSE FOR THE NEWLY APPOINTED

ASSISTANT JUDGES/ EQUIVALENT JUDICIAL OFFICERS

JUDICIAL ADMINISTRATION TRAINING INSTITUTE

Equality and Equity
 Fact in brief

 ‘A’ the complainant initiated a complaint case under section 10

of Nari-O-Shishu Nirjatan Daman Ain, 2000 along with sections
323/343/506 of the Penal Code which was dismissed with an
observation that he may initiate a separate criminal case under
the Penal Code.
To be contd.

 Accordingly, A filed the petition of complaint case under

sections 323/324/341/342/506 of the Penal Code. The case
was disposed of under section 247 of Code of Criminal
Procedure because of the non-appearance of the complainant.
He has come up with another petition of complaint on the
selfsame matter previously disposed of.
 Question to be decided:

 Whetherthe 2nd complaint petition in the selfsame matter which

was disposed of in an earlier case under section 247 of the
Code of Criminal Procedure may be entertained or not.
What do you think?
 Relevant Provisions of Law

Section 247 & 403(1) of the Code of Criminal

Procedure, 1898
Article 35(2) of the Constitution of the People’s
Republic of Bangladesh
 Decision

The complainant can file the 2nd petition of complaint

in the selfsame matter which was disposed of in an
earlier case under section 247 of the Code of Criminal
Procedure.
Reasoning behind the decision:
 R1. Acquittal u/s 247 and the right of the
complainant

 The disposal of under section 247 does not construe the

absolute acquittal of the accused. Case reference: Gadahar
Namadas vs. Joytun Akter 47 DLR 313.
 R2. Section 247 vis-à-vis section 403

 Does the provision of section 403 really debar the complainant to file a
fresh petition of complaint?

 The provision of section 403 of the Code and the principle of double
jeopardy does not affect the right of the petitioner to file a fresh complaint.

 Case reference :
a. PLJ 1985, CrC 207
 In deciding the case their Lordships Mr. Justice Kazi Ebadul Hoque and
Mr. Justice Md Sirajul Islam cited the case Bezwada Kotayya and
others vs. Konathalapalli Vankayaa of a Division Bench of the Madras
High Court where the Court state that-
“Acquittal of an accused on the default of prosecution under section 247
CrPC does not entitle the person acquitted to plead autrefois acquit on a
fresh prosecution on the same facts and section 403 does not operate as a
bar to the court taking cognizance of a second complaint”
 R3. Principle of Criminal Justice System

To maintain the peace and order in the society, no

criminal should go unpunished. Hence, the petitioner
should be given the right to file a new petition of
complaint.
 R4. Discretion of the Judge and the
principle of equity

Itis the duty of the judge of the court not only to

apply the principle of equality but also to ensure the
principle of equity.
 Critical Review

He who seeks equity must come with clean hand.

There should be a limit to stop sheer abusing of the

process of law. Case reference: 24 BLD, 286, Cr.
Misc case no. 8985 of 2004
 Concluding Remark

 Finally, On the basis of fact, laws and reasoning mentioned

herein above, we should agree that the petitioner can file the
2nd petition of complaint in the self-same matter which was
disposed of in an earlier case u/s 247 of the Code of Criminal
Procedure.
Question & Answer
Thank You