This is a Criminal Miscellaneous Case Under Section 561-A Of The Code Of Criminal Procedure Code For Quashing The Lower Court Legal Proceeding Within Criminal Revisional Jurisdiction of High Court Division In The Supreme Court of Bangladesh. (Quashment Petition)
Fact:-
That
one Kalimuddin lodged a First information Report with Nachal P.S. under
Nababganj District alleging offences under sections 447 / 427 / 326 / 302 / 149
of the Penal Code against Moslemuddin, Monirul Islam, Alauddin, Mohsin and 23
others alleging that Plot No. 283 measuring 6.72 acres being a pond was taken
settlement by the informant from the old Jaminder and they are in possession of
the same. The accused party being variously armed came to the said pond on
29-12-2001/at about 11 a.m. and started catching fish and the informant party
resisted the same and the accused No. I Md. Moslemuddin ordered "Kill Them
All" and accordingly accused Monirul Islam caused knife blow on the belly
of Abdus Salam, son of the informant, who fell down and other accused caused
different injuries to Abdus Salam as well as to the witnesses present there,
who were admitted in the hospital but Abdus Salam was declared dead by the
attending Medical Officer. During the investigation it was found that accused
No. I Moslemuddin being a Superintendent of A.G.B serving at Dhaka was at the
relevant time on leave on medical ground and was admitted in "Shah Mokdum
Hospital" Rajshahi and stayed there from morning of 29-12-2001 to
10-1-2002 and further found that a civil suit is pending in respect of the same
pond and the accused party already obtained an order of injunction. Accordingly
final repot has been submitted against accused No. I Moslemuddin and
charge-sheet has been submitted against 16 other accused persons. During the
investigation the Police examined witnesses under section 161 of Cr.P.C.
2)
That against the final report the informant filed a Narazi Petition and a
judicial inquiry took place and during the inquiry the witnesses who were
examined under section 161 Cr.P.C by the Police was also examined by the
Magistrate and no new witness was examined by the Magistrate and the Ld.
Magistrate found prima facie case and took cognizance against accused No.I
Moslemuddin under section 302/34 of the Penal Code. Moslemuddin instructs you
to move the High Court Division for review.
Draft an application under section 561-A of the Code of Criminal Procedure for quashing the proceeding against Moslemuddin.
Draft:-
District, Dhaka.
In the Supreme Court of Bangladesh
High court Division
(Criminal Revisional Jurisdiction)
Criminal Miscellaneous case No of 2005
In
the matter of:
An
application under section 561-A of the Code of Criminal
Procedure for Quashment.
AND‑
In
the matter of:
Moslemuddin,
S/o of village
P.S Nachal, District-Nababganj
P.S Nachal, District-Nababganj
......Accused petitioner.
-:Versus:-
1. Kamaluddin, S/O-……………………..of
village………, P.S Nachal, District-Nababganj
village………, P.S Nachal, District-Nababganj
....Complainant Opposite Party.
2. The State……………………….Opposite party.
AND
In the matter of:
An
order of 2-12-.2004 passed by the learned Magistrate, Nababganj
taking cognizance of the offense
against the accused No. I Moslemuddin under
section 302/34 of the Penal Code.
To.
Mr. Justice
Syed J.R. Mudassir Hossain, the chief Justice of Bangladesh and his companion
Justices of the said Hon'ble Court.
The
humble petition of the petitioner above- named most
respectfully-
SHEWETH:
1.
That the prosecution case in short is that the opposite party No. 1 as complainant
lodged a first information report with the Nachal Police Station within the
district of Nababganj alleging inter alia that offences under sections 447/
427/ 326/302/ 149 of the Penal code has been committed by the accused
petitioner Moslemuddin Mominul Islam, Alauddin, Mohsin and 23 others alleging
inter alia that plot no, 283 measuring 6.72 acres of land being a pond was
taken over settlement by the informant from the old jaminder and they are in
possession of the same. The accused party on 29-12-2001 at 1 l a.m came to the
pond being armed with various weapons and began to catch fish The informant
party resisted the same when the accused no. 1 Moslemuddin ordered "Kill
Them All" and accordingly the accused Monirul Islam caused a knife blow on
the belly of Abdus Salam, son of the informant. Abdus Salam fell down and the
other accused caused different injuries to Abdus Salam as well as the witnesses
present there, who were admitted in the hospital. Abdus Salam was declared dead
by the attending medical officer. The Ejahar was recorded in the police station
and Nachal P.S. case No. 25 dated 29-12-2001 was started and, Mr. A. Majid S.I.
of police was appointed investigating officer to investigate in the case:
2.
That during police investigation it-was found that the accused No. I
Mosiemuddin being a superintendent of A.G.B. office serving at Dhaka was at the
relevant time on leave on medical ground and admitted in "Shah Mokdum
Hospital" Rajshahi and stayed there from morning of 21-12-2001 to
10-1-2002, It was further found that a civil suit is pending in, respect of the
said pond and the accused party already ' Obtained an order of injunction.
Accordingly the police, after investigation submitted final report against
accused no.1 Moslemuddin and charge sheet-against 16 other accused persons.
During investigation the police examined the witnesses under section 161 of the
criminal procedure code,
3.
That against the said final report the informant filed a Narazi petition on.....................
The learned Magistrate by his order of. .............. allowed judicial inquiry
into the matter and accordingly a judicial inquiry took place on .............
and during inquiry the witnesses who were examined under section 161 Cr.P.C by
the police were also examined by the learned Magistrate and no new witness was
examined by the Magistrate and the learned Magistrate found prima facie case
and took .cognizance of the offence against accused petitioner under section
302/34 of the Penal Code by his order ...........
4.
That being aggrieved by and dissatisfied with the said order of the learned
Magistrate the accused petitioner begs to prefer this miscellaneous application
under section 561-A of the Criminal Procedure Code for Quashment on the
following amongst other.
GROUNDS
I.
For that the learned Magistrate. Nababganj committed error of law in taking
cognizance of the offence against the accused no. 1 Moslemuddin under section
302/34 of the Penal Code which is an abuse of the process of the court,
II.
For that the learned Magistrate committed error of law not considering the fact
that no new witness was examined by the learned Magistrate; only the witnesses
who deposed under section 161 of the Criminal Procedure Code before the police
were examined by the learned Magistrate who ought to have upheld the final
report instead of taking cognizance which is an abuse of the process of the
court and as such the criminal proceedings need be quashed for ends of justice.
III.
For that the learned Magistrate erred in law in framing charge against the
accused petitioner not on the basis of actual facts and circumstance of the
case but on mere surmise and conjecture which is the abuse of the process of
the court.
IV.
For that the learned Magistrate Committed error of law not considering the fact
that the accused appellant was not present at the place of occurrence at the
material time which was revealed during investigation.
V.
For that the learned Magistrate Committed error of law not taking into
consideration that there is a civil suit pending in the civil court in respect
of the case-pond and the accused party has already obtained an .order of
injunction in their favour from the court.
VI.
For that in view of the facts, circumstances and evidence on record there has
occurred the abuse of the process of the court and as such the whole
proceedings in the case against the accused petitioner has caused serious
harassment to the petitioner which is liable to be quashed.
Wherefore it is most humbly prayed that your lordships
would graciously be pleased to issue
a rule upon the opposite parties calling upon them
to show cause as to why
the impugned order dated ................ passed by the learned
Magistrate 1st class, Nababganj taking cognizance of the offense against the accused petitioner (Accused
no.1- Moslemuddin) shall not be quashed; call for
the records, peruse the same, and after hearing the parties and the cause shown, if any,
make the rule absolute.
AND
Stay all further
proceedings in C.R. case No (arising
out of Nachal P.S. case No.
of. ) now pending in the court of
the learned Magistrate, 1st class, Nababganj till the hearing
of the rule.
And for this act of kindness, the petitioner as in duty
bound shall ever pray.
Affidavit
I,
………………………………….S/O…………………………….. of village……………P.S
..............
District ……………aged about …… years, by faith ………….., By occupation
…………….
by nationality…………………..Bangladeshi do
hereby solemnly say and affirm as follows:-
I.
That I am the Tadbirkar (Caretaker) of the case for the petitioner and well acquainted
with the facts and circumstances of the case and as such competent to swear
this affidavit.
2.
That the statements made herein above are true to the best of my knowledge and
belief.
Prepared in my office Deponent
Advocate The deponent is known to me and identified by me.
Advocate.
Advocate The deponent is known to me and identified by me.
Advocate.
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