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Wednesday, June 12, 2013

A Great How-to Tutorial on Creating Student Portfolios on High Court Practice Enrollment Examinees as Well as New Advocates and Barristers Facing Daily Problems To Write with a Criminal Miscellaneous Case (Quashment Petition).

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
                                                                                                                 ......Accused petitioner.
                                                                                                  -:Versus:-
                                                                   1. Kamaluddin, S/O-……………………..of
                                                                      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.
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