IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Writ Petition No.7250 of 2008

In the matter of:

An application under Article 102(2)(a)(ii) of the

Constitution of the People’s Republic of

Bangladesh.

A N D

In the matter of:

Sheikh Hasina Wazed, alias, Sheikh Hasina, former

Prime Minister of Bangladesh, wife of Dr. Wazed

Ali Mia and daughter of the Father of the Nation

Late Bangabandhu Sheikh Mujibur Rahman Sudha

Sadan, House No.54, Road No.5, Dhanmondi

Residential Area, Dhaka.

...... Petitioner

-Versus-

Government of the People’s Republic of

Bangladesh, represented by the Secretary for

Ministry of Home Affairs, Bangladesh Secretariat,

Ramna, Dhaka and others.

..... Respondents

Mr. Rafiq-ul-Huq with

Mr. Anisul Haque

Mr. Abdul Matin Khasru,

Mr. Yousuf Hossain Humayun,

2

Mr. Nurul Islam (Sujan)

Mr Mohammad Selim Jahangir

Mr. Sheikh Fazle Noor Taposh,

Mr. Mohammad Mehedi Hasan Chowdhury

Advocates

.....For the Petitioner

Mr. M. A. Aziz Khan, Advocate

....... For the Respondent No.4

Heard On: 04.03.2010, 07.03.2010 and 08.03.2010 Judgment On: 09.03.2010

Present:

Mr. Justice A. H. M. Shamsuddin Choudhury

And

Mr. Justice Borhanuddin

A. H. M. Shamsuddin Choudhury, J:

With a view to impugn charges framed by the learned Divisional

Special Judge, Dhaka, under Section 242 of the Code of Criminal Procedure

(Cr.PC),in Special Case No.1 of 2003, which arose out of Tejgaon Police

Station Case No.35,dated 11.12.2001, corresponding to B. A. C. C. General

Registered Case No.108/01, under Section 409 of the Penal Code and section

5(2) of the Prevention of Corruption Act, 1947, now pending before the Court

3

of Divisional Special Judge, Dhaka, this petition had been engendered,

invoking Article 102 of the Constitution of the Peoples Republic of

Bangladesh.

The Petitioner was implicated vide a First Information Report(FIR)

dated 11.12.2001, lodged by one Abdullah Al Zahid, Anti Corruption Officer,

Task Force-1, Anti Corruption Bureau, Bangladesh. Sections 418/109 of the

Penal Code were also cited in the FIR. and Section 5 (2) of the Prevention of

Corruption Act, 1947, were cited in the FIR, the text of which stands

reproduced below verbitame;

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27-8-2008

11

At the conclusion of the investigation, two officials of the Anti

Corruption Bureau, named Abdullah Al Zahid and Kazi Shamsul Islam, filed

a charge sheet implicating the petitioner under Sections 409/418/109 of the

Penal Code as well as under Section 5(2) of the Prevention and Corruption

Act, 1974. On receipt of the same Md. Matiur Rahman, Metro Senior

Special Judge, Dhaka took cognizance over the matter and referred the case to

the Court of the Divisional Special Judge, Dhaka, for trial .

The Senior Special Judge concerned, by a letter dated 1.2.2003,

confirmed the receipt of the case from the Court of the Metro Senior Special

Judge, Dhaka. The said learned Judge, on an earlier date, allowed the

Petitioner’s application for dispensation with court appearance.

Charge hearing took place, as scheduled, on 20/8/2008. Prior to that

date an application under sections 241A of the Code of Criminal Procedure

was filed before the said Court , asking for the dischargement of the

Petitioner. It was asserted through the said application under section 241A of

the Code of Criminal Procedure that the petitioner is entitled to be discharged,

12

in view of the fact that the FIR and the charge sheet do not disclose any

offence whatsoever. That application was, however, turned down and the

court below by it’s order dated 28.8.2008, framed charge against the

Petitioner, as stated above. Five other persons were also indicted in this case.

The Petitioner before us, who is none other than one of the two

surviving offsprings of the Founding Father of the Nation, a former Prime

Minister of the Republic and, of course the Primordial figure of the

Republic’s oldest political party, was not before the learned Court below at

the time of the charge hearing because of her ailment. She was only

represented by her duly empowered lawyer Ms. Shahara Khatun. The charge

was therefore framed in her absence .

In impugning the charge, as framed, the petitioner alleged that the learned

court below acted without lawful authority by framing charge,

notwithstanding the Petitioner’s absence from the Court at the relevant time.

The second leg of attack was erected on the claim that neither the FIR , nor

does the charge sheet, disclose any offence known to any penal law of the

13

country. It has also been alleged that there was no material before the Court

below to frame the charge, and as such, the same was illegal, without lawful

authority, ultra-vires the penal law of the country and is, therefore liable to be

set aside.

It should be mentioned here that prior to the filing of the instant writ

petition, the Petitioner filed an abortive application before this Division,

invoking Section 561 A of the Code of Criminal Procedure, challenging the

same proceeding. The filing of that application, however, preceded the

framing of charges, though that move was initiated was subsequent to the

date of the submission of the charge sheet. The said application ended in

fiasco, as this Division discharged the Rule on maintainability ground ,

holding that the application was premature. This Division did not, therefore,

have an opportunity to explore the meritoriosity of that application.

None of the respondents in this case submitted any affidavit to rebut

the factual assertions or the claims, the Petitioner scripted in her pleading,

although the the Anti Corruption Commission, the respondent no 4,

14

henceforth cited as the Commission, the successor-in-office to the now

defunct Bureau of Anti Corruption, which actually set the subject criminal

proceeding in motion by filing the aforementioned FIR, appeared before us

and tabled submissions when the Rule was taken up for adjudication.

On that occasion a team of widely revered lawyers, headed by none other

than Mr. Rafiq-ul-Huq, signified his presence for the Petitioner. The team

included Mrs. Anisul Haque, Yousuf Hussain Humayun, Abdul Matin

Khasru, Nurul Islam Sujan, Sheikh Fazle Noor Taposh, Mehdi Hasan

Chowdhury, Zafar Siddique and Mohammad Selim Jahangir.

With his well acclaimed eloquence, Mr. Rafiq-ul-Huq submitted that

it is a mandatory requirement of law that no charge can be framed in the

absence of the accused person , yet that is exactly what had been done in the

instant case. He left no stone unmoved to assert that it is a fundamental legal

dogma that charge can not be framed against a non-absconding accused, in

her absence, which theme has survived the passage of time. He went on to

contend that it is this inviolable concept which was visibly crucified in the

15

instant case , thereby allowing the mortification of the minimum tenet of

justice. In support of his contention Mr. Huq cited a plethora of authorities,

stemming from the superior Courts in various jurisdictions, to vindicate his

contention as narrated above. He went on to submit that the charge hearing

court is bound to ensure the presence of accused and to allow him to place

his case at the time of the charge hearing. He argued that the principle he

relies on is so immutable that slightest departure from that dogma is bound to

plunge a decision to nihility. Mr. Huq further submitted that while conducting

charge hearing, the Court concerned is bound to explain and examine all the

facts as revealed by the documents before it and that it can frame charge

only on being satisfied that the documents before it, namely, the First

Information Report (FIR), the charge sheet, documents containing

information recorded under Section 161, 164 of the Code of Criminal

Procedure, prima facie tend to prove the charges. He went on to argue that in

so far as neither the FIR, nor the Charge Sheet(CS) disclose any offence

16

known to our legal system, the charge as framed is liable to be set aside, to

herald the demise of the whole proceeding .

Mr. Anisul Haque was of the view that the charge as purportedly framed was

undoubtedly in breach of the mandatory provision of the law which requires

the charge framing Court to ensure the presence of the accused , so long as

the accused is not an absconder. Mr. Aisul Haque continued his profferment

stating that the consequence of setting aside the charge as framed, should

invariably be the setting aside of the proceeding as a whole. According to Mr.

Anisul Haque ensuring the presence of the accused is the minimum that the

principle audi alteram pertam demands . Mr. Anisul Haque argued that the

decision which triggered the respondents to brandish their weapon at the

Petitioner was essentially a based on governmental discretion , which every

government is indispensibly required to exercise in order to govern the

country, adding that the propriety of such decisions can only the agitated and

explored in the Parliament, not in a criminal Court.

17

Mr. Abdul Matin Khasru contented that it is one of the cardinal principles of

criminal jurisprudence , as is quite conspicuously reflected in Sections 242

A and 242 of the Code of Criminal Procedure, that the accused person must

be given an opportunity to state his case at the time when the charge hearing

takes place, as otherwise the whole theme of natural justice would be

mercilessly throttled. He further submitted that charges framed in derogation

to the said sacrosanct principle, can not pass the test of legality and the same

is , accordingly ,liable to be set at rest. In support of his submission he relied

on a decision reported in AIR 1969 (SC) 381 where the Indian Supreme

Court stated that even when the accused person’s presence is dispensed with,

the Court is duty bound to put questions to the earlier to enable him to state

his case. Attracting our attention to the ratio of the case , Parichhat –v- State

(AIR 1972 SC 535), Mr. Khashru submitted that according an opportunity

to the accused to explain his case at the time of the charge hearing, is not

compoundable. He was quite insistent in arguing that the question as to

whether MIG fighters were required to consolidate our defence capabilities ,

18

was definitely a matter of governmental discretion , for which the

government is accountable only to the Parliament and , of course to the

populace at large. According to him, unless the government is given a free

hand in the decisions taking process, pertaining to such matters, and if the

sword of prosecution is kept hanging over it’s head, no government will be

able to perform it’s duties properly.

Mr. Yousuf Hussain Humayun advancing similar profferments added that

the Government of the day has to take numerous decisions, day in day out, on

all subjects and aspects of governance . If any member of the Government is

exposed to the fright of prosecution for such decisions, the whole

government machinery will tumble, rendering the Government paralysed.

He continued to say that to his utter surprise , the Court below framed charges

in the backdrop of the fact that neither the FIR nor the CS disclose any

recognisable offence.

Mr. Sheikh Fazle Noor Taposh on his part submitted that the charge as

purportedly framed ,reflects a completely non speaking order, which

19

vindicates the fear that the learned judge below failed to take into accounts

such factors , he ought to have taken account of , and as such, his action fails

to pass the minimum test of reasonableness in the Wednessbury sense. When

a court concerned fails to assign elaborate reasons in support of it’s decision

to frame charge, such an action will herald a diametrical departure from the

prevailing legal norms, structured on an invincible foundation. In his view if

any degree of deviation is allowed, the idea of justice will face petrifaction.

He iterated that as there was nothing either in the FIR or the Charge Sheet

to net any ingredient of any penal law , the Court below resorted to a very

high degree of miscarriage of justice, which needs immediate rectification.

Citing the case of Nazrul Islam –v- The State, 50 DLR (SC) 103, where this

Division expressed that irrespective of whether the accused applies for

dischargement or not, the Court concerned must hear both the sides during

charge hearing , which implies that the presence of the accused is imperative,

provided , however the accused is not absconding. of Mr. Taposh proffered

that it is quite evident that the Court below framed the charge mechanically,

20

which is , obviously proscribed by law. He also submitted that the agreement

which eventually led to the purchase of the MIG -29 fighters concerned, was

based on a bilateral agreement between two countries in the most natural way

in which such inter country agreements are carried through. He went on to

state that the governmental decision, which attracted the improper attention of

the Commission, is so basic that in the absence of discretionary power to take

such decisions, every government will be thrown to a state disarray. He added

that Article 144 and145 of the Constitution of the People’s Republic of

Bangladesh have conferred such discretion on the government. He also

reminded us that the defence of the realm falls within the list of the pivotal

tasks of the government , the government’s ardent responsibility being to

ensure the inviolability of the country and it’s people, adding that this

question can not be compromised. Mr. Taposh gave us to believe that the

Government is required to take and consider expert opinion on such highly

technical and sensitive matters and that there was no fluctuation from that

procedure in the instant case : the decision was not taken by the Petitioner of

21

her own subjective choice, the same was taken only after she was thoroughly

advised quite comprehensively on this matter. The matter was also discussed

in the cabinet in the usual way. He drew our attention to the document

retained in the file containing advice the Petitioner received from well

meaning people. He continued to state that the air crafts were bought at a

substantially reduced price whereby the country has been spared of a huge

sum in foreign currency. The price actually paid, stated Mr. Taposh, was US

Dollars 115 million as opposed to US Dollars 283 millions, and thus an

amount of US $ 168 million were saved for the country. Mr. Taposh also

took us through documents annexed to the petition, which divulged quite

undistortedly that the decision to buy MIG-29 Fighters in question were

adhered to after lengthy, elaborate and mind jogging anlyses, having taken

advice from those who matter. The document titled “ aviv weeiYx ” in

impregnated with vital information on the importance of MIG -29 Fighters

in the modern warfare. It has been stated in the said “aviv weeiYx ” that

22

MIG-29 is a lucrative air machine to the people in the west and that it has a

very high degree of competence to attack enemy objects. It can fly at 1 and 2

½ time the speed of sound. The most significant characteristic of this air craft

is it’s degree of precision . Mr. Taposh went on to submit that the decision to

purchase the air crafts in question was taken by the previous Government ,

and the government , led by the Petitioner, went ahead to implement that

previous decision.. He further articulated his submission saying that the

charge sheet is devoid of legaality for more than one reason. It has been based

on the FIR and the CS which are imbecile . Mr. Sheikh Fazle Noor Taposh,

submitted that no charge can be framed if the allegation is not embedded

with mens-rea. Arguing that the previous abortive application under Section

561A of the Code of Criminal Procedure, does not pose any stumbling block

on the instant petition’s path, Mr. Taposh relied on the decision in the case

of Mahmuda Rahman –v- Bangladesh (49 DLR 133) and submitted that the

said previous application was not decided on merit. He also argued that the

Court below’ charge framing decision is tainted with malafide consideration

23

and is hence liable to be set aside.that if the every initiation of criminal

proceeding is tainted with malafide intention. He also relied on the decision

of Bhazan Lal Vs. The State, reported in AIR 1992 (SC) 604, to back up his

submission as to the writ Bench’s competence to assume jurisdiction in a

criminal matter. He submitted that if this Division arrive at a conclusion that

the charge framing process witnessed illegality and the charge has been

framed by resorting to an illegality, then the whole proceeding should be set

aside as prolongation of the same would entail absurdity only.

Mr. M. A. Aziz Khan, the learned advocate appearing for the

respondent No.4, namely; the Anti Corruption Commission( Commission for

short) to repel the contention advanced by the petitioner’s learned advocates

submitted that the question as to whether the FIR and the charge sheet

disclosed any offence or not is a matter for the trial Court, which can decide

this question only after evaluation of evidence and hence our interference at

this stage would be inconducive to the notion of justice. He further submitted

that section 5(2) of the Prevention of Corruption Act, 1947 stands on its own

24

as a penal provision and as such even if it is taken that the FIR or the CS

stories do not attract Section 409 of the Penal Code, the prosecution can, still

proceed on Section 5(2) of the Act of 1947. He further submitted that charge

can be framed against an accused person even during his/her absence if her

presence has been dispensed with and hence no irregularity was committed by

the court below . Mr. Khan was however, unable to show any passage from

either the FIR or the CS depicting criminality. Mr. Khan tacitly, though not

explicitly, admitted that the allegation as contained in the indictment do not

encompass any offence under section 409 of the Penal Code.

The averments and the submission of the parties concerned raise a few

questions, namely whether the present petition invoking writ jurisdiction is

maintainable or not as it orbits round a criminal matter and also because of

the availability of remedy under Section 561 A, Cr.PC and also because of the

previous unsuccessful application under S 561 A, Cr.P.C., whether the

charge as framed can survive the test of legality as it was done in the absence

of the Petitioner , whether the charge framed in the backdrop of the story as

25

scripted in the FIR and the CS is sustainable in law, whether, if the charge as

framed is castigated on ground of illegality, the whole proceeding would

stand liable to be set aside.

.

In addressing the first question ie, whether this petition is maintainable

as it is essentially a criminal matter and, as alternative remedy is available in

the form of an application under Section 561 A, to the Petitioner, we do

immediately remind ourselves that the proposition that writ jurisdiction is not

available in a criminal matter, is a myth, which must be dispelled.

In so saying we wish to emphasise that the doctrine of judicial review

was first gestated in the womb of the criminal jurisprudence in it’s natal

home. Even before advent of the Tudor period, from the year 1280 to be

nearly precise, the issuance of the writ of certiorari first saw the light of the

day when the King’s Bench began the practice of asking for the records of the

proceedings in the Courts of the Justices of Peace (JPs), with a view to quash

such proceedings. During those days the Kings Bench embarked upon the

26

procedure of issuing ‘Certiorari’ , meaning ‘certificate’, to the JPs to quash

their judgments or orders (Henderson: Foundation of English Administrative

Law: de Smith, Wolf and Jowel,: Judicial Review of Administrative Action,

4th Edition 584: Caenegem: Royal Writs in England from the Conquest to

Glanville: R-v- Lowle 1759).

De Smith , Woolf (Lord Woolf, a Former Master of the Rolls) & Jowell

in their book, ‘Principles of Judicial Review’ states, ‘Certiorari was

historically linked with the King’s person as well as with the King’s Bench; it

was of high importance for the control of the inferior tribunals , particularly

with respect to the administration of criminal justice’ ( Page 532) . The same

authors went on to write; ‘ The Court of King’s Bench, which had always

been associated with the work of government and had retained jurisdiction

over the work of the justices in the sessions and of other local bodies during

the hay day of the Council and the Star Chamber, was manifestly the proper

superintending authority. But it could not exercise it’s authority by means of

writ of error, for although error lay to impeach the record of a judgment given

27

on indictment it would not lie to quash convictions and orders made in

summary proceedings.......... After a period of doubt and vacillation, the Court

ultimately committed if self to the proposition that the appropriate remedy in

all cases where an inferior statutory tribunal had exceeded it’s jurisdiction or

drawn up a conviction or order that was bad on it’s face was a writ of

certiorari to quash the conviction or order. The process by which this

proposition came to be established is still not free from obscurity; but by 1700

it was possible for Holt CJ, in the famous case of Groenvelt-v- Burwell (1700

1 Ld. Raym 454) to proclaim the grand generalisation that: “It is a

consequence of all jurisdiction to have their proceedings returned here by

certiorari to be examined here ....... Where any Court is crected by a statute, a

certiorari lies to it .....” (Page 534-5).”

That trend, however, did not remain confined to those olden ages, but

continued to flourish unabated, which process is in progression even today, as

would be seen from the following decisions. So, in R-v-Herefordshire

Magistrate Court ex p Rowlands(1998 QB 110), the Queen’s Bench Division

28

quashed an irregular conviction after judicially reviewing the same

notwithstanding the existence of right of appeal to the Crown Court.

Similarly in R-v- Wandsworth JJ ex parte Read (1942 1KB 281) the

Chief Justice Lord (Viscount) Caldecott had no hesitation to refute the

contention that judicial review would not lie as the petitioner had a right of

appeal as well as a right to take recourse to the device known as ‘case stated’,

which is similar to our proceeding for quashment under Section 561A of the

Code of Criminal Procedure. Lord Caldecott expressed; ‘It remains to

consider the argument that the remedy of certiorari is not open to the

appellant because others were available. It would be ludicrous in such a case,

as the present, for the convicted person to ask for a case to be stated. It would

mean asking the court to consider as a question of law whether the justices

were right in convicting a man without hearing his evidence. This is so

extravagant an argument as not to merit a moment’s consideration.’

29

The House of Lord’s decision in Leech –v- Deputy Governor of

Parkhurst Prison (1988 AC 533), also lends enormous support to this

contention.

In R-v- Reading Crown Court ex p Hutchinson (1988 QB 384) , R-v-

Devizes Justices ex p Lee, DPP-v- Head (1959 AC 83), R-v- Smith (1984 Cr.

L. R. 630) and in R-v- Oxford Crown Court ex p Smith (1989 2 Admin Law

Report) the various English Courts , inclusive of the House of Lords judicially

reviewed Magistrate and Crown Courts’ decision to ignore the plea raised by

the accused persons that the criminal courts concerned were obliged to

examine the validity of the by-laws, they were charged with, validity and the

applicability of the orders they were indicted under.

In Boddington –v- British Transport Police, the House of Lords

judicially reviewed a Magistrate Court’s decision to refuse to examine the

vires of a by-law, though , at the end held that the by-law was valid.

In of R Vs. Chief Constable of Merseyside ex p Calveley 1986 Q.B. 424, it

was held that the existence of alternative remedy notwithstanding, judicial

30

review may be justified where there has been abuse of statutory power by the

authority. In Leach -Vs- Deputy Governor of Parkhurst Prison (1988 AC

533), the House Lords held that the existence of alternative remedy does not

deprive the Administrative Court of jurisdiction, it simply requires the court

to exercise it’s discretion: whether leave for judicial review to proceed is

granted will depend on whether the statutory remedy is satisfactory and

effective.

True it is that unlike ours, in Britain there is no written constitution to

dictate that the High Court Division may interfere, “if satisfied that no other

equally efficacious remedy is provided by law”. But it is equally true that the

area of the common Law principle, upon which the English doctrine of

judicial review is founded, is no way different from our written Constitutional

mandate. It is also very much an English Common Law requirement that

judicial review may not normally be available where alternative, effective,

statutory remedies are in hands, as depicted above. In any event, when

fundamental right is invoked, question of alternative remedy becomes a

31

matter of discretion only because unlike Article 102(2), Article 102 (1) does

not speak of efficacious alternative remedy.

The Indian Supreme Court in State of Hariana-v-Bhajan Lal,(AIR1992

SC 604), inflexibly discarding the idea that writ jurisdiction can not be

invoked in a criminal matter, expounded seven types of situation, not

exhaustive though, where the High Courts may review a criminal matter

under writ jurisdiction.

Even our Appellate Division did not find any reason to jettison the

above disclosed principles. So, in Government of the peoples Republic of

Bangladesh and others –vs.- Iqbal Hasan Mahmood Tuku, 60DLR AD 147),

the Appellate Division declined to endorse the contention that a criminal

matter cannot be agitated through writ jurisdiction because of the existence of

alternative remedy under Section 561A of the Cr. P.C.

The Appellate Division in M.A. Hai –vs-TCB (40 DLR AD 206)

arrived at similar conclusion.

32

In Bangladesh Vs. Haque, reported in 16 DLR (AD) 147, the Appellate

Division discussed the contention that the writ petition concerned was not

maintainable because of the availability of a remedy under Section 561 A of

the Code of Criminal Procedure and then categorically expressed that when a

case raises question of law and requires provisions of a statute to be

interpreted, remedy under article 102 of the Constitution is more apposite. In

Jaha Howlader Vs. C.M.M. Court, Dhaka, (58 DLR 106) this Division

entertained a writ petition and made the same absolute, availability of relief

under Section 561A notwithstanding.

To address the question as to maintainability based on the factum of

the previous abortive attempt to have the proceeding quashed by invoking

Section 561 A , of the Code of Criminal Procedure, we note that the said case

admittedly ended on ground of prematurity, not on merit. In this respect we

can quite cogently rely on this Division’s decision in the case of Mahmuda

Rahman –v- Bangladesh( 49 DLR 133), where it was explicitly held that

rejection of writ petitions on ground of availability of alternative remedy by

33

way of quashing of the proceedings can not be a bar against the same

criminal proceedings when the very legality of the institution of the

proceeding have been challenged.

We can not , therefore, be inclined to accede to the argument that this

petition is not maintainable because of the said previous abortive attempt.

We have already cited above the Indian Supreme Court’s decision in

the case of The State of Hariana –v- Bhajan Lal , supra, supporting the view

that jurisdiction under the inherent power(Section 561 A , of the Cr.PC , in

Bangladesh ) can , in certain circumstances, be overlapping with writ

jurisdiction in criminal matters.

The next question is whether the Court below erred in law in framing

charge against the Petitioner in her absence, and what should be the

consequence if we hold that it did so misdirect itself.

Verbatim reproduction of Sections 241 A and 242 are , we reckon, are

imperative to address that question and hence they are replicated here under;

34

Section 241 A : ’When the accused appears or is brought before the

magistrate , and if the magistrate upon consideration of the record of the case

and the documents submitted therewith and making such examination , if any

of the accused as the magistrate thinks necessary and after after giving the

prosecution and the accused an opportunity of being heard , considers the

charge to be groundless, he shall discharge the accused and record his reasons

for doing so.’

Section 242; ‘ If, after such consideration and hearing as aforesaid, the

magistrate is of opinion that there is ground for presuming that the accused

has committed an offence , the magistrate shall formal charge relating to the

offence of which he is accused and he shall be asked whether he has

committed the offence with which he is charged.’

So, Section 241 A, quite explicitly surmons that the accused has to be

before the Court , whether he himself appears or is brought before the Court.

at the time the Court considers an application under the above cited Sections,

only exception being when the accused is absconding. The language used in

35

the said Section connotes that if there is a genuine adjournment application,

the charge hearing must be deferred in order to give the accused an

opportunity to explain her case.

Section 242 provides; If after such consideration and hearing as

aforesaid, the magistrate is of opinion that there is ground for presuming that

the accused has committed an offence, the magistrate shall frame a formal

charge relating to the offence of which he is accused and he shall be asked

whether he admits that he has committed the offence with which he is

charged.’

Again presence of the accused is imperative otherwise how can there be

a “hearing as aforesaid’ and how ‘ he shall be asked whether he admits that he

has committed the offence...’, as is mandatorily required by the Section under

discussion?

What we have stated above so well settled and deeply trenched,

supported by an unbroken chain of authorities, that this principle hardly

needs any elaboration . To state it succinctly, the presence of the accused ,

36

when he is not in hiding ,during the charge hearing is a sine qua non. This is

definitely what the principle of natural justice ardently demands.

Cases cited by Mrs Rafiq-ul-Huq, Anisul Haque, Abdul Matin Khasru,

Nurul Islam Sujan, Yousuf Hossain Humayun and Sheikh Fazle Noor Taposh

leave no doubt whatsoever to lend overwhelming support to the contention

that the accused persons must not only be prepresent during the charge

hearing but he is also to be provided with an opportunity to explain his

case, provided , however, he is not in hiding.

So , in Nizamuddin Miah –v- State (26 DLR 350) it was held that failure to

inform the accused of the allegation against him at the time of charge hearing

is is bad in law.

In Bashir Kha-v-The State (50 DLR 199) this Division observed that the trial

Court’s failure to intimate to the accused ,during the charge hearing, the

Section of the Code under which he is charged , would be tantamount to

depriving him of proper defence , which would, in turn occasion failure of

justice.

37

In Bashiruddin Ahmed –v- The State (34 DLR 413) it was unequivocated by

this Division that Section 242 of the Code of Criminal Procedure requires the

Court to bring to the accused’s knowledge, specifically the charges he is

being indicted with , during the charge hearing,

In Nazrul Islam –v- The State (50 DLR 103), it has been stated that

irrespective of whether the accused applies for dischargement or not , the

Court concerned must hear both the sides during charge hearing and must not

frame charge mechanically simply relying on the FIR and the CS.

In Moonda –v- The State (11 DLR SC 32), the Supreme Court of Pakistan

held that a magistrate a duty to require the accused at once , after the charge

has been framed, to give a list of witnesses.

In Hari Dayal Singh –v- Bhajan Chandra Saha (AIR 1961 Tripura 41) it was o

iterated that as soon as the accused person appears or is brought before the

magistrate , the substance of the charge must be stated to him and he must be

asked to plead.

38

This Division in Hazi Abdur Rahaman –v- Syeedul Haque Chowdhury ( 38

DLR 4)ordained that during charge hearing under Section 241 A of the Code

of Criminal Procedure , the magistrate is required , amongst other things, to

examine the accused as he thinks necessary.

The Bibhuti Bhusan Das Gupta and others -v- The State of West Bengal(AIR

19969 SC 381) in the context of Section 342 Cr P C, the Indian Supreme

Court quite categorically stated that even when the personal appearance of the

accused has been dispensed with, the accused’s pleader can not represent his

client for the purpose of Section 342 CrPC examination, as examination of

the pleader in substitution of the accused himself is not sufficient compliance.

Althogh that case concerned Section 342 Cr.PC , there exists no reason why

the same principle should not apply to Section 242CrPC as well, the

difference between the two being one of stage trial.

Admittedly, the Petitioner in the instant case ,was not in abscontion, her

presence was dispensed with. She was unwell , she could not make herself

available for a very cogent reason , which was brought to the notice of the

39

Court below , and the Court below also accepted it when it dispensed with her

presence on the very same ground. In fact, she was away with the leave of the

Court and the Court below knew that the petitioner was away from the

country as she had been receiving medical treatment abroad. In that scenario

it was imperative on the part of the court below to defer the charge hearing

until such time when the petitioner could make herself available to the Court

on returning home at the conclusion of her treatment in the United States.

So, this failure on the part of the Court below to follow strictly the

commandments of Section 242 Cr.P C, without more, in our view , totally

vitiated the charge hearing process, thereby plunging the charge as framed, to

oblivion.

The next question is whether the facts as narrated in the FIR can

engage any ingredient of any penal law of the land, and whether the charge

as framed , can survive if the answer be in the negative.

40

Admittedly the indictment as recorded in the FIR and the CS was under

Section 409 of the Penal Code as well as under Section 5(2) of the Prevention

of Corruption Act 1947.

The FIR cited Sections 418 and 109 of the Penal Code as well as

Section 5(2) of the Prevention of Corruption Act 1947 , while the CS inserted

another Section, Section 409 of the Penal Code, and finally charge was

framed under Sections 409 of the Penal Code as well as Section 5(2) of the

Prevention of Corruption Act 1947. So we are to see if the ingredients of

Sections 409 and 5(2) can be drawn to the facts as laid in the FIR, bearing in

mind that the CS virtually replicated the FIR story in to to so far as the factual

aspects are concerned.

The prime ingredient of Section 409 is criminal breach of trust. Under

Section 405 PC, the defining section, a Criminal Breach of Trust is

occasioned only when the postulant dishonestly misappropriates or converts

to his own use the subject property or dishonestly uses or disposes of that

property in violation of any direction of law prescribing the mode in which

41

such trust is to be discharged, or of any legal contract , express or implied ,

which he has made touching the discharge of such trust, or willfully suffers

any other person to do so.

There is no allegation in the FIR that the Petitioner harboured any of the

deeds listed in Section 405 PC, as cited above.

Section 109 needs no discussion as it contains provisions as to inchoate

offences only.

So far Section 5(2) of the 1947 Act is concerned, again there is no

allegation that the Petitioner had done anything catalogued in Section 5(1) of

the said Act, and hence ingredients of Section 5(2) can also not be dragged to

be relied on.

We are therefore, in all four with Mr.Haque’s submission to the effect that

the FIR stories do not, in the instant case, depict any offence.

What consequences would such a vacuous FIR entail? To trace an accurate

reply , we are to dissect the ratio as have been elucidated in the following

cases.

42

The decision that deserves prefatorial consideration is the age old one, a

genesis of the 1940s decade, that emanated from the Privy Council in the case

of Emperor-v-Nazir Ahmed (AIR 1945 PC 18). In that case the Council’s

advice to the Crown did not remain confined to the proposition that a case

commenced with a frail FIR is incapable of reproductivity, but also included

the notion that in such an event the Court need not wait to see the

completion of investigation process before quashing the case because such a

case can be brought to mortuary at the very moment of it’s birth for the

reason that the police would, in a case like that, have no authority to

investigate.

That theory was followed in the countries of the sub-continent unabated.

So, in a plentitude of cases, including those one catalogued below, the Indian

superior courts held that an FIR or a complaint petition can be quashed at a

very early stage, at the threshold, if no offence is disclosed by the said

instruments. In the cases of Shrei International Finance Ltd-v- M G Narayana

(1998 Cr. L J 2220), State of UP –v-OP Sharma ((AIR 1996 SC 2983), State

43

of HP-v-Pirthichand (AIR 1996SC 977) and the State of West Bengal –v-

Swapan Kumar (AIR 1982 SC 949), the Supreme Court of India held that if

the FIR taken at it’s face value and accepted at it’s entirety, does not prima

facie constitutes any offence, or does not make out a case against the accused,

it will be the duty of the Court to quash the criminal proceeding at the

preliminary stage and that the Court need not wait till the magistrate takes

cognisance of the offence or issues process.

In Rajesh Kumar Bansal –v-State (1992 Crimes 1 7,9, Del) it was held

that a case may be quashed at the initial stage if it is apparent from the FIR or

the complaint petition that the chances of conviction is bleak.

In Dr. Dattatraya –v- State of Maharashtra(1982 Cr L J 1025) and State

of Karnatikat-v-L. Muniswami (AIR 1977 SC 1489), it was held that an order

of charge framing may be quashed where the witnesses do not make out

prima facie case.

The following are some of the cases, among many others, to stand as

astute authority for the proposition that if the FIR or Complaint Petition

44

discloses no offence, the proceeding can be quashed.; (1) Arnaraz –v- Alcox

Metals Ltd, ((2005 Cr. L J 610), (2) Kali Charan Gupta-v- Ashoke Kumar

Jain (1984 1 Crimes 221 ALL), (3) Sh Nayck , Br.Mgr. Bombay Mercantile

Co-Operative Bank Ltd-v-Rahul Kunubhai Aashar (1995 4 Crimes 614 Guj),

(4) Yashuwant Verilal Sanghvi –v- Sahed Sinh Dilubbhaj,(2004 4 Crimes 20

Guj) (5) M Narayandas –v- State of Karnataka 2003 11 SCC 251) , (6) State

of Andhra Pradesh –v- Golaconda Linga Swami (2004 6 SCC 522) Mangal

Chowhan –v- State ( 1983 Cr. LJ 279- Cal -DB), (7) Vinod Kumar Sethi –v-

State of Punjab AIR 1982 P&H 372), (8) Subhash Chandra –v- State of

Punjab (1988 2 Crimes 21 P&H) .

The wave of the same notion hit our jurisdiction as well simultaneously.

So, in Abdul Quader Chowdhury –v- The State (28 DLR AD 39)it was

observed ; ‘Interference even at an initial stage may be justified where facts

are so preposterous that even on the admitted facts no case can stand against

the accused and that further prolongation of the prosecution would amount to

harassment to an innocent party and abuse of the process of the Court. The

45

Appellate Division in in Nasiruddin Mahmud and others–v- Momtazuddin

Ahmed (36 DLR AD 14) reiterated the above stated version, expressed in the

said case of Abdul Quader Chowdhury, with approval (per Badrul Haider

Chowdhury J).

In Syed Mohammad Hashem –v- State (48 DLR AD 87), the Appellant

Division observed that if the FIR discloses no offence, the Police would have

no authority to investigate, and the case may stand liable to be quashed even

at the threshold.

Similarly in Motaleb Hussain –v-The State (6MLR SC 168) the Supreme

Court stated that if the complaint petition discloses no offence , the case can

be quashed.

In Shokrana(Md) –v-State (6MLR SC 180) the Supreme Court stated that

the FIR and the charge sheet having disclosed no offence under Section 409,

read with Section 5(2) of the Prevention of Corruption Act 19947, the case

can be quashed.

46

In Radhaballav Sarkar-v- Pijush Kanti Chakravarty (7 BLD AD 32) the

Appellate Division expressed that since no offence has been depicted by the

FIR, the case can be quashed.

In Ali Akbar-v-Enayet Hussain (2MLR AD 166), the Appellate Division

expressed in favour of quashment as the allegation did not constitute any

offence.

All the above cases were decided under Section 561A of the Code of

Criminal Procedure. So, a question naturally arises as to whether the same

consequences would ensue when an application is made under Section 241 A

. If an FIR can be quashed under Section 561 A of the Cr. P C., for failing to

attract any ingredient of any penal law, there is no reason why the same

eventuality should not be trailed when the application is under Section 241 A.

In fact this principle should be doubly applicable under Section 241.

That leads us to the irresistible conclusion that the charges as framed

are untenable in law also because the FIR depicts no offence.

47

For the reasons stated above, the impugned order resulting in the

framing of charges, is obviously liable to be quashed. But will that take the

case anywhere?

According to the Petitioner’s lawyers if we set the charge framing order

aside and proceed no more, a state of obscurity will prevail.

We could not agree more. But can we really proceed further and set the

whole proceeding aside?

Mr. Rafiqul Haque with his aura of advocacy, submitted quite

assiduously that if we are satisfied that the FIR stories divulge no offence,

that the allegation of malice stands vindicated, it will be totally incongruous

to allow the criminal proceeding to continue, and that it is quite open to us to

set aside the proceeding, absence of this relief in specific term in the Rule

notwithstanding. Relying on the Appellate Division’s decision in the case of

Maico Jute and Bag Corporation, supra, Mr. Haque argued that the relief

under Article 102 is equitable which is comparable with those the Chancellor

48

used to grant from the Court of Chancery, denoting that the principle of

fairness and equity must reign supreme in adjudicating cases under the writ

jurisdiction. He went on to say that in setting aside the whole case , we will

not really be acting in excess of the terms of the Rule, we will only unlock

the compartment of discretion to secure entry into expanded part of the Rule,

which part reads;‘ and any other or further order or orders as to this court may

seem proper and fit,’ adding that the said appended part of the Rule is actually

meant to allow a court sufficient maneuverability where it is deemed that the

circumstances call for relief beyond what have specifically been stated in the

Rule, and that this practice has been there to cater for a situation where the

court feels that such other unspecified relief is indispensable for the interest of

justice and fairness. He also argued that if we set aside the impugned decision

only, allowing the criminal proceeding to continue, the case shall simply hang

on a limbo as a stale one, plunging the whole thing to a state of nihility like a

debased asteroid.

49

We could not agree more surely, keeping the case alive would result in

absurdity. This is a case where we have irreversibly concluded that the FIR

discloses no offence. We have also projected decisions of impeccable

authority to portray that a case commenced with an invertebrate FIR should

normally face ‘quod casseture’. Additionally we are swayed that the whole

exercise was undertaken with a view to malign the Petitioner, to wreck

vengeance on her.

Hence, we find no reason to jettison what Mr. Huq proffered on this

question. Having examined the authorities Mr. Huq cited, we remain more

than satisfied that they lend inundating support to the view that when

foundation has been created , we can travel beyond the strictly specified terms

of the Rule, if the interest of justice so warrant, without which justice shall

cry in wilderness. In addition to the cases Mr. Haque submitted, we can also

look at the case of the Bangladesh Italian Marble Works Ltd–v-Government

of Bangladesh and others (Special Issue, 2006 BLT, High Court Division,

affirmed by the Appellate Division in the case Khandakar Delwar Hussain

50

and others –v- Bangladesh Italian Marble Works Ltd. 18 BLT AD 2010, page

329 ) popularly known as the 5th Amendment Case, to be guided by, in this

respect. In that case the directions were passed beyond the specified terms of

the Rule.

The Indian Supreme Court’s decision in the State of Kerala-v-TP Roshan

(AIR 1979 SC 765) also provides exquisite guideline in this respect, where

K. Iyer J, in delivering the judgment for the Indian Supreme Court , stated at

paragraph 14 of the judgment at page 770; ‘In the end , writ petitioner won

the battle but lost the war, for she got an abstract declaration that her

exclusion was invalid but was denied the concrete direction to be admitted

into the college.’

In that case the Kerala High Court, whose decision was modified by the

Supreme Court, as just stated, observed (reproduced at paragraph 13 of the

Supreme Court’s judgment at page 770); ‘We grant a declaration to the writ

petitioner to that effect. We deny effective relief to the writ petitioner on

account of non- joinder of the selected candidates...’

51

To cure the frustration that the High Court’s limited relief caused to the

writ petitioner, and indeed to enable them to win the war as well, not only the

battle, the Supreme Court made a very elaborate and comprehensive direction

upon the respondents, as can be seen from paragraphs 33, 34,35,36, 37,38,39,

40 41 and 42 of the decision at pages 775,and 776, asking the latter to create

new vacancies to accommodate 30 students , so that the petitioners can

obtain admission without disturbing or prejudicing the interest of those

students who had already been admitted into the college, who were not made

parties to the writ petition.. In channeling this rather extra-ordinary direction,

the Supreme Court, obviously travelled far beyond the terms of the Rule.

As a matter of truth, should we decide to set the subject criminal

proceeding aside, we will not really be departing from the terms of the Rule,

we will simply permeate into the extended zone of the Rule, we will do

something to supplement the Rule , to put required strength to the Rule so that

it can fulfill the purpose for which it was animated. There can no doubt that

by demonstrating that the FIR disclosed no offence, and that the respondents

52

resorted to malafide exercise of power, the Petitioner has certainly laid down,

not only a foundation, but an inviolable one.

If we part with this judgment by simply setting aside the impugned

direction, that will lead to an irretrievable stalemate. In Justice K. Iyer’s

language, the Petitioner will win the battle, only to lose the war.

For the reasons stated herein above, we are swayed to the inevitable

conclusion that the Rule deserves a successful outcome , and the same is

hence ,made Absolute in consequence , not only to the extent of setting aside

the charge framing order ,but also to the extent of setting the whole

proceeding aside.

The proceeding of the Special Case No. 1 of 2003, which arose out of

Tejgaon Police Station Case No.35, dated 11.12.2001, corresponding to

B.A.C.C. General Register Case No. 108 of 2001, whereto purported charges

were framed against the Petitioner under Section 409 of the Penal Code and

Section 5(2) of the Prevention of Corruption Act, 1947, now pending in the

53

Court of the Divisional Special Judge, Dhaka, is hereby set aside in it’s

entirety, but so far as the same relates to the Petitioner only.

There will, however, be no order as to costs.

Borhanuddin, J:

I agree.