PENAL
CODE, 1860
(XLV
OF 1860)
Section—1
It lays down
that the Penal Code extends only to offences committed in Bangladesh and not to
offences committed outside Bangladesh.
Abdul Haque Vs. The
State, 14BLD(HCD)204
Section—21, Clause 12
Principal of a private
College is not a public servant
Clause 12 of
section 21 of the Penal Code provides that every person in the service or pay
of the Government or remunerated by the Government by fees or commission for
the performance of public duty is a public servant.
Public duty
is one which is created and conferred by law by which an individual is vested
with some portion of the sovereign function of the Government to be exercised
by him for the performance of the duty for the term and tenure prescribed by
law. There is no such law in the instant case and as such the petitioner cannot
be said to perform public duty and called a public servant.
Md Matiur Rahman Vs The
State, 19BLD(HCD)607
Ref: 30DLR(SC)127;
PLD1964 Dhaka 330; A1R1957(SC)13 and A1R1918 Lahore 1 52—distinguishable
Section—34
Common Intention
This
section-does not create any distinct offence. It is intended to meet a case
where the members of a party acted in furtherance of the common intention of
all but it was difficult to prove exactly the part played by each of them. It
means that if two or more persons intentionally do a thing jointly, it is just
the same as if each of them had done it individually ‘Common intention’ within
the meaning of this section pre-supposes a prior concert. There must be a prior
meeting of the minds leading to a pre-arranged plan to commit an offence. The
common intention to commit the offence invites the application of section 34 of
the Penal Code. In offences involving physical violence, the presence of the
accused at the scene of the occurrence renders him liable on the principle of
joint liability but where the offence consists of diverse acts and it may be
committed at different times, the presence of the accused at the scene of the
occurrence is not necessary.
The State Vs. Tajul Islam
and 8 others, 15BLD(HCD)53
Ref: 44DLR
83; A.I.R.l957(SC)381; 16 DLR(SC) 94; 16 DLR (Dhaka) 189; 29DLR (SC)271; A.I.R.
1978 (SC) 1248; A.I. R. 1939 (Cal) 65; A.I.R. 1929 (Bombay) 327; PLD 1957 (West
Pakistan) Lahore, 956; A.LR. 1946 (Sind) 43; 12DLR (SC) 217; 27 DLR (AD) 29; 44
DLR (AD) 10; A.I.R. 1952 (SC) 474; A.1.R. 1976 (SC) 2027—Cited
Section—34
Under
section 34 of the Penal Code the essence of joint liability is to be found in
the existence of a common intention animating the accused in the doing of a
criminal act in furtherance of such intention. Before application of this
section to a case, it must be shown: (a) a criminal act was done by several
persons, (b) all the accused intended the commission of the offence and (c) the
criminal act was done in furtherance of the common intention of all.
Abul Kalam Azad Vs. The
State, 14BLD (HCD)401
Sections—34 and 149
Sections 34
and 149 of the Penal Code are two distinct and separate offences with different
ingredients. Section 34 of the Penal Code involves a direct overt act on the
part of the accused sharing a ‘common intention’ with others for the commission
of an offence while section 149 of the Penal Code is essentially a vicarious
liability for being a member of an unlawful assembly with the ‘common object’
of committing the offences. These two offences are of different nature.
Abu Talukder Vs The
State, 19BLD (HCD)225
Sections—34 and 149
Common
intention is an intention to commit the crime actually committed and each accused
person can be convicted if he shared the common intention. The common intention
contemplated by this section is anterior to the commission of the crime and it
does not refer to the time when the offence is actually committed.
A person
cannot be found guilty under section 148 of the Penal Code unless he carried
with him a dangerous weapon. A general statement that the accused persons were
armed with dangerous weapons like dhal, katra, lathi and sorki is not
sufficient to warrant a conviction under this section.
Nurul
Haque Matbar and others Vs. The State, 14BLD(HCD)178
Sections—34 and 149
Section 34
applies in a case where a criminal act is done by two or more persons in
furtherance of the common intention of all while section 149 applies in the
case of a member of an unlawful assembly when a criminal act is committed by
any member of the unlawful assembly in prosecution of the common object of that
assembly.
Ataur Rahman and others
Vs. The State, 14BLD(HCD)391
Ref: 37 DLR 157—Cited
Sections—99 and 100
Right of
private defence of person even extends to causing of death when there is a
reasonable apprehension that the intended assault by the aggressor would cause
death or grievous hurt. But no right of private defence of person is available
against an unarmed man.
Dalim and another Vs. The
State, 15 BLD (HCD)133
Section—100
Right of private
defence—When it extends to causing death?
When the
accused had scuffles with the deceased sometime before the occurrence and the
fear of retaliation from the deceased party overpowers the mind of the accused,
it is not possible for him, whose mental excitement can be better imagined than
described, to weigh the position in golden scales. In such a situation when he
is faced with assaults from his rival party it is not unnatural that he would
strike a decisive blow to defend himself and to free himself from the clutches
of his adversaries. In the instant case, accused Ruhul Amin gave only one knife
blow to deceased Moktar Ali and then ran away. The attending circumstances
indicate that he gave the knife blow only to free himself from the grip of
deceased Moktar Ali and ran away for safety. This conduct of the accused
satisfies the legal requirement of the right of private defence. The accused
can not be said to have exceeded the right of self-defence.
Ruhul Amin Mondal Vs. The
State, 16BLD(HCD)91
Section—109
Abetment
Abatement is
an offence under the Penal Code and a person may be charged for abetting an
offence punishable under a special law even though the word ‘abetment may not
be mentioned as an offence under the Special Act.
Hussain Mohammad Ershad,
former President Vs. The State, 14BLD(AD)178
Ref: 44 DLR (AD) 215;
33DLR 379; 17 DLR (SC) 261—Cited
Section—120B
Criminal Conspiracy
Assembly at
Bangabhaban on the occasion of oath taking ceremony took place after the
occurrence of the previous night and the presence of the petitioner at
Bangabhaban on the following day cannot by itself be a sufficient ground for
even an inference for a criminal conspiracy. Her jubilation might be her
husband but for that it cannot be said that she was in the conspiracy the
result of moral support in the activities of her husband but for that it cannot
be said that she was in the conspiracy.
Mrs.
Jobaida Rashid Vs The State, 17BLD(HCD)352
Ref: ‘Principles and
Digest of the Law of Evidence’—By M. Monir; Queen Vs. Blake, 1844 6QB 126; 17
BLD (1997) 11; 17 BLD (AD)( 1997)54; 17BLD(AD)( 1997)163:2 BLC (AD) (1997)
75—Cited
Sections—141, fifth clause
and 143
If an
assembly of five or more persons takes a decision to observe Hartal by
themselves and their associates, then the decision does not come under the
mischief of fifth clause of section 141 of the Penal Code. This decision does
not contemplate holding of any procession or picket or any activity or
activities to implement the decision. But if an assembly of five or more
persons takes the decision to observe hartal to be participated by the people
at large so that their common object is to compel others obviously by show of
criminal force to do what they are not legally bound to do, then the said
assembly must be an unlawful assembly according to fifth clause of section 141
of the Penal Code and the members of that unlawful assembly are liable to be
punished under section 143 of the Penal Code. Consequently the processions or
other activities in support of or to force such hartal shall be unlawful
assemblies. Similarly every assembly of five persons or more to protest or to
oppose hartal shall be an unlawful assembly. Activities of the members of these
assemblies shall be cognizable offences according to their behaviour under the
relevant sections contained in Chapter VIII of the Penal Code.
The State Vs. Mr Md
Zillur Rahman and ors., 19BLD(HCD)303
Section—149
For applying
section 149 of the Penal Code against an accused, three conditions must be
fulfilled: (a) the accused must have been a member of the unlawful assembly at
the time the offence was committed; (b) the offence must have been committed in
prosecution of the common object, or (c) the offence must be such as the
members of the assembly knew likely to be committed in prosecution of that
object.
Before
applying section 149, the Court must have indubitable evidence that the members
of the unlawful assembly constituted the statutory number of five, though some
of them might not have been named, or identified, or brought to trial.
Rafiqul Islam Vs. The
State, 13BLD (AD)11 7
Ref:
A.I.R.1953 SC 364; 1969 SCMR 537; AIR 1960 SC(290); AIR 1963 SC 174; AIR 1974
Sc 1567; A1R1975 SC 1917 (1921 and 1922); AIR 1978 sc 1233—Cited
Section—188
It was
obligatory on the part of the learned Magistrate to make a written complaint
alleging the nature of the order made by him which was alleged to have
disobeyed by accused and the manner of violation in order to form an opinion
that accused persons have committed an offence punishable under section 188 of
the Penal Code
Abdul Ahad @ Md Abdul
Ahad Vs The State, 20BLD(HCD)372
Section—201
To sustain a
charge U/s 201 of the Penal Code it is essential to prove that an offence has
been committed and that the accused knew or had reason to believe that an
offence has been committed and with the requisite knowledge and intent to
screen the offenders from legal punishment causes the evidence thereof to
disappear or gives false information in respect of such offence, knowing or
having reason to believe the same to be false.
Khandkar Md. Moniruzzaman
Vs.The State, 14BLD(HCD)308
Ref:
35 DLR (AD) 127; 18 DLR(SC)289; 15 DLR (SC) 150; AIR 1952 (SC) 354; 34 DLR238;
45DLR386; 30DLR58; 1984 B.C.R. 231; P.L.D. 1978 Lahore 1285—Cited
Section—295A
Deliberate
and malicious acts, either spoken or written, or by visible representation
intended to outrage religious feelings of any class of citizens constitute an
offence under section 295A of the Penal Code.
Dr. Homeo Baba Jahangir
Beiman –al-Shuresari Vs. The State, 16BLD(HCD) 140
Ref: 40 DLR 359, 1993
B.L.D. 45; 7 DLR (WP) 17 (F.B); 8 DLR (FC) 110; S.C.C. Vol.IV, 213—Cited
Section—295A
Deliberate
and malicious acts intended to outrage religious feelings of any class by
insulting its religion or religious beliefs
Section 295A
of the Code on its language is applicable to those insults to religious beliefs
which in addition to being deliberate and malicious are intended to outrage the
religious feelings of the followers of that religion.
After going
through the publication very carefully and meticulously as to its entirity the
High Court Division held that the same has not been written or published with
any intention to hit the religious feeling or sentiments of the Muslims,
rather, it was written against the narrow interpretation or distorted meaning
given or spread out in our country, specially, by less educated and half
educated fanatic religious Mollas and Islamic Fotowabaj. Reading of the entire
caption and publication establishes that its inner or real meaning is not at
all intended to hit the feeling of any Muslim or to distort the meaning of the
said Sura of the Holy Quaran.
Shamsuddin Ahmed and
others Vs The State and another, 20BLD(HCD)268
Ref: “Jesus In Heaven on
earth” and Working Muslim Mission and Literary Trust, Lahore, and of Civil and
Military Gazette, Limited Vs. The Crown, 7DLR(W.P.C. Lahore) 17—relied
Sections—299 and 300
Mere killing
of a person or mere causing of a person’s death is not murder or a culpable
homicide but it is so when caused with certain guilty intention or guilty
knowledge. Three classes of cases have been described in section 299 as
“culpable homicide” and four classes of cases have been described in section
300 as “murder”. The essential difference between mere “culpable homicide” and
“murder” is the degree of probability of causing death. When death is probable,
it is culpable homicide but when death is most probable, it is murder.
The State Vs. Ashraf Ali
and others, 14BLD (AD)127
Sections—300 and 304 Part—I
When it is
clear from the evidence that the free fight between the parties took place
following an altercation it stands out that death of the victim was caused
without any premeditation in a sudden fight in the heat of passion and without
the offenders having taken undue advantage or acted in a cruel or unusual
manner. This attracts Exception 4 of section 300 of the Penal Code and brings
the case U/s 304 part 1.
Abul Kalam Azad Vs. The
State, 14BLD (HCD)401
Ref: PLD1950 (Lahore)90;
14BLD (1994) 33; 40DLR443—Cited.
Section—302
In a case where two persons
have been murdered at dead of night, it is but natural to inform the police
first about the occurrence. Non-mentioning of any name in the F.I.R. rings a
truth in the F.I.R.
Shahjahan Sardar and others Vs. The State 13BLD(AD)58
Section—302
In case
where allegation had been made that a husband had murdered his wife, whether
the husband had a duty to explain how and by whom she was murdered—the Public Prosecutor,
whether is supposed to know the law and has a responsibility to work with
devotion.
In case
where the allegations had been that a husband had murdered his wife and then
absconded, the husband in such a situation had a duty to explain how his wife
was murdered and by whom she was murdered and in case of non-explanation by the
husband or his silence in the matter or he having absconded immediately after
the murder, would be considered to be a good ground for a finding that the
husband is guilty of murder of his wife if, however, there is no suggestion or
circumstances to show to the contrary that other inmates of the house also used
to beat her and killing her in the process.
(ii) The
Public Prosecutor is supposed to know the law and has a responsibility to work
with devotion keeping in mind that he is representing not a party but the
people in the administration of criminal justice.
The State Vs. Nurul Huq 13BLD
(HCD)99
Ref:
172 I.C.374; 39C.L.J 123; AIR 1977 (SC)1116; 126 I.C.689; 62 I.C. 545; P.L.D.
1964 (SC)813; 31DLR 312; 16 D.L.R (Dacca) 598; A.I.R 1973(SC)2474—Cited
Section—302
Circumstantial
evidence—Chain of circumstances wanting—presumption that deceased was last
found in the company of accused—whether the accused is the killer of the deceased.
The
circumstantial evidence found against the accused is incapable of explanation
on any reasonable theory except that of the guilt of the accused his persons.
Accused
presumed to be innocent of the charge till guilt is established by legal
evidence.
Principle to be followed in criminal case based on circumstantial
evidence.
It is the
fundamental principle of criminal jurisprudence that circumstantial evidence
should point inevitably to the conclusion that the accused and accused only was
the perpetrator of the offence and such evidence should be incompatible with
the innocence of the accused.
Last seen
theory—in the absence of any eye-witness to the murder and in the absence
of any positive evidence that appellant Malai was found, following deceased Siddique
Ali with sharp cutting weapons in hand and in the absence of any overt act on
the part of the deceased it cannot be said with reasonable certainty that
appellant Malai was responsible for the murder of deceased Siddique Ali
Litigation—litigation
existing between the accused and some of the witnesses is not enough to bear
grudge by the accused so as to commit the offence of murder, rather such
litigation sometime can be taken as a cause for false implication.
Malai Miah Vs. The State
(1993) 13BLD (HCD)277
Section—302
When
admittedly a wife sleeps at night with the husband in a room or hut not
approachable by others, whether the husband is rightly convicted under section
302 of the Penal Code on the basis of indubitable evidence on record?
When admittedly
a wife sleeps at night with the husband in a room or hut which is not
approachable by others and there is no probable circumstance explaining the
cause of death of the wife and she is found to have been killed by in a brutal
manner by strangulation, the husband is rightly convicted under section 302 of
the Penal Code on the basis of indubitable evidence on record against him.
Abdul Hamid @ Sofaruddin
Vs. The State, 13BLD(HCD)563
Ref: 38DLR235; 40
DLR(AD) 139—Cited
Section—302
Motive
When there
is sufficient direct evidence to prove an offence, motive is immaterial and has
no importance. While trying a case under section 302 of the Penal Code or
hearing an appeal involving section 302, the Court must not consider first the
motive of the murder, because motive is a matter of speculation and it rests in
the mind and special knowledge of the accused persons. Motive is not a
necessary ingredient of an offence under section 302 of the Penal Code. The
Court will see if sufficient direct evidence is there or not. If not, motive
may be a matter for consideration, specially when the case is based on
circumstantial evidence. [Per Mustafa
Kamal, J]
The State Vs Giasuddin and others, 18 BLD(AD)254
Section—302
Plea of alibi
In a wife
killing case it is always presumed that the husband was with the deceased-wife
at the time of occurrence, unless any alibi is set up by the defence. In that
case the burden of proving such plea rests on the husband in order to absolve
him of any criminal liability.
Abdus Salam Vs The State, 19BLD (HCD)98
Section—302
Since the
sentence prescribed under section 302 of the Penal Code is death or
imprisonment for life, the Court before recording a conviction must be
satisfied beyond reasonable doubts about the guilt of the accused persons on careful
scrutiny of the evidence on record. A conviction even on grave suspicion and
high probability is not tenable in law.
Md. Jiaur Rahman Vs. The
State, 15BLD (HCD)459
Section—302
Sentence
Sentence is
a complex matter which needs special considerations in the context of proved
facts. In the instant case the broad facts that stare at the face are that
there were hot altercations and exchange of hot words between the parties
immediately preceding the occurrence and there was grappling by Salam and 2 others
on one side and victim Jalal on the other and in the course of such quarrel and
on the hit of passion condemned prisoner Abdul Aziz Mina inflected dagger blows
on the victim. Under such circumstances, it is to be found that the condemned
prisoner had no premeditation for killing victim Jalal and he acted on the heat
of passion. The sentence of death is therefore commuted to a sentence of
imprisonment for life.
The State Vs Abdul Aziz
Mina, 16BLD(HCD)183
Sections—302/109
In view of
the fact that the condemned prisoner did not inflict any injury on victim
Hazera, although he was a silent spectator to the cruel and gruesome murder of
his wife by his companions, who were acquitted for want of legal evidence, it
is reasonable to hold that he could not be convicted under section 302 of the
Penal Code but should be found guilty for abetment under sections 302/109 of
the Penal Code.
Abdul Awal Vs. The State,
14BLD(AD)224
Sections—302134
Evidence Act, 1872(1 of
1872)
Section—3
There is
complete chain of circumstances that the appellants assaulted deceased victim
Biswajit severely and dealt fatal blow causing his death when appellant Guizar
participated in the occurrence most actively and he was found by PW4 for the
last time with the deceased victim when Gulzar was chasing by the eastern side
of the khal and the circumstances of the case taken cumulatively are forming a
claim so complete that there is no escaped from the conclusion that the murder
of victim Biswajit was committed by the appellant Gulzar and his associates and
none else.
Guizar Biswas and others
Vs The State,20BLD(HCD)550
Sections—302/34
The wife of
the deceased deposed in Court that she had recognised the assailants of her
husband and accused Akkel Ali gave channy blow, Delwar gave dao blow, accused
Omar Ali gave Lathi blow and accused Quasem gave rifle blow on her husband who
succumbed to the injuries on 15.6.1989 in the hospital which is corroborated by
PWs. 1,2, 3, 4, 6 and 8 and the dying declaration and there is nothing to
disbelieve the credibility of their evidences and hence the prosecution proved
the case beyond all reasonable doubt and therefore the conviction and sentences
under section 302/34 of the Penal Code against the condemned convict is
sustainable.
The State Vs Akkel Ali
and ors, 20BLD (HCD)484
Sections—302/34 and 201/34
Non-recovery of the deadbody
Even in a
case of non-recovery of the deadbody of a victim a conviction can be secured
for an offence of murder under section 302 of the Penal Code if there be legal
and sufficient evidence on record to prove the commission of murder by the
accused. In the face of clear evidence of eye-witnesses proving murder of the
victim by the accused by inflicting assaults on his person and the subsequent
removal of the deadbody by the accused persons for the purpose of causing
disappearance thereof, Conviction of the appellant under sections 302/34 of the
Penal Code is justified. There is no warrant of law altering the charge from
section 302 to section 364 of the Penal Code merely because the dead body was
not recovered.
Shaha and others Vs The
State 17BLD (AD)241
Sections—302 and 302/149
A conviction
under section 302 of the Penal Code and a conviction under sections 302/149 of
the Penal Code are different kinds of conviction as section 302 of the Penal
Code involves direct and personal liability of the accused whereas sections
302/149 of the Penal Code involve a vicarious liability. The trial Court
convicted the accused-appellant under sections 302/149 of the Penal Code and as
such the High Court Division was wrong in affirming the order of conviction and
sentence under section 302 of the Penal Code.
Altaf Hossain Vs The
State, 18BLD (AD)231
Sections—302, 304 and 326
The line of
demarcation between culpable homicide and grievous hurt is rather thin. In the
former case injury must be such as is likely to cause death whereas in the
latter case that is likely to endanger life. Offence of culpable homicide
pre-supposes an intention or knowledge of likelihood of causing death. In the
absence of such intention or knowledge the offence committed may be a grievous
hurt notwithstanding death being caused.
Humayun Matubbar Vs The
State, 18 BLD (HCD)492
Section—304 Part II
On scrutiny
and careful analysis of the evidence of the P.Ws it appears that accused Shamsul
Huq did not foresee that throwing of brick towards victim Kastura Bibi would
cause death to her. He had no intention to cause death or to cause such bodily
injury as was likely to cause death. Victim sustained violent blow on the
abdominal wall by the brick thrown towards her chest and got senseless but
death occurred when accused Abdul Hoque (since deceased) pressed her on the
neck resulting in her spontaneous death. Death would not have occurred if
accused Abdul Hoque would not have played the part of pressing the victim on
her neck. Accused Shamsul Huq had no premeditated intention to kill the victim
and the intention to kill is lacking in the instant case. Although, he had no
intention to kill the victim, it must be held that he had the knowledge that
such throwing of brick was likely to cause her death and the act done by him
was both rash and indiscreet and as such accused Shamsul Huq is liable for the
commission of an offence punishable under section 304 Part II of the Penal
Code.
Abdul Jabbar and another
Vs. The State, 18BLD(HCD)109
Ref: 5BLD(AD)198;
6BLD(AD)318; 10 BLD (AD)210; 5BLD 129; 8BLD 129; 48DLR 446—Cited
Sections—363 and 361
Custody of a
victim girl, if the allegations are that of kidnapping of a minor girl out of
the keeping of the lawful guardian.
Kidnapping
of a minor girl out of the keeping of the lawful guardian is an offence under
Section 363 of the Penal Code. For the purpose of custody of the victim girl as
may be prayed for in the criminal Court in a pending proceeding, the Court has
to proceed on the basis that the female is a minor under sixteen years of age
as laid down in section 361 of the Penal Code. For proving the offence of
kidnapping the minority of the victim will have to be established at the trial.
Md. Wahed Ali Dewan Vs.
The State and another, 14BLD(AD)32
Section—376
The offence
committed by accused appellant finds corroboration from the medical report,
namely the report of P.W. 1 who found marks of violence on the person of the
victim and opined that this is a case of rape. The evidence of the witnesses
has clearly established that accused appellant committed the crime of rape on
victim Kazal Rekha. The learned Judge has rightly found the accused guilty of
the offence under section 376 of the Penal Code.
Tofazzal
Hossain Khan Vs The State, 17 BLD(HCD)306
Section—376
Cruelty To Woman (Determent
Punishment) Ordinance, 1983 (LX of 1983)
Section—4(b)(c)
The High
Court Diyision on consideration of evidence of PWs rightly found that
accused-petitioner Bazlu raped victim Mahinur Begum and that it was Bazlu who
wanted to marry the victim girl Mahinur Begum and as such the finding of
conviction and sentence of the High Court Division are based on proper
appreciation of evidence on record.
Bazlu Talukder Vs The State, 20 BLD (AD)227
Section—379
When growing
of the case crops by the complainant and the cutting and dishonestly and taking
away of the same by the accused are proved, the accused is guilty of theft
under section 379 of the Penal Code. In such circumstances, no plea of bonafide
claim of right to the case land can save the accused from the criminal
liability.
Md. Motaleb Sardar and
others Vs. The State and another, 19BLD(HCD)407
Section—379
Theft and bonafide claim of
right
It is
well-settled that a co-sharer in exclusive possession of a parcel of land is
entitled to maintain his possession therein to the exclusion of his co-sharers
until the ejmali property is partitioned by metes and bounds but before
effecting such partition the co-sharers or co-owners out of possession have no
right to disturb his possession, not to speak of cutting and taking away crops
grown by him. In such a case the bonafide claim of right in the land cannot
extend to cutting and taking away crops grown by a co-sharer in possession.
Bonafide or contested claim of right is no defence against a charge under
section 379 of the Penal Code for cutting and taking away crops grown by the
co-sharer in possession.
Nasiruddin Shah and
others Vs Nazrul Islam and others, 18BLD(HCD)634
Section—392
Punishment for robbery
Section—394
Punishment for voluntarily
causing hurt in committing robbery
In view of
the fact that the two appellants and some other unidentified persons illegally
confined the informant shop-keeper and others in the shop and by curtailing their
liberty forcibly looted away valuable goods from their possession but without
causing hurt to anybody, the appellants committed the offence punishable under
section 392 of the Penal Code not under section 394.
Gohar Ali and another Vs.
The State 16BLD(HCD)398
Section—394
Non-examination of
investigating officer does not always prejudice the accused
Admittedly
the appellants remained in abscondence during the whole trial and in such a
situation the non-examination of the investigating officer cannot be said to
have caused any prejudice to the appellants.
Gohar Ali and another Vs.
The State 16BLD (HCD)398
Section—395
Dacoity is
usually committed at dead hours of the night and in that view of the matter the
means of recognition is of vital importance. The Court is to scrutinise the
evidence of witnesses with great care and caution in respect of recognition of
the accused persons.
Where the
informant’s testimony remains uncorroborated and the identity of the accused is
not established beyond reasonable doubts, it is unsafe to convict the accused
persons.
Kuti alias Bellal and
others Vs. The State, 15BLD(HCD)9
Section—395
In a case of dacoity committed
in the darkness of night the question of recognition is of vital importance.
When the only eye witness to the occurrence does not state in his evidence
about the means of recognition of the alleged dacoits, the order of conviction
cannot be sustained.
Subal Chandra Das Vs. The
State, 15 BLD (HCD) 121
Section—396
In absence of any evidence of
dacoity by any of the witness and in absence of any recover of any article
taken away during the dacoity from the possession of any of the accused person
it can be safely said that the prosecution has hopelessly failed to prove the
case of dacoity and therefore the charge under section 396 P.C. must fail on
the ground of absence of evidence to prove any of the ingredient of section 391
of the Penal Code.
The State Vs Md. Abdul Ali
and others Vs The State, 20BLD(HCD)327
Section—405
Mere
inability to pay back a sum of money entrusted, the sale proceeds of a property
entrusted, whether will establish the fact of criminal misappropriation?
The
expression ‘property’ occurring in section 405 of the Criminal Procedure Code
should not be given a narrow construction. Blank forms of tickets are also
property when the same are converted into tickets after sale.
Mere delay
in payment of money entrusted to a person, when there was no particular
obligation to pay at a certain date, does not amount to misappropriation.
Mere
inability to pay back a sum of money entrusted, the sale proceeds of a property
entrusted will not establish the fact of criminal misappropriation, if mens rea
is not established. The prosecution must also establish, apart m entrustment
that the accused had dishonestly misappropriated the property entrusted.
A.H.M. Siddique Vs. The
State 13BLD (HCD)85
Ref: 9DLR(SC) 14;
3lCr.L.J.(1930)1198; A.I.R.( 1940)330;AIR(1976)(SC) 1966—Cited
Sections—406 and 420
The question
of offence of cheating, whether arises when there is nothing to show that any
entrustment of property was made to the accused?
The question
of offence of the cheating does not arise (in the instant case) as there is
nothing to show that the accused has dishonestly induced the complainant to
sell the fish to him on credit. There is nothing to show that any entrustment
of the fish was made to the accused for sale of fish on credit according to the
direction of the person making the entrustment
Md. Islam Ali Mia alias
Md.Islam Vs. Ama! Chandra Mondal and another, 13BLD (AD)28
Sections—406/420
There is no
specific promise for payment by any specific date and as such the High Court
Division did not find any existence of initial intention for deception on the
part of the accused petitioner. What happened between them was in due course of
normal and regular business transaction for which no criminal action lies. At
best the informant may go for civil action against the accused petitioner.
Mohiuddin Md Abdul Kader
Vs The State and another, 20BLD(HCD)499
Ref: 18BLD(AD)289;
49DLR(AD)180— Not applicable
Sections—406/420
The
allegations made in the petition of complaint it clearly shows that the
petitioner had initial intention to deceive the complainant and thereby
misappropriated the money. So, it cannot be said that it is a case of civil
nature. The petition of complaint undoubtedly discloses criminal offence
against the accused-petitioner. The Appellate Division held that the High Court
Division rightly refused the prayer for quashing the proceeding.
Abu Baker Siddique Vs.
The State & anr, 18BLD (AD)289
Sections—406/420
Dishonouring of the cheque
itself does not constitute the offence of cheating.
As regards
the argument that the accused- petitioner issued a cheque knowing fully well
that he had no money in the account and that conduct amongst to cheating we are
of the view that dishonouring of the cheque itself does not constitute the
offence of cheating.
Md Motaleb Hossain Vs The
State and another, 20BLD(HCD)573
Ref: Md. Asaduzzaman Vs.
Salamatullah, 1 9BLD( 1999) (HCD)46 1—relied.
Section—406/420
The alleged
transaction in between the complainant and the appellant is clearly and
admittedly a business transaction. The appellant had already paid a part of the
money under the contract to the complainant. The failure on the part of the
appellant to pay the complainant the balance amount under the bill does not
warrant any criminal proceeding as the obligation under the contract is of
civil nature. The High Court Division were not justified in refusing to quash
the proceeding in question although the transaction in question between the
parties is clearly of a civil nature.
Dewan Obaidur Rahman Vs.
The State and anr, 19BLD (AD)128
Ref: 45DLR(AD)27—relied
upon
Section—409
Awarding sentence of fine along
with sentence of imprisonment for life, whether can be said to be illegal.
Awarding
sentence of fine alongwith imprisonment for life cannot is not illegal in view
of the said provisions of section 409 of the Penal Code.
A.M.A. Wazedul Islam Vs.
The State 13BLD (HCD)296
Section—409
The word
“banker” used is section 409 of the Penal Code, whether has been used in the
technical sense of the Banking Companies Act.
Held:
The word “Banker”occurring in section 409 of the Penal Code has not been used
in the technical sense of the Banking Companies Act but it signifies any person
who discharges any of the functions of the customary business of banking. The
word also includes a firm or company that carries on such business.
Mustafizur Rahman Vs. The
State and others, 13BLD(HCD)287
Ref: 1960 Cr. L.J. 188;
44 DLR(AD) 192; 23DLR(SC)4 1—Cited
Section—409
Mere delay in payment entrusted
to a person, whether misappropriation?
Mere delay
in payment of money entrusted to a person, when there was no particular
obligaton to pay at a certain date, does not amount to misappropriation.
A.H.M. Siddique Vs. The State, 13BLD (HCD)85
Section—409
In section
409 of the Penal Code there is no provision for confiscation of property. Yet
the Appellate Division refused to consider the prayer of the petitioner at this
stage as this point was not specifically raised before the High Court Division.
Bibhuti Bushan Talukder
Vs The State, 17BLD(AD) 168
Section—409
Mere
retention of money by the accused for some time without actual use for which it
was meant or mere delay in disbursement of money due from him, if properly
explained, does not constitute an offence under section 409 of the Penal Code.
A.K.M. Hafizuddin Vs. The State, 15 BLD(HCD)234
Section—409
The
ingredients of section 409 of the Code are misappropriation to commit criminal
breach of trust in respect of property over which he had dominion as public
servant. The appellant had no criminal intention to commit such criminal breach
of trust in respect of the property which was held within his dominion, rather it
shows his bonafide intention to help one of the customers of the Bank in tiding
over his financial difficulties and as such the appellant is entitled to
acquittal as of right.
A.K.M. Mohiuddin Vs The State, 20 BLD(HCD)172
Section—411
Dishonestly retaining or
receiving stolen property
In order to sustain a
conviction under section 411 of the Code the prosecution must prove
affirmatively by reliable evidence that the accused had exclusive possession
and effective control or domain over the stolen property or he received or
retained the same knowing or having reason to believe it to be a stolen
property.
Md. Afsar Ali Pramanik Vs
The State, 20BLD(HCD)356
Section—415
Simple dishonouring of a
cheque itself is not cheating
To
constitute an offence of cheating as described in section 415 of the Penal
Code, there must be a specific allegation that the accused had initial
intention to deceive the complainant. It is also true that such intention can
be gathered from the facts and circumstances of a because such intention
normally is concealed in the mind and is not expressed. If there are
allegations that goods were delivered on credit on specific promise of
repayment within a specific date but the payment was not made within the
specific time, it may be inferred that there was initial intention of
deception.
Md Asaduzzaman Vs Md Salamatullah,
19BLD(HCD)461
Ref: 46 DLR (AD) 180; 30
DLR 327; 27 DLR (AD) 175; 1954 Crl.L.J. (SC) 1806; 10 BLD (AD) 168:
42DLR(AD)240—Cited
Section—415
It is a
settled principle that the initial intention to deceive must be established to
justify a conviction for cheating. The intention is to be gathered from the
surrounding circumstances.
Md. Arifur Rahman alias
Bablu Vs. Shantosh Kumar Sadhu and another, 14 BLD(AD) 78
Section—420
To sustain a
charge of cheating, the prosecution must prove the initial intention of the
accused to deceive.
Abdul Karim Vs Shamsul Alam and another, 14BLD(HCD)167
Ref: 42 DLR (AD) 31; 27
DLR (AD)175; 36 DLR (AD) 14—Cited
Section—420
Whenever a
loan is taken by one from another on a representation to repay the same dishonestly
inducing the person to lend money having no intention to repay, whether it will
be an offence of cheating punishable under section 420 B.P.C. Intention of a
person, whether can only be gathered from his conduct?
Whenever a
loan is taken by one from another on a representation to repay the same
dishonestly inducing the person to lend the money, having no intention to repay
the same, it will be an offence of cheating as defined under section 415 and to
be punished under section 420 of the Penal Code.
Intention of a person can only
be gathered from his conduct at the time of the occurrence and the surrounding
circumstances.
Md. Shafiuddin Khan Vs.
The State & another, 13BLD(HCD)362
Ref: 13 CWN, 728; 10 DLR
325, 26 DLR 146; 27 DLR (AD) 175; 7 BLD 164—Cited
Sections—420
Dishonouring
of the cheque itself cannot be considered as an ingredient of the offence of
cheating unless there is evidence to show that after issuing it he has done
something more to defraud the payee. Even such a cheque issued with the
knowledge that he has not such amount in the Bank account at the moment it will
not amount to cheating if he has intention to deposit the money before the
cheque is presented for encashment. Mere dishonouring of the cheques itself is
not an ingredient of cheating.
Mohiuddin Md Abdul Kader
Vs The State and another, 20BLD(HCD)499
19BLD(HCD)46 1—relied
Sections—441/447
Criminal trespass
It provides
that whoever enters into or upon property in the possession of another with
intent to commit an offence or to intimidate, insult or annoy any person in
possession of such property, or having lawfully entered into or upon such
property, unlawfully remains there with intent thereby to intimidate, insult or
annoy any such person, or with intent to commit an offence, is said to commit
“criminal trespass”.
In the
instant case the dominant intention of the appellant was to annoy the
complainant who was in possession of the case land. The complainant might not
be present at the time of the illegal entry but he came to the scene thereafter
and opposed the appellant who, despite his protest, carried on the work of
construction. So the ingredients of section 441/447 of the Penal Code have been
well-established.
Mohammad
Ali Member Vs Abdul Fazul Mia Md. Mazedul Huq and another, 19BLD (AD)260
Section—447
Criminal trespass
In view of
the fact that theft of the case crop by the accused by the cutting and taking
away of the same out of the possession of the complainant and damaging some
crops in the course of the same transaction necessarily involves their entry
into the case land and the accused are punished for the said offences, a
separate conviction under section 447 of the Penal Code is wholly unwarranted.
Moreover, in the absence of any finding by the trial Court on the intention or
the object of the illegal trespass of the accused, conviction of the accused
under sections 447 or 448 of the Penal Code is not maintainable in law.
Md. Motaleb Sardar and
others Vs. The State and another, 19BLD(HCD)407
Section—471
For the
offence under section 471 of the Penal Code an accused can be punished, as
provided in section 465 of the Penal Code, upto 2 years rigorous imprisonment
or with fine or with both. The imposition of 4 years rigorous imprisonment
under section 471 of the Penal Code is not sustainable in law.
Abul Hossain Mollah alias
Abu Mollah Vs The State, 17BLD(AD)170
Section—493
A mere
promise of marriage made by the accused to a woman or to her guardian intending
never to fulfil his promise does not warrant a conclusion that a false belief
was caused in her mind that she was the lawfully married wife of the accused.
Makhan alias Putu Vs. The State, 14BLD(HCD)122
Ref: 34 DLR 366—Cited
Section—499
Eighth Exception
Complaint
made by the petitioners in good faith to the Hon’ble Chief Justice regarding
the conduct of the complainant judicial officer is not defamation as the same
is covered by 8th exception of section 499 of the Penal Code.
Md. Abdun Noor and others
Vs The State and another, 18BLD(HCD)624
Section—499
Ninth Exception—Defamation
Bringing
anything which is unjust or improper to the notice of the public at large is
certainly for the public good. In the instant case, since the alleged offending
imputation was made at a press conference by a person who has not been made an
accused in the case and the matter was earlier published in other newspapers
and the present publication was made in good faith, the offending publication
per see satisfies the requirement of Ninth Exception to section 499 of the
Penal Code and as such further continuation of the impugned proceeding amounts
tà an abuse of the process of the Court and the same is quashed.
Syed Mohammad Afzal
Hossain Vs. S.M. Selim Idris, 15BLD(HCD)362
Ref. 19DLR (SC)
198—Cited
Section—500
To
constitute defamation, the offending words spoken must contain imputation
concerning a person intending to harm or knowing or having reason to believe
that such imputation will harm the reputation of such a person. Explanation 4
of section 499 of Penal Code provides that no imputation harms a person’s
reputation unless that imputation lowers the moral or intellectual character of
that person in the estimation of others.
A.K.M. Enamul Haque Vs.
Md. Mizanur Rahman and others, 14BLD(HCD) 201
Section—599/500
Imputations,
if made by a lawyer iii the discharge of his or her professional duty on the
character of any person in good faith, whether will constitute any offence of
defamation—A lawyer while acting under the instructions of his or her client,
whether is entitled to special protection?
Imputation,
if any, made by a lawyer, in the discharge of his or her professional duty, on
the character of any person, in good faith and for protection of the interest
of the person making it or of any other person or for the public good will not
constitute any offence of defamation.
A lawyer,
while acting under the instructions of his or her client and proceeding
professionally, has a qualified privilege; while acting as such, the lawyer
does not, if not otherwise implicated, come within the ambit of defamation
unless and until there is an express malice on his or her part; and mere
knowledge in such cases can not be equated with express malice or malice in
fact. The privilege enjoyed by the lawyer is only a qualified privilege and he
will not come within the bounds of the offence of defamation unless and until
there is an “express malice” or malice in fact on his or her part.
An Advocate
is entitled to special protection, when is called in question in respect of
defamatory statements made by him or her in course of his or her duties as an
Advocate. The Court ought to presume that he or she acted in good faith upon
instructions of the clients and ought to require the party to prove the express
malice.
Mrs. Sigma Huda @ Sigma
Huda Vs.Ishfaque Samad. 13BLD(HCD)152.
Ref: (1976) 78 Born.
L.R.234; A.I.R.1927 Cal. 823; A.I.R. 1932 Bom. 49O—Cited.