Nari-O-Shisu Nirjatan Daman Ain (VIII of 2000)
Section 17(2)
Special Laws generally carry harsher punishment than general law. Hence, the requirement of section 17(2) should not be taken so lightly. . . . (18)
 
Penal Code (XLV of 1860)
Section 211
Code of Criminal Procedure (V of 1898)
Sections 195(1) and 476(1)
It is true that the section does not specify that the written complaint must be filed by a person aggrieved. Hence, it can be filed by any person. As can be seen from a combined reading of section 211 of the Penal Code along with sections 195(1)(b) and 476(1)of the Code of Criminal Procedure, a complaint can be made in writing by the Court which was in seisin of the case where the false criminal charge was found to have been made, but only after recording a finding that the case imputed a false charge of a criminal offence. However, the Nari-O-Shishu Nirjatan Daman Ain does not require the Court to lodge the complaint, rather any person may do so. . . . . (19)
 
Penal Code (XLV of 1860)
Section 211
Code of Criminal Procedure (V of 1898)
Sections 195(1) and 476(1)
In the event of a case under special law, any written complaint can be filed by anyone, since it is invariably a cognizable offence, but should not be acted upon without taking proper precautions, as is, for example, required under section 195(1)(b) read with section 476(1) of the Code of Criminal Procedure for a case to proceed under section 211 of the Penal Code. . . . (20)

Interpretation of Statutes
Before proceeding with a case of false complaint or information against the informant or complainant, it would be prudent for the Court or Tribunal concerned to examine the materials on record to assess the prima facie nature of the allegation. It would be a futile exercise to proceed against the complainant /informant of a case charging him with having lodged a false case if the allegation of a false case having been brought by the accused is ultimately not likely to be substantiated in Court.  . . . (21)
 
Md. Nurul Huq (Md) Vs. State, 55 DLR 588 ref.
 

For the Appellant : Mr. Momtaz Uddin Fakir, Advocate instructed by Mrs. Sufia Khatun, Advocate-on-Record
For Respondent Nos. 1-3: Mr. Khandker Mahbub Hossain, Senior Advocate, instructed by Mr. Ashrafuzzaman Khan, Advocate-on-Record.
For Respondent No. 4: Mr. Syed Mahbubar Rahman, Advocate-on-record.
For Respondent No. 5: Not represented
 
Criminal  Appeal  No. 12  of  2008

 

Muhammad Imman Ali, J:
 
         This criminal appeal, by leave, is directed against the judgement and order dated 24.09.2006 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No. 15740 of 2005 making the Rule absolute.
 
2.      The relevant facts are as follows: 

         One Md. Abdul Motaleb Howlader on 10.09.2002 at about 12:30 hours lodged a First Information Report (F.I.R.) with Shyampur Police Station, DMP, Dhaka alleging that on 08.09.2002 at 7:00 a.m. his only son, namely Md. Mosharraf Hossain aged about 14 years was abducted on his way to work at about 7:15 a.m from in front of the shop of Idris Miah by accused A.K. Azad alias Baira Azad and others and taken away in a Microbus in presence of the local witnesses. Thereafter, on 10.09.2002 at 9:30 hours said A.K. Azad made a telephone call to the informant and demanded Taka 2,00,000/-for releasing his son. Upon the aforesaid F.I.R. Shyampur Police Station Case No. 21 dated 10.09.2002 under sections 7,8 and 30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 (the Ain, 2000) was started. 
 
3.      After completion of investigation police submitted a final report in favour of the accused persons recommending prosecution of the informant Md. Abdul Motaleb Howlader (hereinafter referred to as the informant) under section 17 of the Ain, 2000 for lodging a false case and also recommended for prosecuting witnesses No. 1. Shafiqul Islam, 2. A. Jobber Japani, 3. Md. Mustafizur Rahman and 4. Md. Lutfor Rahman under section 195 of the Code of Criminal Procedure for giving false evidence.
 
4.      Thereafter, on 25.11.2003 one Assistant Public Prosecutor for the State filed an application for prosecuting the informant Md. Abdul Motaleb Howlader and the accused petitioners before the Nari-O-Shishu Nirjatan Daman Tribunal No. 2, Dhaka, who upon hearing accepted the final report and took cognizance against the informant Md. Abdul Motaleb Howlader and the present respondents under section 17 of the Ain, 2000 and issued process.
 
5.      The informant and present respondents appeared before the Nari-O-Shishu Nirjatan Daman Tribunal and obtained bail.
 
6.      The case was transmitted to the Nari-O-Shishu Nirjatan Daman Tribunal No. 2, Dhaka where the informant and others filed an application under section 265C for discharging them from the case. Thereafter, upon transfer of the case, the learned Judge of the Nari-O-Shishu Nirjatan Daman Tribunal No. 1, by order dated 26.04.2005, framed charge against the respondents under section 17 of the Ain, 2000 and discharged the informant Md. Abdul Motaleb Howlader from the charge under section 17 of the aforesaid Act.
 
7.      Being aggrieved by and dissatisfied with the aforesaid proceeding, the respondents filed an application under section 561A of the Code of Criminal Procedure before the High Court Division and obtained Rule and an order of stay.
 
8.      By the impugned judgement and order, the High Court Division made the Rule absolute thereby quashing the proceedings against the accused, respondents herein. Hence the appellant filed Criminal Petition for Leave to Appeal No. 809 of 2012.
 
9.      Leave was granted to consider whether or not there was any irregularity in taking cognizance by the learned Judge of the Tribunal against the respondents either under the Nari-O-Shishu Nirjatan Ain, 2000 or the Code of Criminal Procedure. 
 
10.    Mr. Momtaz Uddin Fakir, learned Advocate appearing on behalf of the appellant submitted that the police while investigating the allegations made against the appellant, which was later recorded as Shyampur Police Station Case No. 21 dated 10.09.2002 lodged by one Md. Abdul Motaleb Howlader regarding the abduction of his son, found that the story of abduction was false and recommended for discharge of the persons accused in that case, including the appellant and at the same time recommended that the informant of that case namely Abdul Motaleb Howladeer and the four persons who gave statements to the police in support of that case should be proceeded under section 195 of the Code of Criminal Procedure and section 17 of the Nari-O-Shishu Nirjatan Daman Ain, 2000. The learned Advocate further submitted that the learned Judge of the Nari-O-Shishu Nirjatan Daman Tribunal, although discharged Abdul Motaleb Howlader, framed charge against the respondents. He submitted that there was no illegality committed by the learned Judge of the Tribunal. He further submitted that the grounds stated by the High Court Division for making the Rule absolute, are not tenable, inasmuch as section 17(2) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 does not require that the person who lodges a complaint under section 17(2) must be an aggrieved person. He submitted that the law clearly requires that any person may lodge such a complaint. Finally, he submitted that it has been found by the Tribunal that the respondent Abdul Motaleb Howlader was instigated by others to lodge a false case against the appellant which was done with mala-fide intention in order to harass him. Those persons who instigated the informant to lodge the false case also supported the false case by giving false statement before the police as witnesses. As such the Tribunal rightly framed charge against the respondents, who gave false statements to the police, and they should be given exemplary punishment for lodging and supporting that false case.
 
11.    Mr. Khandker Mahbub Hossain, learned Senior Advocate appearing on behalf of the respondents submitted that the language of section 17(1) and 17(2) read together clearly indicate that ""কোন ব্যক্তি'' mentioned in section 17(2), refers to the same ""কোন ব্যক্তি'' mentioned in section 17(1). In other words, he submitted that the person who lodges the complaint under section 17(2) must be the person against whom and to whose detriment the earlier false case was lodged. He submitted that otherwise there would be an absurd situation where the person against whom the false case was lodge neither files any complaint himself nor comes forward to give evidence before the Court and yet proceedings will continue against the informant of that case. He further submitted that according to the definition contained in section 4 (1)(h) of the Code of Criminal Procedure the report of a police officer is not a complaint. Hence, the recommendation within the police report to prosecute the informant or complainant of a case cannot be treated as a complaint to prosecute that informant or complainant. He also pointed out that under section 200 of the Code of Criminal Procedure a Magistrate taking cognizance of an offence shall at once examine the complainant which indicates that a prima facie assessment of the complaint is being made by the Magistrate in order to decide whether or not to proceed further. He submitted that in the same way when some one is to be prosecuted for lodging a false case, the person against whom the false case was lodged must be examined to establish prima facie that it was a false case lodged with the intention to cause loss to that person. Unless the person against whom the complaint was lodged is examined, there cannot be any assessment as to whether the intention of the complainant was to cause his loss or did in fact cause his loss.      
 
12.    We have considered the submissions of the learned Advocates for the parties concerned and perused the impugned judgement and other connected papers on record.
 
13.    The High Court Division in the impugned judgement took the view that section 17(2) requires an aggrieved person to file the case under section 17(1). In this case, since the prosecution against the complainant was recommended in the police report, it was considered that it did not fulfill the requirement of section 17 since “no person filed any complaint against the accused petitioner”. It was noted by the High Court Division that on the basis of an application filed by the Assistant Public Prosecutor on behalf of the State the Nari-O-Shishu Nirjatan Daman Tribunal took cognizance against the informant of the earlier case as well as the respondents herein. However, subsequently the learned Tribunal Judge framed charge only against the four respondents while discharging the informant who was alleged to have lodged the false F.I.R. It was further observed by the High Court Division that prolongation of the impugned proceedings is a sheer abuse of the process of the Court.
 
14.    In the case of Md. Nurul Huq (Md) vs. State reported in 55 DLR 588 it was held that none had filed any petition for prosecuting the informant for making a false complaint or filing a false case. It was the view of the High Court Division in that case that section 17(1) requires that the complaint under section 17(2) must be filed by any person. In that particular case, the prosecution was commenced upon the direction of the নারী ও শিশু অপরাধ দমন বিশেষ আদালত given to the Magistrate to file a case under section 17(1) against the informant(complainant). It was thus considered that the Judge of the Tribunal was not “a person” contemplated by section 17(2).     
 
15.    The issue in the present case is whether the High Court Division was correct in its view that the written complaint under section 17(2) must be made by an aggrieved person. We note that the High Court Division in the earlier case of Md. Nurul Huq, cited above, did not go so far as to say that the complaint must be filed by an aggrieved person. However, in that case the High Court Division held that the direction by the Tribunal to the Magistrate of the cognizance Court to file a case under section 17(1) was held to be illegal.
 
16.    Section 17 of the Nari-O-Shishu Nirjatan Daman Ain is a special law which creates an offence of lodging a false case or complaint. The provision did not exist in the earlier special law which it replaced, namely  Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995.
 
17.    However, there always was and still is a provision in the Penal Code for punishment for instituting false case against any person charging him of having committed an offence. Under section 211 of the Penal Code, a person who institutes or causes to be instituted any criminal proceeding against a person knowing it to be false, is liable to be punished under that section. In such an event cognizance by any Court can only be taken upon a written complaint of the Court where the proceedings arising out of the complaint are taking place. However, even such complaint in writing by the Court has to be done after preliminary inquiry as required by section 476 of the Code of Criminal Procedure.
 
18.    Special Laws generally carry harsher punishment than general law. Hence, the requirement of section 17(2) should not be taken so lightly. Section 17 of the Ain, 2000 provides as follows:
 

  ""১৭। মিথ্যা মামলা, অভিযোগ দায়ের ইত্যাদির শাস্তি-(১) যদি কোন ব্যক্তি অন্য কোন ব্যক্তির ক্ষতিসাধনের অভিপ্রায়ে উক্ত ব্যক্তির বিরুদ্ধে এই আইনের অন্য কোন ধারার অধীন মামলা বা অভিযোগ করার জন্য ন্যায্য বা আইনানুগ কারণ নাই জানিয়াও মামলা বা অভিযোগ দায়ের করেন বা করান তাহা হইলে মামলা বা অভিযোগদায়েরকারী ব্যক্তি এবং যিনি অভিযোগ দায়ের করাইয়াছেন উক্ত ব্যক্তি অনধিক সাত বৎসর সশ্রম করাদন্ডে দন্ডিত হইবেন  এবং ইহার অতিরিক্ত অর্থ দন্ডেও দন্ডনীয় হইবেন। 
(২) কোন ব্যক্তির লিখিত অভিযোগের ভিত্তিতে ট্রাইব্যুনাল উপ-ধারা (১) এর অধীন সংঘটিত অপরাধের অভিযোগ গ্রহণ ও মামলার বিচার করিতে পারিবে।''

 
19.    It is true that the section does not specify that the written complaint must be filed by a person aggrieved. Hence, it can be filed by any person. As can be seen from a combined reading of section 211 of the Penal Code along with sections 195(1)(b) and 476(1)of the Code of Criminal Procedure, a complaint can be made in writing by the Court which was in seisin of the case where the false criminal charge was found to have been made, but only after recording a finding that the case imputed a false charge of a criminal offence. However, the Nari-O-Shishu Nirjatan Daman Ain does not require the Court to lodge the complaint, rather any person may do so.
 
20.    It is our view that in the event of a case under special law, any written complaint can be filed by anyone, since it is invariably a cognisable offence, but should not be acted upon without taking proper precautions, as is, for example, required under section 195(1)(b) read with section 476(1) of the Code of Criminal Procedure for a case to proceed under section 211 of the Penal Code.
 
21.    We are of the view that before proceeding with a case of false complaint or information against the informant or complainant, it would be prudent for the Court or Tribunal concerned to examine the materials on record to assess the prima facie nature of the allegation. It would be a futile exercise to proceed against the complainant/informant of a case charging him with having lodged a false case if the allegation of a false case having been brought by the accused is ultimately not likely to be substantiated in Court. 
 
22.    We note that this case has been going on since 2003. It is also noted that the informant of the original case has been left out of the charge by the Tribunal framing charge only against the witnesses. We can only endorse the view of the High Court Division that prolonging this type of case any further would be an abuse of the process of the Court.
 
23.    With the above observations the Criminal Appeal is disposed of. 
 
         Ed.