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Serial No. Issue Year Name of the Parties/Case No and Citation Key Word(s) Short Ratio
1. 14 2020 A.T.M. Azharul Islam. Vs. The Chief Prosecutor, International Crimes Tribunal, Dhaka, Bangladesh.

14 SCOB [2020] AD

(SYED MAHMUD HOSSAIN, C. J)
Crimes against Humanity; Genocide and War Crimes; Law of evidence; Hearsay evidence; Abetment; Form of charge in case of mass victims; Probative value of an uncrossed deposition;
The cardinal principle of assessment of evidence is that the entire evidence is to be considered as a whole and then a decision is to be arrived. There is no scope to consider one statement made in cross-examination in isolation.

It is the cardinal principle of law of evidence that hearsay evidence is to be considered together with circumstances and the material facts depicted. If hearsay evidence has probative value then it is admissible in evidence.

In order to incur criminal liability in a case of crime against humanity, the accused himself need not participate in all aspects of the criminal conduct.

It is of the essence of the crime of abetment that abettor should assist the principal culprits towards the commission of the offence. Participation de facto may sometimes be obscure in detail, it is established by the presumption Juris et de jure that actual presence plus prior abetment can mean nothing else but participation.

When a charge involves hundred of victims, it is not at all necessary for the prosecution to narrate the names of all the victims.

In a criminal case the prosecution must prove the charge brought against an accused beyond any shadow of reasonable doubt. Criminal cases are not like civil cases. In criminal case the accused may only take the plea of not guilty and the burden is entirely upon the prosecution to prove its case. Cross-examination is not also necessary on the entire deposition of a witness as it may damage the defence case. Non-cross-examination on a certain fact would not make the deposition of a witness on that point admitted facts. .
2. 14 2020 Palash Chandra Saha Vs. Shimul Rani Saha and others.

(MUHAMMAD IMMAN ALI, J)

14 SCOB [2020] AD (MUHAMMAD IMMAN ALI, J)
Suit for declaration, Adoption;
The adoptive father of the child to be adopted must belong to the same caste and that adoption would be valid if they belong to different sub-division of the same caste.

According to Hindu Law any act done in contravention of the Hindu texts which are in their nature mandatory cannot be said to be lawful by applying the principle of factum valet. Hence, the principle of factum valet is ineffectual in the case of adoption in contravention of the provision of legal texts.

Even if he was accepted as a family member, the legality of the adoption must be considered. The provision of Hindu Law is clear that there cannot be adoption across castes. In other words, a child from one caste cannot be legally adopted by a member of another caste.
3. 14 2020 Md. Abul Kaher Shahin Vs. Emran Rashid and another

(Hasan Foez Siddique, J)

14 SCOB [2020] AD
Dishonour of cheque, Section 118,138 of The Negotiable Instruments Act, 1881 ;
Once there is admission of the execution of the cheque or the same is proved to have been executed, the presumption under section 118(a) of the Act is raised that it is supported by consideration. The category of “stop payment cheque” would be subject to rebuttal and hence it would be an offence only if the drawer of the cheque fails to discharge the burden of rebuttal. The accused person can prove the non-existence of a consideration by raising a probable defence. If the accused discharges the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant. He will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to grant of relief on the basis of negotiable instrument .

Where the amount promised shall depend on some other complementary facts or fulfillment of another promise and if any cheque is issued on that basis, but that promise is not fulfilled it will not create any obligation on the part of the drawer of the cheque or any right which can be claimed by the holder of the cheque.
4. 14 2020 Abul Kasem Md. Kaiser Vs. Md. Ramjan Ali and others.

(MIRZA HUSSAIN HAIDER, J)

14 SCOB [2020] AD State Vs. Abu Hanifa @ Hanif Uddin (MIRZA HUSSAIN HAIDER, J)
Pre-emption, Extinguishment of Co-sharership;
The 62 DLR case has not overruled the contention that ‘only by a partition suit or partition deed the co-sharership is extinguished’. So in this case by separating the Jama the pre-emptor and/or his predecessor having already lost her/his character of co-sharership in the case jote so the pre-emptor is no more a co-sharer and as such his right to pre-empt as a co-sharer does not exist anymore

Not only separation of Jama/Khatian by a party will cause him to cease to be a co-sharer in the jama but co-sharership will also be ceased by a final decree in a partition suit or by a registered deed of partition. That means either of the two will cause a person to cease his co-sharership in the case jote.

The appellant cannot take the plea of non-service of notice upon the other party once he has taken benefit of such mutation or separation of “Jama”. Such plea,if any, can be taken only by the party affected by it or to whose disadvantage the same has been obtained and upon whom the notice was required to be served. But not the person at whose prayer separation has been made and who takes the benefit of such separation.
5. 14 2020 Firoza Noor Khan and others Vs. Raisa Aziz Begum and others.

(Zinat Ara, J)

14 SCOB [2020] AD
Khas Mohal property of the Government; Article 104 of the Constitution; Complete Justice;
Any property owned by the Government is the property of the People’s of the Republic of Bangladesh and the citizens of this country are the actual owners of such property. Therefore, no one can dispose of valuable Government properties at his/their sweet will to anyone else unlawfully.

The power of this Court under article 104 of the Constitution is an extensive one though it is not used often or randomly. It is generally used for doing complete justice in any cause or matter pending before it in rare occasions in exceptional or extra-Ordinary cases for avoiding miscarriage of justice.. Article 104 widens our hands so that this Division is not powerless in exceptional matters. The matters (appeals/CPLA) in our hands are matters requiring exercise of this power, to save a valuable property of the Government from the clutches of greedy land/property grabbers, that too with the active collaboration and help from the Government Officials.
6. 13 2020 Govt. of Bangladesh
Vs.
Abdul Mannan & ors.
13 SCOB [2020] AD


(SYED MAHMUD HOSSAIN, C. J)
Abandoned property, suit for specific performance contract;
In the suit for specific performance of contract the declaration of the suit property is not an abandoned property, is beyond the scope of the suit and such declaration has no legal value at all.
In a suit for specific performance of contract the only issue to be decided whether the contract was genuine or not and as such, though the Government is made a party to a suit for specific performance of contract as a requirement of law it is not bound by the decree.
7. 13 2020 Mahbubul Anam
Vs.
Ministry of Land & ors.

(MUHAMMAD IMMAN ALI, J)
13 SCOB [2020] AD (MUHAMMAD IMMAN ALI, J)
Cancellation of lease, preservation of ecological balance and protection of natural resources;
Cancellation of long term lease granted by the government for the purpose of constructing hotels in the hotel/motel zone of Cox’s Bazar:
Dismissing the review petitions, the Court directed that all leases within Jhilanja Mouza of Cox’s Bazar granted after 19.04.1999 be cancelled in the same way as those of the writ-petitioners and any constructions made thereon be demolished; the leaseholders shall be compansated for their loss due to such cancellation/demolition.
It was further directed that henceforth no lease shall be granted within Jhilanja Mouza or any area which has been classified as ecologically critical area.
8. 13 2020 State
Vs.
Abu Hanifa @ Hanif Uddin

(MIRZA HUSSAIN HAIDER, J)
13 SCOB [2020] AD State Vs. Abu Hanifa @ Hanif Uddin (MIRZA HUSSAIN HAIDER, J)
Section 84 of the Penal Code and plea of unsoundness of mind;
On a plain reading of the aforesaid provisions of law and on scrutinizing the materials on record, specifically the Medical reports (Exhibits-A,B,C and D), submitted by the DWs we have already found that the defence has been able to prove that the accused-respondent was of unsound mind from 22.6.1999 i.e. 8(eight) months after the date of occurrence (13.10.1998) but failed to prove the same, prior to that date. Since the defence failed to prove its plea of unsoundness of mind of the accused-respondent, at the time of commission of the offence on 13.10.1998, as required under section 84 of the Penal Code and section 105 of the Evidence Act by providing sufficient evidence, he cannot get any benefit under section 84 of the Penal Code nor under Chapter XXXIV of the Criminal Procedure Code. Plea of insanity or of unsoundness of mind of the accused-respondent being not prima facie found, the Court is not obligated to take recourse to the provisions as laid down in Chapter XXXIV of the Criminal Procedure Code.
9. 13 2020 The State
Vs.
Abdur Razzak & ors.

(Hasan Foez Siddique, J)
13 SCOB [2020] AD
Absorption and doctrine of legitimate expectation;
1. The legitimate expectation would not override the statutory provision. The doctrine of legitimate expectation can not be invoked for creation of posts to facilitate absorption in the offices of the regular cadres/non cadres. Creation of permanent posts is a matter for the employer and the same is based on policy decision.
2. While transferring any development project and its manpower to revenue budget the provisions provided in the notifications, government orders and circulars quoted earlier must be followed. However, it is to be remembered that executive power can be exercised only to fill in the gaps and the same cannot and should not supplant the law, but only supplement the law.
3. Before regularization of service of the officers and employees of the development project in the revenue budget the provisions of applicable “Bidhimala” must be complied with. Without exhausting the applicable provisions of the “Bidhimala” as quoted above no one is entitled to be regularised in the service of revenue budget since those are statutory provisions.
4. The appointing authority, while regularising the officers and employees in the posts of revenue budget, must comply with the requirements of statutory rules in order to remove future complication. The officers and employees of the development project shall get age relaxation for participation in selection process in any post of revenue budget as per applicable Rules.
5. A mandamus can not be issued in government and its instrumentalities to make anyone regularized in the permanent posts as of right. Any appointment in the posts described in the schedule of Bangladesh Civil Service Recruitment Rules, 1981, Gazetted Officers (Department of Live Stock Service) Recruitment Rules, 1984 and Non-gazetted Employees (Department of Live Stock Service) Recruitment Rules, 1985 bypassing Public Service Commission should be treated as back door appointment and such appointment should be stopped.
6. To become a member of the service in a substantive capacity, appointment by the President of the Republic shall be preceded by selection by a direct recruitment by the PSC. The Government has to make appointment according to recruitment Rules by open competitive examination through the PSC.
7. Opportunity shall be given to eligible persons by inviting applications through public notification and appointment should be made by regular recruitment through the prescribed agency following legally approved method consistent with the requirements of law.
8. It is not the role of the Courts to encourage or approve appointments made outside the constitutional scheme and statutory provisions. It is not proper for the Courts to direct absorption in permanent employment of those who have been recruited without following due process of selection as envisaged by the constitutional scheme.
10. 12 2019 Ashuganj Fertilizer & Chemical Com. Ltd. & ors.
Vs.
Md. Abu Sufian Bhuiyan & anr.

(Syed Mahmud Hossain C.J)

12 SCOB [2019] AD 1
Dismissed from service, termination simpliciter
The orders of termination were not termination simpliciter. Consequently, this is the outcome of arbitrary exercise of power in a malafide way and as such, the High Court Division was justified in making the Rule absolute declaring the orders of termination to have been passed without lawful authority and to be of no legal effect.

There was an inquiry about the appointment of the writ-petitioner and pursuant to the said inquiry, the writ-petitioner were terminated from service. Therefore, it cannot be said that the writ-petitioner were terminated from service and in fact, they were dismissed from service in the garb of termination
11. 12 2019 Mir Showkat Ali & ors.
Vs.
Md. Morsalin Khan & ors.

(Muhammad Imman Ali, J)

12 SCOB [2019] AD 8
Authority of the Executive Committee of the Orphanage to deal with property;
The Management/Executive Committee of the Orphanage had no authority to deal with the land other than for the purpose stipulated in the indentures. Those persons at the helm of the affairs of the Orphanage could not arrogate to themselves the authority to transfer the title in the property, which they themselves did not have. The Orphanage was given the property on a short term lease, which was apparent from the lease deeds. As long as these lease deeds existed and as long as the terms were not altered by the executant of the deeds none had the authority to deal with the land other than the purpose for which the lease was granted.
12. 12 2019 BADC Dhaka & ors.
Vs.
Md. Shohidul Islam & ors.

(Hasan Foez Siddique, J)

12 SCOB [2019] AD 23
Voluntary retirement of service;
After 10 years of their voluntary retirement and after receiving full financial benefits as offered the prayers for reinstatement cannot be termed as reasonable and fair. After having applied for voluntary retirement of service and taken the money it is not open to contend that they exercised the option under any kind of coercion and undue influence. Who had accepted the ex gratia payment or any other benefit under the scheme, could not have resiled therefrom. It became past and closed transaction. The writ petitioners having accepted the benefit could not be permitted to approbate and reprobate nor they be permitted to resile from their earlier stand.
13. 12 2019 Rashed
Vs.
The State

(MIRZA HUSSAIN HAIDER, J)

12 SCOB [2019] AD 34
Dying declaration, section 32(1) of the Evidence Act 1872;
Dying declaration cannot be considered as the sole basis for conviction and awarding sentence to the appellant, specifically in the absence of any of the witnesses who were present in the hospital during the time when the alleged dying declaration was made by such a critically injured person who was under intensive care and not supposed to be in conscious. As such the finding of the High Court Division that ‘the prosecution has clearly established the motive of the case and the oral dying declaration has also been supported by the medical evidence and other circumstances and materials on record’ is not sustainable in law.
14. 11 2019 The Election Commission Bangladesh and another
Versus
Noruzzaman Sarker and others

(MUHAMMAD IMMAN ALI, J)

11 SCOB [2019] AD 1
Election Disputes– Appropriate Forum.
Where the total number of votes cast in a centre exceeds either the total number of ballot papers issued to the centre or the total number of votes enrolled for that centre, or if during the counting of ballot papers a ballot box is found missing or it is snatched away or if the Presiding Officer makes glaringly contradictory reports as to the result of the counting of votes, without reasonable explanation, then the Election Commission need not wait for determination of the dispute by the Election Tribunal. But where no such thing has happened but allegation is brought after the declaration of the result then it is always desirable that dispute, if any, should go to the Tribunal for determination.
15. 11 2019 Haji Shamsul Alam
Vs.
Dr. Ashim Sarker & ors.

(Hasan Foez Siddique, J )

11 SCOB [2019] AD 7
Section 4 of the Partition Act, 1893.
Basic Pre-requisites for buy up.
It is observed that to get an order of pre-emption under section 4 of the Partition Act three condition are to be fulfilled, i.e. (1) the property must be dwelling house, (2) it must be the undivided family and then (3) the purchasers must file the partition suit. That is one of the basic conditions for applicability of section 4 of the Partition Act which has been expressly mentioned in the section is that the stranger transferee must sue for partition and separate possession of the undivided share transferred to him by the co-sharer. If the stranger moves execution application for separating his share by metes and bounds it would be treated to be application for suing for partition and it is not necessary that separate suit should be filed by such stranger transferee.
In this case the defendant No. 5 appellant Shamsul Alam is the transferee of the land under partition and the suit has been filed by Dr. Ashim Sarker who is not the transferee and appellant did not pray for any saham as yet in the said suit for partition, so the prayer for buying up by the paintiff was not at all maintainable at the stage of the suit when the same was prayed for. The courts below have committed error of law in allowing the prayer for buying up.
16. 11 2019 The State Vs. Nurul Amin
Baitha(absconding) and another

(MIRZA HUSSAIN HAIDER, J)

11 SCOB [2019] AD 13
Conversion of conviction from special law to general law, Complete Justice u/a 104 of the Constitution
The High Court Division does not have authority to convert the conviction from special law to general law. The conversion of conviction from special law to a different law can only be done by the Appellate Division empowered under Article 104 of the Constitution to do ”complete justice“ in appropriate cases pending before it under Article 103 of the Constitution.
17. 10 2018 Bangladesh Rubber Industries & anr. Vs. Dine Ara Begum & ors. (SYED MAHMUD HOSSAIN, C. J)

10 SCOB [2018] AD 1
Dissolution of partnership
Having considered the cases cited above, we find that a deed of dissolution of partnership is not required to be registered under section 17 of the Registration Act because the share of a partner in a partnership is essentially moveable property notwithstanding that a part of the partnership property may be immovable.
18. 10 2018 Alhaj Dr. Chowdhury Mosaddequl Isdani Vs. Abdullah Al Munsur Chowdhury & ors.
(Mirza Hussain Haider, J.)

10 SCOB [2018] AD 19
Persona Designata
In legal parlance the expression “persona designa” means a person who has been described in a statute or a legal instrument by his official designation, and his function may be judicial or may not be so. But if the function of the designated person is judicial in character then he is nothing but a “court” even though he is not described as a court but by official designation. The test is the power and function he has to discharge.
19. 10 2018 Md. Hafizuddin Vs. Mozaffor Mridha & ors.
(Hasan Foez Siddique, J.)

10 SCOB [2018] AD 6
Basic Principles of Waqf
Three basic principles governed the waqf: the trust was required to be irrevocable, perpetual, and inalienable. Once property was declared waqf by its owner, the trust thereby created was irrevocable. It means (i) inalienable lands used for charitable purposes and (ii) pious endowments.
20. 10 2018 Kamal alias Exol Kamal Vs. State
(MUHAMMAD IMMAN ALI, J.)

10 SCOB [2018] AD 12
Commutation of Sentence
On the question of commutation of the sentence, we are to take into consideration the heinousness of the offence committed in juxtaposition with the mitigating circumstances. It is by now established that in Bangladesh the sentence for the offence of murder is death which may be reduced to one of imprisonment of life upon giving reasons. It has been the practice of this Court to commute the sentence of death to one of imprisonment for life where certain specific circumstances exist, such as the age of the accused, the criminal history of the accused, the likelihood of the offence being repeated and the length of period spent in the death cell.
21. 9 2017 Bangladesh Vs. Md. Ataur Rahman & ors.

9 SCOB [2017] AD 1
Article 102 of the Constitution; Warrant of Precedence
Warrant of Precedence being arbitrary, irrational, whimsical and capricious is subject to judicial review: The High Court Division having considered the respective status and positions of different constitutional functionaries and the persons in service of the Republic rightly held that though impugned Warrant of Precedence is a policy decision of the Government yet in the absence of evidence of any discernible guidelines, objective standards, criteria or yardsticks upon-which the impugned Warrant of Precedence is ought to be predicated, we feel constrained to hold that the said Warrant of Precedence cannot shrug off the disqualification of being arbitrary, irrational, whimsical and capricious and is, therefore, subject to judicial review under Article 102 of the Constitution.
22. 9 2017 Mohammad Zafar Iqbal & ors Vs. Bangladesh & ors

9 SCOB [2017] AD 25
Acquisition and Requisition of Immovable Property Ordinance, 1982, Section 3;
Preservation of the memory of the martyrs; East Pahartali mass graveyard; Colourable exercise of power
The law gives the Deputy Commissioner to acquire any property if he is satisfied that the property is needed for public purpose. In the notice the Deputy Commissioner specifically mentioned the purpose for which the notice was served that it was for the public purpose of Baddyabhumi. This order clearly spelt out the actual existence of requirement for a public purpose within the meaning of section 3 of the Acquisition and Requisition of Immovable Property Ordinance, 1982. If the reason for the issuance of the notice of acquisition was not one contemplated by law, the initiation of the proceedings would be void. It is the Deputy Commissioner who is primarily the judge of the facts which would attract section 3 of the ordinance. This opinion cannot be replaced by any other authority.
23. 9 2017 Bangladesh Vs. Md. Mizanur Rahman

9 SCOB [2017] AD 37
The Code of Civil Procedure, 1908 Rules: 1 and 2 of Order XVIII; Pleadings
In the instant case, the defendant did not admit the case of the plaintiff and filed written statement denying the plaintiffs claim that the suit property was an abandoned property, so it was the plaintiff who had the right to begin the hearing of the suit as per provision of rule 1 of order XVIII of the Code. Rule 2(1) of the Code has clearly provided that on the day fixed for hearing of the suit the party having the right to begin shall state his case and produce evidence in support of the issues which he is bound to prove, the other party shall then state his cause and produce his evidence (if any) and may then address the Court generally on the whole case. Therefore, there was no scope on the part of the plaintiff to avoid examination of witness and state the facts of the plaint at the hearing of the suit.
24. 9 2017 Rabeya Khatoon & ors Vs. Jahanara & ors

9 SCOB [2017] AD 40
Mohamedan Law of Bequest
Bequest by a Mohamedan to his heir of any quantum of property requires the consent of his other heirs after his death to be valid. But a bequest by a Mohamedan to any stranger (other than his heir) upto one-third of the surplus of his property which remains after payment of his funeral expenses and debts is valid and does not require consent of the heirs of the testator. Bequest to a stranger over and above one-third of the property of the testator which remains after payment of funeral expenses and debts of the testator requires the consent of the heirs of the testator after his death to be valid.
25. 9 2017 Bangladesh & ors Vs. Professor Nurul Islam & anr

9 SCOB [2017] AD 46
Meaning of right to life;
Constitution of Bangladesh Articles 18(1), 31 and 32; Smoking and Tobacco Product Usage Control Act, 2005
No one has any right to endanger the life of the people which includes their health and normal longevity of an ordinary healthy person. Articles 31 and 32 of the Constitution not only means protection of life and limbs necessary for full enjoyment of life but also includes amongst others protection of health and normal longevity of an ordinary human being. It is the obligation of the State to discourage smoking and consumption of tobacco materials and the improvement of public health by preventing advertisement of tobacco made products. Though the obligation under Article 18(1) of the Constitution cannot be enforced, State is bound to protect the health and longevity of the people living in the country as right to life guaranteed under Articles 31 and 32 of the Constitution includes protection of health and longevity of a man free from threats of man-made hazards. Right to life under the aforesaid Articles of the Constitution being fundamental right it can be enforced by this Court to remove any unjustified threat to health and longevity of the people as the same are included in the right to life.
26. 9 2017 NTRCA & anr Vs. Lutfor Rahman & ors

9 SCOB [2017] AD 62
Show cause notice; Cancelling appointment
It is patent from the records that all the respondents went through the rigorous process of selection and were appointed in their respective post. They were served with notices cancelling their appointment without issuing any show cause notice. The respondents joined their posts and served accordingly for more than nine months at the time of filing their writ petition.
We are of the view that without issuing any show cause notice the petitioners could not lawfully cancel the letter of appointment of the respondents.
27. 9 2017 Biman Bangladesh Airlines & ors Vs. Al Rojoni Enterprise

9 SCOB [2017] AD 66
Carriage by Air (International Convention) Act, 1966
Rule 29 of the first schedule Read with section 29 of the Limitation Act
The High Court Division committed an error of law in holding that the date on which carriage stopped was the date on which the carrier defendants admitted its failure to deliver its goods finally and offered payment of compensation in lieu of the goods. The time for limitation began to run from the expiry of 7 days after the date on which the goods ought to have arrived, that is, on 22.01.1999. Since the suit was filed on 24.05.2001 apparently the same was barred by limitation in view of special limitation provided in Rule 29 of the first schedule of the Carriage by Air (International Convention) Act, 1966 read with section 29 of the Limitation Act.
28. 9 2017 BGMEA Vs. Bangladesh & ors

9 SCOB [2017] AD 70
Joladhar Ain 2000(Act XXXVI of 2000);
Environment Conservation Act, 1995
The transfer/allotment of the water body by EPB to BGMEA and consequently the change of the nature and character of the said water body (Joladhar) by BGMEA is completely violative of the said two laws and as such the violators are liable to be punished with imprisonment and fine and such illegal construction is liable to be demolished for which BGMEA or any other person is not liable to get any compensation.
29. 8 2016 Bangladesh & ors Vs. BLAST & ors

8 SCOB [2016] AD 1
Code of Criminal Procedure, 1898 Section 54, 167, 169, 344; Special Powers Act, 1974 Section 3; Remand; Reasonable suspicion
In clause Firstly of section 54 the words credible information and reasonable suspicion have been used relying upon which an arrest can be made by a police officer. These two expressions are so vague that there is chance for misuse of the power by a police officer, and accordingly, we hold the view that a police officer while exercising such power, his satisfaction must be based upon definite facts and materials placed before him and basing upon which the officer must consider for himself before he takes any action. It will not be enough for him to arrest a person under this clause that there is likelihood of cognizable offence being committed. Before arresting a person out of suspicion the police officer must carry out investigation on the basis of the facts and materials placed before him without unnecessary delay. If any police officer produces any suspected person in exercise of the powers conferred by this clause, the Magistrate is required to be watchful that the police officer has arrested the person following the directions given below by this court and if the Magistrate finds that the police officer has abused his power, he shall at once release the accused person on bail. In case of arresting of a female person in exercise of this power, the police officer shall make all efforts to keep a lady constable present.
30. 8 2016 Bangladesh & ors Vs. Hamid Ali Chowdhury & ors

8 SCOB [2016] AD 126
Specific performance of contract; declaration of title; barred by limitation;
We hold that the plaintiff was entitled to get exclusion of the time of the absence of defendant Nos.1 and 2, the heirs of Syed Salamat Ali from Bangladesh and the High Court Division rightly gave the said benefit and held that the suit was not barred by limitation. We further hold that time was not the essence of the contract and with the execution and registration of the general power attorney in favour of the plaintiff by Salamat Ali, the earlier contract dated 06.03.1978 was novated and the High Court Division rightly held so.
31. 8 2016 S.A.M.M. Mahbubuddin Vs. Laila Fatema

8 SCOB [2016] AD 134
Custody of Minor
Considering the facts and circumstances- especially the facts that minor S.A.M.M. Zohaibuddin has already attained the age of almost 7 years and he is now residing along with his ailing elder brother in his fathers house and is being taken good care of by his father, grandfather and grandmother, we are inclined to allow the prayer of the leave-petitioner to retain the custody of his minor son S.A.M.M. Zohaibuddin till disposal of Family Suit.
32. 8 2016 Israil Kha & ors Vs. Syed Anwar Hossain & ors

8 SCOB [2016] AD 136
Under-raiyat; Tenancy; holding over; acquisition of rent receiving interest
The plaintiffs did not take any step to get back the land of plot No.4 after expiry of the period of lease mentioned in the kabuliyat. Defendant Nos. 1 and 2, the under-raiyat, continued their possession in suit plot No.4 as lawful tenants under the plaintiffs by holding over and after acquisition of rent receiving interest, they became tenants directly under the Government.
33. 8 2016 Bangladesh & ors Vs. Ranjit Krishna Mazumdar

8 SCOB [2016] AD 141
Acid Aparadh Daman Ain, 2002 Section 13
The learned Judge of the Tribunal acted in accordance with the law in bringing the matter to the notice of the authority concerned in accordance with section 13 of the Acid Aparadh Daman Ain, 2002. We also note that the learned Judge of the Tribunal observed that all three Investigating Officers were negligent in their duties and a direction to the authority concerned was regarding all three of the Investigating Officers of that case. We find from the order of the Administrative Appellate Tribunal that it was observed that although no action was taken against the first Investigating Officer, namely Md. Akram Hossain and third Investigating Officer, Md. Mahfuzur Rahman for neglecting their duties, a departmental proceeding was started against the respondent Ranjit Krishna Mazumder, who was the second Investigating Officer. The Administrative Appellate Tribunal held that this was a discriminatory act and the respondents application before the Administrative Tribunal was rightly allowed.
34. 8 2016 Anti Corruption Commission Vs. Md. Rezaul Kabir & ors

8 SCOB [2016] AD 144
Section 161 of the Penal Code, 1860; Section 5(2) of the Prevention of Corruption Act, 1947; Section 561A of the Code of Criminal Procedure, 1898; Durnity Daman Commission Bidhimala, 2007 Rule 16
A proceeding cannot be quashed depending on alleged procedural error in the method of collection of evidence to be adduced and used. The High Court Division failed to distinguish the allegations of demands, acceptance and attempts to accept gratifications and those with the procedure to collect evidence to substantiate allegations of acceptance and attempts to accept gratifications or demands, thereby, erroneously quashed the proceedings.
35. 7 2016 Idrisur Rahman & ors Vs Syed Shahidur Rahman & ors

(Surendra Kumar Sinha,C.J)

7 SCOB [2016] AD 1
Constitution of Bangladesh, Article 152; Article 96; Article 102; Supreme Judicial Council; Misconduct of a Judge; Code of Conduct; Judicial review; audi alteram partem
It is to be borne in mind that in adjudicating a disciplinary proceeding against a Judge of the highest court and holding trial of an offender in a criminal case, one cannot claim similar principle to be followed. For proving an offence against an offender, the prosecution must prove the offence against him beyond reasonable doubt but this doctrine cannot be applicable in respect of a Judge while hearing a disciplinary proceeding for removal of a Judge on the ground of gross misconduct. In the alternative, it may be said that an ordinary offender and a Judge cannot be equated at par while finding them guilty of the charges.
36. 7 2016 Karim Khan & ors Vs Kala Chand & ors

(Md. Abdul Wahhab Miah, J)

7 SCOB [2016] AD 32
Code of Civil Procedure, 1908, Section 115; Order VII, Rule 3; Permanent Injunction;
It is a well settled legal proposition that the Appellate Court is the last Court of fact and if the Appellate Court comes to a finding of fact on consideration of the evidence on record that cannot be disturbed or reversed by the High Court Division in exercising jurisdiction under section 115(1) of the Code of Civil Procedure, unless it can be shown that the finding of the Appellate Court is perverse or contrary to the evidence on record or based on misreading of the evidence on record or on misconception of law. It is also a settled legal principle that in a suit for permanent injunction title can be looked into incidentally and the prime consideration is whether the plaintiff has got exclusive possession in the suit land.
37. 7 2016 Shantipada Shil Vs Sunil Kumar Sarker and others

(Nazmun Ara Sultana, J)

7 SCOB [2016] AD 37
Pre-emption; date of knowledge
On scrutiny of the deposition of this preemptor-petitioner we find that the preemptor-petitioner while deposing before court, though denied this alleged fact that he obtained the certified copy of the case kabala in the year 1982 for the opposite party No.2, but he did not deny the fact that he was the engaged lawyer of the opposite party No.2. The opposite party No.2 filed Other Suit No.70 of 1982 challenging the genuineness of the impugned kabala. In the circumstances it is not believable at all that the preemptor-petitioner could not know about the case kabala before his alleged date of knowledge. From the facts and circumstances stated above it is rather proved beyond any doubt that the preemptor-petitioner knew about the case transfer in the year 1982. In the circumstances the trial court rightly dismissed the case for preemption.
38. 7 2016 BLAST & anr Vs Bangladesh & ors

(Syed Mahmud Hossain, J)

7 SCOB [2016] AD 42
Commutation of death sentence
The petitioner has no significant history of prior criminal activity and that he was aged 14 years at the time of commission of the offence and 16 years at the time of framing of charge. The petitioner has been in the condemned cell since 12.07.2001, that is, more than 14 years. Considering all aspects of the case, we are of the view that the death sentence of the petitioner be commuted to imprisonment for life.
39. 7 2016 Md. Imtiaz Faruque Vs Afsarunnessa Khatun Chowdhury & ors

(Muhammad Imman Ali, J)

7 SCOB [2016] AD 46
(Emergency) Requisition of Property Act, 1948; Section 5 (7)
It is an admitted fact that the suit land was acquired in L.A. Case No. 06 of 1948-49 and although steps have been taken for release of the land from acquisition, the applicants have not succeeded in getting the land released. According to section 5 (7) of the (Emergency) Requisition of Property Act, 1948 the land having been duly acquired and compensation paid, it vests absolutely in the Government free from all encumbrances. Hence, the title in the property is no longer with the petitioner. We note from the plaint that the petitioner has not included any prayer for declaration of title and hence, in any event, the prayer for temporary injunction is not sustainable.
40. 7 2016 Bo-Sun Park Vs State & another

(Hasan Foez Siddique, J)

7 SCOB [2016] AD 50
Code of Criminal Procedure, 1898 Section 247 read with section 403
Since the order passed under section 247 of the Code of Criminal Procedure is one of acquittal the second complaint on the same allegation is not maintainable. At whatever stage of the proceeding the acquittal order section 247 is ordered, such order will operate as a bar the fresh trial, in the same way as are acquittal after trial on merits.
41. 6 2016 Bangladesh & ors Vs Sontosh Kumar Shaha & ors

6 SCOB [2016] AD 1
Article 102 and 44 of the Constitution; Clause (5) of article 102 read with article 117(2) of the Constitution; The power of Administrative Tribunal to pass interim order;
Despite the absence of any provision empowering the Tribunal to pass any interim order, the Tribunal is not powerless since it has all the powers of a civil court and in proper cases, it may invoke its inherent power and pass interim order with a view to preventing abuse of the process of court or the mischief being caused to the applicant affecting his right to promotion or other benefit. But the Tribunal shall not pass any such interim order without affording the opposite party affected by the order an opportunity of being heard. However, in cases of emergency, which requires an interim order in order to prevent the abuse of the process and in the event of not passing such order preventing such loss, which cannot be compensated by money, the Tribunal can pass interim order as an exceptional measure for a limited period not exceeding fifteen days from the date of the order unless the said requirements have been complied with before the expiry of the period, and the Tribunal shall pass any further order upon hearing the parties.
42. 6 2016 Md. Nurul Abser Vs Alhaj Golam Rabbani & ors

6 SCOB [2016] AD 54
Arbitration Act, 2001: Sections 39, 42, 43 and 44:
A combined reading of the provisions of sections 42, 43 and 39 of the Act, 2001 clearly shows that the only remedy open to a person who wants to set aside an arbitral award is to file an application under section 42 of the Act, 2001 within sixty days from the date of receipt of the award and after the expiry of the period of sixty days as envisaged in the section, the award becomes enforceable within the meaning of section 44 thereof and thus, jurisdiction of the civil Court has impliedly been barred if not expressly. In the context, we may also refer to section 9 of the Code which has clearly provided that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred and therefore, in view of the provision of section 42 of the Act, 2001, clause (d) of rule 11, Order VII of the Code is attracted.
43. 6 2016 Mrs. Ruksana Huq & ors Vs A. K. Fayazul Huq & ors

6 SCOB [2016] AD 61
Code of Civil Procedure, 1908 Order I rule 10(2)
Though there is no clear provision mentioning the word transposition but order I rule 10(2) of the Code of Civil Procedure enables the courts to make such transposition, Order I rule 10(2) has empowered the courts to strike out name of any party, either plaintiff or defendant, improperly joined and also to add any persons-either as plaintiff or defendant-who ought to have been joined whether as plaintiff or defendant or whose presence before the court may be necessary for effectual and complete adjudication of the matter. Exercising this very power the courts can make transposition also of either of the parties of a suit or other proceeding to the other category of the parties and the courts also are doing so, and it has become a long practice now. Of course, generally, the courts will not allow transposition of defendants as plaintiffs after striking the names of the original plaintiffs or after transposing them as defendants. But in appropriate facts and circumstances-as these are in the present case-the courts should not be reluctant to make such transposition of the parties for the ends of justice or to prevent abuse of the process of the court.
44. 6 2016 Bangladesh & anr Vs Md. Bellal Hossain Mollik & anr

6 SCOB [2016] AD 65
Police Officers (Special Provisions) Ordinance, 1976 Section 3 read with Bangladesh Public Service Commission (Consultation) Regulation, 1979 Regulation 6:
On consideration of section 3 of the Ordinance vis-a-vis regulation 6 of the Regulations, it is obvious that consultation with Public Service Commission is mandatory before passing the order of dismissal in respect of each of the respondent as section 3 of the Ordinance has not ousted the operation of other laws, rules and regulations.
45. 6 2016 Sohel Dewan & ors Vs State

6 SCOB [2016] AD 70
Penal Code, 1860 Section 302/34:
In the facts of the case before us, where there is some inkling of a doubt as to which of the shots from the firearms of the accused caused the death, or conversely which one of the three accused who fired the shots missed his target, the application of sections 302/34 of the Penal Code was correct, but the question remains as to whether the death sentence would be appropriate. We are inclined towards the view that where the conviction is not under section 302 of the Penal Code simpliciter, and where the complicity of the accused is proved by the aid of section 34 of the Penal Code, then the sentence of death would not be appropriate.
46. 6 2016 Anti Corruption Commission Vs Md. Shahidul Islam & ors

6 SCOB [2016] AD 74
Public Servants; Members of Parliament; Anti-Corruption Commission
The oath that they took referred to their obligation to faithfully discharge the duty upon which they were about to enter. They are public servants since they held office by virtue of which they were authorized or required to perform public duty. The word office has been used in Articles 3 and 3D of P.O.28 of 1973 meaningfully.
47. 5 2015 State Vs. Dafader Marfoth Ali Shah & ors

5 SCOB[2015]AD 1
Evidence Act, 1872
Section 57
Judicial notice
Penal Code, 1860
Section 107, 109, 120A, 120B.
Offence of abatement
Article 104 of the Constitution
The exercise of the power of doing 'complete justice' under article 104 is circumscribed by two conditions, (i)that it can be exercised only when Supreme Court otherwise exercises its jurisdiction and (ii) that the order which Supreme Court passes must be necessary for doing complete justice in the cause or matter pending before it. Obviously the matter pending before us in this appeal is the acquittal of two accused-respondents Dafader Marfoth Ali Shah and L.D. (Dafader) Abul Hashem Mridha of the charges under sections 302/34 and 302/109 of the Penal Code. Leave to file this appeal was granted to consider only whether the acquittal of the present two accused-respondents from the charges under sections 302/34 and 302/109 of the Penal Code was correct and justified. So, obviously, the question whether the acquittal of all the accused persons from the charge of criminal conspiracy-is not at all a matter pending before us. It has already been pointed out above that the present State-appellant or any other aggrieved person had opportunity to challenge the acquittal of accused persons from the charge of criminal conspiracy as per statutory provisions, but they did not avail that opportunity and allowed a long period to be elapsed rendering that opportunity to appeal time-barred and conferring the accused persons a right to be treated acquitted from the charge of criminal conspiracy-as ordered by a court of law. In the name of doing 'complete justice' this right of the accused persons now cannot be ignored.
48. 5 2015 Md. Abdus Sattar Miah Vs Sreemati Raman Sona Dashya & ors
5 SCOB[2015]AD 88
Hindu Widow
Life Interest
Partition Suit
If a Hindu widow or a Hindu woman having life interest is not allowed to pray for partition of the joint properties by metes and bounds, then she would be deprived of enjoying her such right, as in the absence of partition by metes and bounds, she would not be able to enjoy her life interest therein. And if it is held that a Hindu widow or a Hindu woman having life interest would not be able to file a suit for partition, then the other co-sharers of the joint properties may use such decision as lever against such Hindu woman and thus create obstructions in the enjoyment of her life interest in the joint properties. Therefore, we find no substance in the point that plaintiff No.1 not being a co-sharer in the suit khatain and having life interest only could not maintain the suit for partition. And we hold that a Hindu widow or a Hindu woman having life interest can very much maintain a suit for partition for the fullest enjoyment of her such right in the joint properties.
49. 5 2015 Bangladesh Vs. S.M. Raiz Uddin Ahmed

5 SCOB[2015]AD 94
Disciplinary action
Adverse remark
Disciplinary proceeding
It is not permissible to take disciplinary action against a person solely on the basis of adverse remarks made by a Tribunal in a criminal case unless the allegations imputed in the adverse remarks are proved in disciplinary proceedin
50. 5 2015 M/S. Rajib Traders Vs The Artha Rin Adalat & anr

5 SCOB[2015]AD 98
How interest is to be calculated;
The Artha Rin Adalat Ain, 2003, Section 50
The interest to be paid by the judgment debtor will have to be calculated according to the prevailing interest rate or rates, which may be different for different periods, from the time of filing of the suit till the payment of the decretal amount by the judgment debtor.
51. 5 2015 Haji Mahmud Ali Londoni & anr Vs. State & anr

5 SCOB[2015]AD 102
Circumstantial evidence
It is settled principles that where the inference of guilt of an accused is to be drawn from circumstantial evidence only, those circumstances must, in the first place, be cogently established. Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused excluding any other hypotheses.
52. 4 2015 Bangladesh Shilpa Rin Sangstha & anr Vs. Rony Twines Ltd & ors

4 SCOB [2015] AD 1
Remission of interest, sick industry, past interest, auction sale, Special Committee for Remission
The question is whether the expressions fˡf pc and c pc used in this sub-clause (C) above include remission of all interest accrued from the day of taking loan and already paid by the sick industry by installments against the total outstanding amount to be excluded or the interest accrued on the day of recommendation made by the Special Committee out of the total amount of outstanding dues. The expression fˡfɒ means obtainable or to be paid, that is, the interest which has accrued from the date of privilege of remission of interest given and not the past interest already paid.
53. 4 2015 Md. Noor Hossain & ors. Vs. Mahbuba Sarwar & ors.

4 SCOB [2015] AD 4
Ex-parte decree, Inherent power under section 151 of CPC, rejection of a plaint
Whether the statements made in the plaint are false or not, are purely questions of fact and are to be decided at the trial. In rejecting the plaint, the learned Judges invoked section 151 of the Code, but the inherent power under the section cannot be exercised on assumptions and presumptions of facts and or on suspicion. In other words, the truth or falsity of the statements made in the plaint cannot at all be a ground to reject a plaint either be it under Order VII, rule 11 or under section 151 of the Code.
54. 4 2015 Shahid Ullah @ Shahid & ors Vs. The State

4 SCOB [2015] AD 11
Section 302 of Penal Code, 1860; Justification for death sentence
The offence which these two condemned prisoners committed is most heinous and brutal. These two condemned prisoners along with other accused Mir Hossain, with cool brain, made a plan to hijack a baby taxi by killing the driver and according to that pre- plan they hired the C.N.G. baby taxi of the deceased as passengers and took the baby taxi to a lonely place and thereafter they murdered the baby taxi driver brutally. This type of crime is on the increase in our society. For hijacking a baby taxi or any other vehicle the hijackers do not hesitate for a moment to take the life of the innocent driver of the vehicle which is very much precious for the near and dear ones of that poor driver. This type of killers/murderers cannot and should not get any mercy from the court of law. There is no reason for showing any leniency or mercy to this type of offenders who are enemy for the whole society. So we are unable to accept the submission of the learned advocate for the condemned prisoners to reduce the sentence of death to life imprisonment. In our opinion this is a fit case for imposing death sentence on killers.
55. 4 2015 Jibon Bima Corporation & ors Vs. Md. Abu Kawsar Jalil & ors.

4 SCOB [2015] AD 16
Jibon Bima Corporation (Officers and Employees) Service Regulations, 1992; seniority; selection committee
If more than one employee is appointed at the same time, their seniority will be counted on the basis of merit list prepared by the selection committee and not from the date of their joining.
56. 4 2015 Rokia Begum Vs. The State

4 SCOB [2015] AD 20
Meaning of life sentence; Section 45, 53, 57 of Penal Code; Sentence hearing; Extenuating circumstances; Commutation of the sentence of death
The way it has been interpreted, the word life does not bear its normal linguistic meaning. In other words, a person sentenced to imprisonment for life does not necessarily spend his life in prison, although section 45 of the Penal Code defines Life as the life of a human being unless the contrary appears from the context. The given interpretation has been arrived at with the aid of section 57 of the Penal Code, which provides that in calculating fraction of terms of punishment, imprisonment for life shall be reckoned as equivalent to rigorous imprisonment for 30 (thirty) years. This last mentioned section read with relevant provision of the Jail Code effectively means that a person sentenced to imprisonment for life will be released after spending a maximum of 2212 years in prison. Under section 35A of the Code of Criminal Procedure the period of time spent by the accused in custody during pendency of the trial would be deducted from his total sentence. Thus we find that in many serious murder cases, where the trial lasts for many years, the accused who is found guilty and sentenced to imprisonment for life gets released after serving a total of 22 years including the period spent in custody during trial.
57. 4 2015 Mosharaf Com. Tex. Mills Ltd & ors Vs. ECOM Agro. Corp. Ltd & ors

4 SCOB [2015] AD 28
Arbitration proceeding; Valid agreement
It appears from the judgment of the High Court Division that the High Court Division found that there was a valid agreement between the plaintiff and defendant wherein an arbitration clause has been stipulated and pursuant to the said agreement an arbitration proceeding has already been commenced before the Arbitration Tribunal at Liverpool. This suit has been instituted subsequent to the arbitration proceeding. The High Court Division held that though written statement has been filed but, in fact, the same can be treated as information to the court regarding pendency of arbitration proceeding before Arbitration Tribunal at Liverpool.

Since arbitration proceeding has already been initiated between the parties before initiation of the instant suit, we are of the view that the High Court Division rightly disposed of the Rule staying further proceeding of the suit with a direction to settle the dispute in the arbitration proceeding.
58. 3 2015 Criminal Appeal No. 54 of 2007

3 SCOB [2015] AD 1
Breach of contract; Offence of cheating; Section 491 0f the Penal Code
In every case of cheating there is implicit agreement between the parties. The vital factor to be considered is whether at the time of agreement there was intention to carry out the terms of the contract or not. If there is nothing to show that there was no intention at the time of agreement which was arrived at, but the failure to fulfill the terms of the agreement was the subsequent event, the offence of cheating cannot be said to have been committed. It would only be a case of breach of contract/
59. 3 2015 Civil Petition for leave to Appeal No. 1536 of 2010

3 SCOB [2015] AD 5
Third Party`s right of appeal ; Service of summons
Even a third party can file an appeal in case he is affected by a decree passed in a suit.
60. 3 2015 Civil Appeal No. 34 of 2007

3 SCOB [2015] AD 11
Hindu law; life interest; legal necessity for transferring land
It is true that in this kabala dated 02.03.1997 it has been mentioned that for performing the Shradhya ceremonies of her parents Komoda sold this land to the plaintiff. But this recital only in the document is not enough to prove that actually there was legal necessity for transferring this land by Komoda-who, admittedly, had life interest only in the land in question. Evidence is necessary to prove that actually there was legal necessity for transferring this land by Komoda.
61. 3 2015 Civil Petition for leave to Appeal Nos. 2080-2081 of 2010

3 SCOB [2015] AD 16
Benami Transaction; Immovable property; function of the Court; Section 5 of Land Reform Ordinance, 1984
The preamble cannot control the meaning and expression when the meaning of the expression is clear and ambiguous. The aid of the preamble can be taken if the meanings of the words to be interpreted are not clear and ambiguous.
62. 3 2015 Civil Petition for leave to Appeal No.1659 of 2013

3 SCOB [2015] AD 24
Article 102 (5) of the Constitution; Public Servants (Retirement) Act, 1974
The bank concerned being a company under the Companies Act, does not come within the ambit of article 102(5) of the Constitution. So, we are of the view that the Rule in the instant case ought to have been discharged on the same ground, especially when the same Bench had decided earlier that the employees of Pubali Bank Limited are not in the service of the Republic or of any Corporation, National Enterprise or Local Authority.
63. 3 2015 Civil Petition for leave to Appeal No.2495 of 2010

3 SCOB [2015] AD 27
Service benefit
The petitioner got appointment in 1997, that is, long before the promulgation of the Service Rules of 2005. So he is entitled to get benefit of the Service Rules under which he got his appointment, that is, he is entitled to get the benefits as provided in Service Rules of 1988 and his service would be regulated under the said provision of law.
64. 2 2015 CIVIL PETITION FOR LEAVE TO APPEAL NOS.718-720 of 2013

Citation:
2 SCOB [2015] AD 1
Fraud practiced upon Court Company Court
Since the judgments were obtained by practicing fraud upon the court, we have no alternative but to set aside the said judgments of the Company Court and the persons concerned should be put to justice. We direct the Registrar to file complaints before the Chief Metropolitan Magistrate, Dhaka against the respondent(s)... for using forged documents for securing judgments from the Company Court.
65. 2 2015 CIVIL PETITION FOR LEAVE TO APPEAL NOS.1428 AND 1429 OF 2014

Citation:
2 SCOB [2015] AD 5
RPO
Election Petition
Candidate
Locus Standi
Defaulter
Member of Parliament
The High Court Division failed to comprehend the proper meaning of `candidate` given in section 2(ii) of the RPO vis--vis article 49(1) thereof in observing that `the petitioner being a candidate of the 10th National Parliamentary Election did not act rather he was an intending candidate and wanted to become a candidate.` And we hold that the petitioner being a proposed `candidate` for election as a Member of the Parliament for the Constituency in question, he had every locus standi to file the election petitions and those were maintainable in law.
66. 2 2015 CIVIL APPEAL NO.29 of 2006

Citation:
2 SCOB [2015] AD 8
Concurrent findings
New plea
Travellers cheques
Defence plea
Before this Appellate Division the defendant-appellant did not raise any question as to the correctness of the above concurrent findings of the courts of facts, rather it has raised a new plea to the effect that the plaintiffs could not prove that the defendant bank sold the said 152 travellers` cheques. But we are unable to accept this new defence plea at this stage specially in view of the pleadings of the contesting parties and the evidence adduced by them.
67. 2 2015 CIVIL PETITION FOR LEAVE TO APPEAL NOs.342 and 327 of 2011

Citation:
2 SCOB [2015] AD 12
National Anthem
Commercial Use
Mobile Phone Operators
National Anthem Rules,1978
Donation
There is no gainsaying the fact that each of the leave-petitioners has been charging revenue for playing the national anthem on the mobile phones. On consideration of the Rules, in general, we find that there is no scope for commercial use of the national anthem. Such commercial use of national anthem shows utter disrespect to the national anthem.
68. 2 2015 CIVIL APPEAL NO. 268 OF 2009

Citation:
2 SCOB [2015] AD 15
Arbitral award
Arbitration proceedings
Arbitration Act
Public policy
Breach of contract
Compensation
The arbitral award is generally not open to review by Courts for any error in finding on facts and applying law for the simple reason that it would defeat the very purpose of the arbitration proceedings.
69. 2 2015 CIVIL APPEAL NOS.45-48 OF 2012.

Citation:
2 SCOB [2015] AD 24
Voluntary retirement scheme
Termination
Policy decision
Economic decisions
Public interest
Voluntary retirement scheme is a method used to reduce surplus staffs. Participation in the voluntary retirement plan is voluntary. It has to result in an overall reduction in the existing strength of employees. Accordingly, we are not inclined to accept the observation of the High Court Division that the respondents had been terminated in the grab of voluntary retirement. Moreover, the respondents have filed writ petitioners after about 8 years of the acceptance of their prayers and after receiving retirement benefits.
70. 1 2015 CIVIL APPEAL NO.116 OF 2010.
WITH
CRIMINAL PETITION FOR LEAVE TO APPEAL NO. 374 OF 2011.
AND
JAIL PETITION NOS.18 OF 2008, 03 OF 2009, 01 OF 2010, 08 OF 2010, 16 OF 2010, 2-3 OF 2011, 05 OF 2012 & 7-8 OF 2012.
Mandatory death sentence
Certificate relating to interpretation of the Constitution
Rule of law
Beneficent discretion
ultra vires
Since we hold that Sub-Sections (2) and (4) of Section 6 of the Ain, 1995 and Sub-sections (2) and (3) of Section 34 of the Ain of 2000 are ultra vires the Constitution, despite repeal of the Ain of 1995, all cases pending and the appeals pending under the repealed Ain shall be regulated under the said law, but on the question of imposing sentence, the sentences prescribed in respect of those offences shall hold the field until new legislation is promulgated. I hold that there was total absence of proper application of the legislative mind in promulgating those Ains, which may be rectified by amendments. In respect of section 303 of the Penal Code, the punishment shall be made in accordance with section 302 of the Penal Code. It is hereby declared that despite repeal of Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, the pending cases including appeal may be held under the repealed Ain, while dealing with the question of sentence, the alternative sentences provided in the corresponding offences prescribed in the Nari-O-Shishu Nirjatan Daman Ain, 2000 shall be followed.
71. 1 2015 CIVIL APPEAL NO.73 OF 2012 Right to be considered for promotion
Conditions of service of a police officer
Writ petitioners did not challenge any disciplinary action taken against them by the Inspector General of Police. The authority did not give the directions in accordance with the Police Act or the Bengal Police Regulations or the Ordinance of 1969. The writ petitioners also did not challenge the propriety of the imposition of black marks upon them. They have challenged the embargo imposed upon them by the Police Headquarter, which directly affected their right to be considered for promotion to the next higher post. Clause (5) of Article 102 does not stand in their way of making an application under Article 102(1) of the Constitution subject to the provision of Article 45 of the Constitution.
72. 1 2015 CIVIL PETITION FOR LEAVE TO APPEAL NO.1594 OF 2015 International Crimes (Tribunals) Act, 1973
Maintainability of Writ Petition
In view of the clear bar under article 47(3) of the Constitution read with article 102(3) thereof, the High Court Division had no jurisdiction to entertain the writ petition in question and the same not being entertainable, it ought to have summarily rejected the writ petition on the ground of its maintainability.
73. 1 2015 CIVIL PETITION FOR LEAVE TO APPEAL NO.1585 of 2010 VAT Act
Alternative remedy
The High Court Division observed: `The present writ petition without preferring any objection/appeal under section 9(2ka)/42 of the VAT Act is not also maintainable.' We find no reason to interfere with the impugned judgment of the High Court Division.
74. 1 2015 CIVIL PETITION FOR LEAVE TO APPEAL NO.1603 of 2013. Administrative Appellate Tribunal
Departmental proceeding
The Administrative Appellate Tribunal came into a finding that while passing the impugned decision the Administrative Tribunal failed to consider that the departmental proceeding against respondent No.1 was not initiated and disposed of legally and that the Administrative Tribunal arrived at a wrong finding in disallowing the case causing serious miscarriage of justice. The findings arrived at and the decision made by the Administrative Appellate Tribunal having been based on proper appreciation of law and fact do not call for interference.
75. 1 2015 CRIMINAL APPEAL NO. 07 OF 2004 Rape
Delay in lodging FIR
Beyond any reasonable doubt
The reason of delay in lodging FIR even after the release of the victim from the clutch of the accused has not been properly described; so it is very difficult to consider the evidence of prosecutrix, P.W.2 as beyond any reasonable doubt which is the fundament requirement of conviction of an accused person. (Majority View)
76. 1 2015 CRIMINAL APPEAL NO.27 OF 2002 Penal Code
1860 Section 406/420 Criminal Breach of Trust
It appears from the petition of complaint that the respondent sent taka 6,00,000/- to the appellant through Bank with an understanding that he would supply the cloths at a reduced rate during Eid period. Though the appellant admitted that he had received the said amount but without supplying clothes he had repaid his loan by the said money, thereby, misappropriated the same. Lastly, he denied repaying the said money to the complainant. From the aforesaid facts and circumstances, it is difficult to accept that prima-facie ingredients of section 406/420 of the Penal Code had not been established against the appellant
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