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Serial No. Issue Year Name of the Parties/Case No and Citation Key Word(s) Short Ratio
1. 14 2020 Grameenphone Limited, represented the Chief Executive Officer, GP House, Bashundhara, Baridhara, Dhaka- 1229. Vs. Bangladesh Telecommunication Regulatory Commission (BTRC), represented by the Chairman, IEB Bhaban, Ramna, Dhaka-1000 and others

(SYED REFAAT AHMED, J)

14 SCOB [2020] HCD
The Bangladesh Telecommunication Regulation Act Section 63 and 65;
It is our finding further that section 65 in its entirety is the corridor within the statutory scheme through which the sanctity of the section 63 penal sanction must be gauged. Consequentially, any failure to trigger section 65 or any of its components necessarily leads to a statutory infraction resulting in a more fundamental constitutional infraction.

If the section 65 provisions are to be obliterated or to be considered a dead letter of the law one is necessarily at a loss to find other statutory mechanisms that may be called upon for due implementation of section 63. Furthermore, it is our unqualified view that the power to charge an administrative fine to a maximum of Tk. 300 Crore must always have an in-built mechanism of fair play. Otherwise one is visited with a scenario of administrative anarchy resulting from an exercise of unfettered discretion.
2. 14 2020 Abdur Rahman and others Vs. Judge (District Judge) Arpita Shampparrti Prattarpan Appellate Tribunal, Brahmanbaria and others

(Md. Ashfaqul Islam, J)

14 SCOB [2020] HCD
Writ of Certionary: Maintainability
It is well settled that in writ certiorari this Division would be loath to interfere with a decision of a Tribunal in specific, if the same is not a perverse one or a gross miscarriage of justice has been done.

A writ of certiorari is maintainable only in a case where erroneous decision within it jurisdiction. Even if there is mere error of law that will not confer any power on the High Court Division to issue a writ of certiorari except where there is an error apparent on the face of the record, that means, the error must be something more than a mere error. The High Court Division can issue writ of certiorari only if it can be shown that the judgment has been obtained by fraud, collusion or corruption or where the tribunal has acted contrary to the principles of natural justice or where there is an error apparent on the face of the record or where the tribunal’s conclusion is based on no evidence whatsoever or where the decision is vitiated by malafide.
3. 14 2020 Dr. Nafia Farzana Chowdhury Vs. Bangabandhu Sheikh Mujib Medical University (BSMMU), represented by its Vice Chancellor and others.

(Zubayer Rahman Chowdhury, J)

14 SCOB [2020] HCD
Equal protection of law in appointment; Unlawful Appointments not validated by rendering service;
If any particular case the selection committee abuse its power in violation of Article 31 of the Constitution, that may be a case for setting aside the result of a particular interview.

If any appointment is given by the Authority in gross violation of the Rules, lapse of any period of time and rendering of service in the said post by the incumbent cannot clothe the said appointment with any legal validity.
4. 14 2020 Feroza Begum and others Vs. Md. Nannu Mollah and others

(A.K.M. Abdul Hakim: J.)

14 SCOB [2020] HCD
Doctrine of past and closed transaction read with Sections 95 & 95A of the State Acquisition & Tenancy Act, 1950.
In the present case the Plaintiffs grandfather sold the suit property by registered saf-kabala deed dated 11.10.1963 and executed a deed of re-conveyance on that date with a condition of repurchase of the same within eight years period that is till 10.10.1971.The President’s Order No.88 of 1972 came into effect on 03.08.1972 and following certain amendments therein by P.O No. 136 of 1972 and the condition giving right of repurchase having expired. The sale/transaction became past and closed transaction and the plaintiff was not entitled to get relief on the ground that the property was a mortgaged property.
5. 14 2020 Md. Akram Ali and others Vs. Khasru Miah and others

(Muhammad Khurshid Alam Sarkar, J)

14 SCOB[2020] HCD
Partition Suit or Title Suit, Ubi Jus ibi remedium, Section 54, Order 20, Rule 18 and Order 26, Rule 13; Joint tenants.
Simply remanding back the suit for proper evaluation of the much-discussed documentary evidences, there shall not be an effective adjudication of the suit.

Since in a partition suit, a person approaches the Civil Court with a grievance of not being able to enjoy his/her property absolutely or independently or peacefully and, in responding to the plaintiff’s case, if the defendant questions the very title of the plaintiff, in that scenario, it is incumbent upon the Court to assess and determine the plaintiff’s title, right and interest in the suit land.

If the plaintiff does not make proper prayer in the plaint, the suit must not be dismissed on the said ground; rather it would be the duty of the Court to frame appropriate issue/s on the basis of the pleadings and submissions put forwarded by all the parties to the suit and proceed with the suits towards its effective disposal.
6. 14 2020 Md. Anwar Hossain, Proprietor of M/s. Pride Knit Wear Ltd. Vs. Registrar, Patents, Designs and Trade Mark, Dhaka and another.

(S.M. Maniruzzaman, J)

14 SCOB [2019] HCD
An appeal under section 100(2) of the Trade Marks Act, 2009;
Prior use of trade mark and prior application for registration in case of identical marks will go in favour of the prior user.
7. 14 2020 Md. Badaruddin being dead his heirs Most. Arjuda Khatun and others Vs. Md. Shahidullah Miah

(Zafar Ahmed, J) 14 SCOB [2020] HCD
Sale deeds, Article 113 of the Limitation Act, 1908, Baina dated, Time from which the period of limitation begins, Novation of contract, Performance of a contract,
Time consumed in the so called arbitration proceedings or waiting for subsequent refusal are of no assistance to the plaintiff.

Specific performance is a relief which the Court will not grant, unless in cases where the parties seeking it come promptly, and as soon as the nature of the case will admit. The rights of equity are rights which are given to litigants who are vigilant and not to those who sleep.
8. 14 2020 Md. Giasuddin Vs. Govt. of Bangladesh, represented by the Secretary, Ministry of Primary and Mass Education, Bangladesh Secretariat, Ramna, Dhaka and others.

(Naima Haider, J)

14 SCOB [2020] HCD
Rules 2(Ga) & 9(1) of the অধিগ্রহণকৃত বেসরকারি প্রাথমিক বিশ্ববিদ্যালয়ের শিক্ষক (চাকুরি শর্তাবলী নির্ধারণ) বিধিমালা, ২০১৩
The issue before the Honorable HCD is whether Rule 2(Ga) and Rule 9(1) of the 2013 Rules should be struck down. Rule 2(Ga) define ̎কার্যকর চাকুরিকাল which means that if a teacher renders, say 10 years of service prior to nationalization, his effective service period under the 2013 Rules shall be 50% thereof, i.e. 5 years. However, if the particular teacher’s term of service is less than 4 years, then his previous service years shall not be counted after the nationalization. The provision is strange but not unreasonable. The nationalized teachers shall be entitled to different Government facilities including pension benefits. If Rule 2(Ga) was drafted differently to take account of the entire period of service prior to nationalization, then it would have had severe financial implications on the Government. Therefore, Rule 2(Ga) of the 2013 Rules is the mechanism used to reduce the financial exposure and at the same time, provide benefits to the teachers. It can be argued that the effect of Rule 2(Ga) is that the petitioners expectation to service benefits is affected; however, expectation is not synonymous to ̏rights and entitlements̏. Loss of expectation of the petitioners cannot be a ground to strike down Rule 2(Ga) of the 2013 Rules.

Rules 9(1) অধিগ্রহণকৃত বেসরকারি প্রাথমিক বিশ্ববিদ্যালয়ের শিক্ষক (চাকুরি শর্তাবলী নির্ধারণ) বিধিমালা, ২০১৩ provides that the seniority shall be counted by reference to কার্যকর চাকুরীকালের ভিত্তিতে. This provision also states that the direct appointee shall be senior to the teacher who has been nationalized under the 2013 Rules despite the fact that his tenure of service is less than the tenure of service of the nationalized teacher. This is manifestly absurd, particularly when the teacher directly recruited and nationalized teachers are treated at par. The previous tenure of service in the private schools is recognized by the 2013 Rules. On the date when a nationalized teacher is appointed, he carries forward a deemed tenure of service. The deemed tenure of service recognized by first part of Rule 9(1) would cease to be recognized by second part of Rule 9(1). The second part of Rule 9(1) of the 2013 Rules renders the first part of the Rules 9(1) being ̎শিক্ষকের নিয়োগ প্রদানের তারিখ হইতে কার্যকর চাকুরিকালের ভিত্তিতে শিক্ষক পদে তাহার জ্যেষ্ঠতা গণনা করা হইবে redundant.

It appears that the teachers who are nationalized are affected because their seniority would not be properly recognized. This would affect their পদোন্নতি, সিলেকশন গ্রেড এবং প্রযোজ্য টাইম স্কেল because under Rule 9(3) of the 2013 Rules নিয়োগ বিধির শর্ত পূরণ সাপেক্ষে, উপ-বিধি (১) ও (২) এর অধীন জ্যেষ্ঠতার ভিত্তিতে শিক্ষকগণ পদোন্নতি, সিলেকশন গ্রেড এবং প্রযোজ্য টাইম স্কেল প্রাপ্য হবেন। The Court has concluded that Rule 9(1) of the 2013 Rules is manifestly unreasonable and self contradictory and therefore, is liable to be struck down.
9. 14 2020 Md. Golam Morshed Vs. Court of the Executive Magistrate and General Certificate Officer, Dhaka, Deputy Commissioner’s Office Building, Dhaka and another

(MOYEENUL ISLAM CHOWDHURY, J)

14 SCOB [2020] HCD
Sentence of Fine: whether it is a Public Demand;
Unquestionably the sentence of fine passed by any Criminal Court is not a “public demand” within the meaning of the Public Demands Recovery Act, 1913. As it is not a “public demand” within the meaning of the Public Demands Recovery Act, the question of realization of the fine amounts through initiation of the Certificate Case is out of the question. Such Certificate cases are an abuse of the process of law.

The realization of any fine amount under any sentence of fine of any Criminal Court cannot be effected by resorting to the provisions of the Public Demands Recovery Act, 1913.
10. 14 2020 Md. Ibrahim Vs. The State

(Md. Badruzzaman, J)

14 SCOB [2020] HCD
Under section 9(4)(Kha) of Nari-O-Shishu Nirjatan Daman Ain 2000 (as amended in 2003); FIR, Misuse of the privilege of bail, Ad-interim bail, Non-extension of bail, Section 498 of the Cr. P.C.
It is settled principle that bail is a very valuable right granted to an accused by the Court and once it is granted, it should not and ought not to be interfered with lightly except upon valid grounds and cogent reasons.

When an accused is enjoying the privilege of bail granted by the High Court Division for a limited period in a pending rule under section 498 of the Cr.P.C or in an appeal under special law, as the case may be, and he is regularly appearing before the Court below his bail cannot be cancelled and he cannot be taken into jail custody by the Court below only on the ground of non-extension of the period of bail by the High Court Division. If such situation arises, the Court below must wait for the result of the rule or the appeal, as the case may be, in which the accused was granted ad-interim bail.
11. 14 2020 মোঃ নাজমুল হুদা ওরফে নাজমুর হুদা বনাম রাষ্ট্র এবং অন্য

(বিচারপতি এম. ইনায়েতুর রহিম)

14 SCOB [2020] HCD
দ্য কোড অব ক্রিমিনাল প্রসিডিউর, ১৮৯৮ এর ধারা ২৬৫সি।
আদালত দ্য কোড অব ক্রিমিনাল প্রসিডিউর, ১৮৯৮ এর ধারা ২৬৫সি এর বিধান অনুযায়ী তখনই একজন আসামীকে মামলা হতে অব্যাহতি দিতে পারবেন যদি নথি (রেকর্ড) এবং তৎসঙ্গে দাখিলকৃত কাগজাদি (documents submitted therewith) হতে প্রাথমিক দৃষ্টিতেই যদি দেখা যায় যে, ঐ আসামীর বিরুদ্ধে মামলার কার্যক্রম পরিচালনা করার জন্য পর্যাপ্ত কোন উপাদান (Sufficient ground for proceeding) নেই। আসামী পক্ষ শুধুমাত্র মামলার নথি এবং তৎসঙ্গে দাখিলকৃত কাগজাদির উপর তাঁর বক্তব্য উপস্থাপনের অধিকারী। এ পর্যায়ে আসামীর দাখিলকৃত আত্মপক্ষ সমর্থনে কৈফিয়তের কাগজাদি বা বক্তব্য কিংবা আসামীর পেশা, পদবি বা অবস্থা (status) বিবেচনা করার সুযোগ নেই।

কোন আসামীর বিরুদ্ধে অভিযোগের প্রাথমিক/আপাত যথার্থতা থাকলে (prima facie case) অভিযোগ গঠন পর্যায়ে তাঁকে অব্যাবহতি দেয়ার কোন সুযোগ নেই। অভিযোগ গঠন পর্যায়ে আসামীর বিরুদ্ধে আনীত আপাতদৃষ্ট অভিযোগটি সত্য কিংবা মিথ্যা তা নির্ধারণ করার সুযোগ নেই; সেটি নির্ধারণ হবে বিচার প্রক্রিয়ার শেষে উপস্থাপিত সাক্ষ্য প্রমাণের ভিত্তিতে।
12. 14 2020 National Warehouse . Vs. Anti-Corruption Commission and others

(Md. Ruhul Quddus, J)

14 SCOB [2020] HCD
Section 14 of the Money Laundering Protirodh Ain 2012 and Principles of Natural Justice in Criminal Justice System: Section 16 of the Money Laundering Protirodh Ain 2012 :
The principle of natural justice by way of service of prior show cause notice are to be complied with, where any legal or vested rights of a citizen or entity are going to be taken away by an administrative order. Non service of prior show cause notice can be a very strong ground against such administrative/quasi judicial order that generates different type of writ petitions amongst others. However, natural justice in the sense of prior show cause notice is not available in criminal justice system. The criminal law, however, provides procedural fairness in enquiry/investigation, ensures the right to defence of an accused and fair trial.

For the purpose of freezing/attachment of property under section 14 of the Act V of 2012, no prior show cause notice is necessary. It may alert the offender, prompt him to transfer or take the property beyond his possession immediately after receipt of the notice thus defeat the purpose of law.

The ACC can proceed with an application for freezing even before completion of the investigation, if there are any credible documents/probative materials or information, which are gathered during investigation, subject to fulfillment of the conditions as provided in section 14 (2) of the Act V of 2012. It will depend on the facts and circumstances of a particular case. Even in rare cases, an order of freezing/attachment of one’s property can be passed when such documents/materials or information are available to the prosecuting/enquiring agency at the time of receiving the initial complaint or at the initial stage of pre-FIR enquiry, but this must not be a general practice.

Where despite a prolonged inquiry, no FIR is lodged and the ACC fails to produce any primary evidence regarding one’s involvement in any offence of money laundering or any predicate offence, his right to maintain and operate bank account cannot be infringed at the whim of Anti-Corruption Commission. A person aggrieved by an order passed under section 14 of the Money laundering Protirodh Ain (Act V of 2012), can prefer an appeal directly to the High Court Division under section 16 without approaching the Court below under section 15 of the Act.
13. 14 2020 Pankaj Roy Vs. Alliance Securities & Management Limited and others.

(Md. Mozibur Rahman Miah, J)

14 SCOB [2020] HCD
Company matter, Article 45 of the Articles of association; Interim order, Board of directors, Modify the judgement, Administration of Justice;
Invariably, under no circumstances, this court can interfere with its own judgment which was even affirmed by the Honb’le Appellate Division.
14. 14 2020 Pruesiau Aug Marma and another Vs. Aungmra Shang Marma and another

(Kashefa Hussain, J)

14 SCOB [2020] HCD
Temporary injunction, Mutation Case, Special statutory rules and regulations, Cittagong Hill Tracts Refgulation 1900, Customary laws of the Chittagong Hill Tracts, Article 152 of the Constitution of Bangladesh, Existing laws; Private parties regarding declaration of a deed, Registration of the deed, Competence any of party.
Mandatory issuance of notice upon the statutory authorities before filing of any suit in accordance with the relevant laws and also taking into consideration the existing customary laws of the Chittagong Hill Tracts which contemplate mandatory service of notice to the concerned authorities prior to filing any suit.

Customary laws and usages of the Chittagong Hill Tracts are all within the ambits of law and as such they can not be violated.
15. 14 2020 The State Vs. Advocate Noor-E-Alam Uzzal and others

(Md. Nazrul Islam Talukder, J)

14 SCOB [2020] HCD
Contempt of Court;
Whether the conduct, behavior and activities like shouting, assaulting the Bench Officer and ransacking the case records, fall within the purview of contempt of court. Contempt may be constituted by any conduct that brings authority of the court into disrespect, disregard and/or disrepute or undermines the dignity and prestige of the court. By the aforesaid act of the Advocates, the administration of the justice and the court proceedings had been seriously interfered with and the course of justice had also been obstructed. The behavior and the conduct of the Advocates by beating and assaulting the Bench Officer is insulting, disrespectful and threatening to the administration of justice.
16. 14 2020 আব্দুল্লাহ আল মামুন বনাম বাংলাদেশ সরকার ও অন্যান্য

(বিচারপতি মোঃ আশরাফুল কামাল)

14 SCOB [2020] HCD
Bangladesh Civil Service Recruitment Rules 1981 এর ৪(৩)(এ)(বি) উপবিধি:
দূরভিক্রম্য চারটি ধাপ তথা প্রয়োজনীয় শিক্ষাগত যোগ্যতা, এমসিকিউ, লিখিত ও মৌখিক পরীক্ষা অতিক্রম করে আসা একজন প্রার্থীকে বাংলাদেশের সর্বজন প্রহণযোগ্য সাংবিধানিক প্রতিষ্ঠান তথা বাংলাদেশ সরকারী কর্ম কমিশন কর্তৃক নিয়োগের সুপারিশ করা সত্ত্বেও যথাযথ সংস্থা (appropriate agency) কর্তৃক কোনরূপ উপযুক্ত কারণ প্রদর্শন না করে নিয়োগের অনুপযুক্ত মর্মে মতামত প্রদান করা বেআইনী, সংবিধান বিরোধী।
17. 13 2020 M/S BHIS Apparels Limited represented by its Managing Director, 671, Dattapara, Hossain Market, Tongi, Gazipur, Bangladesh.
-Versus-
Alliance for Bangladesh Workers Safety, BTI Celebration Point, Plot 3 & 5, Road 113/A, Gulshan-2, Dhaka- 1212, Bangladesh and others.

(MOYEENUL ISLAM CHOWDHURY, J)
13 SCOB [2020] HCD
Private body -Acting on the footing of Republic
Company-when can be treated on citizen
Thus it is palpably clear that the respondent no. 1 (Alliance) has been acting with the consent of the DIFE and assisting it in inspecting and ensuring the safety of the garment factories in the country. So we hold that the Alliance has been performing de facto functions in connection with the affairs of the Republic.
Since as per Article 102(1) any person aggrieved can enforce any of the fundamental rights guaranteed under Part III of our Constitution, we do not find any difficulty on the part of the petitioner-company, an indigenous Bangladeshi company whose shareholders and directors are all Bangladeshi citizens, to invoke Articles 27 and 40 of the Constitution in this case. Besides, Articles 27 and 40 do not say who can enforce them; it is only Article 102 (1) which says any person aggrieved can enforce them which undeniably fall under Part III of the Constitution. So Articles 27 and 40 which have been invoked by the petitioner-company are to be interpreted in the light of Article 102(1) of the Constitution.
We are of the opinion that for the limited purpose of enforcement of any of the fundamental rights as guaranteed by Part III of the Constitution, an indigenous company like the petitioner-company, whose shareholders and directors are all Bangladeshi citizens, is a ‘citizen’ of Bangladesh. This interpretation, as we see it, is in perfect accord with the intention of the framers of the Constitution and the tone and tenor of Article 102(1) of the Constitution.
18. 13 2020 AHN. HONG, SIK. HPCC-SEL JV
Vs.
Central Procurement Technical Unit (CPTU) and others

(Md. Ashfaqul Islam, J)
13 SCOB [2020] HCD
General Jurisdiction of Reveal Panel
If we now exercise our common sense it can be perceived when the Review Panel can ‘dismiss’ an Appeal if the same is not well founded either in fact or law then why it can not ‘allow’ the same if a decision appealed against is otherwise wrong ? In other words, when CPTU is competent to dismiss an Appeal it can also allow an Appeal if it is otherwise found to be competent.
19. 13 2020 East West Property Development (Pvt.) Ltd. and another
Vs.
Deputy Commissioner, Manikgonj

(Naima Haider, J)
13 SCOB [2020] HCD
Mutation, Water Development Board, the (Emergency) Requisition of Property Act, 1948, Deputy Commissioner, cancellation of mutation, repealed, স্থাবর সম্পত্তি অধিগ্রহণ ও হুকুমদখল আইন, ২০১৭ (The Act, 2017), valid acquisition, acquisition of the property
That there being no decision of the Government for acquisition of the property in question, there is no valid acquisition of the property and in the meantime the said proceeding having become non-est due to repeal of the said section 47 of the said Ordinance, 1982, there is no further scope to take decision for acquisition of the property.
20. 13 2020 Major Md. Nazmul Haque & ors.
Vs.
State and another

(Farah Mahbub, J.)
13 SCOB [2020] HCD
CrPC Section 265D:
Where the case is at a stage of framing charges and the prosecution evidence is yet to commence, the trial court has to consider the question of sufficiency of the ground for proceeding against the accused on a general consideration of materials placed before him by the investigating agency. The truth, veracity and effect of the evidence are not to be meticulously judged. The standard of the test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at this stage.
21. 13 2020 Md. Abu Yousuf Shah.
-Versus-
The State

(Md. Shawkat Hossain, J)
13 SCOB [2020] HCD
Anti-Corruption Commission, Prevention of Corruption Act, 1947, demanding bribe, substantive evidence, extra-judicial confession.
Anti-Corruption Commission, Prevention of Corruption Act, 1947, demanding bribe, substantive evidence, extra-judicial confession.
22. 13 2020 Md. Nazmul Huda
Vs.
The State and another

(M. Enayetur Rahim, J)
13 SCOB [2020] HCD
Quashment , Nari-O-Shishu Nirjatan Damon Ain, 2000 (as amended, 2003), Complaint, inquiry, police station, cognizance
Moreso, the word “অভিযোগটি অনুসন্ধানের জন্য” as contemplated in section 27(1ka) is very significant. It means that an inquiry should be done on the allegations brought against an accused. It does not mean that inquiry should be done to ascertain whether the complainant went to the police station and he/she was refused by the police.
23. 13 2020 Md. Shamsujjaman & ors.
Vs.
Bangladesh & ors.

(Zubayer Rahman Chowdhury, J)
13 SCOB [2019] HCD
The Concept of Administrative Fairness
This concept of “administrative fairness” requires that an Authority, while taking a decision which affects a person’s right prejudicially, must act fairly and in accordance with law. We note, albeit with utmost regret and disappointment, that in the instant case, there has been a gross violation of the well-settled principles of natural justice, and that too by the Syndicate. In our view, failure to comply with the principles of natural justice leads to arbitrariness, which in turn, vitiates the impugned order.
24. 13 2020 Md. Zohurul Islam
Vs.
Sree Aokkhoy Kumar Roy and others

(Md. Miftah Uddin Choudhury, J)
13 SCOB [2020] HCD
Ego cannot be allowed by the court of law.
In the facts and circumstances as it appears from the record, I find that the deceased Most. Hosneara Begum Laizu/Lipa Rani Roy was a Hindu lady, but she was converted to Muslim and she died as a Muslim, presence in her father’s house at the time of committing suicide can be a reason to find that she was reconverted to a Hindu.
As a Muslim or a believer in Islam she is entitled to get burial as per the Islamic rituals.
The prayer of Mr. Subrata Chowdhury as mentioned above cannot be considered by this Court since the deceased herself did not donate her dead body to any institution.
Apparently, the father of the deceased has been suffering from some ego and for his such ego Mr. Subrata Chowdhury, as well as Mr. Md. Mominul Islam made such prayers finding themselves helpless to establish that the deceased was reconverted to a Hindu. Such ego cannot be a reason for the Court to decide any dispute like the instant one.
For such ego a dead body has been rottening in mortuary since last four years. Keeping dead body of a human being for such long time cannot be allowed by any religion, rather it amounts to an inhuman act. Apparently the father just for his ego behaved like an inhuman being, and such sort of ego cannot be allowed in the society or by the court of law.
25. 13 2020 Mosammat Syeda Shamima Kader
Vs.
Mohammad Enamur Rashid Chowdhury

(Md. Rezaul Hasan, J)
13 SCOB [2020] HCD
Permanent injunction, City Corporation tax, boundary of the property, transfer of specific property, prima-facie title, tax receipt, misreading and non-reading of evidence
That the City Corporation holding tax receipt is not the proof of possession if isolated from a lawful prima-facie title claimed on the basis of apparently genuine deed and with reference to a clear chain of title. It has to be noted here that, this case of claiming title in the suit property based on no title in any specific property is apparently a case of the land grabbers. Case of a land grabber is totally isolated from the chain of title and their deeds do not refer to any specific immovable property, so that a land grabber can grab any property or any portion of a property, on the basis of the papers created by or kept in their hands.
26. 13 2020 Syed Saifuddin Kamal, son of SM Kamal Pasha, of House 419, Road 30, Mohakhali, DOHS, Dhaka- 1206 and another
Vs.
Bangladesh, represented by the Secretary, Ministry of Health, Bangladesh Secretariat, P.S. Ramna, Dhaka and others

(SYED REFAAT AHMED, J)
13 SCOB [2020] HCD
Provide Emergency Medical services for accidental injured persons and protecting “Good Samaritans”.
The Court issued a Rule Nishi on 10.02.2016 calling upon the Respondents to show cause as to why the failure to ensure the provision by existing hospitals and clinics, whether governmental or private, of emergency medical services to critically injured persons should not be declared to be without lawful authority and violative of the fundamental rights as guaranteed under Articles 27, 31 and 32 of the Constitution. The Court further ordered that the underlying Writ Petition has been filed with the primary intent of ensuring the easy accessibility to emergency medical care and intervention as prevents the undue loss of life of road accident victims. Concomitantly, the intent also is of preparing a set of back-up action plans, policy formulations and, in all likelihood, statutory enactments to facilitate the assured availability of such services and interventions in the best feasible manner. The courts aid is sought in this regard to bring about a mechanism ensuring further the personal safety of “Good Samaritans” made possible by the assured and ready availability of assistance of law enforcement agencies and medical service providers both in the public and the private sectors.
As per the directions of the Court, the guidelines that are placed before this Court for its sanction and approval are in the form of the moK `~N©Ubvq AvnZ e¨w³i Riæix ¯^v¯’¨‡mev wbwðZKiY I mnvqZvKvixi myiÿv cÖ`vb bxwZgvjv, 2018| (bxwZgvjv)
This Court, hereby, further directs, and as per the prayer of all parties concerned agreed on the same, that the bxwZgvjv in its entirety be deemed enforceable as binding by judicial sanction and approval pending appropriate legislative enactments incorporating entrenched standards objectives, rights and duties. This Court further directs a wide dissemination of the bxwZgvjv through publication variously in the Official Gazette and through electronic and print media as shall serve both public interest and secure a broader objective of social mobilization of views and perception of the necessity of such guidelines.
27. 13 2020 Abul Kashem and two others
Vs.
The State

(Md. Ruhul Quddus, J)
13 SCOB [2020] HCD
-
The form prescribed in the Criminal Rules and Order (Practice and Procedure of Subordinate Courts), 2009 presupposes no handwritten memorandum under column No.7. However, there is a blank space for making memorandum under column No.8, which the recording Magistrate is required to fill up stating the reason of his belief regarding voluntariness of the confession. If any Magistrate does not make any memorandum in his own handwriting under column No.7 of the prescribed form of confession, or does not put his signature after making memorandum under column No.8 and does not put his signature after making memorandum, if any, under column No.9, it cannot be held to be a gross illegality and fatal to the prosecution case. The purpose of making memorandum in compliance with section 164 (3) of the Code would suffice by signing the printed memorandum, provided that the precautions prescribed by the Code are duly taken by the recording Magistrate. There is confusion among the members of Bar as well as the Magistrates as to whether a Magistrate is required to make handwritten memorandum at the bottom of recorded confession under column No.7. Where there is already a printed memorandum in the language of law, albeit pre-amendment, it would be an unnecessary and meaningless exercise for the Magistrates to make another memorandum thereunder in the same language. Since the use of old printed memorandum with pre-amendment language and not making of memorandum by own hand of the Magistrate do not injure the accused as to their defence on merits, it would not make the confessions inadmissible.
28. 13 2020 The State
-Versus-
1. Md. Sharif and 2. Md. Mintu Khan

(Jahangir Hossain, J)
13 SCOB [2020] HCD
Factors considered the capital punishment to lesser punishment
The contention of learned Advocate Mr. S.M Abdul Mobin for the defence is that the sentence of death is too harsh in this case because both the accused persons tried to save the life of the victim removing him to more than one hospital from the place of occurrence as disclosed by the prosecution witnesses. Now the question is commutation of sentence as pointed out by the defence to be considered or not. In true sense, it is most difficult task on the part of a judge to decide what would be quantum of sentence in awarding upon an accused for committing the offence when it is proved by evidence beyond shadow of doubt but the judge should have considered the legal evidence and materials for punishment of the perpetrator not as a social activist [63 DLR 460, 18 BLD 81 and 57 DLR 591]. Sometimes, it depends on gravity of the offence and sometimes, it confers upon an aggravating or mitigating factor.
In such a situation, it is a very hard job for the court to determine the quantum of sentence whether it will be capital punishment or imprisonment for life upon the accused persons since they played a role for saving the victim’s life soon after occurrence as evident by the said prosecution witnesses. At the same time it is very important to note that the victim was completely an innocent teenager who had no fault of such dire consequences at the hands of the accused persons. Since the determination of awarding sentence to the accused persons is at the middle point of views, it may turn to impose capital punishment or imprisonment for life and that is why, the advantage of lesser one shall find the accused persons to acquire in the instant case. More so, both the accused persons have no significant history of prior criminal activities and their PC and PR [previous conviction and previous records] are found nil in the police report. In this regard it finds support from the decision in the case of Nalu –Vs-The State, reported in 1 ALR(AD)(2012) 222 where one of the mitigating factors was previous records of the accused.
29. 13 2020 S.M. Sajjad Hossain,
Vs.
Chairman, National Freedom Fighter Council, Ministry of Freedom Fighter,

(SHEIKH HASSAN ARIF, J)
13 SCOB [2020] HCD
Age of freedom fighters.
Circulars, Nitimala, Paripatra etc.
It is well settled that in exercise of executive functions of the government, the government can issue circulars, notifications, paripatra etc. to keep its work transparent. Such notifications or circular etc. may be issued in order to give benefits of the enlisted freedom fighters, which is no doubt an appreciable job by the government. But in doing so, the government cannot amend the parent law, namely the definition of freedom fighter as provided by Article 2(h) of P.O. 94 of 1972.
Section 2(11) of the Bangladesh
Freedom Fighters Welfare Trust Act, 2018 (Act No.51 of 2018),
When parliament itself cannot fix the age of freedom fighters as the fixing of such age of freedom fighters will be contrary to the Speech of Bangabandhu and the Declaration of Independence by Bangabandhu, which are part of the Constitution, the same Parliament cannot empower the government to fix such age. On this very simple ground, this empowerment “উক্ত সময়ে যাহাদের বয়স সরকার কর্তৃক নির্ধারিত বয়স সীমার মধ্যে” as incorporated in the definition of বীর মুক্তিযোদ্ধা under section 2(11) of the Bangladesh Freedom Fighters Welfare Trust Act, 2018 (Act No.51 of 2018), has become untra-vires the Constitution.
It has long been decided by various judicial pronouncements that which you cannot do directly, you cannot do the same indirectly. As stated above, when the Parliament itself cannot fix the age of the freedom fighters even by enactment of law without amending the Constitution, it cannot empower anybody including the government to fix such age of freedom fighters.
30. 12 2019 Liberty Fashion Wears Limited
-Versus-
Bangladesh Accord Foundation and others

(Tariq ul Hakim)

12 SCOB [2019] HCD1
Article 102(2) of the Constitution.
For Article 102 (2) to be attracted however the petitioner must be aggrieved by an action of a person performing functions “in connection with the affairs of the Republic”, or local authority or statutory body and he should be without any other alternative remedy or redress . The remedy sought by the petitioner is simply a direction on the Respondent No. 1 for inspecting the petitioner’s factory and publishing the findings in its website. If the petitioner’s factor is unsafe and not fit in any way then the Respondent No. 1 has nothing to loose. The petitioner cannot seek remedy from the Civil Court or any other forum in the form of a direction since there is no contractual relationship with the respondent No. 1. Similarly an action for defamation also will not serve any purpose since the petitioner wants the Respondent No. 1 to publish the accurate condition of its factory. Thus to compel the Respondent No. 1 to inspect its factory and publish the findings in its website the petitioner does not appear to have any other alternative remedy. In such view of the matter therefore this Rule is also maintainable under Article 102 (2).
31. 12 2019 Md. Reza Kamal
-Versus-
Secretary, Ministry of Civil Aviation, Bangladesh
Secretariat, Ramna, Dhaka and others

(Tariq ul Hakim, J.)

12SCOB[2019]HCD 15
Promotion solely on the basis of an interview.
In Bangladesh Vs. Shafiuddin Ahmed reported in 50 DLR (AD) 27 it has been clearly stated that marks fixed for interview should be kept to a minimum so that the accumulated credits achieved by the candidates over the years in their respective ACRs should not be disregarded by a momentary impression created in the minds of the Interview Board. However as stated earlier, such practice for providing promotion to the employees solely on the basis of an interview is unfair and creates sufficient scope for arbitrariness and unlawful decisions for which aggrieved persons may take the opportunity of getting redress. It is therefore hoped that the respondents Biman authority shall take appropriate measure in this regard to fill up the lacuna. In this respect it is to be pointed out that in several decisions in the Indian jurisdiction including B.V. Sivalah V. K. Addanki Babu reported in 1998 6 SCC 720 as well as Horigovind Yadav Vs.Rewa Sidhi Gramin Bank and others in (2006) 6 SCC 145 promotions with seniority were given to certain officers with retrospective effect for not having been promoted earlier for the ends of justice and in the instant case we feel that the petitioner is in a similar position and has been deprived unlawfully by an unfair method of selection for promotion and deserves to be promoted along with those listed in the impugned order
32. 12 2019 Dr. A. Y. M. Akramul Hoque
-Versus-
Government of the People’s Republic of Bangladesh and others

(MOYEENUL ISLAM CHOWDHURY, J)

12 SCOB [2019] HCD 24
Exhaustion of efficacious remedy provided by law: How far it bars the invocation of the writ jurisdiction,

Liberal interpretation of Equality before law:
There is a constitutional bar to the invocation of the writ jurisdiction of the High Court Division under Article 102(2)(a) of the Constitution, if there is any other equally efficacious remedy provided by law.

If any impugned action is wholly without jurisdiction in the sense of not being authorized by the statute or is in violation of a constitutional provision, a Writ Petition will be maintainable without exhaustion of the statutory remedy. Besides, on the ground of mala fides, the petitioner may come up with a Writ Petition bypassing the statutory alternative remedy. It is well-settled that mala fides goes to the root of jurisdiction and if the impugned action is mala fide, the alternative remedy provided by the statute need not be availed of.

Equality before law” is not to be interpreted in its absolute sense to hold that all persons are equal in all respects disregarding different conditions and circumstances in which they are placed or special qualities and characteristics which some of them may possess but which are lacking in others. The term “equal protection of law” is used to mean that all persons or things are not equal in all cases and that persons similarly situated should be treated alike. Equal protection is the guarantee that similar people will be dealt with in a similar way and that people of different circumstances will not be treated as if they were the same. When a case can be decided without striking down the law but giving the relief to the petitioners, that course is always better than striking down the law.”
33. 12 2019 Shakwat Hossain Bhuiyan
-Versus-
Bangladesh and others

(Md. Emdadul Huq, J; F.R.M. Nazmul Ahasan, J; Md. Abu Zafor Siddique, J)

12 SCOB [2019] HCD 39
Article 102 of the Constitution of the People’s Republic of Bangladesh, Article 66 of the Constitution of the People’s Republic of Bangladesh Public Interest Litigation, Election Commission,
It follows that the petitioner can very well seek a remedy under article 102 (2) (b) (ii), of course subject to the condition that no other efficacious remedy is available to him. In seeking a remedy under clause 102(2)(b)(ii). He does not have to be an aggrieved person for filing this case.

The underlying principle of a writ quo warranto, as interpreted by the Supreme Court of India and as quoted above, is clearly the same as enshrined in clause 102(2) (b) (ii) of our Constitution. Under this clause, “any person” can file an application and this court can, upon such an application, exercise the jurisdiction a writ of quo warranto. The applicant is not required to be “an aggrieved person” as opposed to the requirement of clause (1) and (2) (a) of article 102 under which a public interest ligation may be filed. In such a case the duty of this is court to hold an inquiry on the allegation and to arrive at a decision keeping in view of the legal and factual issues.

(a) The issue of maintainability on account of standing of the petitioner to file this case under article 102(2)(b)(ii) (Issue No. 1) is a purely legal issue, and it has been held that the case is maintainable on that count.

(b) The issue of maintainability on account of the bar or restriction imposed by article 125 of the Constitution (Issue No. 2) is purely a legal issue, and it has been held that article 125 article is not a legal bar to entertain this case and that the case is maintainable.

More over admittedly he was relased before expiry of 10 years. In such a back ground, it is the well settled principle of law that the fact of merely raising a claim different to the claim of jail authority or the finding of this court does not render it as a disputed question of fact. In fact, the date of his release as decided by this court as being on 01.06.2006 goes to his benefit in calculating the period of sentence served out by him and the quantam of remission permissible to him. If the date of his release claimed by him being 01.12.2005 is taken as correct he would be required to serve a longer period. So the issue of date release is not a disputed question of fact. (Ratio of Md. Emdadul Huq, J

34. 12 2019 (F.R.M. Nazmul Ahasan, J)

12 SCOB [2019] HCD 121
Ingredients to prove the suit for specific performance of Contract;
Article 66(2) of the Constitution of the People’s Republic of Bangladesh and the Article 12(1)(d) of the RPO relates to the election disputes triable before the election Tribunal. These factual aspect of the writ petition which discussed above are not admitted rather, it is disputed in different aspect and without taking evidence about the disputed fact of date of release of the respondent No.7 from Jail custody, the calculation of blood donation to the Sandhani and the special remission provided in the Jail Code which is recorded in the history ticket, it cannot be decided in a summary proceeding in the writ petition.

In this respect Article 125 of the Constitution of Bangladesh is very much applicable in the facts and circumstances of the case. Particularly, the facts and circumstances arises in the writ petition is a clear bar as this type of dispute cannot be decided without any evidence both oral and documentary.

An election dispute can only be raised by way of an election in the manner provided therein. Where a right or liability is created by a statute providing special remedy for its enforcement such remedy as a matter of course must be availed of first. The High Court Division will not interfere with the electoral process as delineated earlier in this judgment, more so if it is an election pertaining to Parliament because it is desirable that such election should be completed within the time specified under the Constitution. In the instant case, a serious dispute as to the correct age of the appellant was raised before the High Court Division which was not at all a subject matter of decision on mere affidavits and certificates produced by the parties.

As regards the first ground, it may be stated that if the purpose of the writ petition was only to challenge the election of the appellant on the alleged ground of his being a defaulter then we would have felt no hesitation to declare at once that the writ petition was not maintainable. Indeed, we have already held while rejecting CPSLA No.21 of 1988 (quoted in the affidavit-in-opposition) that “such questions as to disqualification, etc. which are questions of fact are better settled upon evidence which can be done more appropriately before a Tribunal. In the summary proceeding under Article 102 it is not desirable and, more often than not, not possible to record a finding as to a disputed question of fact.”
35. 12 2019 (Md. Abu Zafor Siddique, J)

12 SCOB [2019] HCD 125
Principle to amend Pleadings;
It is now a well settled proposition of law that if there is efficacious and alternative remedy is available, a writ petition under Article 102 of the Constitution is not maintainable. Admittedly it has been raised whether Article 125 of the Constitution puts a bar in the instant case in hand. Admittedly as per the aforesaid provision of law there is a legal bar questioning the result of the election declared by the commission except following the provisions of RPO. In the present case in hand it appears that the petitioner in the disguise of Article 102 of the Constitution trying to enforce the provisions of RPO. In the present case in hand it further appears that the question as raised by the petitioner regarding certain declarations made by the respondent No.7 before the Election Commission which is completely a dispute to be resolved by the competent authority as provided in the Represented People Order (RPO).

36. 12 2019 Md. Rafiqul Islam and others
-Versus-
Md. Abdul Hadis being dead his heirs and Mahbub Alam and others

(Mr. Justice Md. Rais Uddin)

12 SCOB [2019] HCD 129
Ingredients to prove the suit for specific performance of Contract;
In a suit for Specific Performance of Contract the essential ingredients which the plaintiffs are required to prove in order to succeed in a suit for Specific Performance of Contract, are that the Bainapatra is genuine, considerations money passed by the parties and delivery of possession was given in pursuance thereof.
37. 12 2019 British American Tobacco Bangladesh Company Ltd
-Versus-
Begum Shamsun Nahar
(Syed Md. Ziaul Karim, J)
12 SCOB [2019] HCD136
Principle to amend Pleadings;
We find that one of the fundamental principles governing the amendment of the pleadings is that all the controversies between the parties as far as possible should be included and multiplicity of the proceedings avoided.
38. 12 2019 Proshika Manobik Unnayan Kendro
-Versus-
The Commissioner of Taxes and others (Borhanuddin, J)

12 SCOB [2019] HCD 146
Section 158 of the Income Tax Ordinance 1984:
The proviso to Sub-Section (2) of section 158 of the Ordinance vests discretion with the Commissioner of Taxes to reduce statutory requirement of payment under Sub-Section(2) of section 158 of the Ordinance, if the grounds stated in the application filed by the assessee applicant under the proviso appears reasonable to him/her. From the language of the proviso, we do not find any statutory duty of the CT to pass an order assigning reason.
Though there is no requirement to give an opportunity of hearing to the assessee-applicant or recording reason, but still the Commissioner of Taxes should be aware that his /her order must reflect reasonableness from where it can be transpire that the Commissioner of Taxes applied his/her judicial mind in passing the order. But for inadequacy or absence of reasonableness, the order cannot be set aside. It is discretion of the Commissioner of Taxes.
39. 12 2019 Begum Khaleda Zia, Former Prime Minister, wife of Shaheed President Ziaur Rahman
-Versus-
Anti-Corruption Commission (ACC), Dhaka and another

(Mr. Justice Obaidul Hassan And Mr. Justice S M Kuddus Zaman)

12 SCOB [2019] HCD 205
Cr.PC section 540A
In the case at hand, we find that the Petition under section 540A was filed by the Public Prosecutor, though it has not been expressly mentioned whether the Public Prosecutor can file such an application; the Code does not prevent the Public Prosecutor from filing as such. The case reported in 14 DLR, aides us in concluding that, where there is no such provision preventing the Public Prosecutor from filing such an application, there is no harm if the Public Prosecutor draws the attention of the Court by filing such an application for the sake of expedition and deliverance of Justice
40. 12 2019 Begum Khaleda Zia
-Versus-
The State and another

(M. Enayetur Rahim, J)

12 SCOB [2019] HCD 211
Section 5 (2) of Prevention of Corruption Act,1947, Section 409/109 of the panel Code, Corruption, Prime Ministers orphanage Fund, Misappropriation, Criminal design.
Facilitating misappropriation of the fund which was meant to be used for welfare of orphans, particularly when Begum Zia, the Prime Minister, had entrustment and dominion over it indisputably shocks the human conscience and such act reflects a mindset derogatory to humankind. Obviously Begum Zia had liability and obligation to look after whether the Trust so formed was in actual existence. But she did not do it. Thus Begum Zia was a conscious part of a designed plan to the criminal acts constituting the offence of Criminal breach of Trust as defined in section 405 of Penal Code.
Merely for the reason of political identity of a person prosecuted for an offence punishable under the penal law it cannot be said that she has been brought to justice on political victimization.
We do not find any legal justification and cogent ground to award lesser punishment to the principal offender Begum Zia than the other convicts who were the abators, considering her political and social status.
We consider it appropriate that justice would be met if the maximum sentence prescribed in section 409 of the Penal Code is awarded to Begum Zia so that the persons enjoying the highest position in any organ or any public office of the State thinks twice to go ahead with such criminal design in coming days.
41. 12 2019 Softesule Private Limited
-Versus-
Govt. of Bangladesh represented by the Secretary Ministry of Health, Bangladesh Secretariat, Dhaka, and others

(NAIMA HAIDER J)

12 SCOB [2019] HCD 215
CPTU, Rule 60 of the PPR, Review Panel, NOC
It has been settled by this Division that when a proceeding is initiated which affects the rights of a party, the party whose right would be affected is to be given the opportunity to represent its case, whether statutory contemplated or not.
The Review Panel cannot, in exercising powers under Rule 60 of the PPR, proceed to assume more powers than actually conferred. In the instant case, the Review Panel has exceeded jurisdiction and therefore, its findings cannot be sustained.
It serves no purpose if the petitioner is awarded the tender but the NOC is not issued.
We take the view that the failure of the respondents in issuing the NOC is manifestly arbitrary and without lawful authority.
42. 12 2019 Azadul Islam and others
-versus-
Most. Asis Bewa and others

(Md. Rezaul Hasan, J)

12 SCOB [2019] HCD 219
Declaration of Title and permanent injunction, Lawful possession
I am also of opinion that, in a suit for permanent injunction, this Court should satisfy itself as regards the lawful nature of the plaintiffs’ possession. In a suit for permanent injunction, the issue regarding title need not be and should not be conclusively decided, because the purpose of granting the relief of permanent injunction is to prevent forceful ouster of an apparently lawful occupant of the suit property, thereby disapproving the act of taking law into the defendants own hands. Nonetheless, the court should incidentally look into the title or other lawful basis of the plaintiffs acquiring and continuing in possession, to satisfy itself that the plaintiff is not an usurper or trespasser or a land grabber and that he has come in clean hands.
43. 12 2019 Md. Hossen and others
-Versus-
Haji Shamsunnahar Begum and others
(Md. Rezaul Hasan, J)

12 SCOB [2019] HCD 225
Order 1 Rule 10 of the Code of Civil Procedure, Co-plaintiffs, interest , the Waqf Estate in the suit property
The applicant Md. Hossen and others, who had filed the application under Order 1 Rule 10 of the Code of Civil Procedure, were not entitled to be added as plaintiffs as heirs of deceased plaintiff No. 2 Haji Badsha Miah. Because, the admitted position is that, the suit property has been claimed (in the plaint) as the property of Abdul Nabi Malum Waqf Estate, not personal property of Haji Badsha Miah.
As such, the added plaintiff-petitioners have denied the interest of the Waqf Estate in the suit property by asserting their personal right in the same. Hence, their interest in the suit property is in conflict with that of the (surviving) plaintiff who claims herself as the sole Motwali (Manager) of the Waqf Estate, since another Motwali (plaintiff No. 2) has died.

Therefore, the interest claimed by the petitioner being in clear conflict with that claimed by the plaintiff, these Md. Hossen and 4 other are not entitled to be added as co-plaintiffs.
44. 12 2019 Kapasia Overseas Ltd
-Versus-
Government of the People’s of Bangladesh, Ministry of Expatriates’ Welfare and Oversees Employer Affairs
(Md. Faruque (M. Faruque), J)

12 SCOB [2019] HCD 231
Emigration Ordinance, recruiting license being, Emigration Ordinance, 1982, section 14 of the Emigration Ordinance, 1982, cancellation of the license and forfeiture of securities
It is a mandatory provision of law that before cancellation of a license, the authority must give a chance to the licensee of being heard, failing which the cancellation has no basis in the eye of law.
In this case, the order does not show nor there is anything on record to show that the respondent has given any chance of hearing to the petitioner before making such an order of cancellation and forfeiture of securities. Therefore, the order is violative of the section 14(1) of the ordinance and was thus bad in law.
The writ Court will not examine and weigh the aggrieved person’s case on merit as an Appellate Court but to ensure that he was given a fair deal by the authority in accordance with law.
45. 12 2019 Shahina Begum
-Versus-
The Election Commission of Bangladesh, represented by the Chief Election Commissioner

(F.R.M. Nazmul Ahasan, J)

12 SCOB [2019] HCD 238
Valid Candidate , Election Commission, Re-election, schedule of re-election, rule 37 (3) of Local Government Pourashava Election Rules 2010;
That the period between the declaration of schedule of election till the publication of the result in the official gazette has been held to be comprised in the election process. The case in our hand it appears that the petitioner filed writ petition before this court invoking the Article 102 of the Constitution before publication of the official gazette. As such the writ petition is not maintainable and the rule is liable to be discharged.
46. 12 2019 Monto Sheikh being dead his legal heirs
-Versus-
Ibrahim Miah being dead his legal heirs

(F.R.M. Nazmul Ahasan, J)

12 SCOB [2019] HCD 258
It is also settled that the defendants may have thousand of defect but it does not help the plaintiff to prove their case:
It appears that the plaintiff could not prove their case that they have any title in the suit land and also the possession. The main reasoning of this findings stated above that the basis of the title of the plaintiff is the settlement which was cancelled and the order of cancellation is in existence.
47. 12 2019 The State
-Versus-
Oyshee Rahman

(Jahangir Hossain, J)

12 SCOB [2019] HCD 276
Mitigating factors to consider the lesser punishment from death sentence to life imprisonment.
This sentence that someone be punished in such a manner is referred to as ‘Death Sentence’, whereas the act of carrying out the death sentence is known as execution. The execution is not only an exemplary punishment alone that can erase the crime from the society forever. Lesser punishments may significantly prevent or reduce the crimes from the society depending on the good governance and awareness of the people. To consider the lesser punishment from death sentence to life imprisonment mitigating evidence or circumstances must be stronger than that of aggravating evidence produced by the prosecution. In this case we find the following circumstances outweigh the aggravating circumstances,
1. Condemned prisoner committed double murder without any apparent motive and was suffering from mental derailment or some sort of mental disorder and also suffering from ovarian cyst and bronchial asthma;
2. Her paternal grandmother and maternal uncle had a history of psychiatric disorders according to exibit-15;
3. She was around 19[nineteen] year old at the relevant time and the occurrence took place just immediately after her attaining the age of majority;
4. She has no such significant history of prior criminal activity [criminal cases] and
5. She had willingly surrendered to the police station soon after two days of the occurrence.
48. 12 2019 The State
-Versus-
1. Md. Sharif and 2. Md. Mintu Khan

(Jahangir Hossain, J)

12 SCOB [2019] HCD 294
Mitigating factors to consider the lesser punishment from death sentence to life imprisonment.
The contention of learned Advocate Mr. S.M Abdul Mobin for the defence is that the sentence of death is too harsh in this case because both the accused persons tried to save the life of the victim removing him to more than one hospital from the place of occurrence as disclosed by the prosecution witnesses. Now the question is commutation of sentence as pointed out by the defence to be considered or not. In true sense, it is most difficult task on the part of a judge to decide what would be quantum of sentence in awarding upon an accused for committing the offence when it is proved by evidence beyond shadow of doubt but the judge should have considered the legal evidence and materials for punishment of the perpetrator not as a social activist [63 DLR 460, 18 BLD 81 and 57 DLR 591]. Sometimes, it depends on gravity of the offence and sometimes, it confers upon an aggravating or mitigating factor.

In such a situation, it is a very hard job for the court to determine the quantum of sentence whether it will be capital punishment or imprisonment for life upon the accused persons since they played a role for saving the victim’s life soon after occurrence as evident by the said prosecution witnesses. At the same time it is very important to note that the victim was completely an innocent teenager who had no fault of such dire consequences at the hands of the accused persons. Since the determination of awarding sentence to the accused persons is at the middle point of views, it may turn to impose capital punishment or imprisonment for life and that is why, the advantage of lesser one shall find the accused persons to acquire in the instant case. More so, both the accused persons have no significant history of prior criminal activities and their PC and PR [previous conviction and previous records] are found nil in the police report. In this regard it finds support from the decision in the case of Nalu –Vs-The State, reported in 1 ALR(AD)(2012) 222 where one of the mitigating factors was previous records of the accused.
49. 12 2019 Dr. Farhana Khanum
-Versus-
Bangladesh and others

(SHEIKH HASSAN ARIF, J)

12 SCOB [2019] HCD 309
Penal Code, 1860, Educational Institution, Corruption, Nitimala 2012, Anti- Corruption Commission, Public Servant (Discipline and Appeal) Rules,1985, Durnity Domon Commission Act,2004,Coacing Business,
Therefore, since the very definition of the term ‘Coaching Business’ has only attracted the involvement teachers of the above mentioned institutions as a mischief, this Nitimala in fact has not prohibited the ‘coaching business’, or ‘coaching centers’, run by any individual in his or her private capacity who is not a teacher of the above mentioned institutions. This means involvement of an individual, who is not a teacher of the above mentioned institutions, in such coaching centers or business has not been prohibited by this Nitimala. Therefore, the prohibition, as provided by this Nitimala, only applies to the teachers of the above mentioned institutions and not to any individuals or private citizens or persons, who are not teachers of such educational institutions.
From the above discussions, it appears that even in the absence of the said Nitimala, the petitioners and other teachers of non-government and government schools and colleges are not allowed to engage themselves in any sort of coaching business. This prohibition has not been provided by the said Nitimala of 2012, rather this has been given by their concerned service Rules which are delegated legislations and applicable to them. When the petitioners, or other teachers of government and non-government schools and colleges, joined their services, they joined as such fully knowing that the said Service Rules would be applicable to them. Therefore, by the said Nitimala, the government has in fact supplemented the provisions which are already in the statute books and in doing so, the government does not need to show any other sanction of statute or Act of parliament. It is the part of the constitutional power of the government as executive to run the governance and in running such governance, it is the duty and obligation of the government to take steps for implementation of the laws and regulations time to time enacted by the parliament or by the delegatees of the parliament. Under such obligations, the governments in modern countries issue various Circulars, Paripatra, Nitimala etc. and this has now become essential and normal administrative technic in modern countries. The only limitation in issuing such Nitimala or Nirdeshika is that by such Nitimala or Nirdeshika, the government cannot curtail the rights of any citizen which is already granted in his/her favour either by the Constitution or by law or by any other legal instruments.
Therefore, in the facts and circumstances of the present cases, the petitioners have failed to show that either the Constitution or any act of parliament or any delegated legislation of this Country has given them any right to get involved in coaching business. Rather, it has become evident from the above referred delegated legislations that in fact they have been prohibited by the law of the land from getting involved in coaching business. Thus, in so far as the said Nitimala is concerned, since the same has not curtailed any rights of the petitioners guaranteed either by the constitution or any law, it cannot be knocked down by this Court. Rather, it should be protected by this Court as it is the supplemental instrument to the already existing laws of the land. In this regard, the decisions of Indian Supreme Court in Bennett Coleman Co. v. Union of India, AIR 1973 SC 106, Bishamber Daval Chandra Mohan v State of UP, AIR 1982 SC -33 and Distt. Collector, Chittoor v Chittor Disttt. Groundnut Traders Assn, AIR 1989 SC 989 may be looked into as references. Therefore, on this point of unconstitutionality and unimplementablity of the said Nitimala of 2012, as argued by the learned advocates for the petitioners, we find no substance.
Therefore, it cannot be denied that when the teachers get involved themselves in coaching business, which is prohibited by law, they are disobeying the direction of law and they know it fully that such disobedience might cause injury to the students or their guardians in that by such engagement they are utilizing their resources, potentials and capabilities in such coaching centers rather than using them in the class rooms. Therefore, this Court is of the view that, since this provision under Section 166 of the Penal Code has been incorporated in the Schedule to the Dudak Act, 2004, Dudak thinly had technical jurisdiction to enquire into the allegations as published in the news paper regarding the involvement of teachers in the coaching business. However, this thin and technical jurisdiction is only confined to the teachers of government colleges and schools and not to the teachers of non-government schools and colleges.
Though we are saying that technically Dudak had jurisdiction to enquire into the said matters, we are of the view that Dudak should have priority list as to which offences should get priority in their such enquiry and investigation when it is repeatedly reported in newspapers that Dudak does not have enough resources and logistic supports. We are of the view that leaving behind serious allegations of corruptions in National Banks, Customs Houses, Ports, Court Premises, Government Offices, Land Offices, etc. Dudak should not have inquired into the mere involvement of some teachers in coaching business relying on a newspaper report. When there are some other serious reports of corruption in the country, it does not also look well when Dudak shows such importance to some basically disciplinary matters when teachers of government schools are not attending classes on time. These apparently disciplinary issues should be kept at the bottom of Dudak’s priority list in particular when almost each and every institution of this country is now suffering from huge corruption being committed by its employees and staffs. Though by engaging in coaching businesses the said teachers have disobeyed the direction of law, but it cannot be said that they have committed any ‘corruption’ as we understand the term in its general and common parlance. Therefore, we are of the view that, though thinly and technically Dudak had jurisdiction to enquire into the matters as published in the newspaper as regards involvement of the government teachers in coaching business, they should not have conducted such enquiry at all. Such enquires should have been done by the education directorate of the government or the concerned ministry itself.
50. 11 2019 Hemayet Mollah
VS.
The State

(SALMA MASUD CHOWDHURY, J)

11 SCOB [2019] HCD 65
Assessment of evidence of related eye witnesses.
The prosecution case cannot be shaken only because the eye witnesses belong to the same family because in a case of dacoity the eye witnesses of the occurrence are always the inmates of the house in which the dacoity is committed.
51. 11 2019 Hemayet Mollah VS. The State.

(Salma Masud Chowdhury, J)

11 SCOB [2019] HCD 1
Section 302 of the Penal Code
Admittedly there is no eye witnesses of the occurrence and the appellant is a nephew of the deceased having some enmity with him. Although it has been alleged that before death Shafiqul narrated the incident to some of the witnesses but that cannot be treated as dying declaration as it was not properly recorded. The witnesses to whom it has been alleged that the deceased mentioned the name of the appellant are all closely related to the deceased. In the present case we do not find any dying declaration of the deceased and it is evident from record that the deceased told about the occurrence by the appellant committed on him in the operation theater, which is not free from all doubt. Most of the witnesses deposed that they have heard from P.W.5 Md. Jabed but P.W.5 is not an eye witness and in his deposition he did not make any such statement as to connect the appellant directly.
52. 11 2019 The State
M. Wahidul Haque and others
(MOYEENUL ISLAM CHOWDHURY, J)

11 SCOB [2019] HCD 76
Anti-Corruption Commission Act, 2004:
As there is no express or implied provision within the four corners of the Act of 2012 debarring or prohibiting the Metropolitan or Judicial Magistracy from entertaining and dealing with any application for bail or remand at the pre-trial stage, the Magistracy is well-authorized to entertain and deal therewith in accordance with the above-mentioned provisions of the Code. From the date of lodgment of the FIR with the concerned Police Station till taking cognizance of the offence by the Senior Special Judge under section 4(2) of the Criminal Law (Amendment) Act, 1958, the Judicial or Metropolitan Magistracy is empowered to entertain, deal with and dispose of any application for bail of an accused in a case under the Act of 2012 under section 497 of the Code of Criminal Procedure. Similarly at the pre-trial stage, in the absence of any express or implied prohibition in any other special law, the Metropolitan or Judicial Magistracy may entertain, deal with and dispose of any application for bail of an accused under section 497 of the Code.
53. 11 2019 M.D. Shahabur Rahman Vs. The State and another Maintainability or legal sustainability of an application Under Section 98 of the Code of Criminal Procedure, 1898. Section 138 of the Negotiable Instruments Act, 1881, Code of Criminal Procedure, Section 141 of the Negotiable Instruments Act, 1881.
The intention of the lawmakers in respect of provision of service of notice upon the drawer is to inform him with a demand of the cheque money (dishonoured) by serving a notice by the petitioner. On this ground a criminal proceedings under section 138 of the Negotiable Instrument Act cannot be quashed.
54. 11 2019 The State Vs. Registrar General, Supreme Court of Bangladesh and others (M. Enayetur Rahim, J:)

11 SCOB [2019] HCD 80
Anti-Corruption Commission, Section 19 of the Ain of 2004, Judicail Officers Protection Act,1850
If we examine the impugned letter dated 28.05.2007 coupled with the above provisions of law then we have no hesitation to hold that by issuing the same the Supreme Court authority had flouted the above provisions of law and that the opinion expressed in the letter that it would not be proper (mgxwPb n‡e bv) to take any action against respondent No.3 is nothing but an attempt to create obstacle in the process of inquiry against said respondent. The Supreme Court administration in issuing the impugned letter having considered some extraneous and irrelevant facts has abused its discretionary power vested in it. The opinion in guise of direction expressed in the impugned letter was not the upshot of any judicial determination. Such a mere administrative letter although issued as per the verbal instruction of the Hon’ble Chief Justice, patently impinges upon the rights and lawful authority of the Commission to go on with the inquiry into an allegation of corruption. The impugned letter is amenable to judicial review as it was issued by the office of the Appellate Division under its administrative capacity and therefore, the Rule is quiet maintainable; The impugned letter is a mere official communication made by the office of the Appellate Division under its administrative capacity and in no way it can be regarded as the opinion of the Supreme Court; The impugned letter though tends to give a massage that a retired judge of the Supreme Court it immune from criminal prosecution but, in fact, no one is immune as such except the Hon’ble President and that too during his term of office;
55. 11 2019 Tofazzal Hossain Khandker and others
Vs.
Govt. of Bangladesh represented by the Secretary, Ministry of Post Telecommunications and Information Technology, Bangladesh Secretariat, Dhaka and others

(Naima Haider, J)

11 SCOB [2019] HCD 46
Action beyond authority is unreasonable
If any executive action is taken, which we consider, in light of facts and circumstances, to be unreasonable we take the view that such action was beyond authority because the executives are not authorized to act unreasonably. We are inclined to hold that the amendment made through Clause 3 of the order dated 09.03.2006 was ‘whimsical’’. This cannot be permitted to remain in force. However, if there is an executive order which results in continuous wrong, as in this case, we take the view that mere delay in filing the writ petition should not affect their relief. No doubt the petitioners filed the petition after a long time but that, in the given circumstances should not defeat their entitlement because the wrong done by the executive is ‘continuous’. Executives can employ for temporary period but if they permit the period to extend, either expressly or by conduct, after certain time, the employee can legitimately expect to be absorbed.
56. 11 2019 Md. Abdul Kader @ Abdul Kader and another
The State
(Mr. Quazi Reza-Ul Hoque, J)

11 SCOB [2019] HCD 57
Special Tribunal, Section 342 of the Code of Criminal Procedure, Section 103(2) of the Code of Criminal Procedure, Article 31, Article 35,Article 36,
It appears that none of the three local witnesses were eye witnesses rather they were asked to sign as witness, which is absolutely derogatory to the norms of law and the BDR and the local police for inflicting penalty upon the accused petitioners resorted to such activity which is seriously deplorable. Every citizen has a right to free movement within Bangladesh and to do any business or profession subject to restriction imposed by law.
57. 11 2019 Concord Consortium Limited
Vs.
Deputy Commissioner of Taxes, Taxes Circle-96 (Companies), Taxes Zone-5, Dhaka and others

(SHEIKH HASSAN ARIF, J)

11 SCOB [2019] HCD 4
Change of mind by the assessing officer can not justify re-opening of assessment under section 93 of the Income Tax Ordinance, 1984.
The relevant provisions in our Income Tax Ordinance, 1984 are still like pre-enactment of Indian Income Tax Act, 1961. That means, the precondition of having definite information which has to come into the possession of the Deputy Commissioner of Taxes after completion of original assessment is still very much intact under sub-section (2) of Section 93 of the said Ordinance. Therefore, we fully agree with the submissions of Mr. Noor that, the DCT must have fresh information in his possession which has come to his possession after completion of original assessment and, only on such happening, the DCT is entitled to reopen the completed assessment of a particular assessee. When a particular issue has been categorically addressed by the DCT in the original assessment order and there is no allegation that the assessee has not disclosed any particular fact or materials at the time of original assessment and when the DCT completed such assessment on the basis of the materials disclosed by the assessee taking a particular view on a particular amount, change of such view subsequently by the concerned DCT, for whatever reason, cannot not justify reopening of assessment. This position of law has been categorically affirmed by various higher Courts in India in the above referred cases. Since it is apparent from the facts and circumstances of the case that, the impugned reassessment was in fact initiated not because of any fresh information having come to the possession of the concerned DCT, rather the same was the result of subsequent change of opinion or change of mind of the DCT being influenced by a report of local office of CAG, such change of opinion is not permitted to be the ground for reopening the assessment.
58. 11 2019 Md. Biddut alias Helal Khan Vs. The State

(K. M. Kamrul Kader, J)

11 SCOB [2019] HCD 22
First Information Report, Section 19 (a) of the Arms Act, Section 342 of the Code of Criminal Procedure, Section 30 of the Special Powers Act 1974. Evidence Act
Mere declaration of the seizure list witnesses as hostile in no way cured the defect of the prosecution case. When the witnesses did not support the recovery of the arms from the possession of the convict appellant or on his showing and when the charge sheeted witnesses did not support the prosecution case and prosecution witnesses are withheld by the prosecution without any explanation, it raises adverse presumption against the genuineness of the prosecution case and the appellant entitled to get benefit of doubt under section 114 (g) of the Evidence Act.
59. 11 2019 Agrani Bank Limited, Head Office at 9/D, Dilkusha Commercial Area, Motijheel, Dhaka
VS
Goverrnment of the People’s Republic of Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs,

(Mahmudul Hoque, J)

11 SCOB [2019] HCD 28
Limitation of the Executing Court.
It is well settled that the executing court can not go beyond the decree nor can it question its legality or correctness, but there is one exception to this general Rule i.e. the executing court can adjust the amount with the decree paid by the Judgment Debtors during pendency of the execution proceeding if certified by the Decree Holder. In the present case admittedly the Judgment Debtors made payment of Tk.62,50,000/- to the Decree Holder during pendency of the Suit which has not been adjusted by the Decree Holder at the time of filing of the execution proceeding. In this situation the executing court is legally entitled to adjust the aforesaid amount with the decretal amount not the amount paid before filing of the suit. It must take the decree according to its tenor but in the instant case the executing court travelled beyond the decree and as such the Impugned Order passed by the executing court is not in accordance with law.
60. 11 2019 Alhaj Md. Mahtab Hossain Molla Vs. The State and another Action beyond authority is unreasonable.
It is a settled principle of law that in order to construe the actual meaning and intention of a statute it must be read as a whole and not in part or in an isolated manner. The provisions of the criminal law do not contemplate or consider the sustainability or maintainability of an isolated proceeding or case under Section 98 of the Code of Criminal Procedure. ... (Para 17) The law as it exists does not provide any scope to file or initiate a separate case or proceeding in an isolated manner in under Section 98 in the absence of a pending case or proceeding filed in pursuance of an F.I.R or complaint whatsoever under any of the provisions of the Penal Code. ... (Para 19) Section 98 only confers power upon Magistrate, empowered in this behalf to act in a particular manner to act according to the necessity appertaining to the facts and circumstances arising out of a particular case before the concerned Court arising out of an F.I.R or a complaint as the case may be. Hence a Magistrate, either Executive or Judicial as the case may be, to be able to act in accordance with the provisions of Section 98 being empowered in this behalf, can only proceed under the Section in a pending case and not in the absence of a case or proceeding and the existence of a case or proceeding is a sine qua non that is, an essential condition for resorting to the provisions of Section 98 of the Code. ... (Para 20) It is true that in the case we are dealing with at present, the issue of the property not being ‘stolen’ or ‘forged’ etc. has arisen and the petitioner contended that hence the case does not fall within the mischief of Section 98 of the Code. We do not disagree with the point raised by the learned Advocate for the petitioner given that the property in dispute, that is the car not being a ‘stolen’ property cannot be recovered by resorting to the procedures laid down in Section 98 of the Code. Rather, in the event of a proper case being filed, the appropriate court could have passed an appropriate order in 11 SCOB [2019] HCD Alhaj Md. Mahtab Hossain Molla Vs. State & anr. (Kashefa Hussain, J) 103 respect of the property under Section 516A of the Code as deemed fit pending conclusion of the inquiry or trial or it could pass an appropriate order under Section 517 of the Code. ... (Para 23) An application under Section 98 of the Code of Criminal Procedure not being isolatedly entertainable or lawfully maintainable at all, therefore in this case the application filed under Section 98 of the Code of Criminal Procedure before the Magistrate Court is not maintainable and is liable to be dismissed not being sustainable in the eye of law. ... (Para 26)
61. 11 2019 Kamal Miah and others
VS.
Lakkatura Tea Co. Ltd and others

(Khizir Ahmed Choudhury, J)

11 SCOB [2019] HCD 50
Rejection of Plaint. Order VII, Rule 11 read with Section 151 of the Code of Civil Procedure, 1908.
It is settled proposition that Record of Right alone does not confer title but it has got presumptive value in favour of the person in whose name Record is prepared but again the presumption can be rebutted by showing cogent evidence and proof. As such any person can take recourse of law ventilating his grievance. If somebody’s name is erroneously not inserted in the record, he can take recourse to the Court of law for appropriate declaration but his claim cannot be stifled taking aid of Section 52A of the Registration Act or 53C of the Transfer of Property Act. A plaint can be rejected by taking recourse of Section 151 of the Code of Civil Procedure. In the instant case the plaintiff has been able to made out distinct cause which should be adjudicated by the Court of law without having buried it at its inception and hence, inherent jurisdiction cannot be invoked here.
62. 11 2019 M.N. Kamal Hossain and another

Vs.

The State

(Bhishmadev Chakrabortty, J.)
Penal Code, 1860, Section 5(2) of the Prevention of Corruption Act, 1947, Misappropriation, Discharged, Divisional Special Judge
It also appears from the record that at the time of framing charge petitioner No.1 M.N. Kamal Hossain remained absent but charge was framed accordingly and warrant of arrest was issued. By suppressing the said fact of issuance of warrant of arrest, he moved before this Court in Criminal Miscellaneous Case No.8151 of 2008 and on 08.06.2008 obtained Rule and interim order of anticipatory bail for a limited period. The said interim order was not extended. Ultimately the Rule was discharged on 21.12.2011 and the concerned Court was directed to take necessary steps to secure his arrest. In view of the above petitioner No.1 M.N. Kamal Hossain is a fugitive from justice. He is not entitled to file this application before this Court and to get any order on it.
63. 10 2018 Bangobir Kader Siddiqui, Bir Uttom Vs. Chief Election Commissioner & ors.
(Md. Ashfaqul Islam, J.)

10 SCOB [2018] HCD 84
Constitution of the People’s Republic of Bangladesh, Article 102.
Any dispute whether that relates to acceptance or non-acceptance of the candidature of the particular candidate should be brought for a decision before an Election Tribunal as election dispute.
64. 10 2018 Catherine Masud & ors. Vs. Md. Kashed Miah
(Zinat Ara, J.)

10 SCOB [2018] HCD 30
Motor Vehicles Ordinance, 1983
It is evident that section 128 of the MV Ordinance read with rule 220 of the MV Rules requires that the claim application is to be submitted in CTA Form within six months of the accident. However, the proviso to sub-section (3) of section 128 of the MV Ordinance authorizes the Tribunal to entertain an application after the period of six months, if the Tribunal is satisfied that the claimants were prevented by sufficient cause.
65. 10 2018 CCB Foundation Vs. Bangladesh & ors.
(Farah Mahbub, J.)

10 SCOB [2018] HCD 117
Locus Standi of the Petitioner & maintainability of the Rule.
The issues being raised in the instant writ petition by the petitioner involves grave public injury as well as invasion on the fundamental right to life of the victim guaranteed under the Constitution. Accordingly, it has sought protection of this Court, the guardian and custodian of the Constitution of the People’s Republic of Bangladesh, for violation of the said right by filing application under Article 102 of the Constitution for the bereaved poor family members of the 4 years old boy named Jihad who died by falling into an uncovered deep tube well pipe of Bangladesh Railway situated at Shahjahanpur Railway Colony. As such, it cannot be said that the petitioner has no locus standi on the issue in question. In other words, this Rule is maintainable so far the locus standi of the petitioner Foundation is concerned.
66. 10 2018 Eastern Diplomatic Services Vs. Anti-Corruption Commission & ors.
(M. Enayetur Rahim, J.)

10 SCOB [2018] HCD 198
Anti-Corruption Commission Act, 2004
At the stage of inquiry, which is nothing but a fact finding process, there is no scope to arrive at a definite conclusion that the alleged allegation/offence will not fall within the preview of relevant Money Laundering Protirodh Ain, which is in the schedule of the Act of 2004. Moreover, to prevent corruption the commission has got wide and unfettered power. Section 17 (U) of the Act of 2004 contemplated that Commission has the power to do any such act to prevent corruption. The said provision is as under.
67. 10 2018 Farhana Akhter Liza & ors. Vs. The Islamic University & ors.
(Zubayer Rahman Chowdhury, J.)

10 SCOB [2018] HCD 92
Constitution of the People’s Republic of Bangladesh, Article,102(2).
The concept of “due process of law” involves two distinct elements. The first element imposes a mandatory duty upon the Authority concerned to appraise the person of the charge or offence for which a proceeding is being initiated against him. Not only that, judicial pronouncements have gone to the extent to hold that even the proposed punishment must be indicated to the person concerned at the very initial stage. The second element requires that the person, who is so charged, should be afforded an opportunity to file a reply/representation to the Authority in respect of the said allegation or charge. Non-compliance or non-observance of the second element is bound to give a “telling blow” to any subsequent action of the Authority.
68. 10 2018 Grameenphone Ltd. Vs. Chairman, First Labour Court, Dhaka & ors.
(Tariq ul Hakim, J.)

10 SCOB [2018] HCD 7
The concept of Outsourcing services in Bangladesh.
Outsourcing services is a new concept in our country. Not just labour but also professional services may be procured through outsourcing. It is a process by which the recipient of service enters into an agreement with a contractor / service provider who engages persons to render services to the service recipient. In such a situation, there is employment contract between the service recipient and the service renderer. The contract exists between the service recipient and the contractor and consideration for the services are provided by the service recipient to the contractor. If the service recipient is not satisfied with the service rendered by the persons engaged by the contractor then his remedy lies for breach of the terms and conditions of the agreement against the contractor. Likewise if the contractor does not receive adequate consideration for providing his service through his appointed employees, his remedy lies against the service recipient. The service recipient is generally not concerned who renders the service to him as long as the service sought is rendered adequately. As can be reasonably expected the service recipient may set certain criteria and conditions to be observed by the service renderer and he has a discretion to reject any person through whom the service is provided by the contractor; but in all such cases the matter is governed by the contract between the service recipient and contractor. It is a contract of services as opposed to a contract of employment.
69. 10 2018 Hayetullah & ors. Vs. Abdul Khaleque & ors.
(Khizir Ahmed Choudhury,J.)

10 SCOB [2018] HCD 309
Evidence Act, 1872,
In a civil proceeding both the parties have responsibility to prove their respective cases, although onus rests upon the plaintiff to prove his case but responsibility of the defendant is also there to substantiate his written statement’s assertion as per section 103 of the Evidence Act. But the courts below shifted the responsibility to prove the case entirely upon the plaintiffs which cannot be sustained.
70. 10 2018 Md. Abdul Hye Vs. Government of Bangladesh
(Obaidul Hassan, J.)

10 SCOB [2018] HCD 163
Enactment of Enemy Property (Continuance of Emergency Provisions) (Repeal) Act, 1974
1962 Constitution of Pakistan was not a Constitution in the eye of law at all, because the same was not given to the nation by the people`s representatives of Pakistan, rather the same was given by an usurper dictator abrogating the 1956 Constitution which was duly framed and adopted by the Constituent Assembly of Pakistan. Thus the Enemy Property Act [EPA] which was promulgated under a void Constitution of 1962 given by an usurper, the Pakistan Defence Rule 1965 and the Ordinance I of 1969 and its continuance under the grab of Act XLV of 1974 was a misnomer. Enactment of Enemy Property (Continuance of Emergency Provisions) (Repeal) Act, 1974 was a historical mistake. In view of our observations regarding 1974 Act and 1976 Ordinance we hold that measures are likely to be needed to give proper effect of the objective of the Act, 2001 (amended in 2013) and these are the matter to be dealt with by the legislature and executive.
71. 10 2018 Md. Kawsar Shikder Vs. State
(Abu Bakar Siddiquee, J.)

10 SCOB [2018] HCD 158
Narcotics Control Act, 1990 (Report of Chemical Analyzer)
There is no evidence on record to the effect that some portion of those incriminating article were being sent to the chemical analyzer for the purpose of obtaining a chemical report and no such report was marked as exhibit in such case. I have no option to hold that there is doubt so as to ascertain that those incriminating articles were Narcotics or not.
72. 10 2018 Md. Mahbubur Rahman Vs. Bangladesh & ors.
(Moyeenul Islam Chowdhury, J.)

10 SCOB [2018] HCD 104
The Constitution of the People’s Republic of Bangladesh,
Writ Court is also a Court of equity. It is a settled proposition of law that one who seeks equity must come with clean hands. In this case, the petitioner’s hands being unclean and dirty cannot invoke the writ jurisdiction of the High Court Division.
73. 10 2018 Md. Nur Hossain & ors. Vs. Bangladesh & ors.
(Md. Badruzzaman, J.)

10 SCOB [2018] HCD 299
Constitution of the People’s Republic of Bangladesh, Article 102(1):
The issue whether under Article 102(1) judicial review of a decision of authority relating to terms and conditions of service of a person serving in the Republic is maintainable is no longer a res integra.
74. 10 2018 Md. Nurul Islam & ors. Vs. Charge Officer & Appeal officer & ors.
(Sheikh Hassan Arif, J.)

10 SCOB [2018] HCD 234
Nullity of Record of Rights
We are in fact taken aback with surprise when we see that a government official has been empowered by this Rule 42 to nullify the course of parent law and send it back to an earlier stage for hearing afresh. The reason for such surprise is, when an Act of parliament has provided some specified forums for disposal of particular issues and has provided sequential steps to be taken one after another before different forums up to the Appellate Division of the Supreme Court of Bangladesh, an official like a revenue officer, appointed with the additional designation of Settlement Officer, can nullify everything before final publication of record of rights. When the government even does not have any power to nullify or reverse the course of parent law, since such power has not been delegated to government by the parent law, we are of the view that, even with the existence of Rule 42 empowering such revenue officer to nullify such course of parent law, any such exercise of power by such revenue officer shall be nothing but a nullity in the eye of law.
75. 10 2018 Md. Safiqul Islam & ors. Vs. Bangladesh & ors.
(Tariq ul Hakim, J.)

10 SCOB [2018] HCD 1
Regularizing Posts
It is true that the petitioners cannot claim as of right to be regularized in their jobs. However, after having served the authority for 10-15 years as temporary contingent staffs they cannot be blamed to expect being regularized in their posts especially when their superior authority has been satisfied by their work and has recommended their regularization.
76. 10 2018 Md. Shamim Howlader Vs. The State.
(Muhammad Khurshid Alam Sarkar, J.)

10 SCOB [2018] HCD 290
Code of Criminal Procedure, 1898, Section 561A
Section 561A the legislature enacts a special law relating to criminal offences with a view to combating the same in the society to a tolerable stage by smoothly concluding the trials of the cases under the said special law within the stipulated time. But, because of the tendency of the accused persons to remain in abscondence at the trial stage, they compel the trial Courts to delay the completion of the trial and, ultimately, the scheme of the special law gets frustrated. Until and unless the accused-turn-convicts are made to realize that non-preferring of appeals within the statutory period of 30 (thirty) days has a severe consequence of depriving themselves of the opportunity of challenging the trial Court’s verdict, the tendency of the accused persons and their lawyers as to taking the matter lightly shall not be changed. They, at present, take it for granted that after being arrested by the police, if they file an application under Section 561A CrPC, stating some concocted reasons, they would be able to overcome the hurdle. This Court views the above prevailing situation of our country to be a fatal disease which eventually would cause collapse of the administration of criminal justice system of Bangladesh.
77. 10 2018 Article 102 of the Constitution of the People’s Republic of Bangladesh. Code of Criminal Procedure, 1898, Section 561A
Indeed, under our Constitutional scheme an aggrieved person, in order to agitate his claim and case in judicial review, can do so by invoking Article 102(1) and/or (2) depending on the nature of the grievance as well as of status of the perpetrator. Article 102(1) comes into play in relation to the infringement of any fundamental right guaranteed under Part III of the Constitution. Article 102(2) presupposes the availability of the various Writs that may be appealed to for reviewing actions and operations in the public domain, such actions being otherwise the preserve of the Executive organ of the State affecting the citizenry in their contacts and dealings with the Executive and its functionaries.
78. 10 2018 Muhammad Imrul Hasan & ors. Vs. Bangladesh & ors.
(Tariq ul Hakim, J.)

10 SCOB [2018] HCD 18
Definition of Legitimate Expectation
“A person may have a legitimate expectation of being treated in a certain way by administrative authority even though he has no legal right in law to receive such treatment. The expectation may arise either from a representation or promise made by the authority including an implied representation or consistent past practice.”
79. 10 2018 Naripokkho & ors. Vs. Bangladesh & ors.
(Farah Mahbub, J.)

10 SCOB [2018] HCD 140
First Information Report.
FIR is an important document in the criminal law procedure, its principal object, from the informant’s point of view, is to set the machinery of criminal law into motion and from the view of the investigating agency is to obtain information about the alleged occurrence and to take necessary steps to trace the accused and produce him before the court concern for trial.
80. 10 2018 Professor M. Samsul Alam Vs. Government of Bangladesh.
(Naima Haider, J.)

10 SCOB [2018] HCD 205
Article 102 of the Constitution of the People’s Republic of Bangladesh, Article 51 of the United Nations Convention against Corruption.
Bangladesh has a duty under international law, as laid out in Article 31 of the UNCAC, to confiscate the proceeds of crime. Article 51 of the UNCAC makes the return of assets which are proceeds of crime a fundamental principle of the UNCAC.
81. 10 2018 State Vs. Md. Manik
(Bhabani Prasad Singha, J.)

10 SCOB [2018] HCD 259
Code of Criminal Procedure, 1898
On perusal of the confessional statements, no irregularities or illegalities in recording the statements are found. So, there is no difficulty to come to a finding that the confessional statements of the condemned-accused-prisoner and the other convict-accused-persons are voluntary and true and that the said statements may well form the basis for conviction of the accused-persons.
82. 10 2018 State Vs. Md. Saiful Islam & another
(Md. Ruhul Quddus, J.)

10 SCOB [2018] HCD 249
Discrepancy between medical evidence and confessional statement:
In view of the above two cases of Indian jurisdiction, we can rely on the confessions of two accused, even if it gets partial support from the medical evidence. .... However, the two accused themselves confessed commission of rape and subsequent murder of the victim and if these are believed to be true and voluntary, we do not have any reason not to rely on their confessions.
83. 9 2017 ILFSL Vs. The Commissioner of Taxes

9 SCOB [2017] HCD 1
Income Tax Ordinance 1984 Article 5A of the 3rd Schedule
It appears that the leasing company being the owner of the leased out asset, used the asset for the purpose of business, i.e. leased out the property using the same as business assets and as such attracted by the provision of Article 5A of the 3rd Schedule of the Income Tax Ordinance 1984. It appears that the first appellate authority did not consider as to the ownership of the vehicle remaining with lessor and not with the lessee and further that the lessor deals in the business of leasing out the vehicle to the lessee who operates the vehicle for his business. But the business of the lessor remains in the status of using the vehicle for the purpose of business of lease. Therefore these two pre-condition having been fulfilled in the instant case, the Assessee-applicant is entitled to the normal depreciation allowance and the initial depreciation allowance on the vehicle it has leased out to different lessee, being their customer.
84. 9 2017 Md. Nur Islam Vs. Securities and Exchange Commission & ors.

9 SCOB [2017] HCD 6
Securities and Exchange Ordinance, 1969, Section 17, 26; non-speaking order
On consideration of the materials on record, it appears to us that the impugned order dated o8. 12. 2011 can not be said to be unlawful merely because it is without elaborate reasoning and non-speaking one. The impugned order appears to be otherwise sustainable.
85. 9 2017 Mainul Hossain & anr Vs. Bangladesh & ors.

9 SCOB[2017]HCD 11
The principles of natural justice; audi alteram partem; nemo debet esse judex in propria causa; duty to act fairly; right to a fair hearing; principle of reasonableness
The authority cancelled the lease of the petitioners and in the same breath called upon them to appear before the authority on 12.04.2011 with necessary valid papers, if any. What we are driving at boils down to this: the authority ought to have afforded the petitioners an opportunity of being heard first and thereafter on perusal of the inquiry report and other materials, the authority could have cancelled the lease of the petitioners with reference to the case land; but the authority chose to cancel the lease of the petitioners by keeping them in the dark and thereafter asked them to appear before the authority on a certain future date with their valid papers, if any. To be precise, there is no point in affording the petitioners an opportunity of being heard after cancellation of the lease. Generally speaking, the hearing of the petitioners by the authority should have been a pre-decisional phenomenon; it should not be a post-decisional phenomenon.
86. 9 2017 State & ors vs. Md. Sukur Ali & ors

9 SCOB[2017]HCD 18
Code of Criminal Procedure, 1898 Section 164; Penal Code, 1860 Section 304
Whenever it is noticed that, all the legal mandatory formalities in recording the confessional statement are duly observed and the Magistrate; who recorded the confessional statement is satisfied that the confession is voluntary and free from all taint-in that case, such confession can be the sole basis of conviction of the confessing accused.
87. 9 2017 Md. Komar Uddin Vs. State & another

9 SCOB[2017]HCD 28
Negotiable Instruments Act, 1881, Section 138, 141
The learned advocate appearing on behalf of the convict-appellant took me to the postal receipt and strenuously argued that the postal seal reveal that the same has been received by the postal clerk on 23.03.2008 where as the postal clerk put his signature on the same showing receiving date as 12.03.2008. He further adds that those anomalies are sufficient to show that the postal receipt has been created for the purpose of this case. I have gone through the postal receipt and seen that the anomalies of those dates are palpable on the face of such receipt. It is the receiving clerk of the post office who made all those anomalies, is the best person who can say as to why and under what compelling circumstances he put this date under his signature and also as to why he put seal showing another date and without examining him, it is not possible to arrive at a concrete decision in this respect. In such a state of affairs the court can arrived such a decision which favoured the convict-appellant. Thus, I have no option but to hold that the convict-appellant is entitled to get benefit of the doubt regarding such service of notice.
88. 9 2017 Raghib Rauf Chowdhury Vs Bangladesh & ors

9 SCOB[2017]HCD 34
Constitution of Bangladesh, Article 65, 95; Appointment process of Judges in the higher judiciary; Consultation with the Chief Justice
In the process of selecting the persons for elevation to the High Court Division the Chief Justice may, if feels indispensably necessary consult or share his view with at least two of his senior most brother Judges in the Appellate Division and two of the senior most Judges of the High Court Division as well in forming opinion and also to ensure the recommendation appropriate, effective and transparent. After advancing the recommendation expressing opinion by the Chief Justice there should not be any room to disapprove or censure it unless the persons recommended is found by the executive to have an antecedent involving anti-state or anti-social subversive activities. The fate of the recommendation of the Chief Justice expressing opinion should not be sealed and scrapped for no justified reason, in view of observation made in the ten judges case by the Appellate Division of our Supreme Court.
89. 9 2017 State & ors Vs. Mufti A. Hannan & ors

9 SCOB[2017]HCD 52
Code of Criminal Procedure, 1898 Section 164; Evidence Act, 1872 Section 10, 17, 30; Retraction of the confession; Penal Code, 1860 Section 120A; Cognizance of Offence
Recording of a statement of an accused beyond the period of office hour can not be a plea to hold that the said statement is not true and voluntary. If the said statement is found that same was recorded by the concerned Magistrate having compiled with all the provisions of law then there is no room to say that the said statement is not true and voluntary.
90. 9 2017 Mahmudur Rahman Vs Bangladesh & ors

9 SCOB[2017]HCD 119
Constitution of Bangladesh Article 35;

Code of Criminal Procedure, 1898 Section 198, 403, 526, 561A;

Penal Code, 1860 Section 500 and 501
In view of above facts and circumstances of the case, since, apparently and admittedly, no prosecution has been concluded against the petitioner and that the petitioner has neither been convicted or acquitted in any criminal case for the offence in question, namely, the offices punishable under Sections 500 and 501of the Penal Code, we are of the view that, the petitioner does not have any case before this Court under writ jurisdiction to invoke Article 35(2) of the Constitution or other provisions of the Constitution or Code of Criminal Procedure. Besides, since the petitioner does not have any particular case of enforcement of fundamental rights under any of the above mentioned Articles, the writ petition is not maintainable.
91. 9 2017 Rokeya Begum Bina & ors Vs. Habib Ahsan & ors

9 SCOB[2017]HCD 127
Code of Civil Procedure, 1908 Order 7, Rule 11;

Registration Act, 1908 Section 17B
It is crystal clear from the reading of the plaint that as per sub-clause (ii) of Clause (a) of Section 17B of the Registration Act, the plaintiff opposite parties nor present the contract for sale itself for registration within six months from the date of coming into force of that section i.e. 1st July, 2005 neither instituted a suit for specific performance of the contract within six months next after the expiry of the period mentioned in clause (a). So, after the expiry of the period mentioned in clause (b) of section 17B, the contract for sale (affidavit dated 03.04.1995) in question stand void.
92. 9 2017 Hossain Ali & ors Vs. Bangladesh & ors

9 SCOB[2017]HCD 132
State Acquisition and Tenancy Rules, 1955 Rule 31, 42, 42A;

Record of Rights; Jurisdiction of Settlement Officer
The Settlement Officer appointed with the additional designation of Assistant Settlement Officer may at any time before final publication of the record-of-rights exercise his jurisdiction under rule, 42 of the Rules, 1955.
93. 9 2017 Osman Gazi Chowdhury Vs. Artha Rin Adalat & anr

9 SCOB[2017]HCD 140
Artharin Adalat Ain, 2003, Section 6, 19, 41;

Maintainability of Writ Petition against a decree or post-decree order passed by Artharin Adalats
It is the clear intention of the Legislature that a party to an Artharin Suit if aggrieved by a decree, must prefer an appeal. Since the Ain, 2003 is a special law with an overriding provision over other laws and has prescribed a special procedure, there is no scope to bypass the appellate forum, if the forum under Section 19(2) of the Ain, 2003 against an exparte decree is already not availed of by the party.
94. 9 2017 Shetu International Pvt. Ltd & ors Vs. Artha Rin Adalat-2, Dhaka & anr

9 SCOB[2017]HCD 157
Artha Rin Adalat Ain, 2003, Section 6(2), 7(1)
The word Bcma as appears in the context of Section 7(1) bears reference to a scenario emerging when the Court which in its considered opinion thinking it just and expedient for a notice to be published in a national daily and in a local newspaper, if there be any, for ends of justice, and making an order to publish a notice at the cost of the plaintiff. But in the present case the plaintiff Respondent No.2 itself took step under section 7(1) of the Act on its own motion on the date fixed for return of summons and acknowledgement receipt after service upon the defendants without waiting for the report of the Process Server and Order of the Court to that effect. It is noted that the summons in a suit shall be served by the Process Server simultaneously through postal department, and in evidence of the sending of the summons through post the postal receipt thereof must be tagged with the record. But in the present case no summons was served through Process Server or by post nor any attempt was made to serve the notice/ summons upon the defendants. Moreover, no Order has been passed by the Court necessitating publication of summons in the daily newspaper. Rather publication in the newspaper ensued at the behest of and as desired by the plaintiff which, in this Courts view is contrary to the provisions of Section 7(1) of the Act.
95. 9 2017 Md. Mohitur Rohman Choudhury & ors Vs. Md. Abdul Kuddus Miah & ors

9 SCOB[2017]HCD 163
Limitation Act, 1908 Section 15; Code of Civil Procedure, 1908 Order IX rule 13
Application for execution of a final decree or order is to be made within 3 (three) years from the date mentioned in 2nd Column of Article 182 of the Limitation Act subject to some exceptions as detailed in the 3rd Column read with provisions of section 15 of the Act inasmuch as Article 182 makes no provision for fresh limitation from a final order passed on an application under Order IX rule 13 of the Code. In other words if no stay order or injunction is passed staying the operation of the decree or order under section 15 or no situation arises as per the 3rd Column of Article 182 the decree or order would keep open for execution and time would run from the date of final decree or order. A bare reading of Article 182 of the limitation Act also suggests that an application under order IX rule 13 of the code does not come within the meaning of applications mentioned in clause 5 of column 3 of Article 182 of the Limitation Act to save limitation. Accordingly, pendency of a case under Order IX rule 13 of the Code of Civil Procedure for setting aside an ex-parte decree cannot extend the period of limitation for filing execution case.
96. 9 2017 Kazi Helall Islam & ors Vs. Kazi Roksana Islam & ors

9 SCOB[2017]HCD 167
Code of Civil Procedure, 1908, Order 40 Rule 1:

Partition Suit
As we have mentioned before there is a prima-facie apprehension of danger to the property, which is apparent under the circumstances. Moreover, since the suit land is in possession and control of the defendant-appellants it is quite probable that pending final determination of the rights of the parties, the party in possession and control might abuse such possession and control and the sisters may be deprived of their rights. Alienation of mesne-profits which in this case are primarily the rents received by the defendants from the tenants in the disputed property may also result in wastage of the property and therefore entails a source of danger of alienation of the property before final determination of the rights of the parties to the Partition Suit. Upon such considerations we feel that the Court below judiciously and by exercising its discretion very correctly granted the prayer of the plaintiffs under Order 40 Rule 1 for appointment of receiver to the suit property.
97. 9 2017 Zobeda Khatoon & anr Vs. State & anr

9 SCOB[2017]HCD 173
Criminal Law Amendment Act, 1958 Section 6; Code of Criminal Procedure, 1898, Section 222;

Framing of Charge
It also appears from the FIR that the alleged occurrence took place in between January 2004 to November 2006. The lodging of the FIR and framing of charge covering the whole period is permissible under the provisions of law of sections 6 (IB) of the Criminal Law Amendment Act, 1958. A single case can be filed and trial may be proceeded by framing charge for more offences, which has been done in the present case. The provisions of section 222 (2) of the Code is no manner of application in this case.
98. 8 2016 Shahjibazar Power Company Ltd. Vs. Bangladesh & ors

8 SCOB [2016] HCD 1
Statutory contract; Capacity of sovereign;

Commercial contract;

Maintainability of Writ petition
From the Contract, it transpires that it has not been entered into by BPDB in exercise of statutory power and so, it cannot be said that the contract with the statutory body i. e. BPDB is a statutory contract so, as to invoke writ jurisdiction. Further we have already seen that the contract is not entered into by the Government in the capacity of sovereign. Moreover, the Contract is purely a commercial contract for purchasing electricity on rental basis. Further, the requirements as settled by the Appellate Division in the above referred case are not fulfilled. For the reasons discussed hereinbefore, we are constrained to hold that the instant writ petition is not maintainable.
99. 8 2016 Kazi Monirul Haque Vs. Bangladesh & ors

8 SCOB [2016] HCD 15
Artha Rin Adalat Ain, 2003, Section 28; Section 33; Artha Jari case
Section 28(4) of the Ain clearly stipulates that if a new Execution case is filed after the expiry of the 6 years from the date of filing of the 1st Execution case, the 2nd case shall also be barred by limitation. In our view, section 28(4) of the Ain contemplates and takes into account the situation were the 1st Execution case, is neither concluded nor disposed of within the period of 6 years.
100. 8 2016 Abdul Kader Patwary & ors Vs. State & another

8 SCOB [2016] HCD 19
Code of Criminal Procedure, 1898 Section 265D;

Framing of Charge
It has now been settled by our apex Court that, at the time of framing charge the Court concern is required to consider only the materials of the prosecution but not the materials submitted by the defence. In the instant case, it appears that, the learned Additional Sessions Judge has not committed any illegality in framing charge against all the accused persons.
101. 8 2016 SJBKBSS Ltd. Vs. Sylhet City Corporation & ors. 8 SCOB [2016] HCD 23 Legitimate Expectation
In any view of the matter, the members of the petitioner-samity are not at fault. Their legitimate expectation, in all fairness, should be fulfilled by the Sylhet City Corporation Authority by way of constructing the proposed market by removing the sheds from the Bus Terminal. Undeniably, the Sylhet City Corporation Authority has made a commitment to the petitioner-samity to make the proposed construction of the market at the site after removal of the sheds therefrom.
102. 8 2016 Md. Rofiqul Islam & ors Vs. Md. Khalilur Rahman & ors

8 SCOB [2016] HCD 29
Record of rights;

Section 90 of the Evidence Act, 1872
Record of right is evidence of present possession and registered kabala is an evidence of title. The registered document will prevail over the records of rights and would remain in enforce until and unless, such kabala is cancelled by an appropriate civil court. The registered deed dated 13.05.1965 is an old document more than 30 years produced from proper custody presumed under Section 90 of the Evidence Act that it was duly executed and genuine documents.
103. 8 2016 Md. Ibrahim Vs. State

8 SCOB [2016] HCD 35
Nari-O-Shishu Nirjatan Daman Ain, 2000 Section 10;

None cross-examined the witnesses
There is no further burden of proof when the assertions of the witnesses remain unchallenged. In the instant case the convict-appellant failed make out his defence on cross-examining the witnesses. On perusal of the aforesaid position of the facts, circumstances and other materials on record nothing cogent could be elicited to disbelieve the witnesses. Thus I find that there is no scope to interfere into the findings and decision as has been arrived by the learned Judge of the Trial Court.
104. 8 2016 Begum Khaleda Zia Vs. Anti-Corruption Commission & ors

8 SCOB [2016] HCD 40
Question of laws and facts; Applicability of Emergency Power Rules-2007;

The Anti Corruption Commission Act, 2004, Section 17; Immunity
The Constitution has not given any immunity to the prime Minister or Cabinet in respect of any criminal offence. There is neither any constitutional nor any statutory or legal bar on A.C.C to conduct any enquiry in respect of allegation of Commission of offences mentioned to the schedule of the A.C.C Act, 2004 and schedule to the Criminal Law Amendment Act-1958. Therefore, we are of the view that not only on the basis of any complaint but A.C.C itself is legally empowered under section 17 of the A.C.C. Act-2004 to conduct any inquiry or investigation.
105. 8 2016 Fatema Enterprise Vs. Bangladesh &ors

8 SCOB [2016] HCD 59
Whether a matter of law of contract can be looked into in a writ jurisdiction;

Basic principle of offer and acceptance;

Principles of legitimate expectation;

Grounds of judicial review
The crux of the issue is as to whether after receiving the consideration value in the form of earnest money as has been stipulated by the respondents through their own valuation and tender can be changed. Although, this is a matter of law of contract, however, since Government is a party, so this can be looked into in a writ jurisdiction. The basic principle of offer and acceptance is the offer is binding upon the offeror (proposer) the moment the offeree (acceptor), puts the acceptance into motion. In the instant case, the offer and acceptance both were complete since the tender was invited (offer) the petitioner participated and it was accepted by the respondent No. 2 and part consideration was also paid in the form of earnest money and in such circumstance the respondents, i.e. the offeror Government has no other option left except transferring the land in favour of the petitioner. The property in the goods in fact passes over to the buyer when the sale is complete and in the instant case the sale became binding from the moment the payments were made in compliance with the tender.
106. 8 2016 Golam Md. Faroque Uddin & ors Vs. Bangladesh & ors

8 SCOB [2016] HCD 67
Section 16A of the Income Tax Ordinance, 1984;

Section 36 of the Finance Act, 2013;

Surcharge; Constitution of Bangladesh, Article 8, 10, 27
Though the term surcharge is not specifically mentioned in the Constitution or not defined in the said Ordinance, the basic concept of surcharge was always there in our Constitution and the said Ordinance. The only difference being that while the Indian Constitution, under Article 271, specifically has mentioned the word surcharge, our Constitution has not mentioned the same in such specific way. Not only that, upon examining the dictionary meaning of the word impost as used under the definition of taxation as provided by our Constitution under Article 152, there is no semblance of doubt that the Parliament has always had the plenary power to legislate provisions for imposition of additional tax, extra charge or impost, through whatever terms it may be called, by which some additional charges may be levied on the tax payers in addition to their ordinary tax payments. In consideration of the above wide definition of taxation as given by our Constitution and the definition of term Tax as provided by the relevant provision of the said Ordinance, we are, therefore, of the view that the power of imposition of surcharge, as has been done by the impugned provisions, was very much within the plenary power of legislation of the Parliament.
107. 8 2016 Energy Prima Ltd. Vs. Bangladesh & ors

8 SCOB [2016] HCD 84
Constitution of Bangladesh Article 102;

The Arbitration Act, 2001 Section 7;

Restriction of judicial intervention in matters covered by arbitration agreement
In the present case, clause 19.2 of the contracts dated 16.01.2008 entered into between the petitioner and the BPDB contains an arbitration clause stating that the arbitration shall be conducted in accordance with the Arbitration Act (Act No. 1 of 2001) of Bangladesh as at present in force and the place of arbitration shall be in Dhaka, Bangladesh, therefore, section 7 of the Arbitration Act, 2001 restricts judicial intervention in matters covered by arbitration agreement. Petitioner is trying to interpret the contract in the writ petitions which is impermissible, particularly when the petitioner is having a remedy to go for arbitration under the contract signed by the petitioner. Petitioner having signed contract with open eyes after reading the terms and conditions, it is unconscionable to raise these kinds of contention in the writ petitions.
108. 8 2016 Shahida Khatun & ors Vs. Chairman, 1st Court of Settlement & anr

8 SCOB [2016] HCD 93
The Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972, Article 7;

Specific performance of contract;

The Bangladesh Abandoned Buildings Supplementary Provision Ordinance, 1985, Section 5
In the present case the Petitioners or their vendor admittedly was not in possession of the property in question at the relevant time, they entered into the possession of the property in the year 1984. Since the property was declared abandoned under the provision of P.O. 16 of 1972, question of service of notice under Article 7 upon the Petitioner or their vendor who were not in possession, active control, supervision and management of the property at the relevant time does not arise. Moreover, decree in a Suit for Specific performance of contract does not reflect a substantive determination of any issue regarding the abandoned character of the property
109. 8 2016 Md. Sirajuddwla Vs. State & Anr

8 SCOB [2016] HCD 100
Article 35 (2) of the Constitution of Bangladesh;

Section 403 of Code of Criminal Procedure, 1898;

The principle of double jeopardy;

Code of Criminal Procedure, 1898 Section 344;

Negotiable Instruments Act, 1881, Section 138;

Artha Rin Adalat Ain, 2003, Section 41; Code of Criminal Procedure, 1898, Section 344, 561A
In the case in hand, a sentence of fine under section 138 of the Act, 1881 may result in a proceeding of execution of decree (section 386(3) of the Cr.P.C.). Again, the same person may face an execution of decree proceeding under the Artha Rin Adalat Ain, 2003 for the same loan transactions which may together exceed the actual claimed amount. If the accused decides to file appeal against the sentence of fine as well as the decree passed in Artha Rin Suit, he has to deposit 50% of the amount of the dishonoured cheque and 50% of the decretal amount which in aggregate would almost cover the claimed amount. This may lead to unjust enrichment and thus, the inconvenience through legal process may lead to absurdity. The ends of justice and fairness demand that the process of law must not be allowed to cause or result in absurd inconvenience. ... For the reasons discussed above, the case in hand, in our view, falls within the category of rarest of rare cases where an order of stay of the criminal proceedings under the Act, 1881 during pendency of the Artha Rin Suit which are between the same parties and over the same loan transactions, should be passed to give effect to section 344 of the Cr.P.C. in order to prevent abuse of the process of the Court and to secure the ends of justice.
110. 8 2016 Badiul Alam Majumdar & ors Vs. Information Commission & anr

8 SCOB [2016] HCD 110
Badiul Alam Majumdar & ors Vs. Information Commission & anr

8 SCOB [2016] HCD 110
Registration Rules, 2008 framed under Article 94 of the Representation of the People Order, 1972;

Right to Information Act, 2009, Section 9
111. 8 2016 F.J. Geo-Tex (BD) Ltd Vs. NBR & ors

8 SCOB [2016] HCD 132
Income Tax Ordinance, 1984 Section 135(1) and 143(2)
The mandatory provision of Section 135(1) of ITO was not followed by the respondents prior to exercise of power under section 143(2) in freezing the bank account of the assessee-petitioners. In the instant matter the provisions of Section 143 of ITO can be resorted to only after the preceding of provisions of Section 135(1) have been complied with, but the Respondents in this case, circumvented the provisions of the law by outrightly ignoring the mandatory provisions to issue notice under the provisions of Section 135 of the Ordinance, which they cannot lawfully do. The Respondents actions in the instant case are without any lawful authority and therefore has no legal effect.
112. 8 2016 Md. Tasli alias Taslim & anr Vs. State

8 SCOB [2016] HCD 140
Natural and competent witness;

Evidence Act, 1872 Section 8
It is gathered from the evidence of P.W.2 that out of enmity the accused Alfazuddin and Tasli @ Taslim being armed with deadly weapon like dagger Dao etc. came at the P.O. house and dealt indiscriminate dagger and dao blows on the person of the victim. Such facts clearly speak about their very motive and intention to kill the victim Aziron. Immediately after the occurrence, the Convict-Appellant Alfaz Uddin and Tasli @ Taslim disappeared from the locality, which indicates their guilt and that is relevant under section 8 of the Evidence Act.
113. 8 2016 Aleya Begum & ors Vs. Mir Mohsin Ali & ors

8 SCOB [2016] HCD 147
Partition Suit;

Impleading;
In our view the petitioners will not be prejudiced for not impleading them parties because as legal heirs, they are entitled to get the shares of their predecessors. Even a non contesting party, who has got share in the partible property, can pray for allotment of saham on payment of proper court fees before drawing up the final decree
114. 7 2016 Ahmed Service Ltd Vs Commissioner of Taxes

(A.F.M Abdur Rahman, J)



7 SCOB [2016] HCD 1
Income Tax Ordinance, 1984 Section 35(4); method of accounting; computation of income profit and gains of company
Since the DCT concern did not raise any dissatisfaction as to the method of accounting and did not pin point any of the defect in the accounts, the two lower appellate authorities were required to consider the said question and decide the appeals before them in its true perspective. But that has not been done by the two lower appellate authorities and as such the questions as have been formulated in the instant three Income Tax Reference Applications are required to be answered in negative and in favour of the Assessee-applicant.
115. 7 2016 Z. I. Khan Panna Vs Bangladesh & ors

(Moyeenul Islam Chowdhury, J) And (Md. Ashraful Kamal, J)

7 SCOB [2016] HCD 7
kb Aike cuj BCe, 2003 (2003 pel 1 ew BCe); Article 46 of the Constitution; indemnity; torture on the victims in the custody of the joint forces; Supremacy of the Constitution; Essence of the rule of law; Compensation
There cannot be any blanket indemnity of the persons accused of perpetration of crimes on the victims in their custody in view of the clear and unequivocal language of Article 46. Precisely speaking, indemnity can be given to the persons concerned for the maintenance or restoration of order in any area meaning thereby in any specific area in Bangladesh as provided by Article 46 of the Constitution. In fact, there is no scope for wholesale indemnity of the members of the joint forces for the maintenance or restoration of order throughout the length and breadth of the country in terms of Article 46 of the Constitution. On this count, the impugned Act No. 1 of 2003 cannot be upheld.
116. 7 2016 State Vs Md. Nurul Amin Baitha & anr

(Syed Md. Ziaul Karim, J)



7 SCOB [2016] HCD 40
Evidence Act,1872, Section 106; Nari-O-Shishu Nirjatan Daman Ain, 2000, Section 11(ka); Penal Code, 1860, Section 302: Fundamental principles of criminal jurisprudence and justice delivery system; Wife killing case
Presence of the accused Baitha at the material time is supported by the evidence on record. Thus the death of the deceased was in the special knowledge of the accused Baitha. He knew how she met with death. Ordinarily an accused has no obligation to account for the death for which he is placed on trial. But in a case like the present one where the accused has special knowledge of the death of the deceased, under section 106 of the Evidence Act, he is under obligation to explain how the deceased died. If he fails to explain the death of the deceased or if his explanation is found false the irresistible inference would be that none besides him caused the death of the deceased.
117. 7 2016 Md. Bazlur Rahman Vs Shamsun Nahar & ors.

(S. M. Emdadul Hoque, J)



7 SCOB [2016] HCD 61
Family Courts Ordinances, 1985, Section 9(6); The code of civil procedure, 1908, Section 115(1)
It appears that both the courts after proper consideration of the evidence on record rightly opined that since the petitioner himself received the summons so without filing any appeal against the experte judgment and decree he cannot get any relief.
118. 7 2016 Sree Paresh Chandra Pramanik vs Md. Mokbul Hossain & ors

(Borhanuddin, J)



7 SCOB [2016] HCD 64
State Acquisition and Tenancy Act, 1950, Sub-section 10 of section 96; Succession Act, 1925, Section 28; computing of degrees of kindred; three degrees by consanguinity; Pre-emption Case
Section 28 of the Indian Succession Act, 1925, provides mode of computing of degrees of kindred in the manner set forth in the table of kindred set out in schedule 1. From the table of schedule 1, annexed with the counter affidavit, it is evident that brother-in-law is not a relation within three degrees by consanguinity. Pre-emptee opposite party no.1 being not a relation within three degrees by consanguinity of the donor is not entitled to get protection of Sub-section 10 of section 96 of the State Acquisition and Tenancy Act.
119. 7 2016 Mst. Anjuara Khanam @ Anju Vs State

(M. Moazzam Husain, J)



7 SCOB [2016] HCD 67
Nari-o-Shishu Nirjaton Damon Ain, 2000; Section 18 and 27; Power of tribunal to entertain naraji;
The Tribunal has been clothed with power wide enough to cover all the power of a Magistrate and of the Sessions judge rolled together in ignoring investigation-report with concomitant power to entertain naraji and sending back the case for further investigation or, (where practicable) judicial inquiry. Sub-section (1) and (1Ga) of section 27 read with section 18 goes to show that the Tribunal is further equipped with power more robust than that of an ordinary criminal court in taking cognizance absolutely on its own satisfaction, albeit by assigning reason, gathered from any materials, irrespective of naraji, or information received in disregard of the final report submitted by police or the person authorized by the Government in this behalf. The enormously unqualified power of the Tribunal to take cognizance of offences on its own satisfaction in total disregard of everything means by necessary implication that the Tribunal enjoys power to take into consideration anything including the naraji-petition for its satisfaction without any formality attached to it in general law.
120. 7 2016 State & ors Vs Julhash & ors

(Soumendra Sarker, J)



7 SCOB [2016] HCD 84
Code of Criminal Procedure, 1898; Section 164; Confessional Statement;
The spirit of law on confession under section 164 of the Code of Criminal Procedure with regard to the confessional statement of a accused is such that a confession is a direct piece of evidence which is substantial and such statement of any accused can be relied upon for the purpose of conviction and no further corroboration is necessary if it relates to the confessing accused himself; provided it is voluntary and also free. A free and voluntary confession under the purview of this section deserves highest credit, because it is presumed to flow from highest sense of guilt. If the court believes that the confession is voluntary and free, there is no legal embargo on the court for ordering conviction. If it is found that the Magistrate appears to have recorded his satisfaction as to the voluntariness and spontaneous nature of the confession of the accused, in that case; such confession cannot be vitiated from illegality and this type of confession alone is enough to convict the confessing accused.
121. 7 2016 Youngone Synthetic Ind. Ltd & anr Vs Commissioner of Taxes

(Sheikh Hassan Arif, J)



7 SCOB [2016] HCD 98
Income Tax Ordinance, 1984 Section 28, 29; Wears and tears of assets; depreciation; written down value
In calculating the total income in a concerned assessment year, the wears and tears of assets, which have been used for the purpose of the business and to earn revenue, have to be taken into consideration. From the context of the said concept, the relevant provisions have been incorporated in our statute book, namely Income Tax Ordinance, 1984. Thus, while Section 28 of the said Ordinance classifies the income from business and profession, Section 29 provides for the allowances to be deducted from the said income while calculating the same for the purpose of assessment. Clause(VIII) of sub-section (1) of Section 29 provides that the depreciation of building, machinery, plan or furniture etc. of the concerned assessee, which have been used for the purposes of business or profession, shall be allowed as admissible under the Third Schedule to the said Ordinance. Again, Paragraph-2 of the said Third Schedule, in particular sub-paragraph (1) of the same, provides that in computing the profits and gains from the business or profession, an allowance for depreciation shall be made in the manner provided hereinafter. This Paragraph 2 is followed by a Table under Paragraph 3 prescribing fixed rates of depreciations to be allowed on the written down value of any particular assets used in the business.
122. 7 2016 State & anr Vs Aynal Haque & anr

(Bhabani Prashad Singha, J)



7 SCOB [2016] HCD 106
Nari-O-Shishu Nirjatan Daman Ain, 2000, Section 11(ka); Value of circumstantial evidence in a wife killing case
In a wife killing case, there could be no eye-witness of the occurrence, apart from the inmates of the house who may refuse to tell the truth, the neighbors may not also come forward to depose. The prosecution is, therefore, necessarily to rely on circumstantial evidence.
123. 7 2016 Orascom Telecom Bangladesh Ltd Vs. BTRC & ors

(Md. Ashraful Kamal, J)

7 SCOB [2016] HCD 115
Bangladesh Telecommunication Act, 2001, Section 55(3); spectrum assignment fee; VAT Act, 1991, Section 2, 3 (N), and 5:
The issue of applicability of VAT and/or liability of the petitioner company to pay the VAT has no relation whatsoever with regard to the payment of license renewal fee and spectrum assignment fee. The petitioner company is bound to pay the net amount of the license renewal fee fixed by BTRC, without any kind of deduction.
124. 7 2016 Md. Jahangir Alam & ors Vs D.C Munshiganj & ors

(Mohammad Ullah, J)



7 SCOB [2016] HCD 130
Protection and Conservation of Fish Act, 1950, Section 5(2)(b) read with section 5A; Mobile Court Ain, 2009; Protection and Conservation of Fish Rules, 1985; Article 40 and 42 of the Constitution
It appears that the powers conferred under section 5(2)(b) read with section 5A on an Executive Magistrate extend to conviction and sentence and also to confiscation of the article(s) or thing(s) used in the commission of the offence. Besides, the Act or the Rules does not speak of putting the factories under sealed lock and key. Therefore in putting the factories under sealed lock and key the Executive Magistrate has clearly exceeded the authority conferred upon him which has not empowered him to do so under the Act, the Ain and the Rules. The orders of sealing the factories of the petitioners, by the Executive Magistrate is also violative of the fundamental rights of the petitioners guaranteed under Article 40 and 42 of the constitution with regard to their lawful business.
125. 7 2016 Mainuddin Ahammed Vs Bangladesh & ors

(Muhammad Khurshid Alam Sarkar, J)

7 SCOB [2016] HCD 134
State Acquisition and Tenancy Act, 1950, Section 144B; What to be fulfilled to direct excision of a fraudulent entry; record-of-rights,
During conducting the revisional survey under Section 144 of the SAT Act, till final record-of-rights are published, no suit lies in any civil Court challenging any action or Order of the Settlement Officer as provided in Section 144B of the SAT Act and, thus, the only option available for respondent no. 12 was to take recourse to the provision of Rule 42A of the Tenancy Rules.
126. 7 2016 Asoke Das Gupta Vs Ministry of Finance & ors

(Kashefa Hussain, J)



7 SCOB [2016] HCD 148
Gift Tax Act, 1990, Section 4(ja); Income Tax Ordinance, 1984, Section 53M;
Section 53M Explanation 1 is contrary to the rest of the provisions of the ITO, 1984, being against the sprit and intent of the Ordinance and also contrary to the Section 4 of Gift Tax Act, 1990. Therefore the impugned collection of advance tax against transfer of shares to the daughter of the petitioner is unlawful and without lawful authority.
127. 7 2016 Sonali Bank Vs. Md. Abu Baker Sarker

(S.M. Mozibur Rahman, J)

7 SCOB [2016] HCD 156
Artha Rin Adalat Ain, 2003, Section 50;
The court has no power to exempt the defendant respondent from the liability of paying up interest however high rate it may be ... since the financial institution bank itself preserves the exclusive right to exempt any-body from payment of interest of loan they sanctioned.
128. 7 2016 Afangir @ Kalu Vs. The State

(Md. Farid Ahmed Shibli, J)

7 SCOB [2016] HCD 161
Explosive Substance Act, 1908, Section 4/6
Mere knowledge of an accused or his equivocal disclosure about existence of bomb-making powders during his police custody shall not expose him to any criminal liability of possessing or controlling that illegal substance.
129. 6 2016 Anowar Ahmed & anr Vs State

6 SCOB [2016] HCD 1
Code of Criminal Procedure, 1898
The customs authority being satisfied about the import documents, released the imported cloths from customs station and the petitioners handed over the imported cloths to the importer as C and F Agent from the Custom Area and place of business of the petitioners is the Customs House or Custom Area as per section 2(i) and 207 of the Customs Act, 1969 and Rule 2(b) of the Rules 1986 and consequently petitioners are in no way responsible for the alleged offence. The petitioners as agent cannot be held liable for the work of the Principal and thus the petitioners committed no offence within the meaning of sections 420/468/469/471/34 of the Penal Code.
130. 6 2016 Bright Textile Ind. (Pvt.) Ltd Vs Commissioner of Taxes

6 SCOB [2016] HCD 5
Income Tax Ordinance, 1984 Section 35, 83
The DCT concern, prior to discarding the book versions of the accounts has to raise dissatisfaction as to the method of accounting as to its cumbersomeness that the true and correct income of the Assessee-applicant cannot be deduced therefrom or to pin point the defect in the accounts; else the DCT concern has to accept the book version of the accounts as submitted by the Assessee-applicant and audited and certified by the chartered accountant.
131. 6 2016 Md. Saidur Rahman Sarker Vs Bangladesh & ors

6 SCOB [2016] HCD 13
Election Commission independent decision
It does not appear that the Election Commission, after admitted declaration of schedule for holding election of Botlagari Union, has taken independent decision of its own considering the facts and circumstances of the case. Rather, it passed the impugned order at the proposal/direction of the Ministry of Local Government, Rural Development and Co-operatives. Therefore, it cannot be said that the impugned order passed by the Election Commission is lawful.
132. 6 2016 M. A. Hashem Vs. Artha Rin Adalat, Dhaka & ors

6 SCOB [2016] HCD 19
Statutory privilege; The right of redemption of the mortgagor;
Artah Rin Adalat Ain, 2003, Section 33, 38, 45
A statutory privilege is a nascent right reserved to an individual person but this privilege is lost once he/she himself infringes it or abandons it voluntarily. The Writ Petitioner in fact has abandoned the statutory privilege by willfully and deliberately refraining from depositing the balance amount of bid money within the prescribed period of limitation. By filing the application seeking permission to deposit the balance 75% bid money instead of depositing the amount directly, the auction purchaser relinquished his known statutory right as auction purchaser and waived all his rights to the property in question as well as the earnest money deposited by him.
133. 6 2016 Dr. Moazzem Hossain Vs Bangladesh & ors

6 SCOB [2016] HCD 34
Writ Court; Court of equity
Will the petitioner continue to suffer loss of his seniority through no fault of his own? Is the Writ Court powerless in this regard? In this connection, it may be pointed out that the Writ Court is also a Court of equity. The principles of natural justice, equity and good conscience demand that the seniority of the petitioner be restored at least from the date of promotion of his colleague Dr. Md. Jubair Bin Alam to the post of Personal Professor on 06.11.2004 who admittedly made his application therefor on 28.12.2003 which was subsequent to the date of making of the application by the petitioner on 21.12.2003. In this way, the injustice done to the petitioner, according to us, can be remedied.
134. 6 2016 State Vs Kalam alias Abul Kalam

6 SCOB [2016] HCD 43
Dying declaration; Motive; Abscondence
A dying declaration, whether written or oral, if accepted by the Court unhesitatingly, can itself provide a strong basis for convicting an accused.
135. 6 2016 Barakatuallah Electro Dynamics Ltd Vs BPDB & ors

6 SCOB [2016] HCD 56
Bangladesh Power Development Board Order, 1972, Article 2;
Doctrine of estopple
It appears from Clause-(d) of Article-2 of P.O. 59 of 1972 that the term Government has been specifically defined therein. According to the said provision, Government means the Government of the Peoples of Bangladesh. Clause-(h) of Article-2 further provides that Power Board means Bangladesh Power Development Board as constituted by the said PO 59 of 1972. The very definition of these two terms clearly indicates the intention of the Legislature in that the Legislature wanted to keep these two terms separately with separate definitions.
136. 6 2016 Md. Yousuf Ali Akon & ors Vs. BIWTA & ors.

6 SCOB [2016] HCD 66
Legitimate expectation
In the advertisement dated 19.01.2004, the authority has given an express promise to that effect that the appointee shall be on a probation period of 1 (one) year and after satisfactory completion of the said probationary period, the appointee shall be absorbed and therefore, the petitioners legitimate expectation arises. The petitioners successfully made out a case of legitimate expectation. The petitioners had a legitimate expectation to be absorbed against the permanent posts on the basis of the advertisement published in the Daily Observer on 19.01.2004. In the background of the advertisement dated 19.01.2004, there was reasonable expectation of their being permanently absorbed in the post of Master Pilots.
137. 6 2016 Abdus Salam & ors. Vs. State

6 SCOB [2016] HCD 82
partisan witness; ocular evidence; medical evidence; Value of evidence by child witness
The ocular evidence of prosecution witnesses supported by post mortem report with regard to the injury no. 1 and 2 cannot be disbelieved. Further, the medical evidence is only corroborative in nature, in that view, the ocular evidence of the eye-witnesses, which substantially corroborates the injuries on the person of the deceased Rokshana, must be accepted.
138. 6 2016 Mahbub Ali Vs. Judge, Artha Rin Adalat & ors

6 SCOB[2016]HCD 102
Necessary parties in an Artha Rin Suit; Artha Rin Adalat Ain, 2003, Section 6;
It appears that, admittedly, defendant no. 3-petitioner was neither a borrower nor guarantor and even nor a mortgagor relating to the loan liability and, therefore, he is not liable for repayment of the loan inasmuch as the petitioner does not come within the purview of sub-section (5) of section 6 of the Ain, 2003, wherein who will be the necessary party in the Artha Rin suit has been provided, and hence the suit ought to have been dismissed as against this defendant no. 3- petitioner.
139. 6 2016 Rashid & ors Vs. State & ors

6 SCOB[2016]HCD 108
Code of Criminal Procedure, 1898, Section 436;
The learned Sessions Judge, Sunamgonj appears to have fallen in error in law in directing the learned Judicial Magistrate to take cognizance directly inasmuch as from a mere reading of Section 436 of the CrPC, it appears that the learned Sessions Judge is not empowered to directly ask any Judicial Magistrate to take cognizance.
140. 6 2016 Md. Sadek Hossain & ors Vs. Most. Azmeri Begum and ors.

6 SCOB[2016]HCD 112
Evidence Act, 1872, Section 115
From a close reading of Section 115 of the Evidence Act ..., it is quite clear that the legislature does not allow a person from retracting or denying anything that which he might intentionally have said or done either verbally or by action or by omission and the consequence of which might have led some other person to rely on such as true or act upon such belief. This is as we find is clearly barred under the law. It is also significant to note that the bar is not confined to a particular type or class of suits but it applies to any suit or proceeding be it Civil or Criminal whatever may be the nature, class or category of the suit or proceeding. It is evident from perusal of the same that Section 115 in no way distinguishes or otherwise makes any distinction between Civil and Criminal Proceedings. From the language of Section 115 itself it is evident that it applies to all proceedings.
141. 6 2016 Musa Kalimullah Vs Secretary, WR, MoWD & ors

6SCOB[2016] HCD 124
Promotion; time scale
It transpires that for a Steno-Typist of the Board the post of Stenographer is a promotion post and the decision of promotion is to be made on the basis of merit through open competition in which serving Steno-Typists and outsiders may take part. It is true that the Petitioner had earlier drawn the benefits of 3 time-scales as a Steno-Typist. So, on being promoted as Stenographer he has become entitled again to get the benefits of a new-slot of time-scales subject to fulfilling essential conditions like- satisfactory service of 8, 12 or 15 years.
142. 5 2015 Md. Mijanur Rahman Vs. Bangladesh and ors (Zinat Ara, J)

5 SCOB [2015] HCD 1
Meaning of `A person in the service of the Republic or of any statutory public authority`;
Administrative Tribunal
`A person in the service of the Republic or of any statutory public authority` includes a person who is or has retired or is dismissed, removed or discharged from such service but does not include a person in the defence services of Bangladesh or of the Bangladesh Rifles.
143. 5 2015 Md. Shariful Alam Vs Artha Rin Adalat & anr (Zubayer Rahman Chowdhury, J)

5 SCOB [2015] HCD 6
Artha Rin Adalat Ain 2003
Section 6
The language used in the section makes it clear that the plaint has to be filed along with an affidavit, both as to the statements made in the plaint as well as to the documents annexed with the plaint. Therefore, non-compliance with the mandatory requirement of law has rendered the plaint invalid in the eye of law and consequently, the impugned order passed by the learned Judge of the Adalat cannot be sustained in law.
144. 5 2015 Abdul Mazid @ Khoka & ors Vs. State & ors (Moyeenul Islam Chowdhury, J)

5 SCOB [2015] HCD 9
Evidence of interested witnesses;
Section 342 and 537 of CrPC;
Evidence of interested witnesses:
The rule that the evidence of interested witnesses requires corroboration is not an inflexible one. It is a rule of caution rather than an ordinary rule of appreciation of evidence.
145. 5 2015 Renuka Rani Mondol Vs Biswajit Mondol & anr (Borhanuddin, J)

5 SCOB [2015] HCD 33
Section 123 of Transfer of Property Act, 1872;
Gift by a Hindu
Appellate court below allowed the appeal in part holding that the deed was not acted upon since there is no evidence that possession was delivered to the defendant no.1. This finding is not correct. Where the instrument of gift has been registered, delivery of possession is not essential for the validity of a gift by a Hindu.
146. 5 2015 Mrs. Hurun Nahar & ors Vs Mozammel Haque & ors (Krishna Debnath, J)

5 SCOB [2015] HCD 37
Code of Civil Procedure, 1908;
Order 23, Rule1
During the course of pendency of original proceedings in the Trial Court, the Court may permit the plaintiff to withdraw the suit with liberty to file a fresh one, when there is a formal defect in the suit or for any other reason as provided, but such a right is not available to the plaintiff when there is already a judgment against him as aforesaid manner.
147. 5 2015 Coats Bangladesh Ltd Vs Commissioner, Customs Bond Com. & ors. (Sheikh Hassan Arif, J)

5 SCOB [2015] HCD 40
NBR;
Show cause notice;
closed-minded show cause notice
When a higher authority, namely the NBR, has expressed its opinion agreeing with the proposal sent by the earlier Bond Commissioner (Mr. Helal Uddin), it became very much difficult for the subsequent Bond Commissioner (Mr. Enayet) to go for any other option but to follow the proposal as was agreed upon by the NBR. This being so, this Court is of the view that, the show cause notice dated 25.05.2004 was in fact a closed-minded show cause notice. Therefore, giving reply to the such show cause notice, or attending a hearing pursuant to such show cause notice, became a mere formality for the petitioner. This view is further strengthened when we see the actions taken by the Bond Commissioner against the petitioner at the same time of issuance of the said show cause notice. When the Bond Commissioner requests other concerned authorities to suspend a license for all practical purposes, no reasonable reading can be done from such actions that the said show cause notice was in fact a closed-minded show cause notice inasmuch as that the concerned Commissioner had already decided the fate of the petitioner`s license.
148. 5 2015 State & ors Vs Syed A. Salam & ors (Bhabani Prasad Singha, J)

5 SCOB [2015] HCD 49
Section 340 of CrPC;
Legal Remembrancer`s Manual, 1960
Chapter XII
Paragraph no.6
An Advocate to defend an undefended accused charged with capital punishment should be appointed well in time of the commencement of trial of the case to enable him to study the case and the lawyer should be of sufficient standing and able to render assistance. The lawyer should be provided with the papers similar to that of the Public prosecutor.
149. 5 2015 Mrs. Sitara Siddiq Vs Bangladesh & ors. (Md. Ashraful Kamal, J)

5 SCOB [2015] HCD 57
Abandoned Buildings (Supplementary Provisions) Ordinance, 1985
Section 7 and 8:
The application under sub-section (1) of section 7 shall contain the particulars as stipulated in Sub-section (1) of section 8 and also shall be accompanied by all the documents or the Photostat or true copies, as stipulated in Sub-section (2) of section 8 of the Ordinance No. LIV of 1985. In both the Sub-sections (1) and (2) of section 8 of the said Ordinance, the word `shall` has been used i.e. `shall contain` and `shall be accompanied. So the particulars in sub-section (i) and documents as per sub-section (2) of section 8 of the Ordinance are the essential condition in making an application under sub-section (1) of section 7 of the said Ordinance. Without any of the said particulars and documents, it is not possible to file an application under section 7 of the said Ordinance.
150. 5 2015 Shamsun Nahar Begum Shelly Vs. Bangladesh & ors (Mahmudul Hoque, J)

5 SCOB [2015] HCD 67
The Abandoned Buildings (Supplementary Provisions) Ordinance, 1985
Section 5(1)(b)
And
Article 7 of P.O. 16 of 1972;
Natural justice
The Government- Respondent never issued and served any notice upon the owner and the occupier under Article 7 of P.O. 16 of 1972 or under Section 5(1)(b) of the Ordinance, 1985. Non-service of notice as required by law disentitled the Government-Respondent to claim that the property was legally declared abandoned and enlisted in the `Kha` list of the Abandoned Buildings. It is also noted that there is nothing on record to show that the Petitioner was ever asked to show cause about inclusion of the property or to surrender the same which has definitely denied the right of natural justice to the Petitioner.
151. 5 2015 Shoel Textile Mills Ltd & ors Vs Bangladesh & ors (Kashefa Hussain, J)

5 SCOB [2015] HCD 74
Bank Companies Act, 1991;
Section 5 GaGa;
Section 27 KaKa;
loan defaulter;
reschedules a loan
The moment a bank or any other financial institutions reschedules a loan or grants any kind of loan, credit facilities or any other sort of financial assistance infavour of any person, it is virtually an admission on its part that the person to whom such financial assistance is being granted is not a loan defaulter under the definition provided in Section 5 GaGa of Bank Companies Act,1991.
152. 5 2015 Jafri Soap and Chemical Ind. & ors Vs. Agrani Bank & ors (S.M. Mozibur Rahman, J)

5 SCOB [2015] HCD 79
Artha Rin Adlat Ain, 2003
Section 19,20,41,42
Without the provisions of Artha Rin Adalat Ain, 2003 any question regarding any proceedings initiated or any order, judgment or decree passed by the Judge of the Artha Rin Adalat cannot be raised in any court or to any authority and no court or authority will take cognizance or accept any application praying for any remedy filed in any court or authority ignoring the said provisions of section 20 of the Artha Rin Adalat Ain, 2003.
153. 5 2015 Rahima Begum VS. The State (Md. Farid Ahmed Shibli, J)

5 SCOB [2015] HCD 84
Penal Code, 1860
Section 201, 302/34;
Code of Criminal Procedure, 1898;
Section 236 and 237;
Motive;
There might be, as it appears, some animosity or hostility between the accused-appellant`s husband Ali Haider and the deceased`s father Abdur Rashid. But there was no such enmity between the accused-appellant and deceased`s father or mother. In view of the facts above and evidence given by the prosecution, it is beyond our comprehension as to how and on the basis of which the learned Session Judge became convinced with and relied upon the prosecution case of killing Rabbi by the accused-appellant. Since there was no such reason for the accused-appellant to have any motive of killing an innocent minor boy of only 3 1/2 years old, it seems to us hardly possible to believe in the alleged charge of causing death of Rabbi by the accused-appellant.
154. 5 2015 Motiur Rahman @ Moitta & ors Vs. The State
(Amir Hossain, J)

5 SCOB [2015] HCD 91
Section 19A and 19(f) of the Arms Act, 1878;
Exclusive control and possession
The person from whose exclusive control and possession arms and ammunition are found is the only person to be liable.
155. 5 2015 Ramesh Chandra Das & ors Vs. Sureshwar Mazumdar & ors (Khizir Ahmed Choudhury, J)

5 SCOB [2015] HCD 96
Section 106 of Transfer of Property Act
The defendant forfeited their right to stay in the suit properties by denying the title of the plaintiffs and as such the contents of the notice or any purported facts are insignificant here. Because if someone denies title of the land lord, notice under section 106 of the Transfer of Property Act may be dispensed with. Consequently the decision referred in 51 DLR 393 is not applicable here. On the other hand the case reported in 1 BLC AD 156 as reported by Mr. A.M. Amin Uddin has got semblance with the present case.
156. 5 2015 Roli Chamka Vs Kantiomy Chakma & ors (Md. Iqbal Kabir, J)

5 SCOB [2015] HCD 101
Section 64 of the রাঙামাটি পার্বত্য জেলা স্থানীয় সরকার পরিষদ আইন, ১৯৮৯
In our examination it is also found that opposite party received the money, executed a bainapatra and delivered the possession of the schedule land in question and the defendants has no objection to transfer the land by register deed in favour of the plaintiff- petitioner through the Court. The law of this area does not create any bar to transfer the land to the present petitioner. Prior approval is required only for those to transfer the lands who are not inhabitant of the same hill district. Moreover, we have also found that government pleader has no authority to file the suit on behalf of the Deputy Commissioner.
157. 4 2015 Md. Mahbub Alam Vs. The State

4 SCOB [2015] HCD 1
561A of the Code of Criminal Procedure; Inherent power
The allegations as made in the first information report do not disclose any offence against the petitioner. Interference of this Court in exercise of its inherent power under section 561A of the Code of Criminal Procedure before framing charge is justified only when this Court finds, as in the present case, that the allegations as made in the first information report or charge sheet do not constitute the offence alleged against the accused or that on admitted facts no case can stand against the accused.
158. 4 2015 Karnaphuli Industries Ltd Vs The Commissioner of Taxes State

4 SCOB [2015] HCD 4
Income Tax Ordinance 1984, Section 83(2); Audi Alterm Partem
The DCT concern did not comply the provision of section 83(2) before opining that the claimed expenditure has not been adequately evidenced by the assessee applicant. Therefore it appears that the disallowance of expenditure has not only violated the provision of section 83(2) of the Income Tax Ordinance 1984, but also violated the time honored maxim Audi Alterm Partem which obliged a adjudicator to allow adequate opportunity of being head or to submit adequate representation. Accordingly this court finds merit in these seven Income Tax Reference Applications.
159. 4 2015 Shamsur Rahman Vs. Zhang Yu & ors State

4 SCOB [2015] HCD 12
Company Act, 1994, Section 20 & 87(2); EGM; Relationship between the Articles and the law
It is also found that attempts at the EGM held on 20.11.2013 to introduce changes in Article 14, thereby, facilitating the induction of the Respondent No.3 as a director, were equally unwarranted in law and irregular in form. Notably further, this EGM was held upon notice on 10.11.2013 to adopt a special resolution, thereby, falling far short of the statutory twenty-one days notice requirement mandated under Section 87(2) of the Act. That in turn exposes the Company to violation of Section 20 of the Act that authorizes alteration of the Articles by special resolution but only by necessary adherence to the notice period requirement of Section 87(2).
160. 4 2015 Alvi Spinning Mills Ltd & ors Vs. Bangladesh & ors State

4 SCOB [2015] HCD 23
Letter of Credits; contract of sale; case of fraud
The decisions referred to above consistently spelt out that when an irrecoverable Letter of Credit issued / opened and confirmed by the bank such a bank is left with no option but to respect its obligation under the letter of credit and pay if the draft and documents are found to be in order and terms and conditions of such L/C satisfied.
161. 4 2015 Gazi A.K.M. Fazlul Haque & ors Vs. Privatization Commission & ors State

4 SCOB [2015] HCD 42
Article 102 of the Constitution; Privatization Commission (Officers and Employees) Service Regulations, 2002; right to be considered for promotion; Selection Committee; deputation
Only seniority is not the sole yardstick for promotion of any officer of the Commission to the next higher post. Along with his seniority, merit of the officer shall be taken into consideration for promotion to the next higher post by the Selection Committee/DPC. In case of promotion of a Deputy Director to the post of Director of the Commission, he must have completed a minimum of 5(five) years service and his service record must be satisfactory and free from any blemish or stain. If no Deputy Director having the requisite service length and satisfactory service record is available for promotion, only in that event, the post of Director of the Commission may be filled up by deputation.
162. 4 2015 Md. Shajahan Bhuiyan & ors Vs. Md. Nurul Alam & ors State

4 SCOB [2015] HCD 52
State Acquisition and Tenancy Act 1950, Section 86; diluvion; lawful right to lease out
Section 86 of the Act, 1950 clearly provides that a land that has diluvated before the of P.O No. 135 of 1972 (i.e. after April 1956) or that will diluvate in future shall vest in the Government. It follows that irrespective of what ever title or right was acquired by Oli Ullah from the D.S. recorded tenant Zinnat Ali by virtue of the unregistered patta dated 28.1.1931 (Exhibit-ka) and the three rent receipts for the years 1341 to 1362 D.S (Exhibit-Ga-series) it had extinguished as a result of diluvion that took place some time before 1965 i.e. before the Diara Map. It follows that the Government has acquired lawful right to lease out the land that was earlier recorded as D.S. plot No.1657 and 1658.
163. 4 2015 State & ors Vs. Md. Saiful Islam & ors State

4 SCOB [2015] HCD 61
Code of Criminal Procedure, 1898 Section 103; Madak Drabbya Niontran Ain, 1990, Section 36 and 37; search and seizure
Strict non-compliance of section 103 of the Code in order to search and seizure of madak articles either from a person or any place will not render the case unbelievable.
164. 4 2015 BSRM Steels Ltd. & ors. Vs NBR & ors. State

4 SCOB [2015] HCD 80
Income Tax Ordinance, 1984, Section 53 and 82C; Advance payment of income tax; final discharge of tax liability; deduction of tax
According to sub-section (3) of the said Section 53, the importers are given credit for such advance payment of income tax during their assessment of tax in the concerned assessment year. Not only that, according to Section 82C as quoted above, such deduction shall even be deemed to be the final discharge of tax liability of an assessee-importer from that source. Therefore, since the source in the present case in respect of the petitioners is the source of importation of scrap vessels by the ship breaking industries, or sometimes by the petitioners themselves, and there is no dispute that at the time of importation of the scrap vessels AIT were deducted in view of the provisions under Section 53, the said deduction of tax shall be deemed to be the final discharge of liability from that source in view of Clause (g) sub-section (2) of Section 82C of the said Ordinance.
165. 4 2015 Md. Selim Mollah Vs. Bangladesh & ors State

4 SCOB [2015] HCD 86
Druto Bichar Ain, 2002, Section 6; public interest; objective satisfaction
Alongside the five categories of cases, the Government in the public interest can transfer any pending case at any stage of trial to Druto Bichar Tribunal. A question may still arise as to when this particular provision of law gives authority on the Government to transfer any pending criminal case at any stage of trial to any Druto Bichar Tribunal, why five categories of cases relating to the offence of murder, rape, firearms, explosive substances and drug are required to be specifically mentioned. Here the necessity of objective satisfaction on the part of the Government arises as to which cases other than the cases of those five categories are to be transferred in what public interest, and without any objective satisfaction recorded to that effect transfer of any other case to the Tribunal constituted under the Ain is not permissible. The concerned officials of the Ministry of Home Affairs must be careful and expressive in sending any case other than the cases of five categories specifically mentioned in section 6 of the Ain.
166. 4 2015 BBC Vs. Registrar, DPDTM & ors State

4 SCOB [2015] HCD 89
Trade Marks Act, 2009, Section 24 & 30; priority of use of trade mark; action for passing off
Section 30 of the Trade Marks Act, 2009 provides that priority of use of this mark gets paramount consideration compared to registration.

The right created in favour of a registered proprietor of a trade mark is not an absolute right and is subservient to other provisions of the Act. In other words, registration of a trade mark does not provide a defence to the proceedings for passing of as under section 24 of the Act, 2009. A prior user of trade mark can maintain an action for passing off against any subsequent user of an identical trade mark including a registered user thereof.
167. 4 2015 Md. Forhad Hossain Sheikh Vs. The State State

4 SCOB [2015] HCD 102
Circumstantial Evidence; Burden of proof in wife killing case;
Commission of crime can also be proved by circumstantial evidence. Circumstantial evidence is more cogent and convincing than the ocular evidence. It is correctly said that witnesses may tell a lie and it is not difficult to procure false tutored and biased witnesses but it is very much difficult to procure circumstantial evidence.
168. 4 2015 Kazi Mazharul Islam Vs. Bangladesh & ors State

4 SCOB [2015] HCD 115
Article 36 of the Constitution of Bangladesh;
If the government is allowed to restrict a person from going abroad at its discretion, then Article 36 of the Constitution will become nugatory. This Court being the guardian of the Constitution cannot condone such practice.
169. 4 2015 Kazi Md. Salamatullah & ors Vs. Bangladesh & ors State

4 SCOB [2015] HCD 117
Court-conduct of the learned Advocates; norms and etiquettes of the legal profession
Court is well empowered to oversee the professional performance and also to regulate the Court-conduct of the learned Advocates and, in an appropriate case, impose costs upon a learned Advocate for finding his conduct to be unbefitting with the norms and etiquettes of the legal profession. Accordingly, instead of referring this incident to the Bar Council towards drawing up proceedings against the learned Advocate for the petitioners, we are taking a lenient view by warning him with an expectation that this kind of incident shall never be repeated by him in future.
170. 4 2015 Syed Aynul Akhter Vs. Sanjit Kumar Bhowmik & ors State

4 SCOB [2015] HCD 127
Evidence Act, 1872, Section 91 and 92; Code of Civil Procedure, 1908, Order XIV Rule 1; Oral evidence; Documentary evidence; Issue not taken up earlier
We are surprised that the Courts below did not take these rent receipts into any consideration at all and which are relevant documentary evidences. Instead, as is obvious from their findings, the Courts below have erroneously and unlawfully relied upon oral evidences bypassing the documentary evidences and which they are barred from doing under the law. Section 91 and 92 of the Evidence Act expressly bar the reliance upon oral evidences where documentary evidences are there on record.
171. 4 2015 State & ors Vs. Rafiqul Islam & ors State

4 SCOB [2015] HCD 139
Penal Code, 1860, Section 302; Last seen together theory; Retraction of confession
According to the prosecution, in the morning of 05.06.2008 all accused persons with the victim Mamun alive were last seen together at the Gate of Rafiques house no. Ka-109/4, Kureel Bishwaroad and at that time P.W.3 i.e. the Darwan himself saw them coming out together from that house. After they were last seen together, the dead body of the victim was found at an open place of Bholanathpur by the Esapur River on 07.06.2008. In such a situation it is the burden of the accused persons to prove and explain as to how the victim had been taken and done to death there.
172. 4 2015 Shuvash Chandra Das Vs. Customs, Excise & VAT App. Tribunal & ors State

4 SCOB [2015] HCD 171
VAT Act, 1991, Section 37 & 55; Determining amount of evaded VAT; Opportunity of hearing
A notice under section 37 of the VAT Act cannot be issued without first determining the amount of evaded VAT if any. In doing so the authority have to issue notice under section 55(1) of the VAT Act 1991, claiming the evaded VAT and after giving an opportunity of hearing to the party concern, determine the amount of evaded VAT, under section 55(3) of the VAT Act 1991. After such determination of evaded VAT if the defaulter fails to repay the evaded VAT, only then, can proceed under section 37 along with other provisions of the VAT Act.
173. 3 2015 First Appeal No.464 of 2012

Citation:
3 SCOB [2015] HCD 1
Registration Act,1908 Section 22A Lunacy Act, 1912 Section 18
In view of the aforesaid amendment vide Registration Act,1908 (Act No.XXV of 2004) there is hardly any scope left for anyone to raise a question of forgery of a registered document since the photographs of both the executants are pasted on every instrument and the parties shall sign and put their left impression across their photographs in the instrument. More so, it is no bodies case that the photographs available in the impugned instrument or Heba deed is not the photographs of Kazi Shahidul Islam the father of the plaintiff Nos.1-3 and 5. Under such circumstances the allegation of forgery of the document in question can safely be brushed aside.
174. 3 2015 Writ Petition No. 6324 of 2013
&
Suo Moto Rule No. 19 of 2013
(Arising out of WP No. 6324/13). with
Writ Petition No. 6791 of 2013.

Citation:
3 SCOB [2015] HCD 13
Khulna University Act 1990
Section 28 (5):
When the law specifically used the words `প্রত্যেক স্কুলের বিভিন্ন ডিসিপ্লিনের মধ্যে জ্যেষ্ঠতার ভিত্তিতে এবং ভাইস চ্যান্সলর কর্তৃক নির্দিষ্ট ভাবে অধ্যাপকদের মধ্যে উহার ডীন পদ আবর্তীত হইবে` we hold that the post of Dean will rotate firstly among the Disciplines, according to its seniority of being set up/established, and then also among the senior Professors of each Discipline of the school. Thus so far the two interpretations given by the two Ministries are concerned we are of the view that the subsequent interpretation dated 06.03.2013 given by the Ministry of Education is more rational, reasonable and acceptable for the purpose interpretation of section 28 (5) of the Act.
175. 3 2015 I.T. Ref: Application No. 306 of 2013
With
I.T. Ref. Application No. 307 of 2013
With I.T. Ref: Application No. 308 of 2013
And
I.T. Ref: Application No. 309 of 2013

Citation:
3 SCOB [2015] HCD 21
Income Tax Ordinance 1984
Section 75, 93, 94
A return filed under the normal procedure of section 75 of the Income Tax Ordinance 1984 has to be assessed within the period of limitation of six month, so also the ropening procedure against deemed assessment under the Self Assessment Scheme has to be confined to the period of limitation of two years. No proceeding for assessment of any return can be taken after the period for limitation and any such proceeding initiated shall be a nullity.
176. 3 2015 WRIT PETITION NO. 144 OF 2008

Citation:
3 SCOB [2015] HCD 37
Constitution of Bangladesh
Article 102
Commercial contract
Statutory contract
Arbitration
The writ petition is not maintainable on two counts,- firstly, due to the reason that the dispute arose out of simple commercial contract and not out of statutory contract and secondly, there is no scope to avail writ jurisdiction as there is an equal efficacious alternative forum to settle the dispute through amicable settlement under clause 54.1, adjudication under clause 54.2 and arbitration under clause 54.3 of section 3 of the GCC between the parties.
177. 3 2015 WRIT PETITION NO. 2515 of 2012

Citation:
3 SCOB [2015] HCD 42
Constitution of Bangladesh
Article 40
Cancellation of license
Right of the citizen
In the case in hand cancellation of license was indeed an unbridled arbitrary outcome of executive feat which certainly had indulged in excesses. The act has a curtailing effect upon Article 40 of the Constitution in particular. It has flouted Article 40 of the Constitution directly. The Constitution being the Supreme law of the land the framers of the same in their wisdom have made some provisions protecting the right of the citizen. To do lawful business or trade subject to restriction of law is one of those provisions which cannot be curtailed or throttled in any manner by any authority.
178. 3 2015 Writ Petition No. 8967 of 2014

Citation: 3 SCOB [2015] HCD 47
Abandoned Buildings (Supplementary Provision) Ordinance, 1985
Court of Settlement Barred by limitation
In our view, the petitioner had rightly approached the Court of Settlement, Dhaka for releasing the property in question from the Kha list of Abandoned Buildings. However, as his case was found to be barred by limitation and since he had no other equally efficacious remedy to enforce his rights, the petitioner was entitled to invoke the writ jurisdiction.
179. 3 2015 Civil Revision No. 706 0f 1998

Citation:
3 SCOB [2015] HCD 59
Deed of gift Physical possession Paper transaction
There is nothing on record to show that Promoth Nath was a man of unsound mind or that plaintiff had any relationship with Promoth Nath whatsoever so as to take him to the Sub-Registry office and to fraudulently get the kabala executed by Promoth Nath. Defendants never raised any question on this aspect in any manner. The above statement of the executant considered with the rent receipts showing payment of rent for the suit land by the plaintiff for the years 1981 to 1994 and the fact of silence of the two sons of Promoth Nath (defendant No.1 and 2) in not challenging plaintiff`s kabala and the fact of physical possession of the plaintiffs lead me to conclude that plaintiffs` purchase is genuine and that their kabala dated 07.06.1980 was acted upon and that the earlier deed of gift dated 10.01.1979 purportedly made by Promoth Nath in favour of his son was a mere paper transaction so far the suit land is concerned.
180. 3 2015 Civil Revision No. 879 of 2006

Citation:
3 SCOB [2015] HCD 68
Final court of fact Reassess the evidence Findings of the trial court
The appellate court being last and final court of fact will have to discuss and reassess the evidence on record independently while reversing or affirming the findings of the trial court. In case of reversal it is more incumbent upon the appellate court to reassess the evidence to arrive at his own independent finding. The findings of the trial court should not be easily disturbed as a matter of course and before reversing the findings and decisions of the trial court the appellate court should think twice or more than twice.
181. 3 2015 Death Reference no. 50 of 2010

Citation: 3 SCOB [2015] HCD 74
Penal Code, 1860 Section 302
How to attach weight to the testimony of witness
Sentencing discretion on the part of a Judge is the most difficult task to perform. There is no system or procedure in the Criminal Justice administration method or Rule to exercise such discretion. In sentencing process, two important factors come out- which shall shape appropriate sentence (i) Aggravating factor and (ii) Mitigating factor. These two factors control the sentencing process to a great extent. But it is always to be remembered that the object of sentence should be to see that the crime does not go unpunished and the society has the satisfaction that Justice has been done and court responded to the society`s cry for Justice. Under section 302 of the Code, though a discretion has been conferred upon the Court to award two types of sentences, death or imprisonment for life, the discretion is to be exercised in accordance with the fundamental principle of criminal Justice.
182. 3 2015 ADMIRALTY SUIT NO. 17 of 2015

Citation:
3 SCOB [2015] HCD 93
Trade Marks Act, 2009 Section 102
When rectification proceeding is pending before this court, Suit for infringement of Trademark pending in the Court below should be stayed in view of Section 102 of the Trade Marks Act, 2009.
183. 3 2015 WRIT PETITION NO. 3203 of 2004

Citation:
3 SCOB [2015] HCD 108
Value Added Tax Act, 1991
Section 9
Clause-Gha of Rule 22(1) of the VAT Rules, 1991
Since the admitted allegation against the petitioners is that in spite of the increase of price of the raw materials as reflected from the concerned bills of entries and assessment orders thereon, the petitioners did not make any corresponding increase in the declared price of the finished products and since such circumstance was not evidently mentioned under any clauses from Clauses-`Ka` to `Ta` under sub-section (1) of Section 9, we do not find as to how the directions of the concerned officers for readjusting the current account register of the petitioner, or for depositing certain amount through treasury challan, was amenable to the alterative remedy of written objection in view of the provisions under sub-section (2ka) of Section 9.
184. 3 2015 Criminal Appeal No. 1041 of 1997

Citation:
3 SCOB [2015] HCD 116
Case of drug/narcotics Chemical examination Chemical expert
In the present case being a case of drug/narcotics, it was incumbent on the prosecution to get the seized phensedyl examined by a chemical expert to prove that the seized articles were actually madak drobyo/drug and under what category of madak drobyo/drug it fell. Absence of such chemical examination and contradictions between the two sets of prosecution witnesses, casted a shadow of doubt over the prosecution case.
185. 3 2015 Criminal Revision No.263 of 2012

Citation:
3 SCOB [2015] HCD 119
Druta Bichar Tribunal Act, 2002
Section 10
In this case remarkably the government does not deny the fact of failure of conclusion of trial of the Druta Bichar Tribunal Case No.07 of 2006 within the stipulated time. As per the provision of section 10 of the Druta Bichar Tribunal Act, 2002, the trial of a Druta Bichar Tribunal Case is to be concluded within 135 days from the date of receipt of the case for trial. No option for the court is left therein except sending the case back to the original court in the event of failure on the part of the tribunal to conclude trial of the case within the stipulated period.
186. 3 2015 Criminal Appeal No. 300 of 1998

Citation:
3 SCOB [2015] HCD 122
Evidence Act, 1872 Section 3
Evidence of business partners
There is no reason why the evidence of the business partners should be discarded simply because they belonged to a construction firm. They came before the Court and testified to the occurrence. They were fully cross-examined by the defence. Their evidence is also evidence with the meaning of Section 3 of the Evidence Act. The prosecution witness Nos. 2, 4, 6 and 7 are material witnesses though they are business partners of the P.W. No. 5, the informant but cannot be considered as interested witness. There is no reason that the testimony of P.W. Nos. 2, 4, 5, 6 and 7 can be discarded or liable to be flung to the wind simply because they happened to be business partners.
187. 3 2015 Writ Petition No. 3709 of 2015

Citation:
3 SCOB [2015] HCD 132
Code of Civil Procedure, 1908
Section 136;
Order XXXVIII, Rule 5 Attachment
The Court below has power to order attachment of property situated beyond the local limit of the Court. But the Court passing the Order of attachment cannot directly attach property outside its own jurisdiction and it can only ask the Court in whose jurisdiction the property actually situated to carry out the order of attachment and complete the formalities of attachment. In the present case this Court finds that the Impugned Order passed by the Adalat was sent directly by the Court without sending the same to the District Court for compliance where the property situates. Therefore, the Impugned Order from the face of it is found to be palpably illegal and invalid in law as contained in Section 136 of the Code.
188. 3 2015 WRIT PETITION NO.28 of 2015

Citation:
3 SCOB [2015] HCD 137
VAT Act, 1991
Section 55 and 56
Section 56 cannot be construed or interpreted in an isolated manner. Section 55 and 56 must be read together and from a perusal of the same, it is evident that Section 56 is mandatorily preceded by Section 55 of the VAT Act,1991 which prescribes the issuance of a Show- Cause Notice followed by other procedures and which is exhaustively laid out in the whole Section. The prescription said out in Section 55(1) (2)(3) are mandatory and no action or initiative can be taken or resorted to for realization of any unpaid, less paid or otherwise evaded etc amount, whatsoever under the provisions of Section 56 of the VAT Act, 1991, unless and until firstly the procedure laid out in Section 55 of the VAT Act has been exhausted by the authorities concerned. The principle of law is that Section 56 automatically presupposes a notice under section 55(1) of the Act, followed by the procedure laid out in Sub-section 2 & 3 of the said section 55 and which the respondents cannot avoid under any circumstances.
189. 3 2015 Writ Petition No. 846 of 2012

Citation:
3 SCOB [2015] HCD 143
Constitution of Bangladesh Article 102; Doctrine of the legitimate expectation
Doctrine of the legitimate expectation ensures the circumstances in which, the expectation may be ensured or denied and among others the following grounds may also be taken in order to get a remedy under article 102 of the Constitution:- firstly there must be a promise or assurance from the employer or the authority that the incumbent would be assimilated at the end or during the tenure of his service; secondly - the past practice of `আত্মীকরণ` for other persons of similar status has been followed consistently.
190. 3 2015 WRIT PETITION N0. 10011 of 2013 & WRIT PETITION N0. 10023 of 2013

Citation:
3 SCOB [2015] HCD 150
Writ of certiorari Certiorari jurisdiction
In the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a Court which has jurisdiction over a subject- matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign to itself the role of an Appellate Court and step into re-appreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior court.
191. 3 2015 Criminal Revision No.132 OF 2012

Citation:
3 SCOB [2015] HCD 158
Penal Code, 1860
Section 161
Prevention of Corruption Act, 1947 Section 5(2)
The offence under section 161 of the Penal Code relates to take illegal gratification by any public servant, while offence under section 5(2) of Act II of 1947 speaks of criminal misconduct by the same if he by corrupt and illegal means abusing his position as public servant obtains for himself any pecuniary advantage. The offences of the above sections are quite different and a person may be punished in each section separately and independently.
192. 3 2015 WRIT PETITION NO. 8925 OF 2012

Citation:
3 SCOB [2015] HCD 52
Constitution of Bangladesh
Article 102 and 42

অর্পিত সম্পত্তি প্রত্যর্পন আইন, 2001: Alternative remedy Protection of fundamental right
It is a settled proposition of law that an aggrieved party may invoke the writ jurisdiction of the High Court Division under Article 102 of the Constitution straightaway provided the action impugned is malafide, even though there may be an alternative remedy available for him. Since we have found that the inclusion of the case property in `Ka` Schedule of the Gazette Notification dated 06.05.2012 as a vested property is malafide, the instant writ petition, as we see it, is maintainable. Besides, it has been clearly, categorically and unequivocally held in the decision in the case of the Government of Bangladesh represented by the Ministry of Works and another Vs Syed Chand Sultana and others reported in 51 DLR (AD) 24 that the writ-petitioners can come directly to the High Court Division for protection of their fundamental right, even though an alternative remedy is available. So our definite finding is that the petitioners can come directly to the High Court Division for protection of their right to property as contemplated by Article 42 of the Constitution of Bangladesh, even though an alternative forum, that is to say, অর্পিত সম্পত্তি প্রত্যর্পন ট্রাইব্যুনাল is available for necessary legal redress.
193. 3 2015 ফৌজদারী বিবিধ মামলা নং 20859/2010,
Citation:3 SCOB [2015] HCD 98
ফৌজদারী কার্যবিধি ৫৬১এ ধারা
ফৌজদারী কার্যবিধি ৫৬১এ ধারার বিধান অনুযায়ী দন্ডিত আদেশ বাতিলের ক্ষেত্রে তিনটি বিষয়ই বিবেচনায় প্রাধান্য পাইবে, যথা : "আইগত সাক্ষ্য প্রমাণের অভাব" এবং "আদালত গঠনে ত্রুটি" (Quoram-non-judice) এবং "আইনের অপব্যবহার যাহার ফলে ন্যায় বিচার ব্যাহত"।
194. 2 2015 WRIT PETITIONS NO. 9366 of 2011, 9341 of 2011, 8220 of 2011, 9367 of 2011, 9368 of 2011, 9369 of 2011, 9370 of 2011, 2600 of 2012, 5076 of 2012, 5077 of 2012, 5078 of 2012 & 5818 of 2012.

Citation:
2 SCOB [2015] HCD 1
Negotiable instrument
Holder in due course
Consideration
Dishonored Cheque
Lawful custody
Fraud
Until the contrary is proved, it will be presumed that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated, or transferred, was accepted, endorsed, negotiated or transferred for consideration. Section 118(g), however, provides that the holder of a negotiable instrument is a holder in due course; provided that where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
195. 2 2015 CRIMINAL REVISION NO.433 OF 2003

Citation:
2 SCOB [2015] HCD 18
Alter or amend charge
Guilty under lower section
The Court under section 227 of the Code of Criminal Procedure is competent to alter or amend the charge at any stage of the proceeding before pronouncement of judgment. Since section 302 of the Penal Code is not applicable even after framing a charge under section 302 of the Penal Code, there is no legal bar to find the accused guilty under lower section of 304 Part II of the Penal Code on proper examination of the facts, circumstances and evidence of the case.
196. 2 2015 Criminal Misc. Case No. 19511 Of 2012

Citation:
2 SCOB [2015] HCD 21
Quashing criminal proceeding
Delay in lodging FIR
Inherent jurisdiction
Section 561A
There is no dispute that the F.I.R. has been lodged with a delay of about four years. But, according to the F.I.R. as well as the Criminal Miscellaneous Application, the informant is a Korean woman and she received the copies of forged documents long after from the investigating officer of a previous case. Moreover, delay by itself is no ground for quashing the criminal proceeding.
197. 2 2015 WRIT PETITION NO. 9147 of 2008

Citation:
2 SCOB [2015] HCD 27
Banking Companies Act 1991
Credit Information Bureau
Defaulter borrower
Financial institution
Elementary principle of Company law
The process of enlistment of any defaulter name in the CIB list is a continuing process within the meaning of section 5 GaGa read with section 27 KaKa of Banking Companies Act 1991 and also read with Article 42 of Bangladesh Bank Order 1972. If all these provisions are read together one and only inference that could be made is that if any person or a company is indebted to in any manner with any financial institution and the debt remains unpaid, it is the duty of the respondent Bangladesh Bank in its turn to enlist the name of the incumbent in the CIB list nothing more nothing less.
198. 2 2015 Writ Petition No. 735 of 2007

Citation:
2 SCOB [2015] HCD 32
Administrative actions
Scale of fairness
Arbitrarily
Duty of a lawyer
Administrative actions by Government and statutory bodies should be judged on the scale of fairness. In other words, no authority can act arbitrarily and whimsically in discharging its duties, thereby affecting the rights and privilege of the property of an individual.
199. 2 2015 Writ Petition No. 9150 of 2007

Citation:
2 SCOB [2015] HCD 36
Anti-Corruption
Commission Act, 2004: Section 420 of the Penal Code
Malice
Bad faith
Section 2(Umo) of the Act contemplates that ceѢa means the offences mentioned in the schedule of the Act. It is an indisputable fact that the alleged offences were not scheduled offences of the Act at the relevant point of time. So the question of enquiry into the alleged offences by the respondent no. 3 is out of the question. What we are driving at boils down to this: the respondent no. 3 was not empowered to enquire into the alleged offences, but none the less, he enquired thereinto. Furthermore, it is an admitted fact that the enquiry report submitted by the respondent no. 3 was treated as an ejahar by the concerned Police Station which gave rise to the instant case. In this regard, Mr. Md. Khurshid Alam Khan has candidly conceded that the treatment of the enquiry report as an ejahar is not sustainable in law. This being the panorama, we feel constrained to hold that the very initiation of the case is de hors the law.
200. 2 2015 CIVIL REVISION NO. 4636 OF 2004

Citation:
2 SCOB [2015] HCD 41
Pre-emption
Co-sharer by purchase
Statutory period
Tenants
When an application has been made under sub-section (1) any of the remaining co-sharer tenants including the transferee, if one of them, and the tenants holding lands contiguous to the land transferred may within the period referred to in sub-section (1) or within two months of the date of service of notice of the application under clause (b) of sub-section (3) which ever be earlier apply to joint in the said application; any co-sharer tenant or tenant holding land contiguous to the land transferred, who has not applied either sub-section (1) or under this sub-section, shall not have any further right to get pre-emption under this section.
201. 2 2015 CIVIL REVISION NO. 3384 OF 2001

Citation:
2 SCOB [2015] HCD 44
Identifiable plot
Advocate Commissioners report
Injunction
Requirement of law is that the property should be identified by boundaries or numbers. When the plots are identified by numbers, boundaries are not necessary. The identifiable plot numbers having been given with total quantum of land against each plot in the schedule of plaint, there is no difficulty in identifying land of the plots.
202. 2 2015 Civil Revision No. 1622 of 2010

Citation:
2 SCOB [2015] HCD 47
Right in special law
Barring Clause
Settlement
The general remedy of the suit under section 9 of the Code of Civil Procedure will be impliedly barred where a right is created by a special law and special forum is provided in it.
203. 2 2015 WRIT PETITION NO. 9490 OF 2013

Citation:
2 SCOB [2015] HCD 54
Lawyers Certificate
Binding Force of Judgment
Truth and Accountability Commission (TAC)
A judgment or order becomes effective (subject to correction of error or review by the same Court, as the case may be) the moment it is pronounced in the open Court. A certificate to that effect issued by a learned lawyer is sufficient proof to the parties or persons concerned, according to the law declared in 44 D.L.R. (AD) 219. Besides, as per provisions of article 111 of the Constitution of the Peoples Republic of Bangladesh, the judgment passed by the Appellate Division is binding on the High Court Division too, alongwith the subordinate Courts. Hence, if the Appellate Division pronounces any judgment then it becomes binding on the High Court Division (in similar cases), whether the same is signed or not. If the High Court Division considers it just and proper to wait till the judgment is pronounced by the Appellate Division to be signed, then it (HCD) can at best keep the matter awaiting judgment. But, it should not pronounce any judgment contrary to the judgment pronounced, in the open Court, by the Appellate Division, on the matter having relevance to the case before this Division. However, to cover this interim period, this Division may pass such interim order as the ends of justice may demand.
204. 2 2015 ADMIRALTY SUIT NO. 17 of 2015

Citation:
2 SCOB [2015] HCD 58
Refund of the Court fees
Benefit from filing of the suit
The parties are entitled to refund of the Court fees if it is found that the apparatus of the Court and its process have not been used for the cause for which the parties have taken recourse to the proceedings of the Court. This underlining principle of the Court Fees Act as well as the provisions under sub-Section (11) of Section 89A of the Code have also been recognized and affirmed in the cases as referred to by Mr. Hannan, in particular the case of Bhola v. Sardar Muhammad, PLD 1976 Lahore 1268.
205. 2 2015 Writ Petition No. 11346 of 2014

Citation:
2 SCOB [2015] HCD 62
Article 102 of the Constitution
Aggrieved person
Clean hands
The above conduct of the petitioner, as to non-disclosure of pendency of the representation before the Board, clearly suggests that he attempted to suppress the said fact before this Court and obtained this Rule by misleading the Court for which he deserves to be penalised. An aggrieved person, who wishes to come to this Court for seeking any remedy, must come with clean hands without attempting to hide any fact inasmuch as this Court in exercising the jurisdiction under Article 102 of the Constitution carries out its duty as an extra ordinary forum, unlike the other ordinary Courts. This Court, in essence, is an equity Court, for, the State has provided this provision in the Constitution for adjudication upon the bonafide claims of the citizens who will not have any forum, including civil Court, tribunal or a quasi-judicial body, for vindication of their rights. If a citizen seeks to abuse the said provision, this Court not only turns down his petition, but also penalises him.
206. 2 2015 Writ petition No. 12211 of 2012

Citation:
2 SCOB [2015] HCD 66
Legitimate Expectation
Public interest
Change in the policy
On the basis of several decisions passed by our Apex Court, now it has been established that generally the legitimate expectation may arise-
I. if there is an express promise given by a public authority; or
II. because of the existence of a regular practice which the claimant can reasonably expect to continue;
III. Such an expectation must be reasonable.
However, if there is a change in the policy or in the public interest the position is altered by a rule or legislation, no question of legitimate expectation would arise.
207. 2 2015 WRIT PETITION NO. 8152 OF 2009

Citation:
2 SCOB [2015] HCD 70
Article 102 of the Constitution
Discretionary Power
Now it is well settled that the power of the High Court to issue an appropriate writ under Article 102 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent of the acquiescent and lethargic. If there is inordinate delay on the part of the Petitioner in filing a Writ Petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustice.
208. 2 2015 WRIT PETITION N0. 8068 of 2005

Citation:
2 SCOB [2015] HCD 73
Retrospective operation
Legislative intent
Customs Act
Rate of duty
Tariff value
Imported goods
The question whether a statute operate retrospectively, or prospectively only, in one of legislative intent. In determining such intent, courts observe a strict rule of construction against a retrospective operation, and indulge in the presumption that the legislature intended statutes, or amendments thereof, enacted by it, to operate prospectively only and not retroactively. However, a contrary determination will be made where the intention of the legislature to make the statute retroactive is stated in express terms, or is clearly, explicitly, positively, unequivocally, unmistakably, and unambiguously shown by necessary implication or terms which permit no other meaning to be annexed to them, and which preclude all question in regard thereto, and leave no reasonable doubt thereof.
209. 2 2015 First Appeal No. 77 of 2006

Citation:
2 SCOB [2015] HCD 77
Insurance claim
Contract
Awarding compensation
Regarding the claim (No.viii) we find that the accident has taken place during the contract period and thereafter he took treatment and failed to succeed as a result he suffered a lot and finally he lost one of his legs, which was also held within the time frame of contract and MoU and claims was made within stipulated time mentioned in MoU. So there is nothing wrong to get the benefit of the insurance claim.
210. 2 2015 WRIT PETITION NO. 3606 of 2010
With
WRIT PETITION NO.1909, 12357, 12358, 7980, 7982, 9355, 7979, 5175, 7981, 3184 and 7766 of 2013; 3210 of 2009; 991 of 2012; 6056, 227, 2672, 1192, 335, 7768, 1956 and 5065 of 2014

Citation:
2 SCOB [2015] HCD 84
VAT Act
Third party authority
Purported exercise of discretion
Demand of documents
No provision of the said Act of 1991 empowers the VAT authority to direct the petitioner as a VAT registered person to deliver any documents or records directly to any third party authority, i.e. Local and Revenue Audit Directorate. Neither a notice can be issued either directing and deposit of revenue or under section 55(1) of VAT Act on that Count.
211. 2 2015 WRIT PETITION NO. 2412 OF 2007

Citation:
2 SCOB [2015] HCD 95
Power to make appointment Foreign Exchange Regulation Act, 1947
Section 3
Section 16 of the General Clauses Act
According to Section 16 of the General Clauses Act, where, by any Act of Parliament or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power. As the suspension of licence is not there in Section 3 of the Act of 1947, in our opinion, the provisions of Section 16 of the General Clauses Act can definitely be invoked in order to give a complete and harmonious interpretation of Section 3 of the Act of 1947. What we are driving at boils down to this: the authority making any appointment has the power to suspend the licence of any person appointed.
212. 2 2015 WRIT PETITION NO. 3716 OF 2014

Citation:
2 SCOB [2015] HCD 99
Enquiry committee
Show cause notice
We have also consulted the rules and, in our considered opinion, a show cause notice, as required under clause (Ka) of Rule- 5.4 giving 7 days time to explain the allegations brought, if any, and further asking, in the same notice, the petitioners as to whether they were willing to appear before the enquiry committee were mandatory on the part of the respondents and such notices ought to have been issued upon the petitioners. We also find that, as per clause (Kha) of Rule 5.4, it is also mandatory that appointing authority should form a 3(three) members enquiry committee and the enquiry committed shall dispose of the disciplinary proceedings, if initiated, within 60 days. But, we find nothing on record to show that any notice was issued upon the petitioners or any enquiry committee was formed required by clause (Kha) or clause (Kha) of Rule 5.4 of the said rules and the impugned memo was not issued following the procedure laid down in clauses (Ka) and (Kha) of Rule 5.4.
213. 1 2015 Income Tax Reference Application No. 159 of 2011Rule No. 53(Ref.) of 2011With
Income Tax Reference Application No. 160 of 2011
Rule No. 54(Ref.) of 2011
With
Income Tax Reference Application No. 161 of 2011
Rule No. 55(Ref.) of 2011
With
Income Tax Reference Application No. 162 of 2011
Rule No. 56(Ref.) of 2011
Commercial purpose
Fiscal law
Notification exempting or reducing income tax
The income of the assessee-university/the assessee-college ought to have been treated as tax exempted under SRO No. 178 for the assessment years 2002-2003, 2004-2005, 2005-2006, 2006-2007 and 2007-2008 by the Taxes Authority and the Tribunal.
214. 1 2015 Writ Petition No. 11442 of 2014 Section 216 (1)(Chha) of the Bangladesh Labour Act 2006
We fail to understand how the learned Chairman of the Labour Appellate Tribunal, Dhaka could entertain the appeal of respondent no. 3 in the very first place when, admittedly, there was no judicial order under challenge. In our view, the appeal before the Labour Appellate Tribunal itself was absolutely misconceived and therefore not maintainable at all.
215. 1 2015 Writ Petition No. 11959 of 2013 Writ of Certiorari
Disciplinary proceedings
the appellate authority can hear any appeal preferred against any order by an aggrieved employee and the appeal need not be confined to matters arising out of disciplinary proceedings only
216. 1 2015 Contempt Petition No.264/2010.
(Arising out of Writ Petition No.7694/2010)
Contempt of Court
Court of record
The impugned comment constituted the offence, because; (1) by this comment the contemnor purported to usurp the function of this Division, (2) the comment has the potential of influencing the minds of the people at large as well of the judges, whether or not it actually generated that effect, (3) the comment amounted to prejudging the cause which was awaiting adjudication, (4) the comment was vibrant enough to lead the public as well as the judges concerned to reckon that by issuing the Rule and passing th
217. 1 2015 Death Reference No.36 of 2010 Single witness
Relationship of the witness with the victim
The case of prosecution does not depend on the number of witnesses produced but it can depend upon a single witness whose evidence (testimony) is trustworthy, credible and unimpeachable. Therefore, obviously we can easily draw such inference in this matter that the case of the prosecution can stand very much on a single evidence if it is tangible and credible.
218. 1 2015 Criminal Revision No. 906 of 2010 with
Criminal Revision No. 907 of 2010 with
Criminal Revision No. 908 of 2010 and
Criminal Revision No. 909 of 2010
Corroboration of evidence
Presumption against prosecution
Sub-section (1) of section 138 has not made any qualification of the cheque so returned unpaid either post dated given as a security for repayment of the money as alleged by the accused or any other cheque issued by the drawer from encashment currently. The legislature has not made any difference between a post dated cheque issued as security and a cheque issued for encashment currently. I do not see any scope of making any such difference.
219. 1 2015 Criminal Appeal No. 4103 of 2012 Motive
Culpable homicide
In the absence of any motive, conspiracy, pre-plan or pre-meditation on the part of accused-appellant Muslim while inflicting injuries resulting the death of the victim 7 days after the occurrence, we find that the accused-appellant Muslim had no intention to commit murder but he committed the offence of culpable homicide not amounting to murder.
220. 1 2015 Criminal Appeal No. 6691 of 2011
With
Criminal Appeal No. 6692 of 2011
Instrument drawn for consideration
Holder in due course
Rebuttable presumption
Whenever any accused leads the evidence to rebut such presumption the burden again shifts to the complainant who is the holder in due course of the chque to proof by the legal evidence that the cheque was drawn in his favour for consideration.
221. 1 2015 Writ Petition No. 6220 of 2007 Locus Standi
We find that that the petitioner Samity does not have any locus-standi to move the writ petition to ventilate the causes of its aggrieved members since it is not a public purpose, rather the purpose for the benefits of individual members of the samity who have individually bought the land and thereafter formed the samity, and as such, we do not find the instant Rule maintainable.
222. 1 2015 WRIT PETITION NO. 5210 of 2013 Stopping payment by Bank
UCP-600
Re-imbursement in respect of the accepted bills
A bank under the law and banking practice, in particular in accordance with the relevant provisions of UCP-600, is bound to make payment or re-imbursement in respect of the accepted bills once they are accepted by the issuing banks, and in view of the said provisions of the UCP-600, namely Article-16, once such acceptance is given, the matter is closed and the concerned banks are precluded from raising any issue thereafter.
223. 1 2015 Criminal Revision No.329 of 2006
With
Criminal Revision No.334 of 2006
With
Criminal Revision No.335of 2006With
Criminal Revision No.336 of 2006
With
Criminal Revision No.337 of 2006
Public servant
Sanction from the Government to prosecute
A Member of Parliament is not a `public servant` within the meaning of section 21 of the Penal Code or section 2 of the Act II of 1947. We, therefore, accept the submission advanced by the learned Advocate for the petitioner only to the extent that in order to prosecute opposite party 2, no sanction from the Government was required.
224. 1 2015 Criminal Miscellaneous Case No.26782 of 2014 Prima-facie case
Seized articles
Incriminating article
On perusal of the FIR of the case, it appears that there is no specific allegation or overt act against the accused-petitioner therein which shows that no prima-facie case is revealed against the accused-petitioner. The column no.5 of the charge-sheet of the case in respect of any seized articles shows that said column is blank meaning thereby that no incriminating articles although the case is under sections 3/4 of the Explosive Substances Act, 1908.
225. 1 2015 Writ Petition No. 9204 of 2013
With
Writ Petition No. 9205 of 2013
Aggrieved person
Writ of certiorari
গ্যাস বিপনন নিয়মাবলী, 2004 has no compelling or binding effect upon the petitioners since admittedly the same is not law or has no force of law. Therefore, a nexus between the petitioners` grievance and Clause 5.7 of the গ্যাস বিপনন নিয়মাবলী, 2004 by itself cannot be established that the petitioner can seek remedy under Article 102 (2) (a) (ii) of the Constitution.
226. 1 2015 Writ Petition No. 5420 of 2014 Record-of-rights
Revenue Officers
Administrative functionaries
Mutation case
The moment the Revenue Officer would come to know, either through an enquiry conducted by him with the assistance of the Tahshilder or any other staff of his office, or through an application filed by a private party for mutation, that there are disputes regarding the produced papers and documents and there are contending claimants over any land and the matter is pending in the Court for disposal, the concerned Revenue Officer must not proceed further with regard to the said mutation case until the said civ
227. 1 2015 Writ Petition No. 6328 OF 2003 Property of the borrower
Third-party mortgagors
In the event of execution of a decree for realization of decretal amount the court shall proceed with the property of the borrower first and then the property of the third-party mortgagors.
228. 1 2015 Civil Revision No. 4430 of 2011 Consequential order
Penal interest
Bangladesh House Building Finance Corporation Loan Regulations, 1977 and 1996: Under both the repealed Regulations, 1977 and Regulations, 1996 the BHBFC is permitted to charge simple interest on all loans, not the penal interest.
229. 1 2015 Civil Revision No. 940 of 2013 Correction of Evidence
Inherent power of the Court
Alternative remedie
Discretionary power of a court as has been inserted in Section 151 of the Code of Civil Procedure, 1908 cannot be exercised where alternative remedies are available. After administering oath in the open court when the evidence of a witness is recorded by a trial court it cannot be discarded or changed or corrected in the form of modification except recalling the witness following the prescribed provision of law enunciated in the Evidence Act, 1872.
230. 1 2015 WRIT PETITION N0. 3843 of 2004 Chittagong Hill-Tracts Regulation
It is now established that all civil suits will be triable from 1st July, 2008 by the Joint District Judge of the respective 3(three) Hill-Tract Districts and the parties aggrieved thereto may prefer an appeal before the learned District Judge of the respective Hill-Tract Districts and as such, any person aggrieved by the judgment and decree passed by the learned District Judge may prefer civil revisional application before the High Court Division under section 115 of the Code of Civil Procedure 1908
231. 1 2015 Criminal Miscellaneous Case No.49814 OF 2014 Expiry of the statutory period
If the trial of a Druto Bichar Tribunal case is not concluded within the time stipulated in sub-section (1), (2) and (3) of section 10, it shall be sent back to the Court wherefrom the case was transferred.
232. 1 2015 WRIT PETITION NO. 13689 OF 2012 The principles of natural justice
Procedural fairness
Ultra vires
Legitimate expectation
From promise or from established practice, a duty to act fairly and thus to comply with natural justice may arise. Thus the concepts of `fairness` and `legitimate expectation` have expanded the applicability of natural justice beyond the sphere of right.
233. 1 2015 Writ Petition No. 2640 of 2011 Bill of Lading
Unpaid Seller`s Lien
In the present case petitioner submitted an ocean bill of lading issued by EXCALIVOR LOGISTICS who is a freight forwarder and agent. Therefore, as per Article 1(a) of schedule of the Carriage of Goods Sea Act, 1925, EXCALIVOR LOGISTICS is neither an owner nor a chatterer of the vessel and had no authority to issue any bill of lading. So, the bill of lading placed by the petitioner was not a bill of lading as per Article-1 (a) of schedule of `The carriage of goods by Sea Act, 1925.`
234. 1 2015 Criminal Miscellaneous Case No.17553 OF 2006 Juvenile Court
In dealing with the Juvenile Case it is bound to follow the provisions of law as laid down in sub-section 2 of section 7 of the Act, 1974 and Rule 4 of the Rules 1976, i.e., either it has to sit in a building or room different from that in which the ordinary sittings of the Court are held, or on different days or at different times from those at which the ordinary sittings of the Court are held. It means that at least the case should be tried at different times even on the same day than that of other cases of ordinary jurisdiction.
235. 1 2015 Criminal Miscellaneous Case No. 33311 of 2011 Forged document Produced in a Civil court
561A of CrPC
In a proceeding where a forged document has been used, the Court concerned should make the complaint. Since the alleged forged document has been filed in a Civil Court, it is for the concerned Civil Court to lodge any complaint before the Criminal Court if it finds any forgery relating to the said document.
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