Appellate Division
(Criminal)
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
State………….Appellant
Vs
Md Ibrahim Ali………
Respondent
Judgment
December 3rd, 2013
Code of Criminal Procedure (V of 1898)
Sections 222(2) and 234(1)
Criminal Law Amendent Act (XL of 1958)
Section 6(LB)
Any number of offences punishable under the Criminal Law Amendment Act irrespective of the period over which the offence was committed, may be tried at one trial. All the offences committed over any length of period of time could be tried in one trial upon framing one charge. . ….. (20)
Code of Criminal Procedure (V of 1898)
Sections 227(1)(2)
If ingredients of an offence are disclosed the charge may be altered at any time or a new charge may be framed at any time up to the pronouncement of judgment, giving opportunity to the accused to put in his defence against the new or altered charge. But in no way can he be acquitted if the evidence against him proved his guilt in commission of an offence. .. …. (23)
Md Abdul Bari Molla vs State, 17 BLD (1997) 223 = 3 BLC 474; Md Nizamuddin Dali vs State, 16 BLD (1996) 580 = 1 BLC 312; Abdur Razzak alias Geda vs State, 16 BLD (1996) 312 = 48 DLR 457 and Abul Kalam Azad vs State, 48 DLR 294 ref.
Biswajit Deb Nath, Deputy Attorney-General, instructed by B Hossain. Advocate-on-Record-For the Appellant.
Sheikder Mokbul Hoque, Advocate instructed by Taufique Hossain, Advocate-on- record-For Respondent.
Khurshid Alam Khan Advocate, with leave of the Court-For Anti-Corruption Commission.
Judgment
Md Imman Ali J: This· criminal appeal, by leave, is directed against the judgment and order dated 2-7-2003 passed by a Division Bench of the High Court Division in Criminal Appeal No. 2907 of 1999 allowing the appeal.
2. The relevant facts are as follows:
The’ Appellant was the Tahsildar-incharge of Majenpur, Tahsil Office from 21-12-1987 to 20-12-1991. Within that period he collected rents from the tenants by granting rent receipts. But showing less collection he misappropriated Taka 77,978.25 paisa within that period. On this allegation the local Anti-Corruption Bureau inquired into the matter and verifying the correctness of misappropriation lodged First Information Report at Kushtia Police Station and they took up the investigation.
3. After investigation charge-sheet was submitted under section 409 the Penal Code read with section 5(2) of the Provention of Corruption Act, 1947.
4. During trial the case record was transmitted to the Divisional Special Judge, Khulna for trial. The learned Judge of the said Court framed charge against the accused appellant under section 409 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947. The charge was read over to the accused to which he pleaded not guilty and claimed to be tried.
5. The learned Divisional Special Judge took evidence and at one stage found that the charge framed was detective since the three years’ period of defalcation had been charged in one charge. Then he amended the charge by dividing the period into three and resumed the trial and convicted the appellant under section 409 of the Penal Code and sentenced him to suffer rigorous imprisonment for one year for each particular period.
6. Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence the, accused preferred Criminal Appeal No. 2907 of 1999 before the High Court Division, which upon hearing allowed the Appeal and acquitted the appellant.
7. Being aggrieved by the said judgment and order of the High Court Division a petition for leave to appeal was filed by the State and leave was granted to consider whether the acquittal of the accused by the High Court Division without considering the amended provision, namely section 6(IB) of the Criminal Law Amendment Act, 1958 which allows trial of an accused in respect of more offences than one in one trial for all such offences, has resulted in miscarriage of justice.
8. The learned Deputy Attorney-General, Mr. Biswajit Deb Nath appearing on behalf of the appellant submitted that section 6(1B) of the Criminal Law Amendment Act, allows trial of an accused in respect of more offences “than one in one trial for all such offences and, therefore, the charge framed at the outset on 2-10-1997 was correctly done in accordance with the Criminal Law Amendment Act. He further submitted that splitting up of the charge by the trial Judge has not caused any prejudice to the accused-respondent. He finally submitted that in any event, even if there is any technical defect in framing the charge, that cannot result in acquittal of the accused, who being a Government official has committed very serious offence by misappropriating funds abusing his official position.
9. Learned Advocate Mr Sheikder Mokbul Hoque appearing on behalf of the respondent made submissions in support of the impugned judgment. He submitted that in similar cases where a defect of charge was found the High Court Division has acquitted the accused person on the ground that such defect the charge is not curable under section 537 of the Code of Criminal Procedure (the Code). In this regard he has referred to 4 decisions in the cases of Md Abdul Bari Molla vs State reported in 17 BLD (1997) 223 = 3 BLC 474, Md Nizamuddin Dhali vs State, 16 BLD (1996) 581 = 1 BLC 312, Abdur Razzak alias Geda vs State, 16 BLD (1996) 312 = 48 DLR 457 and Abul Kalam Azad vs State, 48 DLR 294.
10. Mr Khurshid Alam Khan, learned Advocate appearing on behalf the Anti-Corruption Commission (ACC) made submissions similar to the learned Deputy Attorney-General.
11. We have considered the submissions of the learned Deputy Attorney-General for the appellant and submissions of the learned Advocates appearing on behalf of the respective parties. We should point out at the outset that wrong framing of charge although an important aspect of criminal trial cannot lead to acquittal of the accused merely on the ground of technical defect. Section 227 of the Code provides as follows:
“Court may after charge. (1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.”
12. The requirement of law is therefore that if and when charge is altered or added at any time before judgment is pronounced, the alteration or addition must be read and explained to the accused. In the instant case it transpires from the order sheet that on 17-11-1999 the prosecution filed an application for spitting the charge since the offences took place over a period more than one year. Keeping in view the provision of section 222(2) and 234 (1) of the Code the charge was split into three, each covering a period of less than one year. After recasting the charge it was read and explained to the accused who pleaded not guilty and claimed to be tried. On the same date a further witness was examined on behalf of the prosecution and the accused was examined under section 342 of the Code when he again claimed to be innocent and expressed his intention to call defence witnesses. Date was fixed for 23-11-1999 for defence witness, but no summons could be issued for defence witness as no list had been supplied. A list of defence witness was supplied on 21-11-1999. However, an application to issue summons was rejected since the learned Advocate for the accused had stated on 17-11-1999 that the list of witnesses was ready and that he would file it on that date but he did not do so.
13. Section 228 of the Code is also relevant in the present context, which provides as follows:
“When trial may proceed immediately after alteration. If the charge framed or alteration or addition made under Section 227 is such that proceeding immediately with the trial is not likely, in the opinion of the Court to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such charge or alteration, or addition has been framed or made, proceed with the trial as if the new or altered charge had been the original charge.”
14. The Court therefore can proceed with the trial, even on the day of amending the charge or adding any new charge if it would not prejudice the accused in his defence. Section 231 of the Code provides that:
“Re-call of witnesses when charge altered. Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to re-call or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined and also to call any further witness whom the Court may think to be material.”
15. In the memo of appeal before the High
Court Division the accused took a ground that “when the accused appellant prayed for further cross-examination of the witnesses so adduced in court on the basis of new framed charge the learned Special Judge with malafide intention arbitrarily disallowed the prayer and thereby the accused-appellant was denied justice.” It appears therefore that there was no allegation of failure of the trial Judge to allow the accused to call defence witnesses. Moreover, the accused could have immediately challenged the rejection of his application to call defence witnesses, but did not do so.
16. It is also apparent that the .accused did not challenge the splitting of the charge.
17. The accused was alleged to have defalcated various sums of money on dates between 21-12-1987 and 20-12-1991. It is true that under the Code each charge ought to have been for no mere than one year. To that extent it would have been proper at the initial stage to frame three charges each for a period of one year. That would have satisfied the requirement of the Code. However, in the facts and circumstances of the instant case it is clear that the offence is listed in the schedule of the Criminal Law Amendment Act, 1958 therefore triable and punishable under the provisions of the Criminal Law Amendment Act.
18. Section 6 of the Criminal Law Amendment Act provides that the provisions of the Code of Criminal Procedure 1898, shall in so far they are not inconsistent with this Act apply to the proceedings of the Court of a Special Judge.
19. And section 6 (1 B) provides as follows:
“A person accused of more offences than one punishable under this Act, may be tried at one trial for all such offences.”
20. The Provisions of section 222(2) read with section 234 (1) require that if there are more than one offences committed over a period of more than 12 months then the offences may not be charged in one charge, whereas section 6(1 B) provides that any number of offences punishable under the Criminal Law Amendment Act irrespective of the period over which the offence was committed, may be tried at one trial. Clearly, therefore, the provision in the Criminal Law Amendment Act is not consistent with the provision of the code of Criminal Procedure thereby ousting the applicability of the provisions of the Code in proceedings before the Court of Special Judge. Hence, all the offences committed over any length of period of time could be tried in one trial upon framing one charge.
21. In the facts of the instant case it appears that in fact the accused was prejudiced by framing three charges one for each 12 months period, and he was ultimately convicted three times and given three separate sentences, although ordered to run concurrently.
22. Since section 409 of the Penal Code read with section 5(2) of Prevention of Corruption Act come within the schedule of Criminal Law Amendment Act, the offences are liable to be tried as per the provisions of the Criminal Law Amendment Act, which being special Law will prevail over the general law i.e. the Code of Criminal Procedure.
23. In any event, as has been pointed out earlier, defect in framing of charge cannot be a ground for acquittal of the accused. The only time when any proceeding can be quashed for material error in the framing of charges is when the Court forms the opinion that the fact of the case are such that no valid charge could be framed against the accused in respect of the facts proved. Section 232 of the Code of criminal Procedure provides that even where an accused convicted of an offence was misled in his defence by absence of a charge or by an error in the charge, the Appellate Court or the Revisional Court shall direct a new trial to be held upon a charge framed in whatever manner it thinks fit. Thus, if ingredients of an offence are disclosed the charge may be altered at any time or a new charge may be framed at any time up to the pronouncement of judgment, giving opportunity to the accused to put in his defence against the new or altered charge. But in no way can he be acquitted if the evidence against him proved his guilt in commission of an offence.
24. The cases referred by the learned Advocate for the respondent were all cases where section 6(IB) of the Criminal Law Amendment Act was not considered and, therefore, those cases are of no relevance in the facts and circumstances of the instant case.
25. We find from the record that the accused has paid back all the money which he is alleged to have defalcated. That again cannot be a ground for acquittal, if it is found from evidence that he in fact committed the offence. Upon conviction it is the discretion of the Court to award punishment in accordance with law and taking into consideration all the facts and circumstances of the case, including any mitigating circumstances. To that extent the period of sentence may be more or less depending on the facts of the case and the circumstances of tie accused.
26. In view of the above discussion, we are of the opinion that the judgment and order of the High Court Division being erroneous, having been passed without considering the relevant laws .is liable to be set-aside.
27. Accordingly, the impugned judgment and order is set-aside. However, we are of the view that the ends of justice will be sufficiently met if the sentence of imprisonment of the accused respondent before us is reduced to the period already undergone by him.
In the result the appeal is allowed with the modification of sentence as aforesaid.
(Criminal)
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
State………….Appellant
Vs
Md Ibrahim Ali………
Respondent
Judgment
December 3rd, 2013
Code of Criminal Procedure (V of 1898)
Sections 222(2) and 234(1)
Criminal Law Amendent Act (XL of 1958)
Section 6(LB)
Any number of offences punishable under the Criminal Law Amendment Act irrespective of the period over which the offence was committed, may be tried at one trial. All the offences committed over any length of period of time could be tried in one trial upon framing one charge. . ….. (20)
Code of Criminal Procedure (V of 1898)
Sections 227(1)(2)
If ingredients of an offence are disclosed the charge may be altered at any time or a new charge may be framed at any time up to the pronouncement of judgment, giving opportunity to the accused to put in his defence against the new or altered charge. But in no way can he be acquitted if the evidence against him proved his guilt in commission of an offence. .. …. (23)
Md Abdul Bari Molla vs State, 17 BLD (1997) 223 = 3 BLC 474; Md Nizamuddin Dali vs State, 16 BLD (1996) 580 = 1 BLC 312; Abdur Razzak alias Geda vs State, 16 BLD (1996) 312 = 48 DLR 457 and Abul Kalam Azad vs State, 48 DLR 294 ref.
Biswajit Deb Nath, Deputy Attorney-General, instructed by B Hossain. Advocate-on-Record-For the Appellant.
Sheikder Mokbul Hoque, Advocate instructed by Taufique Hossain, Advocate-on- record-For Respondent.
Khurshid Alam Khan Advocate, with leave of the Court-For Anti-Corruption Commission.
Judgment
Md Imman Ali J: This· criminal appeal, by leave, is directed against the judgment and order dated 2-7-2003 passed by a Division Bench of the High Court Division in Criminal Appeal No. 2907 of 1999 allowing the appeal.
2. The relevant facts are as follows:
The’ Appellant was the Tahsildar-incharge of Majenpur, Tahsil Office from 21-12-1987 to 20-12-1991. Within that period he collected rents from the tenants by granting rent receipts. But showing less collection he misappropriated Taka 77,978.25 paisa within that period. On this allegation the local Anti-Corruption Bureau inquired into the matter and verifying the correctness of misappropriation lodged First Information Report at Kushtia Police Station and they took up the investigation.
3. After investigation charge-sheet was submitted under section 409 the Penal Code read with section 5(2) of the Provention of Corruption Act, 1947.
4. During trial the case record was transmitted to the Divisional Special Judge, Khulna for trial. The learned Judge of the said Court framed charge against the accused appellant under section 409 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947. The charge was read over to the accused to which he pleaded not guilty and claimed to be tried.
5. The learned Divisional Special Judge took evidence and at one stage found that the charge framed was detective since the three years’ period of defalcation had been charged in one charge. Then he amended the charge by dividing the period into three and resumed the trial and convicted the appellant under section 409 of the Penal Code and sentenced him to suffer rigorous imprisonment for one year for each particular period.
6. Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence the, accused preferred Criminal Appeal No. 2907 of 1999 before the High Court Division, which upon hearing allowed the Appeal and acquitted the appellant.
7. Being aggrieved by the said judgment and order of the High Court Division a petition for leave to appeal was filed by the State and leave was granted to consider whether the acquittal of the accused by the High Court Division without considering the amended provision, namely section 6(IB) of the Criminal Law Amendment Act, 1958 which allows trial of an accused in respect of more offences than one in one trial for all such offences, has resulted in miscarriage of justice.
8. The learned Deputy Attorney-General, Mr. Biswajit Deb Nath appearing on behalf of the appellant submitted that section 6(1B) of the Criminal Law Amendment Act, allows trial of an accused in respect of more offences “than one in one trial for all such offences and, therefore, the charge framed at the outset on 2-10-1997 was correctly done in accordance with the Criminal Law Amendment Act. He further submitted that splitting up of the charge by the trial Judge has not caused any prejudice to the accused-respondent. He finally submitted that in any event, even if there is any technical defect in framing the charge, that cannot result in acquittal of the accused, who being a Government official has committed very serious offence by misappropriating funds abusing his official position.
9. Learned Advocate Mr Sheikder Mokbul Hoque appearing on behalf of the respondent made submissions in support of the impugned judgment. He submitted that in similar cases where a defect of charge was found the High Court Division has acquitted the accused person on the ground that such defect the charge is not curable under section 537 of the Code of Criminal Procedure (the Code). In this regard he has referred to 4 decisions in the cases of Md Abdul Bari Molla vs State reported in 17 BLD (1997) 223 = 3 BLC 474, Md Nizamuddin Dhali vs State, 16 BLD (1996) 581 = 1 BLC 312, Abdur Razzak alias Geda vs State, 16 BLD (1996) 312 = 48 DLR 457 and Abul Kalam Azad vs State, 48 DLR 294.
10. Mr Khurshid Alam Khan, learned Advocate appearing on behalf the Anti-Corruption Commission (ACC) made submissions similar to the learned Deputy Attorney-General.
11. We have considered the submissions of the learned Deputy Attorney-General for the appellant and submissions of the learned Advocates appearing on behalf of the respective parties. We should point out at the outset that wrong framing of charge although an important aspect of criminal trial cannot lead to acquittal of the accused merely on the ground of technical defect. Section 227 of the Code provides as follows:
“Court may after charge. (1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.”
12. The requirement of law is therefore that if and when charge is altered or added at any time before judgment is pronounced, the alteration or addition must be read and explained to the accused. In the instant case it transpires from the order sheet that on 17-11-1999 the prosecution filed an application for spitting the charge since the offences took place over a period more than one year. Keeping in view the provision of section 222(2) and 234 (1) of the Code the charge was split into three, each covering a period of less than one year. After recasting the charge it was read and explained to the accused who pleaded not guilty and claimed to be tried. On the same date a further witness was examined on behalf of the prosecution and the accused was examined under section 342 of the Code when he again claimed to be innocent and expressed his intention to call defence witnesses. Date was fixed for 23-11-1999 for defence witness, but no summons could be issued for defence witness as no list had been supplied. A list of defence witness was supplied on 21-11-1999. However, an application to issue summons was rejected since the learned Advocate for the accused had stated on 17-11-1999 that the list of witnesses was ready and that he would file it on that date but he did not do so.
13. Section 228 of the Code is also relevant in the present context, which provides as follows:
“When trial may proceed immediately after alteration. If the charge framed or alteration or addition made under Section 227 is such that proceeding immediately with the trial is not likely, in the opinion of the Court to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such charge or alteration, or addition has been framed or made, proceed with the trial as if the new or altered charge had been the original charge.”
14. The Court therefore can proceed with the trial, even on the day of amending the charge or adding any new charge if it would not prejudice the accused in his defence. Section 231 of the Code provides that:
“Re-call of witnesses when charge altered. Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to re-call or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined and also to call any further witness whom the Court may think to be material.”
15. In the memo of appeal before the High
Court Division the accused took a ground that “when the accused appellant prayed for further cross-examination of the witnesses so adduced in court on the basis of new framed charge the learned Special Judge with malafide intention arbitrarily disallowed the prayer and thereby the accused-appellant was denied justice.” It appears therefore that there was no allegation of failure of the trial Judge to allow the accused to call defence witnesses. Moreover, the accused could have immediately challenged the rejection of his application to call defence witnesses, but did not do so.
16. It is also apparent that the .accused did not challenge the splitting of the charge.
17. The accused was alleged to have defalcated various sums of money on dates between 21-12-1987 and 20-12-1991. It is true that under the Code each charge ought to have been for no mere than one year. To that extent it would have been proper at the initial stage to frame three charges each for a period of one year. That would have satisfied the requirement of the Code. However, in the facts and circumstances of the instant case it is clear that the offence is listed in the schedule of the Criminal Law Amendment Act, 1958 therefore triable and punishable under the provisions of the Criminal Law Amendment Act.
18. Section 6 of the Criminal Law Amendment Act provides that the provisions of the Code of Criminal Procedure 1898, shall in so far they are not inconsistent with this Act apply to the proceedings of the Court of a Special Judge.
19. And section 6 (1 B) provides as follows:
“A person accused of more offences than one punishable under this Act, may be tried at one trial for all such offences.”
20. The Provisions of section 222(2) read with section 234 (1) require that if there are more than one offences committed over a period of more than 12 months then the offences may not be charged in one charge, whereas section 6(1 B) provides that any number of offences punishable under the Criminal Law Amendment Act irrespective of the period over which the offence was committed, may be tried at one trial. Clearly, therefore, the provision in the Criminal Law Amendment Act is not consistent with the provision of the code of Criminal Procedure thereby ousting the applicability of the provisions of the Code in proceedings before the Court of Special Judge. Hence, all the offences committed over any length of period of time could be tried in one trial upon framing one charge.
21. In the facts of the instant case it appears that in fact the accused was prejudiced by framing three charges one for each 12 months period, and he was ultimately convicted three times and given three separate sentences, although ordered to run concurrently.
22. Since section 409 of the Penal Code read with section 5(2) of Prevention of Corruption Act come within the schedule of Criminal Law Amendment Act, the offences are liable to be tried as per the provisions of the Criminal Law Amendment Act, which being special Law will prevail over the general law i.e. the Code of Criminal Procedure.
23. In any event, as has been pointed out earlier, defect in framing of charge cannot be a ground for acquittal of the accused. The only time when any proceeding can be quashed for material error in the framing of charges is when the Court forms the opinion that the fact of the case are such that no valid charge could be framed against the accused in respect of the facts proved. Section 232 of the Code of criminal Procedure provides that even where an accused convicted of an offence was misled in his defence by absence of a charge or by an error in the charge, the Appellate Court or the Revisional Court shall direct a new trial to be held upon a charge framed in whatever manner it thinks fit. Thus, if ingredients of an offence are disclosed the charge may be altered at any time or a new charge may be framed at any time up to the pronouncement of judgment, giving opportunity to the accused to put in his defence against the new or altered charge. But in no way can he be acquitted if the evidence against him proved his guilt in commission of an offence.
24. The cases referred by the learned Advocate for the respondent were all cases where section 6(IB) of the Criminal Law Amendment Act was not considered and, therefore, those cases are of no relevance in the facts and circumstances of the instant case.
25. We find from the record that the accused has paid back all the money which he is alleged to have defalcated. That again cannot be a ground for acquittal, if it is found from evidence that he in fact committed the offence. Upon conviction it is the discretion of the Court to award punishment in accordance with law and taking into consideration all the facts and circumstances of the case, including any mitigating circumstances. To that extent the period of sentence may be more or less depending on the facts of the case and the circumstances of tie accused.
26. In view of the above discussion, we are of the opinion that the judgment and order of the High Court Division being erroneous, having been passed without considering the relevant laws .is liable to be set-aside.
27. Accordingly, the impugned judgment and order is set-aside. However, we are of the view that the ends of justice will be sufficiently met if the sentence of imprisonment of the accused respondent before us is reduced to the period already undergone by him.
In the result the appeal is allowed with the modification of sentence as aforesaid.