Revival of stopped criminal proceedings

Revival of a criminal proceeding previously stopped under section 249 of the Code of Criminal Procedure, 1898 (CrPC) involves important questions about procedural legality and judicial interpretation. Section 249 allows a judicial Magistrate to stop the proceeding of a case instituted otherwise than upon complaint at any stage of the trial and release the accused, particularly when further prosecution witnesses are not forthcoming. However, the question remains, whether the revival of such proceedings is lawful or not.

It is significant to note that the CrPC does not provide an explicit statutory mechanism for reviving such proceedings once they have been lawfully stopped. In practice, however, some Magistrates rely on two decisions of the Supreme Court to justify such revival, namely, —Niamat Ali Sheikh v Begum Enayetur Noor (1990) and Mosharraf Hossain Sheikh v Abdul Kader (2004). A closer look at these decisions reveals the correct legal position.

Firstly, in the Niamat Ali Sheikh case, the Appellate Division (AD) of the Supreme Court of Bangladesh (SCOB) considered whether a fresh proceeding, based on the same facts and against the same accused, could be initiated after the earlier one had been stopped. The Court unambiguously held that revival of a proceeding is impermissible in absence of a clear legislative mandate. Nonetheless, it clarified that there is no legal bar to instituting a fresh proceeding based on the same allegations, so long as it conforms to legal standards. It will not attract the prohibition of double jeopardy. This decision was later echoed in Rule 638(2) of the Criminal Rules and Orders, which governs judicial conduct under the CrPC.

In the Mosharraf Hossain Sheikh case, on the other hand, the High Court Division (HCD) of the SCOB addressed a different context—one involving a case and a counter-case arising from the same incident. The Court emphasised that such matters should be tried simultaneously to prevent contradictory outcomes. Here, failure to revive one of the proceedings was deemed a procedural lapse. However, this precedent is inapplicable to situations where there is no counter-case, and the revival issue stands alone.

Furthermore, historical legislative support for revival, previously found in section 339C (4) of the CrPC, was substituted and section 339D omitted. This repeal indicates a deliberate legislative intent to bar automatic revival, thereby reinforcing the AD's position in the Niamat Ali Sheikh case.

In conclusion, absent a specific statutory provision, the revival of proceedings stopped under section 249 remains outside the ambit of lawful procedure. The initiation of a fresh proceeding remains the appropriate legal recourse, subject to compliance with procedural safeguards and limitations.

The writer is Senior Assistant Judge, Bangladesh Judicial Service.