Nari-O-Shishu
Nirjatan Daman Ain, 2000
Powers of the Tribunal regarding
false cases
High
Court Division (Criminal Appellate Jurisdiction)
Criminal Appeal No. 3689 of 2001
Md Nurul Huq
v
The State
Before Mr Justice Sikder Maqbul Huq and
Mr Justice Mashuque Hosain Ahmed,
Date of Judgment: April 28, 2003
Result Appeal Allowed
Background
This appeal under Section 28 of the Nari-O-Shishu Nirjatan Daman Ain,
2000 is directed against the order dated 17.9.2001 passed in Nari-O-Shishu
Nirjatan Aparad Daman Tribunal Case No. 395 of 2001 under Section 17(1)
of the Nari-O-Shishu Nirjatan Daman Ain, 2000, by the learned Nari-O-Shishu
Nirjatan Daman Tribunal, Habiganj directing the Magistrate, Cognizance
Court No. 2, Habiganj to file a case under Section 17(1) of the Nari-O-Shishu
Nirjatan Daman Ain, 2000 against the informant for initiating a false
case against the accused persons of the case.
The appellant namely,
Md Nurul Haque lodged a petition of complaint on 17.5.2001 in the Court
of Magistrate Habiganj against Muktar Mia and Maksud Mia of his village
under Sections 9(4) (Kha)/30 of the Nari-O-Shishu Nirjatan Daman Ain,
2000 and the learned Magistrate sent the petition of complaint to the
Officer-in-Charge of the concerned Police Station for treating the same
as FIR and accordingly Baniachang PS Case No. 20(5) 2001 corresponding
to GR No. 266 of 2001 was started and police, on completion of investigation,
submitted final report, under Section 173 of the Code of Criminal Procedure
stating inter alia that the case was the outcome of misunderstanding
between the parties. Anwar Ali, husband of victim Hosnabanu, filed a
Naraji petition against the final report which came before the learned
Nari-O-Shishu Nirjatan Aparad Daman Bishesh Adalat, Habiganj on 17.9.2001
for hearing. The learned Adalat rejected the Naraji petition as the
petitioner was found absent on call and after hearing the pubic prosecutor
accepted the final report, discharged the accused persons and upon submission
of the public prosecutor the learned Tribunal also directed the Magistrate,
Cognizance Court No. 2, Habiganj to file a case under Section 17(1)
of the Nari-O-Shishu Nirjatan Daman Ain, 2000 against the informant
(complainant).
Being aggrieved
by the aforesaid order, the informant has preferred the instant appeal.
Heard the learned Advocates of both the sides. Perused the record.
Deliberation
Mr Md Raziur Rahman Chowdhury, the learned Advocate appearing for the
appellants, submits that it is nowhere in the police report that the
informant filed a false case and the learned Tribunal also did not arrive
at any such finding on assigning any reason that the informant initiated
a false criminal prosecution against the accused persons. The learned
Advocate further submits that Subsection (2) of Section 17 provides
that Tribunal can entertain a case under Section 17(1) only when a complaint
to the effect is filed by any person but in the instant case, no petition
by anybody was filed before the Tribunal for initiation of the criminal
proceeding against the informant and in that view of the matter the
order of the learned Tribunal directing the Magistrate to file a case
against the informant is illegal and without jurisdiction. The learned
Advocate further submits that if it is found on a petition made before
the Tribunal that the case or the complaint, as the case may be, was
filed by any person against any accused with a view to harm him knowing
fully well that there was no reason to file the case or make the complaint,
in that case person against whom the false case has been filed, may
prosecute or bring accusation under Section 17(1) of the Nari-O-Shishu
Nirjatan Daman Ain, 2000 against the informant or the complainant or
against the person who got such a case filed by any other person and
the Tribunal has no jurisdiction to direct the Magistrate to file a
case under the aforesaid section in this manner. The learned Advocate
further submits that in view of the aforesaid facts and circumstances
of the case the impugned order passed by the Tribunal is liable to be
set aside.
Mr Sk Rezaul Karim,
the learned Assistant Attorney General, appearing for the State submits
that the appellant has challenged the entire order accepting the final
report and directing the Magistrate for filing a case against the informant
under Section 17(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and
as such the appeal may be dismissed or even may be allowed after necessary
modification of the impugned order. The learned Assistant Attorney General,
however, does not controvert the submissions made by the learned Advocate
appearing for the appellant to the effect that the Tribunal has committed
a mistake in directing the Magistrate to file a case against the informant.
It appears from
the record that the appellant has challenged only that portion of the
order directing the Magistrate to file a case against the informant
under Section 17(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and
he has not challenged the order accepting final report. Therefore, the
submission of the learned Assistant Attorney General in this regard
has no merit. It further appears from the record that none has filed
any petition for prosecution of the informant for making a false complaint
or filing a false case and as such the Tribunal did not act in accordance
with law in directing the Magistrate to file a case under Section 17(1)
of the aforesaid Ain.
Result
The Nari-O-Shishu Nirjatan Daman Ain, 2000 does not empower the Tribunal
created under section 26 thereof to take cognizance against any person
who has filed a false case or a complaint or got such a case or complaint
filed by any other person with a view to causing harm to the person
against whom such case or complaint filed in the absence of any written
complaint made by any person as provided by Sub-section 2 of the said
section and the Tribunal has no authority to direct the Magistrate or
any other person to file any such complaint to enable it to take such
cognizance.
In view of the aforesaid
facts and circumstances of the case, we find nothing to disagree with
the learned Advocate for the appellant that the appeal should be dismissed.
There is merit in the appeal.
In the result, the
appeal is allowed. The impugned order directing the Magistrate, Habiganj
to file a case under Section 17(1) of the Nari-O-Shishu Nirjatan Daman
Ain, 2000 against the appellant, being informant of the case, is hereby
set aside.
Mr
Md. Raziur Rahman Chowdhury, for the appellant. Mr Sk. Rezaul Karim,
AAG for the State.
