Abuse of the process of law liable to be quashed

High Court Division (Criminal Miscellaneous Jurisdiction) Salma Masud Chowdhury J Md Rezaul Hasan J Judgment July 7th, 2010. Aftabuddin (Md) ……… ……… Petitioner vs State and others…….. …….... Opposite Party Code of Criminal Procedure (V of 1898)' Sections 198 and 199 Penal Code (XLV of 1860) Sections 497 and 498 If the provision of Section 199 is allowed to be continued, then husband of a woman can compel her to yield to any sexual harassment to attain his personal gain. The provisions of sections 198 and 199 of the Code not only degraded the dignity of a woman, but the same are offending against the fundamental rights of a woman to be treated equally as well as seek protection of law. These two sections may either be deleted from the Code or be modified in a way to ensure that the victim or aggrieved woman herself can launch a prosecution against a person liable to be prosecuted for committing offence under sections 497 and 498 of the Penal Code. . ..... (18) State vs Aynuzzaman, 1987 BLD (AD) 100; Moharashtra State Board vs PB Seth, AIR 1984 SC 1543 = (1984) 4 SCC 27 ref. Md. Mamun Aleem, Advocate-For the Petitioner. None appear-For the State Judgment Md Rezaul Hasan J : This Rule under Section 561A Code of Criminal Procedure 1898 (the Code) has been issued at the instance of the accused No.3 petitioner calling upon the opposite parties to show cause as to why the impugned judgment and order dated 20-11-2001 passed by the learned Metropolitan Additional Sessions Judge, 1st Court, Dhaka in Metropolitan Criminal Revision No. 484 of 2001 upholding the judgment and order dated 16-9-2001 passed by the learned Chief Magistrate, Dhaka in Sutrapur Police Station Non-FIR, Prosecution No. 295 dated 12-9-2001 under section 495/497/109 of the Penal Code arising out of Sutrapur Police Station GD Entry No. 1254 dated 24-12-2000, should not be quashed and/or such other or further order or orders passed as to this Court may seem fit and proper. 2. The facts leading to filing of this application under 561A of the (the Code) briefly are that, one Ekramul Kabir filed a GD Entry at Sutrapur Police Station GD Entry No. 1254 dated 24-12-2000 and the police, upon investigation held with reference to the said GD, filed a Non-FIR prosecution against the accused petitioner and 2 others, recorded as Sutrapur police station Non FIR prosecution No. 295 dated 12-9-2001 under sections 495/497/109 of the Penal Code, alleging inter alia that, one Rokeya Begum, accused No.2, is the wife of Ekramul Kabir, the informant; that the accused No.2 without the consent of the informant got herself married with one Mr Zakir Hossain, the accused No. I and is living with him; that the accused No.3 has actively aided in these activities, that the accused No.2 even after her marriage cohabited with said Ekramul Kabir in his hotel suit on 16-9-2000. 3. On receipt of the said Non FIR prosecution, the Chief Metropolitan Magistrate, Dhaka took cognizance against the accused persons under sections 495/497/109 of the Penal Code and issued warrant of arrest by an order dated 16-9-2000 of the said Court. 4. The accused petitioners voluntarily surrendered before the said Court and was enlarged on bail by an order dated 20-9-2001. 5. Being aggrieved by the aforesaid order dated 16-9-2001, taking cognizance by the Chief Metropolitan Magistrate upon the said Non FIR prosecution, the accused petitioners filed a criminal Revision No. 484 of 2001 before the learned Metropolitan Sessions Judge, Dhaka, under sections 435 and 439A of the Code of Criminal Procedure, 1898, which was later on transferred to the Court of learned Metropolitan Additional Sessions Judge, 1st Court, Dhaka for hearing. After hearing the aforesaid revisional application, the Metropolitan Sessions Judge, 1st Court, Dhaka, by an order dated 20-11-2001 rejected the said revisional petition and affirmed the order dated 6-9-2001 passed by the Chief Metropolitan Magistrate. 6. Being aggrieved by the said order dated 20-11-2001, passed Mr M Hasan Imran, Metropolitan Sessions Judge, I st Court, Dhaka, the accused petitioner moved the present petition under 561A of the Code, as a motion, and obtained the instant Rule. 7. The learned Advocate Mr Md Mamun Aleem, appearing for the accused petitioner, mainly contends that the Chief Metropolitan Magistrate has erred in law taking cognizance under sections 495/497/109 of the Penal Code against the accused persons upon a prosecution filed by the police instead of a complaint filed before the Metropolitan Magistrate, as required under the provisions of sections 198 and 199 of the Code. He further submits that, since no complaint was filed required under section 198 of the Code so the Magistrate had no jurisdiction cognizance in respect of offences under sections 495/497/109 of the Penal Code. Hence, the proceedings pending before the learned Magistrate as well as the impugned order affirming the order of taking cognizance are both without jurisdictions and are liable to be quashed in as much as the same amounts to abuse of the process of the Court. In support of his contention, the learned Advocate has referred before us a case between the State vs Aynuzzaman, reported in 1987 BLD (AD) 100. 8. None appears to oppose the Rule at the time when the Rule was taken for hearing. 9. The points for determination in this case is whether taking of cognizance except upon a complaint in respect of offences under sections 495/497/ 109 of the Penal Code, as required under sections 198 and 199 of the Code is without jurisdiction and whether the impugned proceedings as well as the impugned order amounts to abuse of the process of the Courts below. 10. Heard the learned Advocate, perused the application filed under 561A although the annexures submitted therewith. 11. It appears that the opposite party No.2 lodged the GD Entry with Sutrapur police station, being No. 1254 dated 24-12-2000 whereup

19 June, 2013 Wednesday

Abuse of the process of law liable to be quashed