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Rules of natural justice be followed

Appellate Division (Criminal) Latifur Rahman CJ M Amin Choudhury J M Reza Chowdhury J Judgment January 31st, 2001 Rajib Kamrul Hasan and 3 others ……….Appellants vs State ………Respondent* Natri-o-Shishu Nirjatan (Bishesh Bidhan) Ain, (XV/ll of 1995) Sections 6(3) & 9(ga) The offence of rape failed but from the evidence on record it transpired that the appellants committed immoral acts with respect to the women. Here in this particular case the accused was charged with a major offence of rape having severity of punishment, but in evidence it transpired that the accused appellants performed minor offence in relation to the victim woman which provides a lesser punishment and in the facts of the case it is a cognate offence which have the main ingredients of immoral act as PW 2 Shiriti Kona Biswas was made naked along with PW 3 Ripon and they were placed in nude position and their photographs were taken. This is highly an immoral act in relation to the women as contemplated in section 9(Ka) of the Ain and, as such, there is no legal bar in convicting the appellants for the minor offence when the same transpired in. Code of Criminal Procedure (V of 1898) Sections 236, 237, 238 & 337 The accused raised no objection on the score of defect in charge at any stage of the trial. objection raised for the first time in the Appellate Division is not entertainable by virtue of explanation appended to section 537 of the Code of Criminal Procedure. . ..... (1). Adverse Remarks Before making observations and giving directions High Court Division acted illegally in not giving any notice to the appellants which is a gross violation of the principle of natural justice and consequently, the remarks should be expunged. State vs Abdul Mannan. 44 DLR (AD) 173; MG Rabbani and another vs Government of Bangladesh, 31 DLR (AD) 163 ref. (23 & 24) Abdul Malek, Senior Advocate, instructed by Azra Ali. Advocate-on-Record-For the Appellant in Criminal Appeal Nos. 18-19 of 1999. Syed Ziaul Karim, Advocate, instructed by Md Nowab Ali, Advocate-on-Record-For the Appellant Criminal Appeal Nos. 30-31 of 1999. Md Amir Hossain Advocate-on-Record-For the Respondents in Criminal Appeal Nos. 18-19 of 1999. Sufia Khatun, Advocate-on-Record-For the Respondents in Criminal Appeal Nos. 30-31 of 1999. Judgment Latifur Rahman CJ: Criminal Appeal No. 18 of 1999 has been filed by accused-appellant Rajib Kamrul Hasan, Criminal Appeal No. 19 of 1999 has been filed by accused-appellant Al-Amin, Criminal Appeal No. 30 of 1999 has been filed by the accused-appellant Maksudul Alam alias Nantu and Criminal Appeal No. 31 of 1999 has been filed by appellant Mokbuluddin Ahmed former Principal of BM University College, Barisal and Professor Sayeed (Saidur Rahman), Principal, BM University College, Barisal. All these appeals are disposed of "a common judgment. Criminal Appeal Nos. 18, 19 and 30 of 1999 arise from the judgment and order dated 10-12-98 passed by a Division Bench of the High Court Division upholding the conviction of Rajib Kamrul Hasan, Al-Amin and and Maksud Alam under section 9(Ga) of Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 and sentencing each of them to suffer rigorous imprisonment for 10 years each and to pay a fine of Taka 5.000.00, arising from the order of conviction and sentence passed by Nari-o-Shishu Nirjatan Daman (Bishesh Bidhan) Judge, Barisal in case No.5 of 1995 on 21-5-1996. Criminal Appeal No. 31 of 1999 arises from making certain observations by the Judges of the High Court Division against Mokbuluddin Ahmed and Professor Sayeed (Saidur Rahman). 2. The prosecution case, in short, is that Shiriti Kana Biswas lodged an first information report on 18-9- 1995 at 22- 15 hours at Motbaria Police Station against 8 accused persons on the allegations that on 9-8- 1 995 at about 11-00 AM she went to Barisal BM College to procure notes on the subject of Home Economics. In the college premises she was talking to Ripon, cousin of her friend, Lovely and at that time. Nizam, a friend of Ripon, was present. In the meanwhile the accused persons came and surrounded them and thereafter they took her, Ripon and Nizam to the southern side of the canteen. They assaulted Nizam and took all three of them in to the under-construction house contiguous to the canteen. The accused persons after assaulting Nizam allowed him to go. They assaulted Ripon and took away his gold chain which was on his neck. Then they demanded Taka 10.000.00 from Ripon and on his refusal to pay the money accused Nantu brought accused Shamim from 'Shawan Studio' and two of the accused forced them to lie down on point of dagger and took their nude photographs. The accused also threatened that they would exhibit the photographs to others. The accused persons took away Taka 300.00 from her vanity bag and asked her and Ripon to go away from the town. She stated that after completing her examination she went home and fell ill. Thereafter the first information report was lodged in consultation with her brother. 3. The defence case is that. they are innocent and that they have been falsely implicated in this case by the police at the instance of their enemies. On behalf of accused Rajib Kamrul Hasan it was specifically suggested that he was implicated in the case to damage the reputation of his father and uncle Golam Mowla who was a political leader. The case has been started by his political rivals to damage the career of Rajib Kamrul Hasan. 4. The prosecution examined In all 10 witnesses to substantiate the charge. PW I is the informant, PWs 2 and 3 are the alleged victims. 5. As already noticed, the conviction and sentence passed by the trial Court was upheld by a Division Bench of the High Court Division. 6. Mr Abdul Malek. learned Advocate appearing for the accused-appellants in Criminal Appeal Nos. 18 and 19 of 1999, primarily submits that charge having been framed for commission of rape under section 6(3