Abdur Rahman Kha vs State
Citation : 56 DLR (2004) 213
Jurisdiction : Bangladesh
Appellant : Abdur Rahman Kha
Respondent : State
Facts :
The informant, Abdur Rahman Kha lodged a First Information Report (FIR) on 10-07-1998 against four accused including Samir, alleging that due to previous enmity they attacked him and his father. While Abdur Rahman and his father were cultivating land, the accused were attacked them with deadly weapons (ram dao/machete). When they attempted to flee, the accused surrounded them with common intention and assaulted the informant’s father. Consequently, he sustained fatal injuries and died. Accordingly, the case was initiated under sections 302/34 of the Penal Code.
After finding a prima facie case, the police examined witnesses and submitted a charge-sheet on 6-10-1998 against all the accused, including Samir, under sections 302/34 of the Penal Code. The case was then sent for trial before the learned Additional Sessions Judge. However, by an order, the learned Judge, discharged accused Samir while framing charges against the remaining accused, exercising the power under section 265C of the Code of Criminal Procedure (CrPC).
Being aggrieved, the informant filed a revisional application before the High Court Division under sections 435/439 of the Code of Criminal Procedure, challenging the legality of the discharge order.
Issues :
1. Whether an informant has the locus standi to file a revisional application under sections 435/439 of the Code of Criminal Procedure against an order of discharge when the State has not filed such application.
2. Whether the High Court Division can exercise its revisional jurisdiction to correct illegality or material irregularity in orders of subordinate courts.
3. Whether the discharge of one the accused persons was legal, despite the existence of prima facie evidence in the FIR and charge-sheet.
Decisions :
On the question of maintainability, the High Court Division (HCD) held that an informant has the locus standi to file a revisional application under sections 435 and 439 of the Code of Criminal Procedure (CrPC), even if the State has not filed such application. In fact, it stated that HCD possesses wide revisional powers to examine the legality, correctness, and propriety of any order of a subordinate court. It also may exercise suo motu power to correct any illegality or material irregularity in the proceedings of subordinate courts.
Then, the High Court Division held that the order of discharge of accused Samir under section 265C of the Code of Criminal Procedure was illegal, as the FIR and the police report submitted under section 173 of CrPC clearly disclosed a prima facie case against him. Again, it held that the trial court failed to properly appreciate the materials on record in discharging the accused.
The Court also found that the trial court committed a material error in framing the charge by mentioning the date of occurrence as 08-07-1998 which referred only to a prior incident indicating enmity between the parties, whereas the actual date of occurrence was 10-07-1998. This error reflected non-application of judicial mind.
After observing all these factors, the court set aside the impugned order of discharge and remanded the case to the trial court for fresh consideration and for proper framing of charge in accordance with law.
Relevant Laws :
- The Penal Code, 1860
- Section : 302, 334
- The Code of Criminal Procedure, 1898
- Section : 173, 265C, 435, 439
Author :
1. Farah Arifin
Note : The Case Summary is a platform by the law students, for the law students. We aim to summarize the facts and decisions of various important cases in both Bangla and English with utmost caution. However, this platform is in no way a replacement for going through the complete judgements by the law students and we discourage any learner from relying on case summaries alone. Thank you
