Appellate Division
Debdulal Basu v The State and another
Criminal Petition 2769/2023 · Decided 3 June 2024
The complainant alleged that the accused, claiming to have married her, lived with her and had sexual relations with her, and that she later learnt he was already married. After the police refused to record her case, she complained to the Nari-O-Shishu Nirjatan Daman Tribunal No. 8, Dhaka, which directed the Police Bureau of Investigation (PBI) to inquire. On the PBI report the Tribunal took cognizance under section 9(1), rejected his discharge application and framed charge, and the High Court Division dismissed his appeal. The Appellate Division held that, once charge was framed on a prima facie case, he could not be discharged on defence materials. It distinguished 17 SCOB (2023) AD 61, where the officer-in-charge of the police station that had refused the complaint was directed to inquire, and held that the PBI, an independent unit acting under its own Regulations, is a body of individuals within 'any other person' in section 27(1Ka). The leave petition was dismissed.
- Q1
Whether the Police Bureau of Investigation (PBI) is 'any other person' who may be directed by a Nari-O-Shishu Nirjatan Daman Tribunal to hold an inquiry under section 27(1Ka) of the Ain.
- Q2
Whether the accused could be discharged after charge was framed under section 9(1) on the strength of defence materials such as the medical report.
- Once the Tribunal has found a prima facie case and framed charge, there is no scope to discharge the accused relying on any defence plea or materials.
- Section 27(1Ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 applies where the complainant, having been refused by the police, files a complaint on affidavit and the Tribunal, on examining the complainant, is satisfied and directs an inquiry.
- Read with the definition of 'person' in the General Clauses Act, 1897, the PBI, an independent unit of police acting under its own Regulations, is a body of individuals and falls within 'any other person' in section 27(1Ka), so an inquiry by it is lawful.
- The legislative intention is that the police officer who refused to accept the complaint, or any officer of the same police station, should not be directed to inquire, a safeguard made for the complainant or victim from which the accused is not entitled to benefit.
- 17 SCOB (2023) AD 61, where the officer-in-charge of the same police station that refused the case was directed to inquire, was distinguishable on its facts.
there is no scope to say that PBI or any other independent law enforcing agency is not authorized to hold any inquiry or investigation on the allegations made under the Nari-O-Shishu Nirjatan Daman Ain, 2000.
In the court’s own words.
Criminal Petition 2769/2023, as published by the Supreme Court of Bangladesh. 10 pages, with paragraph numbers for citing.
1IN THE SUPREME COURT OF BANGLADESH
Appellate Division
PRESENT
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Abu Zafor Siddique,
Mr. Justice Md. Shahinur Islam,
2CRIMINAL PETITION FOR LEAVE TO APPEAL NO.2769 OF 2023 (From the judgment and order dated the 3rd day of August, 2023 passed by the High Court Division in Criminal Appeal No.248 of 2023). Debdulal Basu : …………..Petitioner
-Versus-
3The State, represented by the : …………..Respondents Deputy Commissioner Dhaka and another For the Petitioner : Mr. Dewan Abdul Naser, Advocate,
instructed by Mr. Md. Shafiqul Islam
Chowdhury, Advocate-on-Record
4For Respondent No.1 : Mr. A.M. Amin Uddin, Attorney
General with Mr. Sayeem Mohammad
Murad, Assistant Attorney General
appeared with the leave of the Court.
5For Respondent No.2 : Mr. Sukumar Kumar Biswas, Advocate
with Mr. Sree Probir Kumar Ghosh,
Advocate, instructed by Mr. Haridas
Paul, Advocate-on-Record
6Date of hearing and judgment : The 3rd day of June, 2024
JUDGMENT
7M. Enayetur Rahim, J: This criminal petition for leave to appeal is directed against the judgement and order dated 03.08.2023 passed by a Division Bench of the High Court Division in Criminal Appeal No.248 of 2023 dismissing the appeal.
8The facts, relevant for disposal of the instant criminal petition for leave to appeal, are that, present victim, respondent No. 2, Shila Halder being complainant filed a
complaint before the Nari-O-Shishu Nirjatan Daman Tribunal No.8, Dhaka, against the present accused-appellant-petitioner under Section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (amended in 2003) alleging inter-alia that the accusedpetitioner on 23.12.2017 upon showing respect to Hindu religious idol and claiming married her started conjugal life with the complainant in a rented house at Mirpur. Thereafter, while she asked the accused-petitioner to take her into his village home, the accused-petitioner refused to do so. The complainant then came to know that the accused-petitioner is a married person having another wife and child. On 05.01.2022 at about 10:00 p.m. the accused-petitioner lastly caused physical relation with the complainant. The complainant to that end went to the Mirpur Model Police Station for filing a case against him, but the police refused to register the case and advised her to file the case before the Court, then she was compelled to file the petition of complaint being No. 118 of 2022 before the Nari-O-Shishu Nirjatan Daman Tribunal No. 8, Dhaka, on 28.07.2022.
9The learned Judge of the Tribunal upon recording the statement of the victim-complainant had directed the Police Bureau of Investigation (PBI), Metro. (North), Dhaka to inquire into the matter and to submit a report thereto.
10Upon inquiry, the PBI submitted a detail report on 13.11.2022. Upon receiving the said inquiry report the learned Judge of the Tribunal took cognizance of the offence against the accused-petitioner under section 9(1)of the Nari- O-Shishu Nirjatan Daman Ain, 2000 (Amended in 2003).
11Then, the accused-petitioner filed an application for anticipatory bail before the High Court Division and the High
Court Division enlarged him on anticipatory bail and after obtaining bail the accused-petitioner filed an application under section 265(C)of the Code of Criminal Procedure before the Tribunal for his discharge from the case. However, the Tribunal rejecting the said application vide its order dated 02.01.2023 framed charge against him under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
12Being aggrieved by the said refusal order, the accusedpetitioner filed Criminal Appeal No.248 of 2023 before the High Court Division, which was admitted on 31.01.2023 and after hearing the Appeal the High Court Division dismissed the Appeal by the impugned judgment and order. Hence, the accused has filed the instant criminal petition for leave to appeal.
13Mr. Dewan Abdul Naser, learned Advocate appearing for the accused-petitioner submits that the inquiry report prepared by the inquiry officer though it was mentioned that prima facie case was found against the accused-petitioner under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000, but in fact nothing was found on inquiry to the effect that the accused petitioner raped her within the meaning of section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000(as amended in 2003).
14Learned Advocate also submits that the High Court Division failed to consider that after examining the complainant doctor prepared a report wherein the doctor opined that “considering physical examination findings and microbiological report, I am of the opinion that the victim named ‘Shila Halder’ has no sign of forceful sexual intercourse found on her body”, and as such judgment and
order passed by the High court Division is liable to be set aside. He further submits that the High Court Division failed to consider that the sexual intercourse with the consent of the adult woman does not constitute offence of rape under section 9(1) of the Nari-O-Shishu Nirjatan Damon Ain, 2000 (as amended 2003).
15Learned Advocate finally submits that the Nari-O-Shishu Nirajtan Tribunal illegally took cognizance of the offence on the basis of inquiry report submitted by PBI which is not permitted as per section 27(1 Ka) of the Nari-O-Shishu Nirjatan Daman Ain, and, as such the judgment and order passed by the High Court Division is liable to be set aside.
16Mr. A.M. Amin Uddin, learned Attorney General appearing for respondent No. 1 made submissions in support of the impugned judgment and order of the High Court Division.
17Mr. Sukumar Biswas, learned Advocate appearing for the complainant-respondent No. 2 also made submissions supporting the impugned judgment and order of the High Court Division. He further added that since the medical examination was held long after the date of occurrence and, as such, recent sign of rape may not be there, but the medical report itself shows that the hymen of the victim was found ruptured and there have been multiple old tears present and, therefore, those materials on record shows that the accused petitioner upon giving false assurance as of marrying the victim, has committed rape on her for several times and as such, in the medical report the above material symptoms were detected. Learned Advocate for the complainant-respondent further argued that in the case of rape, only relying upon a part of medical examination report, even without taking other
material evidence on record, relying on the defence plea cannot claim to be discharged.
18Learned Advocate thus seeking dismissal of the leave petition submits that since charge has already been framed upon finding prima-facie materials and, as such, at this stage only upon relying on the defence plea a case of committing rape under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (Amended in 2003) cannot be brushed away and the order of charge cannot be set aside without taking evidence, at the trial, as per the settled decision of our Apex Court.
19We have considered the submissions of the learned Advocates appearing for the respective parties, perused the petition of complaint, the impugned judgement, relevant laws and other materials as placed before us.
20In the instant case it is admitted position that the learned Judge of the Tribunal having found prima facie case against the accused petitioner framed charge against him under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2003 having considered the facts and circumstances of the case and materials on record. We find substance in the submission of the learned Advocate for the complainantrespondent that at this stage there is no scope to discharge the accused-petitioner from the charge brought against him relying on any defence plea or materials, if any.
21The learned Advocate for the petitioner having referred to the words ""mšÍó nB‡j Awf‡hvMwU AbymÜv‡bi (inquiry) Rb¨ †Kvb g¨vwR‡÷ªU wKsev Ab¨ †Kvb e¨w³‡K wb‡`©k cÖ`vb Kwi‡eb Ges………………Ó as contemplated in section 27(1) (Ka) has tried to convince us that Police Bureau of Investigation (PBI) will not come within the meaning of "Ab¨ †Kvb e¨w³Õ and PBI being one of the unit of Police is not permitted
to make any inquiry under the Nari-O-Shishu Nirjatan Daman Ain, 2000 and thus the inquiry on the allegation of the present case by PBI is without jurisdiction and illegal, and on the basis of such inquiry report proceeding of the present case is also illegal and without jurisdiction. In support of his contention, he relied on the case of Mohammad Khorshed Alam alias Md. Khorshed Alam vs The state and another,17 SCOB(2023)AD 61, wherein it has been held that:
22“Having considered and discussed above, we are of the view that the Tribunal
23did not commit any illegality in entertaining the complaint filed by respondent
No. 2. Section 27 (1 Ka) clearly speaks that if the learned Judge of the
Tribunal is satisfied as to the filing of the complaint he can direct the
Magistrate or any other person to make an inquiry with regard to the
allegation. The expression ‘Ab¨ †Kvb e¨w³’ (any other person) does not
24include any police officer but, it includes any public officer or any private
individual or any other responsible person of the locality upon whom the
Tribunal may have confidence to conduct the inquiry in respect of the
complaint logged before it.
25In the instant case the learned Judge of the Tribunal acted illegally in directing
26the Officer-in-Charge of Pahartoli Police Station to make an inquiry in respect
27of the complaint and, thereafter, taking cognizance on the basis of such inquiry
report has vitiated the entire proceeding.” (Underlines supplied).
28To address the above issue let us examine section 27 of the Nari-O-Shishu Nirjatan Daman Ain, 2000, which runs as follows:
29Ò27| UªvBey¨bv‡ji GLwZqvi|-(1) mve-B݇c±i c`gh©v`vi wb‡¤œ b‡nb Ggb †Kvb cywjk Kg©KZ©v ev
30GZ`y‡Ï‡k¨ miKv‡ii wbKU nB‡Z mvaviY ev we‡kl Av‡`k Øviv ÿgZvcÖvß †Kvb e¨w³i wjwLZ wi‡cvU©
31e¨wZ‡i‡K †Kvb UªvBey¨bvj †Kvb Aciva wePviv_© MÖnY Kwi‡eb bv|
32(1K) †Kvb Awf‡hvMKvix Dc-aviv (1) Gi Aaxb †Kvb cywjk Kg©KZ©v‡K ev ÿgZvcÖvß e¨w³‡K †Kvb
33Aciv‡ai Awf‡hvM MÖnY Kwievi Rb¨ Aby‡iva Kwiqv e¨_© nBqv‡Qb g‡g© njdbvgv mnKv‡i UªvBey¨bv‡ji wbKU
34Awf‡hvM `vwLj Kwi‡j UªvBey¨bvj Awf‡hvMKvix‡K cixÿv Kwiqv-
(K) mš‘ó nB‡j Awf‡hvMwU AbymÜv‡bi (inquiry) Rb¨ †Kvb g¨vwR‡÷ªU wKsev ‡Kvb e¨w³‡K
35wb‡`©k cÖ`vb Kwi‡eb Ges AbymÜv‡bi Rb¨ wb‡`©kcÖvß e¨w³ Awf‡hvMwU AbymÜvb Kwiqv mZ Kvh©
w`e‡mi g‡a¨ UªvBey¨bv‡ji wbKU wi‡cvU© cÖ`vb Kwi‡eb;
(L) mš‘ó bv nB‡j Awf‡hvMwU mivmwi bvKP Kwi‡eb|
36(1L) Dc-aviv (1K) Gi Aaxb wi‡cvU© cÖvwßi ci †Kvb UªvBey¨bvj hw` GB g‡g© mš‘ó nq †h,
37(K) Awf‡hvMKvix Dc-aviv (1) Gi Aaxb †Kvb cywjk Kg©KZ©v‡K ev ÿgZvcÖvß e¨w³‡K †Kvb
38Aciv‡ai Awf‡hvM MÖnY Kwievi Rb¨ Aby‡iva Kwiqv e¨_© nBqv‡Qb Ges Awf‡hvM mg_©‡b cÖv_wgK
39mvÿ¨ cÖgvY Av‡Q †mB †ÿ‡Î UªvBey¨bvj D³ wi‡cvU© I Awf‡hv‡Mi wfwˇZ AcivawU wePviv_© MÖnY
Kwi‡eb;
40(L) Awf‡hvMKvix Dc-aviv (1) Gi Aaxb †Kvb cywjk Kg©KZ©v‡K ev ÿgZvcÖvß e¨w³‡K †Kvb
41Aciv‡ai Awf‡hvM MÖnY Kwievi Rb¨ Aby‡iva Kwiqv e¨_© nBqv‡Qb g‡g© cÖgvY cvIqv hvq bvB
42wKsev Awf‡hv‡Mi mg_©‡b †Kvb cÖv_wgK mvÿ¨ cÖgvY cvIqv hvq bvB †mB †ÿ‡Î UªvBey¨bvj
Awf‡hvMwU bvKP Kwi‡eb;
43(1M) Dc-aviv (1) Ges (1K) Gi Aaxb cÖvß wi‡cvU© †Kvb e¨w³i weiæ‡× Aciva msNU‡bi Awf‡hvM ev
44Zrm¤ú‡K© Kvh©µg MÖn‡Yi mycvwik bv _vKv m‡Ë¡I UªvBey¨bvj, h_vh_ Ges b¨vqwePv‡ii ¯^v‡_© cÖ‡qvRbxq g‡b
45Kwi‡j, KviY D‡jøLc~eK
© D³ e¨w³i e¨vcv‡i mswkøó Aciva wePviv_© MÖnY Kwi‡Z cvwi‡eb|Ó
46On a careful examination of section 27(1 ka) coupled with sub-section (ka) it becomes crystal clear that on receipt of a complaint supported by an affidavit if the Tribunal is satisfied upon examining the complainant that after being refused by the concerned police officer or the authorized person he/she directly came to the Tribunal in that event an order for holding inquiry on the complaint can be made.
47In the case in hand, the complainant filed the petition of complaint before the Tribunal supported by an affidavit stating that statements made in the complaint is true. And in the complaint it was asserted that she went to the police station but the police refused to accept her complaint and the concerned Tribunal being satisfied about the same, upon
examining the complainant, directed the PBI to hold an inquiry into the allegation.
48The intention of Section 27 (1 ka) is that before filing of the complaint before the Tribunal, the complaint should approach to the concerned police station first, and if he/she is refused in that event he/she can file the complaint before the Tribunal with an affidavit in regard to his/her refusal by the police. This provision of law will come into operation when the concerned police officer of a particular Police Station refused to accept or lodge the complainant.
49In the earlier case as cited by the learned Advocate for the accused-petitioner, the Tribunal directed for holding inquiry to the Officer-in-Charge of the same Police Station, which refused to lodge the FIR. But in the instant case Tribunal directed PBI to hold an enquiry on the allegation. PBI is an independent investigating agency/unit of police. Officer-in-Charge of a Police Station has no authority on the PBI inquiry/investigation process. PBI acts on the basis of PBI Regulations 2016 (cywjk ey¨‡iv Ae Bb‡fw÷‡Mkb wewagvjv, 2016)| In Bidhi 2(9) it has been stipulated that " wcweAvB m`m¨Õ A_© wcweAvB G wb‡qvwRZ ‡Kvb cywjk m`m¨|' Bidhi 4 clearly speaks that "wcweAvB Gi †nW‡Kvqv©Uv©m XvKvq _vwK‡e|Õ
50So, PBI has an independent and separate identity.
51It is true that the word ‘Ab¨ †Kvb e¨w³’ has not been defined in the Nari-O-Shishu Nirjatan Daman Ain, 2000. Thus, we can take aid of General Clauses Act 1897, where the word person (e¨w³) has been defined as under:
Person-“person” shall include any company or association or body
of individuals, whether incorporated or not: (underline supplied)
52If we consider the definition of ‘person’ (e¨w³) as defined in the General Clauses Act coupled with the fact that the PBI is an independent body/organization/unit of police, which acts by its own Regulations thus, we have no hesitation to hold that PBI, is an independent body i.e. body of individuals and it will come within the meaning/definition of ‘Ab¨ †Kvb e¨w³’ as contemplated in section 27(Ka) of the Nari-O- Shishu Nirjatan Daman Ain, 2003. Thus, the inquiry held by the PBI in this particular case is within the ambit of the law, and there is no scope to say that PBI or any other independent law enforcing agency is not authorized to hold any inquiry or investigation on the allegations made under the Nari-O-Shishu Nirjatan Daman Ain, 2000. Thus, the submission made by the learned Advocate for the petitioner has no leg to stand.
53Further, we have to understand the intention of the legislature. If we read section 27(1) and 1(Ka) of the Ain together, then it will be clear that intention of the legislature is that the police officer who refused to accept the complaint/FIR he should not be directed again to make inquire/investigation for fair and impartial inquiry/investigation and the enquiry or investigation should be done by any other person (Ab¨ †Kvb e¨w³) other than the said police officer or any officer of the same Police Station. This provision has been made for the interest of the complainant/victim, and an accused or offender is not entitled to get benefit of it.
54The facts of the cited case is quite distinguishable from the facts of the present case and it will not help the present accused petitioner in anyway.
55Having discussed and considered as above, the instant criminal petition for leave to appeal is dismissed.
J.
J.
J.
56B.S./B.R./*Words-2,512*
Related summaries.
From the record to your case.
Our advocates appear before both divisions of the Supreme Court. These are the practice areas that handle matters like this one.
- Supreme Court practice in BangladeshSlips, mentioning, cause lists and appearances→
- Case JourneysHow a case moves through the courts, step by step→
- Limitation and appeal deadline calculatorKnow your last day to file→
- Curative petitions in BangladeshFinality, article 104 and the case for reform→
- Constitution guideEvery article and amendment, animated→
- Bangladesh legal glossaryBangla and English legal terms, explained→
