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Serial No. Issue Year Name of the Parties/Case No and Citation Key Word(s) Short Ratio
1. 8 2016 Bangladesh & ors Vs. BLAST & ors

8 SCOB [2016] AD 1
Code of Criminal Procedure, 1898 Section 54, 167, 169, 344; Special Powers Act, 1974 Section 3; Remand; Reasonable suspicion
In clause ‘Firstly’ of section 54 the words ‘credible information’ and ‘reasonable suspicion’ have been used relying upon which an arrest can be made by a police officer. These two expressions are so vague that there is chance for misuse of the power by a police officer, and accordingly, we hold the view that a police officer while exercising such power, his satisfaction must be based upon definite facts and materials placed before him and basing upon which the officer must consider for himself before he takes any action. It will not be enough for him to arrest a person under this clause that there is likelihood of cognizable offence being committed. Before arresting a person out of suspicion the police officer must carry out investigation on the basis of the facts and materials placed before him without unnecessary delay. If any police officer produces any suspected person in exercise of the powers conferred by this clause, the Magistrate is required to be watchful that the police officer has arrested the person following the directions given below by this court and if the Magistrate finds that the police officer has abused his power, he shall at once release the accused person on bail. In case of arresting of a female person in exercise of this power, the police officer shall make all efforts to keep a lady constable present.
2. 8 2016 Bangladesh & ors Vs. Hamid Ali Chowdhury & ors

8 SCOB [2016] AD 126
Specific performance of contract; declaration of title; barred by limitation;
We hold that the plaintiff was entitled to get exclusion of the time of the absence of defendant Nos.1 and 2, the heirs of Syed Salamat Ali from Bangladesh and the High Court Division rightly gave the said benefit and held that the suit was not barred by limitation. We further hold that time was not the essence of the contract and with the execution and registration of the general power attorney in favour of the plaintiff by Salamat Ali, the earlier contract dated 06.03.1978 was novated and the High Court Division rightly held so.
3. 8 2016 S.A.M.M. Mahbubuddin Vs. Laila Fatema

8 SCOB [2016] AD 134
Custody of Minor
Considering the facts and circumstances- especially the facts that minor S.A.M.M. Zohaibuddin has already attained the age of almost 7 years and he is now residing along with his ailing elder brother in his father’s house and is being taken good care of by his father, grandfather and grandmother, we are inclined to allow the prayer of the leave-petitioner to retain the custody of his minor son S.A.M.M. Zohaibuddin till disposal of Family Suit.
4. 8 2016 Israil Kha & ors Vs. Syed Anwar Hossain & ors

8 SCOB [2016] AD 136
Under-raiyat; Tenancy; holding over; acquisition of rent receiving interest
The plaintiffs did not take any step to get back the land of plot No.4 after expiry of the period of lease mentioned in the kabuliyat. Defendant Nos. 1 and 2, the under-raiyat, continued their possession in suit plot No.4 as lawful tenants under the plaintiffs by holding over and after acquisition of rent receiving interest, they became tenants directly under the Government.
5. 8 2016 Bangladesh & ors Vs. Ranjit Krishna Mazumdar

8 SCOB [2016] AD 141
Acid Aparadh Daman Ain, 2002 Section 13
The learned Judge of the Tribunal acted in accordance with the law in bringing the matter to the notice of the authority concerned in accordance with section 13 of the Acid Aparadh Daman Ain, 2002. We also note that the learned Judge of the Tribunal observed that all three Investigating Officers were negligent in their duties and a direction to the authority concerned was regarding all three of the Investigating Officers of that case. We find from the order of the Administrative Appellate Tribunal that it was observed that although no action was taken against the first Investigating Officer, namely Md. Akram Hossain and third Investigating Officer, Md. Mahfuzur Rahman for neglecting their duties, a departmental proceeding was started against the respondent Ranjit Krishna Mazumder, who was the second Investigating Officer. The Administrative Appellate Tribunal held that this was a discriminatory act and the respondent’s application before the Administrative Tribunal was rightly allowed.
6. 8 2016 Anti Corruption Commission Vs. Md. Rezaul Kabir & ors

8 SCOB [2016] AD 144
Section 161 of the Penal Code, 1860; Section 5(2) of the Prevention of Corruption Act, 1947; Section 561A of the Code of Criminal Procedure, 1898; Durnity Daman Commission Bidhimala, 2007 Rule 16
A proceeding cannot be quashed depending on alleged procedural error in the method of collection of evidence to be adduced and used. The High Court Division failed to distinguish the allegations of demands, acceptance and attempts to accept gratifications and those with the procedure to collect evidence to substantiate allegations of acceptance and attempts to accept gratifications or demands, thereby, erroneously quashed the proceedings.
7. 7 2016 Idrisur Rahman & ors Vs Syed Shahidur Rahman & ors

(Surendra Kumar Sinha,C.J)

7 SCOB [2016] AD 1
Constitution of Bangladesh, Article 152; Article 96; Article 102; Supreme Judicial Council; Misconduct of a Judge; Code of Conduct; Judicial review; audi alteram partem
It is to be borne in mind that in adjudicating a disciplinary proceeding against a Judge of the highest court and holding trial of an offender in a criminal case, one cannot claim similar principle to be followed. For proving an offence against an offender, the prosecution must prove the offence against him beyond reasonable doubt but this doctrine cannot be applicable in respect of a Judge while hearing a disciplinary proceeding for removal of a Judge on the ground of gross misconduct. In the alternative, it may be said that an ordinary offender and a Judge cannot be equated at par while finding them guilty of the charges.
8. 7 2016 Karim Khan & ors Vs Kala Chand & ors

(Md. Abdul Wahhab Miah, J)

7 SCOB [2016] AD 32
Code of Civil Procedure, 1908, Section 115; Order VII, Rule 3; Permanent Injunction;
It is a well settled legal proposition that the Appellate Court is the last Court of fact and if the Appellate Court comes to a finding of fact on consideration of the evidence on record that cannot be disturbed or reversed by the High Court Division in exercising jurisdiction under section 115(1) of the Code of Civil Procedure, unless it can be shown that the finding of the Appellate Court is perverse or contrary to the evidence on record or based on misreading of the evidence on record or on misconception of law. It is also a settled legal principle that in a suit for permanent injunction title can be looked into incidentally and the prime consideration is whether the plaintiff has got exclusive possession in the suit land.
9. 7 2016 Shantipada Shil Vs Sunil Kumar Sarker and others

(Nazmun Ara Sultana, J)

7 SCOB [2016] AD 37
Pre-emption; date of knowledge
On scrutiny of the deposition of this preemptor-petitioner we find that the preemptor-petitioner while deposing before court, though denied this alleged fact that he obtained the certified copy of the case kabala in the year 1982 for the opposite party No.2, but he did not deny the fact that he was the engaged lawyer of the opposite party No.2. The opposite party No.2 filed Other Suit No.70 of 1982 challenging the genuineness of the impugned kabala. In the circumstances it is not believable at all that the preemptor-petitioner could not know about the case kabala before his alleged date of knowledge. From the facts and circumstances stated above it is rather proved beyond any doubt that the preemptor-petitioner knew about the case transfer in the year 1982. In the circumstances the trial court rightly dismissed the case for preemption.
10. 7 2016 BLAST & anr Vs Bangladesh & ors

(Syed Mahmud Hossain, J)

7 SCOB [2016] AD 42
Commutation of death sentence
The petitioner has no significant history of prior criminal activity and that he was aged 14 years at the time of commission of the offence and 16 years at the time of framing of charge. The petitioner has been in the condemned cell since 12.07.2001, that is, more than 14 years. Considering all aspects of the case, we are of the view that the death sentence of the petitioner be commuted to imprisonment for life.
11. 7 2016 Md. Imtiaz Faruque Vs Afsarunnessa Khatun Chowdhury & ors

(Muhammad Imman Ali, J)

7 SCOB [2016] AD 46
(Emergency) Requisition of Property Act, 1948; Section 5 (7)
It is an admitted fact that the suit land was acquired in L.A. Case No. 06 of 1948-49 and although steps have been taken for release of the land from acquisition, the applicants have not succeeded in getting the land released. According to section 5 (7) of the (Emergency) Requisition of Property Act, 1948 the land having been duly acquired and compensation paid, it vests absolutely in the Government free from all encumbrances. Hence, the title in the property is no longer with the petitioner. We note from the plaint that the petitioner has not included any prayer for declaration of title and hence, in any event, the prayer for temporary injunction is not sustainable.
12. 7 2016 Bo-Sun Park Vs State & another

(Hasan Foez Siddique, J)

7 SCOB [2016] AD 50
Code of Criminal Procedure, 1898 Section 247 read with section 403
Since the order passed under section 247 of the Code of Criminal Procedure is one of acquittal the second complaint on the same allegation is not maintainable. At whatever stage of the proceeding the acquittal order section 247 is ordered, such order will operate as a bar the fresh trial, in the same way as are acquittal after trial on merits.
13. 6 2016 Bangladesh & ors Vs Sontosh Kumar Shaha & ors

6 SCOB [2016] AD 1
Article 102 and 44 of the Constitution; Clause (5) of article 102 read with article 117(2) of the Constitution; The power of Administrative Tribunal to pass interim order;
Despite the absence of any provision empowering the Tribunal to pass any interim order, the Tribunal is not powerless since it has all the powers of a civil court and in proper cases, it may invoke its inherent power and pass interim order with a view to preventing abuse of the process of court or the mischief being caused to the applicant affecting his right to promotion or other benefit. But the Tribunal shall not pass any such interim order without affording the opposite party affected by the order an opportunity of being heard. However, in cases of emergency, which requires an interim order in order to prevent the abuse of the process and in the event of not passing such order preventing such loss, which cannot be compensated by money, the Tribunal can pass interim order as an exceptional measure for a limited period not exceeding fifteen days from the date of the order unless the said requirements have been complied with before the expiry of the period, and the Tribunal shall pass any further order upon hearing the parties.
14. 6 2016 Md. Nurul Abser Vs Alhaj Golam Rabbani & ors

6 SCOB [2016] AD 54
Arbitration Act, 2001: Sections 39, 42, 43 and 44:
A combined reading of the provisions of sections 42, 43 and 39 of the Act, 2001 clearly shows that the only remedy open to a person who wants to set aside an arbitral award is to file an application under section 42 of the Act, 2001 within sixty days from the date of receipt of the award and after the expiry of the period of sixty days as envisaged in the section, the award becomes enforceable within the meaning of section 44 thereof and thus, jurisdiction of the civil Court has impliedly been barred if not expressly. In the context, we may also refer to section 9 of the Code which has clearly provided that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred and therefore, in view of the provision of section 42 of the Act, 2001, clause (d) of rule 11, Order VII of the Code is attracted.
15. 6 2016 Mrs. Ruksana Huq & ors Vs A. K. Fayazul Huq & ors

6 SCOB [2016] AD 61
Code of Civil Procedure, 1908 Order I rule 10(2)
Though there is no clear provision mentioning the word ‘transposition’ but order I rule 10(2) of the Code of Civil Procedure enables the courts to make such transposition, Order I rule 10(2) has empowered the courts to strike out name of any party, either plaintiff or defendant, improperly joined and also to add any persons-either as plaintiff or defendant-who ought to have been joined whether as plaintiff or defendant or whose presence before the court may be necessary for effectual and complete adjudication of the matter. Exercising this very power the courts can make transposition also of either of the parties of a suit or other proceeding to the other category of the parties and the courts also are doing so, and it has become a long practice now. Of course, generally, the courts will not allow transposition of defendants as plaintiffs after striking the names of the original plaintiffs or after transposing them as defendants. But in appropriate facts and circumstances-as these are in the present case-the courts should not be reluctant to make such transposition of the parties for the ends of justice or to prevent abuse of the process of the court.
16. 6 2016 Bangladesh & anr Vs Md. Bellal Hossain Mollik & anr

6 SCOB [2016] AD 65
Police Officers (Special Provisions) Ordinance, 1976 Section 3 read with Bangladesh Public Service Commission (Consultation) Regulation, 1979 Regulation 6:
On consideration of section 3 of the Ordinance vis-a-vis regulation 6 of the Regulations, it is obvious that consultation with Public Service Commission is mandatory before passing the order of dismissal in respect of each of the respondent as section 3 of the Ordinance has not ousted the operation of other laws, rules and regulations.
17. 6 2016 Sohel Dewan & ors Vs State

6 SCOB [2016] AD 70
Penal Code, 1860 Section 302/34:
In the facts of the case before us, where there is some inkling of a doubt as to which of the shots from the firearms of the accused caused the death, or conversely which one of the three accused who fired the shots missed his target, the application of sections 302/34 of the Penal Code was correct, but the question remains as to whether the death sentence would be appropriate. We are inclined towards the view that where the conviction is not under section 302 of the Penal Code simpliciter, and where the complicity of the accused is proved by the aid of section 34 of the Penal Code, then the sentence of death would not be appropriate.
18. 6 2016 Anti Corruption Commission Vs Md. Shahidul Islam & ors

6 SCOB [2016] AD 74
Public Servants; Members of Parliament; Anti-Corruption Commission
The oath that they took referred to their obligation to “faithfully discharge the duty” upon which they were about to enter. They are public servants since they held office by virtue of which they were authorized or required to perform public duty. The word “office” has been used in Articles 3 and 3D of P.O.28 of 1973 meaningfully.
19. 5 2015 State Vs. Dafader Marfoth Ali Shah & ors

5 SCOB[2015]AD 1
Evidence Act, 1872
Section 57
Judicial notice
Penal Code, 1860
Section 107, 109, 120A, 120B.
Offence of abatement
Article 104 of the Constitution
The exercise of the power of doing 'complete justice' under article 104 is circumscribed by two conditions, (i)that it can be exercised only when Supreme Court otherwise exercises its jurisdiction and (ii) that the order which Supreme Court passes must be necessary for doing “complete justice” in the cause or matter pending before it. Obviously the matter pending before us in this appeal is the acquittal of two accused-respondents Dafader Marfoth Ali Shah and L.D. (Dafader) Abul Hashem Mridha of the charges under sections 302/34 and 302/109 of the Penal Code. Leave to file this appeal was granted to consider only whether the acquittal of the present two accused-respondents from the charges under sections 302/34 and 302/109 of the Penal Code was correct and justified. So, obviously, the question whether the acquittal of all the accused persons from the charge of criminal conspiracy-is not at all a matter pending before us. It has already been pointed out above that the present State-appellant or any other aggrieved person had opportunity to challenge the acquittal of accused persons from the charge of criminal conspiracy as per statutory provisions, but they did not avail that opportunity and allowed a long period to be elapsed rendering that opportunity to appeal time-barred and conferring the accused persons a right to be treated acquitted from the charge of criminal conspiracy-as ordered by a court of law. In the name of doing 'complete justice' this right of the accused persons now cannot be ignored.
20. 5 2015 Md. Abdus Sattar Miah Vs Sreemati Raman Sona Dashya & ors
5 SCOB[2015]AD 88
Hindu Widow
Life Interest
Partition Suit
If a Hindu widow or a Hindu woman having life interest is not allowed to pray for partition of the joint properties by metes and bounds, then she would be deprived of enjoying her such right, as in the absence of partition by metes and bounds, she would not be able to enjoy her life interest therein. And if it is held that a Hindu widow or a Hindu woman having life interest would not be able to file a suit for partition, then the other co-sharers of the joint properties may use such decision as lever against such Hindu woman and thus create obstructions in the enjoyment of her life interest in the joint properties. Therefore, we find no substance in the point that plaintiff No.1 not being a co-sharer in the suit khatain and having life interest only could not maintain the suit for partition. And we hold that a Hindu widow or a Hindu woman having life interest can very much maintain a suit for partition for the fullest enjoyment of her such right in the joint properties.
21. 5 2015 Bangladesh Vs. S.M. Raiz Uddin Ahmed

5 SCOB[2015]AD 94
Disciplinary action
Adverse remark
Disciplinary proceeding
It is not permissible to take disciplinary action against a person solely on the basis of adverse remarks made by a Tribunal in a criminal case unless the allegations imputed in the adverse remarks are proved in disciplinary proceedin
22. 5 2015 M/S. Rajib Traders Vs The Artha Rin Adalat & anr

5 SCOB[2015]AD 98
How interest is to be calculated;
The Artha Rin Adalat Ain, 2003, Section 50
The interest to be paid by the judgment debtor will have to be calculated according to the prevailing interest rate or rates, which may be different for different periods, from the time of filing of the suit till the payment of the decretal amount by the judgment debtor.
23. 5 2015 Haji Mahmud Ali Londoni & anr Vs. State & anr

5 SCOB[2015]AD 102
Circumstantial evidence
It is settled principles that where the inference of guilt of an accused is to be drawn from circumstantial evidence only, those circumstances must, in the first place, be cogently established. Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused excluding any other hypotheses.
24. 4 2015 Bangladesh Shilpa Rin Sangstha & anr Vs. Rony Twines Ltd & ors

4 SCOB [2015] AD 1
Remission of interest, sick industry, past interest, auction sale, Special Committee for Remission
The question is whether the expressions ‘fË¡fÉ p¤c’ and ‘cä p¤c’ used in this sub-clause (C) above include remission of all interest accrued from the day of taking loan and already paid by the sick industry by installments against the total outstanding amount to be excluded or the interest accrued on the day of recommendation made by the Special Committee out of the total amount of outstanding dues. The expression ‘fË¡fÉ’ means obtainable or to be paid, that is, the interest which has accrued from the date of privilege of remission of interest given and not the past interest already paid.
25. 4 2015 Md. Noor Hossain & ors. Vs. Mahbuba Sarwar & ors.

4 SCOB [2015] AD 4
Ex-parte decree, Inherent power under section 151 of CPC, rejection of a plaint
Whether the statements made in the plaint are false or not, are purely questions of fact and are to be decided at the trial. In rejecting the plaint, the learned Judges invoked section 151 of the Code, but the inherent power under the section cannot be exercised on assumptions and presumptions of facts and or on suspicion. In other words, the truth or falsity of the statements made in the plaint cannot at all be a ground to reject a plaint either be it under Order VII, rule 11 or under section 151 of the Code.
26. 4 2015 Shahid Ullah @ Shahid & ors Vs. The State

4 SCOB [2015] AD 11
Section 302 of Penal Code, 1860; Justification for death sentence
The offence which these two condemned prisoners committed is most heinous and brutal. These two condemned prisoners along with other accused Mir Hossain, with cool brain, made a plan to hijack a baby taxi by killing the driver and according to that pre- plan they hired the C.N.G. baby taxi of the deceased as passengers and took the baby taxi to a lonely place and thereafter they murdered the baby taxi driver brutally. This type of crime is on the increase in our society. For hijacking a baby taxi or any other vehicle the hijackers do not hesitate for a moment to take the life of the innocent driver of the vehicle which is very much precious for the near and dear ones of that poor driver. This type of killers/murderers cannot and should not get any mercy from the court of law. There is no reason for showing any leniency or mercy to this type of offenders who are enemy for the whole society. So we are unable to accept the submission of the learned advocate for the condemned prisoners to reduce the sentence of death to life imprisonment. In our opinion this is a fit case for imposing death sentence on killers.
27. 4 2015 Jibon Bima Corporation & ors Vs. Md. Abu Kawsar Jalil & ors.

4 SCOB [2015] AD 16
Jibon Bima Corporation (Officers and Employees) Service Regulations, 1992; seniority; selection committee
If more than one employee is appointed at the same time, their seniority will be counted on the basis of merit list prepared by the selection committee and not from the date of their joining.
28. 4 2015 Rokia Begum Vs. The State

4 SCOB [2015] AD 20
Meaning of life sentence; Section 45, 53, 57 of Penal Code; Sentence hearing; Extenuating circumstances; Commutation of the sentence of death
The way it has been interpreted, the word “life” does not bear its normal linguistic meaning. In other words, a person sentenced to imprisonment for life does not necessarily spend his life in prison, although section 45 of the Penal Code defines “Life” as the life of a human being unless the contrary appears from the context. The given interpretation has been arrived at with the aid of section 57 of the Penal Code, which provides that in calculating fraction of terms of punishment, imprisonment for life shall be reckoned as equivalent to rigorous imprisonment for 30 (thirty) years. This last mentioned section read with relevant provision of the Jail Code effectively means that a person sentenced to imprisonment for life will be released after spending a maximum of 2212 years in prison. Under section 35A of the Code of Criminal Procedure the period of time spent by the accused in custody during pendency of the trial would be deducted from his total sentence. Thus we find that in many serious murder cases, where the trial lasts for many years, the accused who is found guilty and sentenced to imprisonment for life gets released after serving a total of 22½ years including the period spent in custody during trial.
29. 4 2015 Mosharaf Com. Tex. Mills Ltd & ors Vs. ECOM Agro. Corp. Ltd & ors

4 SCOB [2015] AD 28
Arbitration proceeding; Valid agreement
It appears from the judgment of the High Court Division that the High Court Division found that there was a valid agreement between the plaintiff and defendant wherein an arbitration clause has been stipulated and pursuant to the said agreement an arbitration proceeding has already been commenced before the Arbitration Tribunal at Liverpool. This suit has been instituted subsequent to the arbitration proceeding. The High Court Division held that though written statement has been filed but, in fact, the same can be treated as information to the court regarding pendency of arbitration proceeding before Arbitration Tribunal at Liverpool.

Since arbitration proceeding has already been initiated between the parties before initiation of the instant suit, we are of the view that the High Court Division rightly disposed of the Rule staying further proceeding of the suit with a direction to settle the dispute in the arbitration proceeding.
30. 3 2015 Criminal Appeal No. 54 of 2007

3 SCOB [2015] AD 1
Breach of contract; Offence of cheating; Section 491 0f the Penal Code
In every case of cheating there is implicit agreement between the parties. The vital factor to be considered is whether at the time of agreement there was intention to carry out the terms of the contract or not. If there is nothing to show that there was no intention at the time of agreement which was arrived at, but the failure to fulfill the terms of the agreement was the subsequent event, the offence of cheating cannot be said to have been committed. It would only be a case of breach of contract/
31. 3 2015 Civil Petition for leave to Appeal No. 1536 of 2010

3 SCOB [2015] AD 5
Third Party`s right of appeal ; Service of summons
Even a third party can file an appeal in case he is affected by a decree passed in a suit.
32. 3 2015 Civil Appeal No. 34 of 2007

3 SCOB [2015] AD 11
Hindu law; life interest; legal necessity for transferring land
It is true that in this kabala dated 02.03.1997 it has been mentioned that for performing the Shradhya ceremonies of her parents Komoda sold this land to the plaintiff. But this recital only in the document is not enough to prove that actually there was legal necessity for transferring this land by Komoda-who, admittedly, had life interest only in the land in question. Evidence is necessary to prove that actually there was legal necessity for transferring this land by Komoda.
33. 3 2015 Civil Petition for leave to Appeal Nos. 2080-2081 of 2010

3 SCOB [2015] AD 16
Benami Transaction; Immovable property; function of the Court; Section 5 of Land Reform Ordinance, 1984
The preamble cannot control the meaning and expression when the meaning of the expression is clear and ambiguous. The aid of the preamble can be taken if the meanings of the words to be interpreted are not clear and ambiguous.
34. 3 2015 Civil Petition for leave to Appeal No.1659 of 2013

3 SCOB [2015] AD 24
Article 102 (5) of the Constitution; Public Servants (Retirement) Act, 1974
The bank concerned being a company under the Companies Act, does not come within the ambit of article 102(5) of the Constitution. So, we are of the view that the Rule in the instant case ought to have been discharged on the same ground, especially when the same Bench had decided earlier that the employees of Pubali Bank Limited are not in the service of the Republic or of any Corporation, National Enterprise or Local Authority.
35. 3 2015 Civil Petition for leave to Appeal No.2495 of 2010

3 SCOB [2015] AD 27
Service benefit
The petitioner got appointment in 1997, that is, long before the promulgation of the Service Rules of 2005. So he is entitled to get benefit of the Service Rules under which he got his appointment, that is, he is entitled to get the benefits as provided in Service Rules of 1988 and his service would be regulated under the said provision of law.
36. 2 2015 CIVIL PETITION FOR LEAVE TO APPEAL NOS.718-720 of 2013

Citation:
2 SCOB [2015] AD 1
Fraud practiced upon Court Company Court
Since the judgments were obtained by practicing fraud upon the court, we have no alternative but to set aside the said judgments of the Company Court and the persons concerned should be put to justice. We direct the Registrar to file complaints before the Chief Metropolitan Magistrate, Dhaka against the respondent(s)... for using forged documents for securing judgments from the Company Court.
37. 2 2015 CIVIL PETITION FOR LEAVE TO APPEAL NOS.1428 AND 1429 OF 2014

Citation:
2 SCOB [2015] AD 5
RPO
Election Petition
Candidate
Locus Standi
Defaulter
Member of Parliament
The High Court Division failed to comprehend the proper meaning of `candidate` given in section 2(ii) of the RPO vis-à-vis article 49(1) thereof in observing that `the petitioner being a candidate of the 10th National Parliamentary Election did not act rather he was an intending candidate and wanted to become a candidate.` And we hold that the petitioner being a proposed `candidate` for election as a Member of the Parliament for the Constituency in question, he had every locus standi to file the election petitions and those were maintainable in law.
38. 2 2015 CIVIL APPEAL NO.29 of 2006

Citation:
2 SCOB [2015] AD 8
Concurrent findings
New plea
Travellers’ cheques
Defence plea
Before this Appellate Division the defendant-appellant did not raise any question as to the correctness of the above concurrent findings of the courts of facts, rather it has raised a new plea to the effect that the plaintiffs could not prove that the defendant bank sold the said 152 travellers` cheques. But we are unable to accept this new defence plea at this stage specially in view of the pleadings of the contesting parties and the evidence adduced by them.
39. 2 2015 CIVIL PETITION FOR LEAVE TO APPEAL NOs.342 and 327 of 2011

Citation:
2 SCOB [2015] AD 12
National Anthem
Commercial Use
Mobile Phone Operators
National Anthem Rules,1978
Donation
There is no gainsaying the fact that each of the leave-petitioners has been charging revenue for playing the national anthem on the mobile phones. On consideration of the Rules, in general, we find that there is no scope for commercial use of the national anthem. Such commercial use of national anthem shows utter disrespect to the national anthem.
40. 2 2015 CIVIL APPEAL NO. 268 OF 2009

Citation:
2 SCOB [2015] AD 15
Arbitral award
Arbitration proceedings
Arbitration Act
Public policy
Breach of contract
Compensation
The arbitral award is generally not open to review by Courts for any error in finding on facts and applying law for the simple reason that it would defeat the very purpose of the arbitration proceedings.
41. 2 2015 CIVIL APPEAL NOS.45-48 OF 2012.

Citation:
2 SCOB [2015] AD 24
Voluntary retirement scheme
Termination
Policy decision
Economic decisions
Public interest
Voluntary retirement scheme is a method used to reduce surplus staffs. Participation in the voluntary retirement plan is voluntary. It has to result in an overall reduction in the existing strength of employees. Accordingly, we are not inclined to accept the observation of the High Court Division that the respondents had been terminated in the grab of voluntary retirement. Moreover, the respondents have filed writ petitioners after about 8 years of the acceptance of their prayers and after receiving retirement benefits.
42. 1 2015 CIVIL APPEAL NO.116 OF 2010.
WITH
CRIMINAL PETITION FOR LEAVE TO APPEAL NO. 374 OF 2011.
AND
JAIL PETITION NOS.18 OF 2008, 03 OF 2009, 01 OF 2010, 08 OF 2010, 16 OF 2010, 2-3 OF 2011, 05 OF 2012 & 7-8 OF 2012.
Mandatory death sentence
Certificate relating to interpretation of the Constitution
Rule of law
Beneficent discretion
ultra vires
Since we hold that Sub-Sections (2) and (4) of Section 6 of the Ain, 1995 and Sub-sections (2) and (3) of Section 34 of the Ain of 2000 are ultra vires the Constitution, despite repeal of the Ain of 1995, all cases pending and the appeals pending under the repealed Ain shall be regulated under the said law, but on the question of imposing sentence, the sentences prescribed in respect of those offences shall hold the field until new legislation is promulgated. I hold that there was total absence of proper application of the legislative mind in promulgating those Ains, which may be rectified by amendments. In respect of section 303 of the Penal Code, the punishment shall be made in accordance with section 302 of the Penal Code. It is hereby declared that despite repeal of Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, the pending cases including appeal may be held under the repealed Ain, while dealing with the question of sentence, the alternative sentences provided in the corresponding offences prescribed in the Nari-O-Shishu Nirjatan Daman Ain, 2000 shall be followed.
43. 1 2015 CIVIL APPEAL NO.73 OF 2012 Right to be considered for promotion
Conditions of service of a police officer
Writ petitioners did not challenge any disciplinary action taken against them by the Inspector General of Police. The authority did not give the directions in accordance with the Police Act or the Bengal Police Regulations or the Ordinance of 1969. The writ petitioners also did not challenge the propriety of the imposition of black marks upon them. They have challenged the embargo imposed upon them by the Police Headquarter, which directly affected their right to be considered for promotion to the next higher post. Clause (5) of Article 102 does not stand in their way of making an application under Article 102(1) of the Constitution subject to the provision of Article 45 of the Constitution.
44. 1 2015 CIVIL PETITION FOR LEAVE TO APPEAL NO.1594 OF 2015 International Crimes (Tribunals) Act, 1973
Maintainability of Writ Petition
In view of the clear bar under article 47(3) of the Constitution read with article 102(3) thereof, the High Court Division had no jurisdiction to entertain the writ petition in question and the same not being entertainable, it ought to have summarily rejected the writ petition on the ground of its maintainability.
45. 1 2015 CIVIL PETITION FOR LEAVE TO APPEAL NO.1585 of 2010 VAT Act
Alternative remedy
The High Court Division observed: `The present writ petition without preferring any objection/appeal under section 9(2ka)/42 of the VAT Act is not also maintainable.' We find no reason to interfere with the impugned judgment of the High Court Division.
46. 1 2015 CIVIL PETITION FOR LEAVE TO APPEAL NO.1603 of 2013. Administrative Appellate Tribunal
Departmental proceeding
The Administrative Appellate Tribunal came into a finding that while passing the impugned decision the Administrative Tribunal failed to consider that the departmental proceeding against respondent No.1 was not initiated and disposed of legally and that the Administrative Tribunal arrived at a wrong finding in disallowing the case causing serious miscarriage of justice. The findings arrived at and the decision made by the Administrative Appellate Tribunal having been based on proper appreciation of law and fact do not call for interference.
47. 1 2015 CRIMINAL APPEAL NO. 07 OF 2004 Rape
Delay in lodging FIR
Beyond any reasonable doubt
The reason of delay in lodging FIR even after the release of the victim from the clutch of the accused has not been properly described; so it is very difficult to consider the evidence of prosecutrix, P.W.2 as beyond any reasonable doubt which is the fundament requirement of conviction of an accused person. (Majority View)
48. 1 2015 CRIMINAL APPEAL NO.27 OF 2002 Penal Code
1860 Section 406/420 Criminal Breach of Trust
It appears from the petition of complaint that the respondent sent taka 6,00,000/- to the appellant through Bank with an understanding that he would supply the cloths at a reduced rate during Eid period. Though the appellant admitted that he had received the said amount but without supplying clothes he had repaid his loan by the said money, thereby, misappropriated the same. Lastly, he denied repaying the said money to the complainant. From the aforesaid facts and circumstances, it is difficult to accept that prima-facie ingredients of section 406/420 of the Penal Code had not been established against the appellant
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