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1. 9 2017 ILFSL Vs. The Commissioner of Taxes

9 SCOB [2017] HCD 1
Income Tax Ordinance 1984 Article 5A of the 3rd Schedule
It appears that the leasing company being the owner of the leased out asset, used the asset for the purpose of business, i.e. leased out the property using the same as business assets and as such attracted by the provision of Article 5A of the 3rd Schedule of the Income Tax Ordinance 1984. It appears that the first appellate authority did not consider as to the ownership of the vehicle remaining with lessor and not with the lessee and further that the lessor deals in the business of leasing out the vehicle to the lessee who operates the vehicle for his business. But the business of the lessor remains in the status of using the vehicle for the purpose of business of lease. Therefore these two pre-condition having been fulfilled in the instant case, the Assessee-applicant is entitled to the normal depreciation allowance and the initial depreciation allowance on the vehicle it has leased out to different lessee, being their customer.
2. 9 2017 Md. Nur Islam Vs. Securities and Exchange Commission & ors.

9 SCOB [2017] HCD 6
Securities and Exchange Ordinance, 1969, Section 17, 26; non-speaking order
On consideration of the materials on record, it appears to us that the impugned order dated o8. 12. 2011 can not be said to be unlawful merely because it is without elaborate reasoning and non-speaking one. The impugned order appears to be otherwise sustainable.
3. 9 2017 Mainul Hossain & anr Vs. Bangladesh & ors.

9 SCOB[2017]HCD 11
The principles of natural justice; audi alteram partem; nemo debet esse judex in propria causa; duty to act fairly; right to a fair hearing; principle of reasonableness
The authority cancelled the lease of the petitioners and in the same breath called upon them to appear before the authority on 12.04.2011 with necessary valid papers, if any. What we are driving at boils down to this: the authority ought to have afforded the petitioners an opportunity of being heard first and thereafter on perusal of the inquiry report and other materials, the authority could have cancelled the lease of the petitioners with reference to the case land; but the authority chose to cancel the lease of the petitioners by keeping them in the dark and thereafter asked them to appear before the authority on a certain future date with their valid papers, if any. To be precise, there is no point in affording the petitioners an opportunity of being heard after cancellation of the lease. Generally speaking, the hearing of the petitioners by the authority should have been a pre-decisional phenomenon; it should not be a post-decisional phenomenon.
4. 9 2017 State & ors vs. Md. Sukur Ali & ors

9 SCOB[2017]HCD 18
Code of Criminal Procedure, 1898 Section 164; Penal Code, 1860 Section 304
Whenever it is noticed that, all the legal mandatory formalities in recording the confessional statement are duly observed and the Magistrate; who recorded the confessional statement is satisfied that the confession is voluntary and free from all taint-in that case, such confession can be the sole basis of conviction of the confessing accused.
5. 9 2017 Md. Komar Uddin Vs. State & another

9 SCOB[2017]HCD 28
Negotiable Instruments Act, 1881, Section 138, 141
The learned advocate appearing on behalf of the convict-appellant took me to the postal receipt and strenuously argued that the postal seal reveal that the same has been received by the postal clerk on 23.03.2008 where as the postal clerk put his signature on the same showing receiving date as 12.03.2008. He further adds that those anomalies are sufficient to show that the postal receipt has been created for the purpose of this case. I have gone through the postal receipt and seen that the anomalies of those dates are palpable on the face of such receipt. It is the receiving clerk of the post office who made all those anomalies, is the best person who can say as to why and under what compelling circumstances he put this date under his signature and also as to why he put seal showing another date and without examining him, it is not possible to arrive at a concrete decision in this respect. In such a state of affairs the court can arrived such a decision which favoured the convict-appellant. Thus, I have no option but to hold that the convict-appellant is entitled to get benefit of the doubt regarding such service of notice.
6. 9 2017 Raghib Rauf Chowdhury Vs Bangladesh & ors

9 SCOB[2017]HCD 34
Constitution of Bangladesh, Article 65, 95; Appointment process of Judges in the higher judiciary; Consultation with the Chief Justice
In the process of selecting the persons for elevation to the High Court Division the Chief Justice may, if feels indispensably necessary consult or share his view with at least two of his senior most brother Judges in the Appellate Division and two of the senior most Judges of the High Court Division as well in forming opinion and also to ensure the recommendation appropriate, effective and transparent. After advancing the recommendation expressing opinion by the Chief Justice there should not be any room to disapprove or censure it unless the persons recommended is found by the executive to have an antecedent involving anti-state or anti-social subversive activities. The fate of the recommendation of the Chief Justice expressing opinion should not be sealed and scrapped for no justified reason, in view of observation made in the ten judges case by the Appellate Division of our Supreme Court.
7. 9 2017 State & ors Vs. Mufti A. Hannan & ors

9 SCOB[2017]HCD 52
Code of Criminal Procedure, 1898 Section 164; Evidence Act, 1872 Section 10, 17, 30; Retraction of the confession; Penal Code, 1860 Section 120A; Cognizance of Offence
Recording of a statement of an accused beyond the period of office hour can not be a plea to hold that the said statement is not true and voluntary. If the said statement is found that same was recorded by the concerned Magistrate having compiled with all the provisions of law then there is no room to say that the said statement is not true and voluntary.
8. 9 2017 Mahmudur Rahman Vs Bangladesh & ors

9 SCOB[2017]HCD 119
Constitution of Bangladesh Article 35;

Code of Criminal Procedure, 1898 Section 198, 403, 526, 561A;

Penal Code, 1860 Section 500 and 501
In view of above facts and circumstances of the case, since, apparently and admittedly, no prosecution has been concluded against the petitioner and that the petitioner has neither been convicted or acquitted in any criminal case for the offence in question, namely, the offices punishable under Sections 500 and 501of the Penal Code, we are of the view that, the petitioner does not have any case before this Court under writ jurisdiction to invoke Article 35(2) of the Constitution or other provisions of the Constitution or Code of Criminal Procedure. Besides, since the petitioner does not have any particular case of enforcement of fundamental rights under any of the above mentioned Articles, the writ petition is not maintainable.
9. 9 2017 Rokeya Begum Bina & ors Vs. Habib Ahsan & ors

9 SCOB[2017]HCD 127
Code of Civil Procedure, 1908 Order 7, Rule 11;

Registration Act, 1908 Section 17B
It is crystal clear from the reading of the plaint that as per sub-clause (ii) of Clause (a) of Section 17B of the Registration Act, the plaintiff opposite parties nor present the contract for sale itself for registration within six months from the date of coming into force of that section i.e. 1st July, 2005 neither instituted a suit for specific performance of the contract within six months next after the expiry of the period mentioned in clause (a). So, after the expiry of the period mentioned in clause (b) of section 17B, the contract for sale (affidavit dated 03.04.1995) in question stand void.
10. 9 2017 Hossain Ali & ors Vs. Bangladesh & ors

9 SCOB[2017]HCD 132
State Acquisition and Tenancy Rules, 1955 Rule 31, 42, 42A;

Record of Rights; Jurisdiction of Settlement Officer
The Settlement Officer appointed with the additional designation of Assistant Settlement Officer may at any time before final publication of the record-of-rights exercise his jurisdiction under rule, 42 of the Rules, 1955.
11. 9 2017 Osman Gazi Chowdhury Vs. Artha Rin Adalat & anr

9 SCOB[2017]HCD 140
Artharin Adalat Ain, 2003, Section 6, 19, 41;

Maintainability of Writ Petition against a decree or post-decree order passed by Artharin Adalats
It is the clear intention of the Legislature that a party to an Artharin Suit if aggrieved by a decree, must prefer an appeal. Since the Ain, 2003 is a special law with an overriding provision over other laws and has prescribed a special procedure, there is no scope to bypass the appellate forum, if the forum under Section 19(2) of the Ain, 2003 against an exparte decree is already not availed of by the party.
12. 9 2017 Shetu International Pvt. Ltd & ors Vs. Artha Rin Adalat-2, Dhaka & anr

9 SCOB[2017]HCD 157
Artha Rin Adalat Ain, 2003, Section 6(2), 7(1)
The word Bcma as appears in the context of Section 7(1) bears reference to a scenario emerging when the Court which in its considered opinion thinking it just and expedient for a notice to be published in a national daily and in a local newspaper, if there be any, for ends of justice, and making an order to publish a notice at the cost of the plaintiff. But in the present case the plaintiff Respondent No.2 itself took step under section 7(1) of the Act on its own motion on the date fixed for return of summons and acknowledgement receipt after service upon the defendants without waiting for the report of the Process Server and Order of the Court to that effect. It is noted that the summons in a suit shall be served by the Process Server simultaneously through postal department, and in evidence of the sending of the summons through post the postal receipt thereof must be tagged with the record. But in the present case no summons was served through Process Server or by post nor any attempt was made to serve the notice/ summons upon the defendants. Moreover, no Order has been passed by the Court necessitating publication of summons in the daily newspaper. Rather publication in the newspaper ensued at the behest of and as desired by the plaintiff which, in this Courts view is contrary to the provisions of Section 7(1) of the Act.
13. 9 2017 Md. Mohitur Rohman Choudhury & ors Vs. Md. Abdul Kuddus Miah & ors

9 SCOB[2017]HCD 163
Limitation Act, 1908 Section 15; Code of Civil Procedure, 1908 Order IX rule 13
Application for execution of a final decree or order is to be made within 3 (three) years from the date mentioned in 2nd Column of Article 182 of the Limitation Act subject to some exceptions as detailed in the 3rd Column read with provisions of section 15 of the Act inasmuch as Article 182 makes no provision for fresh limitation from a final order passed on an application under Order IX rule 13 of the Code. In other words if no stay order or injunction is passed staying the operation of the decree or order under section 15 or no situation arises as per the 3rd Column of Article 182 the decree or order would keep open for execution and time would run from the date of final decree or order. A bare reading of Article 182 of the limitation Act also suggests that an application under order IX rule 13 of the code does not come within the meaning of applications mentioned in clause 5 of column 3 of Article 182 of the Limitation Act to save limitation. Accordingly, pendency of a case under Order IX rule 13 of the Code of Civil Procedure for setting aside an ex-parte decree cannot extend the period of limitation for filing execution case.
14. 9 2017 Kazi Helall Islam & ors Vs. Kazi Roksana Islam & ors

9 SCOB[2017]HCD 167
Code of Civil Procedure, 1908, Order 40 Rule 1:

Partition Suit
As we have mentioned before there is a prima-facie apprehension of danger to the property, which is apparent under the circumstances. Moreover, since the suit land is in possession and control of the defendant-appellants it is quite probable that pending final determination of the rights of the parties, the party in possession and control might abuse such possession and control and the sisters may be deprived of their rights. Alienation of mesne-profits which in this case are primarily the rents received by the defendants from the tenants in the disputed property may also result in wastage of the property and therefore entails a source of danger of alienation of the property before final determination of the rights of the parties to the Partition Suit. Upon such considerations we feel that the Court below judiciously and by exercising its discretion very correctly granted the prayer of the plaintiffs under Order 40 Rule 1 for appointment of receiver to the suit property.
15. 9 2017 Zobeda Khatoon & anr Vs. State & anr

9 SCOB[2017]HCD 173
Criminal Law Amendment Act, 1958 Section 6; Code of Criminal Procedure, 1898, Section 222;

Framing of Charge
It also appears from the FIR that the alleged occurrence took place in between January 2004 to November 2006. The lodging of the FIR and framing of charge covering the whole period is permissible under the provisions of law of sections 6 (IB) of the Criminal Law Amendment Act, 1958. A single case can be filed and trial may be proceeded by framing charge for more offences, which has been done in the present case. The provisions of section 222 (2) of the Code is no manner of application in this case.
16. 8 2016 Shahjibazar Power Company Ltd. Vs. Bangladesh & ors

8 SCOB [2016] HCD 1
Statutory contract; Capacity of sovereign;

Commercial contract;

Maintainability of Writ petition
From the Contract, it transpires that it has not been entered into by BPDB in exercise of statutory power and so, it cannot be said that the contract with the statutory body i. e. BPDB is a statutory contract so, as to invoke writ jurisdiction. Further we have already seen that the contract is not entered into by the Government in the capacity of sovereign. Moreover, the Contract is purely a commercial contract for purchasing electricity on rental basis. Further, the requirements as settled by the Appellate Division in the above referred case are not fulfilled. For the reasons discussed hereinbefore, we are constrained to hold that the instant writ petition is not maintainable.
17. 8 2016 Kazi Monirul Haque Vs. Bangladesh & ors

8 SCOB [2016] HCD 15
Artha Rin Adalat Ain, 2003, Section 28; Section 33; Artha Jari case
Section 28(4) of the Ain clearly stipulates that if a new Execution case is filed after the expiry of the 6 years from the date of filing of the 1st Execution case, the 2nd case shall also be barred by limitation. In our view, section 28(4) of the Ain contemplates and takes into account the situation were the 1st Execution case, is neither concluded nor disposed of within the period of 6 years.
18. 8 2016 Abdul Kader Patwary & ors Vs. State & another

8 SCOB [2016] HCD 19
Code of Criminal Procedure, 1898 Section 265D;

Framing of Charge
It has now been settled by our apex Court that, at the time of framing charge the Court concern is required to consider only the materials of the prosecution but not the materials submitted by the defence. In the instant case, it appears that, the learned Additional Sessions Judge has not committed any illegality in framing charge against all the accused persons.
19. 8 2016 SJBKBSS Ltd. Vs. Sylhet City Corporation & ors. 8 SCOB [2016] HCD 23 Legitimate Expectation
In any view of the matter, the members of the petitioner-samity are not at fault. Their legitimate expectation, in all fairness, should be fulfilled by the Sylhet City Corporation Authority by way of constructing the proposed market by removing the sheds from the Bus Terminal. Undeniably, the Sylhet City Corporation Authority has made a commitment to the petitioner-samity to make the proposed construction of the market at the site after removal of the sheds therefrom.
20. 8 2016 Md. Rofiqul Islam & ors Vs. Md. Khalilur Rahman & ors

8 SCOB [2016] HCD 29
Record of rights;

Section 90 of the Evidence Act, 1872
Record of right is evidence of present possession and registered kabala is an evidence of title. The registered document will prevail over the records of rights and would remain in enforce until and unless, such kabala is cancelled by an appropriate civil court. The registered deed dated 13.05.1965 is an old document more than 30 years produced from proper custody presumed under Section 90 of the Evidence Act that it was duly executed and genuine documents.
21. 8 2016 Md. Ibrahim Vs. State

8 SCOB [2016] HCD 35
Nari-O-Shishu Nirjatan Daman Ain, 2000 Section 10;

None cross-examined the witnesses
There is no further burden of proof when the assertions of the witnesses remain unchallenged. In the instant case the convict-appellant failed make out his defence on cross-examining the witnesses. On perusal of the aforesaid position of the facts, circumstances and other materials on record nothing cogent could be elicited to disbelieve the witnesses. Thus I find that there is no scope to interfere into the findings and decision as has been arrived by the learned Judge of the Trial Court.
22. 8 2016 Begum Khaleda Zia Vs. Anti-Corruption Commission & ors

8 SCOB [2016] HCD 40
Question of laws and facts; Applicability of Emergency Power Rules-2007;

The Anti Corruption Commission Act, 2004, Section 17; Immunity
The Constitution has not given any immunity to the prime Minister or Cabinet in respect of any criminal offence. There is neither any constitutional nor any statutory or legal bar on A.C.C to conduct any enquiry in respect of allegation of Commission of offences mentioned to the schedule of the A.C.C Act, 2004 and schedule to the Criminal Law Amendment Act-1958. Therefore, we are of the view that not only on the basis of any complaint but A.C.C itself is legally empowered under section 17 of the A.C.C. Act-2004 to conduct any inquiry or investigation.
23. 8 2016 Fatema Enterprise Vs. Bangladesh &ors

8 SCOB [2016] HCD 59
Whether a matter of law of contract can be looked into in a writ jurisdiction;

Basic principle of offer and acceptance;

Principles of legitimate expectation;

Grounds of judicial review
The crux of the issue is as to whether after receiving the consideration value in the form of earnest money as has been stipulated by the respondents through their own valuation and tender can be changed. Although, this is a matter of law of contract, however, since Government is a party, so this can be looked into in a writ jurisdiction. The basic principle of offer and acceptance is the offer is binding upon the offeror (proposer) the moment the offeree (acceptor), puts the acceptance into motion. In the instant case, the offer and acceptance both were complete since the tender was invited (offer) the petitioner participated and it was accepted by the respondent No. 2 and part consideration was also paid in the form of earnest money and in such circumstance the respondents, i.e. the offeror Government has no other option left except transferring the land in favour of the petitioner. The property in the goods in fact passes over to the buyer when the sale is complete and in the instant case the sale became binding from the moment the payments were made in compliance with the tender.
24. 8 2016 Golam Md. Faroque Uddin & ors Vs. Bangladesh & ors

8 SCOB [2016] HCD 67
Section 16A of the Income Tax Ordinance, 1984;

Section 36 of the Finance Act, 2013;

Surcharge; Constitution of Bangladesh, Article 8, 10, 27
Though the term surcharge is not specifically mentioned in the Constitution or not defined in the said Ordinance, the basic concept of surcharge was always there in our Constitution and the said Ordinance. The only difference being that while the Indian Constitution, under Article 271, specifically has mentioned the word surcharge, our Constitution has not mentioned the same in such specific way. Not only that, upon examining the dictionary meaning of the word impost as used under the definition of taxation as provided by our Constitution under Article 152, there is no semblance of doubt that the Parliament has always had the plenary power to legislate provisions for imposition of additional tax, extra charge or impost, through whatever terms it may be called, by which some additional charges may be levied on the tax payers in addition to their ordinary tax payments. In consideration of the above wide definition of taxation as given by our Constitution and the definition of term Tax as provided by the relevant provision of the said Ordinance, we are, therefore, of the view that the power of imposition of surcharge, as has been done by the impugned provisions, was very much within the plenary power of legislation of the Parliament.
25. 8 2016 Energy Prima Ltd. Vs. Bangladesh & ors

8 SCOB [2016] HCD 84
Constitution of Bangladesh Article 102;

The Arbitration Act, 2001 Section 7;

Restriction of judicial intervention in matters covered by arbitration agreement
In the present case, clause 19.2 of the contracts dated 16.01.2008 entered into between the petitioner and the BPDB contains an arbitration clause stating that the arbitration shall be conducted in accordance with the Arbitration Act (Act No. 1 of 2001) of Bangladesh as at present in force and the place of arbitration shall be in Dhaka, Bangladesh, therefore, section 7 of the Arbitration Act, 2001 restricts judicial intervention in matters covered by arbitration agreement. Petitioner is trying to interpret the contract in the writ petitions which is impermissible, particularly when the petitioner is having a remedy to go for arbitration under the contract signed by the petitioner. Petitioner having signed contract with open eyes after reading the terms and conditions, it is unconscionable to raise these kinds of contention in the writ petitions.
26. 8 2016 Shahida Khatun & ors Vs. Chairman, 1st Court of Settlement & anr

8 SCOB [2016] HCD 93
The Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972, Article 7;

Specific performance of contract;

The Bangladesh Abandoned Buildings Supplementary Provision Ordinance, 1985, Section 5
In the present case the Petitioners or their vendor admittedly was not in possession of the property in question at the relevant time, they entered into the possession of the property in the year 1984. Since the property was declared abandoned under the provision of P.O. 16 of 1972, question of service of notice under Article 7 upon the Petitioner or their vendor who were not in possession, active control, supervision and management of the property at the relevant time does not arise. Moreover, decree in a Suit for Specific performance of contract does not reflect a substantive determination of any issue regarding the abandoned character of the property
27. 8 2016 Md. Sirajuddwla Vs. State & Anr

8 SCOB [2016] HCD 100
Article 35 (2) of the Constitution of Bangladesh;

Section 403 of Code of Criminal Procedure, 1898;

The principle of double jeopardy;

Code of Criminal Procedure, 1898 Section 344;

Negotiable Instruments Act, 1881, Section 138;

Artha Rin Adalat Ain, 2003, Section 41; Code of Criminal Procedure, 1898, Section 344, 561A
In the case in hand, a sentence of fine under section 138 of the Act, 1881 may result in a proceeding of execution of decree (section 386(3) of the Cr.P.C.). Again, the same person may face an execution of decree proceeding under the Artha Rin Adalat Ain, 2003 for the same loan transactions which may together exceed the actual claimed amount. If the accused decides to file appeal against the sentence of fine as well as the decree passed in Artha Rin Suit, he has to deposit 50% of the amount of the dishonoured cheque and 50% of the decretal amount which in aggregate would almost cover the claimed amount. This may lead to unjust enrichment and thus, the inconvenience through legal process may lead to absurdity. The ends of justice and fairness demand that the process of law must not be allowed to cause or result in absurd inconvenience. ... For the reasons discussed above, the case in hand, in our view, falls within the category of rarest of rare cases where an order of stay of the criminal proceedings under the Act, 1881 during pendency of the Artha Rin Suit which are between the same parties and over the same loan transactions, should be passed to give effect to section 344 of the Cr.P.C. in order to prevent abuse of the process of the Court and to secure the ends of justice.
28. 8 2016 Badiul Alam Majumdar & ors Vs. Information Commission & anr

8 SCOB [2016] HCD 110
Badiul Alam Majumdar & ors Vs. Information Commission & anr

8 SCOB [2016] HCD 110
Registration Rules, 2008 framed under Article 94 of the Representation of the People Order, 1972;

Right to Information Act, 2009, Section 9
29. 8 2016 F.J. Geo-Tex (BD) Ltd Vs. NBR & ors

8 SCOB [2016] HCD 132
Income Tax Ordinance, 1984 Section 135(1) and 143(2)
The mandatory provision of Section 135(1) of ITO was not followed by the respondents prior to exercise of power under section 143(2) in freezing the bank account of the assessee-petitioners. In the instant matter the provisions of Section 143 of ITO can be resorted to only after the preceding of provisions of Section 135(1) have been complied with, but the Respondents in this case, circumvented the provisions of the law by outrightly ignoring the mandatory provisions to issue notice under the provisions of Section 135 of the Ordinance, which they cannot lawfully do. The Respondents actions in the instant case are without any lawful authority and therefore has no legal effect.
30. 8 2016 Md. Tasli alias Taslim & anr Vs. State

8 SCOB [2016] HCD 140
Natural and competent witness;

Evidence Act, 1872 Section 8
It is gathered from the evidence of P.W.2 that out of enmity the accused Alfazuddin and Tasli @ Taslim being armed with deadly weapon like dagger Dao etc. came at the P.O. house and dealt indiscriminate dagger and dao blows on the person of the victim. Such facts clearly speak about their very motive and intention to kill the victim Aziron. Immediately after the occurrence, the Convict-Appellant Alfaz Uddin and Tasli @ Taslim disappeared from the locality, which indicates their guilt and that is relevant under section 8 of the Evidence Act.
31. 8 2016 Aleya Begum & ors Vs. Mir Mohsin Ali & ors

8 SCOB [2016] HCD 147
Partition Suit;

In our view the petitioners will not be prejudiced for not impleading them parties because as legal heirs, they are entitled to get the shares of their predecessors. Even a non contesting party, who has got share in the partible property, can pray for allotment of saham on payment of proper court fees before drawing up the final decree
32. 7 2016 Ahmed Service Ltd Vs Commissioner of Taxes

(A.F.M Abdur Rahman, J)

7 SCOB [2016] HCD 1
Income Tax Ordinance, 1984 Section 35(4); method of accounting; computation of income profit and gains of company
Since the DCT concern did not raise any dissatisfaction as to the method of accounting and did not pin point any of the defect in the accounts, the two lower appellate authorities were required to consider the said question and decide the appeals before them in its true perspective. But that has not been done by the two lower appellate authorities and as such the questions as have been formulated in the instant three Income Tax Reference Applications are required to be answered in negative and in favour of the Assessee-applicant.
33. 7 2016 Z. I. Khan Panna Vs Bangladesh & ors

(Moyeenul Islam Chowdhury, J) And (Md. Ashraful Kamal, J)

7 SCOB [2016] HCD 7
kb Aike cuj BCe, 2003 (2003 pel 1 ew BCe); Article 46 of the Constitution; indemnity; torture on the victims in the custody of the joint forces; Supremacy of the Constitution; Essence of the rule of law; Compensation
There cannot be any blanket indemnity of the persons accused of perpetration of crimes on the victims in their custody in view of the clear and unequivocal language of Article 46. Precisely speaking, indemnity can be given to the persons concerned for the maintenance or restoration of order in any area meaning thereby in any specific area in Bangladesh as provided by Article 46 of the Constitution. In fact, there is no scope for wholesale indemnity of the members of the joint forces for the maintenance or restoration of order throughout the length and breadth of the country in terms of Article 46 of the Constitution. On this count, the impugned Act No. 1 of 2003 cannot be upheld.
34. 7 2016 State Vs Md. Nurul Amin Baitha & anr

(Syed Md. Ziaul Karim, J)

7 SCOB [2016] HCD 40
Evidence Act,1872, Section 106; Nari-O-Shishu Nirjatan Daman Ain, 2000, Section 11(ka); Penal Code, 1860, Section 302: Fundamental principles of criminal jurisprudence and justice delivery system; Wife killing case
Presence of the accused Baitha at the material time is supported by the evidence on record. Thus the death of the deceased was in the special knowledge of the accused Baitha. He knew how she met with death. Ordinarily an accused has no obligation to account for the death for which he is placed on trial. But in a case like the present one where the accused has special knowledge of the death of the deceased, under section 106 of the Evidence Act, he is under obligation to explain how the deceased died. If he fails to explain the death of the deceased or if his explanation is found false the irresistible inference would be that none besides him caused the death of the deceased.
35. 7 2016 Md. Bazlur Rahman Vs Shamsun Nahar & ors.

(S. M. Emdadul Hoque, J)

7 SCOB [2016] HCD 61
Family Courts Ordinances, 1985, Section 9(6); The code of civil procedure, 1908, Section 115(1)
It appears that both the courts after proper consideration of the evidence on record rightly opined that since the petitioner himself received the summons so without filing any appeal against the experte judgment and decree he cannot get any relief.
36. 7 2016 Sree Paresh Chandra Pramanik vs Md. Mokbul Hossain & ors

(Borhanuddin, J)

7 SCOB [2016] HCD 64
State Acquisition and Tenancy Act, 1950, Sub-section 10 of section 96; Succession Act, 1925, Section 28; computing of degrees of kindred; three degrees by consanguinity; Pre-emption Case
Section 28 of the Indian Succession Act, 1925, provides mode of computing of degrees of kindred in the manner set forth in the table of kindred set out in schedule 1. From the table of schedule 1, annexed with the counter affidavit, it is evident that brother-in-law is not a relation within three degrees by consanguinity. Pre-emptee opposite party no.1 being not a relation within three degrees by consanguinity of the donor is not entitled to get protection of Sub-section 10 of section 96 of the State Acquisition and Tenancy Act.
37. 7 2016 Mst. Anjuara Khanam @ Anju Vs State

(M. Moazzam Husain, J)

7 SCOB [2016] HCD 67
Nari-o-Shishu Nirjaton Damon Ain, 2000; Section 18 and 27; Power of tribunal to entertain naraji;
The Tribunal has been clothed with power wide enough to cover all the power of a Magistrate and of the Sessions judge rolled together in ignoring investigation-report with concomitant power to entertain naraji and sending back the case for further investigation or, (where practicable) judicial inquiry. Sub-section (1) and (1Ga) of section 27 read with section 18 goes to show that the Tribunal is further equipped with power more robust than that of an ordinary criminal court in taking cognizance absolutely on its own satisfaction, albeit by assigning reason, gathered from any materials, irrespective of naraji, or information received in disregard of the final report submitted by police or the person authorized by the Government in this behalf. The enormously unqualified power of the Tribunal to take cognizance of offences on its own satisfaction in total disregard of everything means by necessary implication that the Tribunal enjoys power to take into consideration anything including the naraji-petition for its satisfaction without any formality attached to it in general law.
38. 7 2016 State & ors Vs Julhash & ors

(Soumendra Sarker, J)

7 SCOB [2016] HCD 84
Code of Criminal Procedure, 1898; Section 164; Confessional Statement;
The spirit of law on confession under section 164 of the Code of Criminal Procedure with regard to the confessional statement of a accused is such that a confession is a direct piece of evidence which is substantial and such statement of any accused can be relied upon for the purpose of conviction and no further corroboration is necessary if it relates to the confessing accused himself; provided it is voluntary and also free. A free and voluntary confession under the purview of this section deserves highest credit, because it is presumed to flow from highest sense of guilt. If the court believes that the confession is voluntary and free, there is no legal embargo on the court for ordering conviction. If it is found that the Magistrate appears to have recorded his satisfaction as to the voluntariness and spontaneous nature of the confession of the accused, in that case; such confession cannot be vitiated from illegality and this type of confession alone is enough to convict the confessing accused.
39. 7 2016 Youngone Synthetic Ind. Ltd & anr Vs Commissioner of Taxes

(Sheikh Hassan Arif, J)

7 SCOB [2016] HCD 98
Income Tax Ordinance, 1984 Section 28, 29; Wears and tears of assets; depreciation; written down value
In calculating the total income in a concerned assessment year, the wears and tears of assets, which have been used for the purpose of the business and to earn revenue, have to be taken into consideration. From the context of the said concept, the relevant provisions have been incorporated in our statute book, namely Income Tax Ordinance, 1984. Thus, while Section 28 of the said Ordinance classifies the income from business and profession, Section 29 provides for the allowances to be deducted from the said income while calculating the same for the purpose of assessment. Clause(VIII) of sub-section (1) of Section 29 provides that the depreciation of building, machinery, plan or furniture etc. of the concerned assessee, which have been used for the purposes of business or profession, shall be allowed as admissible under the Third Schedule to the said Ordinance. Again, Paragraph-2 of the said Third Schedule, in particular sub-paragraph (1) of the same, provides that in computing the profits and gains from the business or profession, an allowance for depreciation shall be made in the manner provided hereinafter. This Paragraph 2 is followed by a Table under Paragraph 3 prescribing fixed rates of depreciations to be allowed on the written down value of any particular assets used in the business.
40. 7 2016 State & anr Vs Aynal Haque & anr

(Bhabani Prashad Singha, J)

7 SCOB [2016] HCD 106
Nari-O-Shishu Nirjatan Daman Ain, 2000, Section 11(ka); Value of circumstantial evidence in a wife killing case
In a wife killing case, there could be no eye-witness of the occurrence, apart from the inmates of the house who may refuse to tell the truth, the neighbors may not also come forward to depose. The prosecution is, therefore, necessarily to rely on circumstantial evidence.
41. 7 2016 Orascom Telecom Bangladesh Ltd Vs. BTRC & ors

(Md. Ashraful Kamal, J)

7 SCOB [2016] HCD 115
Bangladesh Telecommunication Act, 2001, Section 55(3); spectrum assignment fee; VAT Act, 1991, Section 2, 3 (N), and 5:
The issue of applicability of VAT and/or liability of the petitioner company to pay the VAT has no relation whatsoever with regard to the payment of license renewal fee and spectrum assignment fee. The petitioner company is bound to pay the net amount of the license renewal fee fixed by BTRC, without any kind of deduction.
42. 7 2016 Md. Jahangir Alam & ors Vs D.C Munshiganj & ors

(Mohammad Ullah, J)

7 SCOB [2016] HCD 130
Protection and Conservation of Fish Act, 1950, Section 5(2)(b) read with section 5A; Mobile Court Ain, 2009; Protection and Conservation of Fish Rules, 1985; Article 40 and 42 of the Constitution
It appears that the powers conferred under section 5(2)(b) read with section 5A on an Executive Magistrate extend to conviction and sentence and also to confiscation of the article(s) or thing(s) used in the commission of the offence. Besides, the Act or the Rules does not speak of putting the factories under sealed lock and key. Therefore in putting the factories under sealed lock and key the Executive Magistrate has clearly exceeded the authority conferred upon him which has not empowered him to do so under the Act, the Ain and the Rules. The orders of sealing the factories of the petitioners, by the Executive Magistrate is also violative of the fundamental rights of the petitioners guaranteed under Article 40 and 42 of the constitution with regard to their lawful business.
43. 7 2016 Mainuddin Ahammed Vs Bangladesh & ors

(Muhammad Khurshid Alam Sarkar, J)

7 SCOB [2016] HCD 134
State Acquisition and Tenancy Act, 1950, Section 144B; What to be fulfilled to direct excision of a fraudulent entry; record-of-rights,
During conducting the revisional survey under Section 144 of the SAT Act, till final record-of-rights are published, no suit lies in any civil Court challenging any action or Order of the Settlement Officer as provided in Section 144B of the SAT Act and, thus, the only option available for respondent no. 12 was to take recourse to the provision of Rule 42A of the Tenancy Rules.
44. 7 2016 Asoke Das Gupta Vs Ministry of Finance & ors

(Kashefa Hussain, J)

7 SCOB [2016] HCD 148
Gift Tax Act, 1990, Section 4(ja); Income Tax Ordinance, 1984, Section 53M;
Section 53M Explanation 1 is contrary to the rest of the provisions of the ITO, 1984, being against the sprit and intent of the Ordinance and also contrary to the Section 4 of Gift Tax Act, 1990. Therefore the impugned collection of advance tax against transfer of shares to the daughter of the petitioner is unlawful and without lawful authority.
45. 7 2016 Sonali Bank Vs. Md. Abu Baker Sarker

(S.M. Mozibur Rahman, J)

7 SCOB [2016] HCD 156
Artha Rin Adalat Ain, 2003, Section 50;
The court has no power to exempt the defendant respondent from the liability of paying up interest however high rate it may be ... since the financial institution bank itself preserves the exclusive right to exempt any-body from payment of interest of loan they sanctioned.
46. 7 2016 Afangir @ Kalu Vs. The State

(Md. Farid Ahmed Shibli, J)

7 SCOB [2016] HCD 161
Explosive Substance Act, 1908, Section 4/6
Mere knowledge of an accused or his equivocal disclosure about existence of bomb-making powders during his police custody shall not expose him to any criminal liability of possessing or controlling that illegal substance.
47. 6 2016 Anowar Ahmed & anr Vs State

6 SCOB [2016] HCD 1
Code of Criminal Procedure, 1898
The customs authority being satisfied about the import documents, released the imported cloths from customs station and the petitioners handed over the imported cloths to the importer as C and F Agent from the Custom Area and place of business of the petitioners is the Customs House or Custom Area as per section 2(i) and 207 of the Customs Act, 1969 and Rule 2(b) of the Rules 1986 and consequently petitioners are in no way responsible for the alleged offence. The petitioners as agent cannot be held liable for the work of the Principal and thus the petitioners committed no offence within the meaning of sections 420/468/469/471/34 of the Penal Code.
48. 6 2016 Bright Textile Ind. (Pvt.) Ltd Vs Commissioner of Taxes

6 SCOB [2016] HCD 5
Income Tax Ordinance, 1984 Section 35, 83
The DCT concern, prior to discarding the book versions of the accounts has to raise dissatisfaction as to the method of accounting as to its cumbersomeness that the true and correct income of the Assessee-applicant cannot be deduced therefrom or to pin point the defect in the accounts; else the DCT concern has to accept the book version of the accounts as submitted by the Assessee-applicant and audited and certified by the chartered accountant.
49. 6 2016 Md. Saidur Rahman Sarker Vs Bangladesh & ors

6 SCOB [2016] HCD 13
Election Commission independent decision
It does not appear that the Election Commission, after admitted declaration of schedule for holding election of Botlagari Union, has taken independent decision of its own considering the facts and circumstances of the case. Rather, it passed the impugned order at the proposal/direction of the Ministry of Local Government, Rural Development and Co-operatives. Therefore, it cannot be said that the impugned order passed by the Election Commission is lawful.
50. 6 2016 M. A. Hashem Vs. Artha Rin Adalat, Dhaka & ors

6 SCOB [2016] HCD 19
Statutory privilege; The right of redemption of the mortgagor;
Artah Rin Adalat Ain, 2003, Section 33, 38, 45
A statutory privilege is a nascent right reserved to an individual person but this privilege is lost once he/she himself infringes it or abandons it voluntarily. The Writ Petitioner in fact has abandoned the statutory privilege by willfully and deliberately refraining from depositing the balance amount of bid money within the prescribed period of limitation. By filing the application seeking permission to deposit the balance 75% bid money instead of depositing the amount directly, the auction purchaser relinquished his known statutory right as auction purchaser and waived all his rights to the property in question as well as the earnest money deposited by him.
51. 6 2016 Dr. Moazzem Hossain Vs Bangladesh & ors

6 SCOB [2016] HCD 34
Writ Court; Court of equity
Will the petitioner continue to suffer loss of his seniority through no fault of his own? Is the Writ Court powerless in this regard? In this connection, it may be pointed out that the Writ Court is also a Court of equity. The principles of natural justice, equity and good conscience demand that the seniority of the petitioner be restored at least from the date of promotion of his colleague Dr. Md. Jubair Bin Alam to the post of Personal Professor on 06.11.2004 who admittedly made his application therefor on 28.12.2003 which was subsequent to the date of making of the application by the petitioner on 21.12.2003. In this way, the injustice done to the petitioner, according to us, can be remedied.
52. 6 2016 State Vs Kalam alias Abul Kalam

6 SCOB [2016] HCD 43
Dying declaration; Motive; Abscondence
A dying declaration, whether written or oral, if accepted by the Court unhesitatingly, can itself provide a strong basis for convicting an accused.
53. 6 2016 Barakatuallah Electro Dynamics Ltd Vs BPDB & ors

6 SCOB [2016] HCD 56
Bangladesh Power Development Board Order, 1972, Article 2;
Doctrine of estopple
It appears from Clause-(d) of Article-2 of P.O. 59 of 1972 that the term Government has been specifically defined therein. According to the said provision, Government means the Government of the Peoples of Bangladesh. Clause-(h) of Article-2 further provides that Power Board means Bangladesh Power Development Board as constituted by the said PO 59 of 1972. The very definition of these two terms clearly indicates the intention of the Legislature in that the Legislature wanted to keep these two terms separately with separate definitions.
54. 6 2016 Md. Yousuf Ali Akon & ors Vs. BIWTA & ors.

6 SCOB [2016] HCD 66
Legitimate expectation
In the advertisement dated 19.01.2004, the authority has given an express promise to that effect that the appointee shall be on a probation period of 1 (one) year and after satisfactory completion of the said probationary period, the appointee shall be absorbed and therefore, the petitioners legitimate expectation arises. The petitioners successfully made out a case of legitimate expectation. The petitioners had a legitimate expectation to be absorbed against the permanent posts on the basis of the advertisement published in the Daily Observer on 19.01.2004. In the background of the advertisement dated 19.01.2004, there was reasonable expectation of their being permanently absorbed in the post of Master Pilots.
55. 6 2016 Abdus Salam & ors. Vs. State

6 SCOB [2016] HCD 82
partisan witness; ocular evidence; medical evidence; Value of evidence by child witness
The ocular evidence of prosecution witnesses supported by post mortem report with regard to the injury no. 1 and 2 cannot be disbelieved. Further, the medical evidence is only corroborative in nature, in that view, the ocular evidence of the eye-witnesses, which substantially corroborates the injuries on the person of the deceased Rokshana, must be accepted.
56. 6 2016 Mahbub Ali Vs. Judge, Artha Rin Adalat & ors

6 SCOB[2016]HCD 102
Necessary parties in an Artha Rin Suit; Artha Rin Adalat Ain, 2003, Section 6;
It appears that, admittedly, defendant no. 3-petitioner was neither a borrower nor guarantor and even nor a mortgagor relating to the loan liability and, therefore, he is not liable for repayment of the loan inasmuch as the petitioner does not come within the purview of sub-section (5) of section 6 of the Ain, 2003, wherein who will be the necessary party in the Artha Rin suit has been provided, and hence the suit ought to have been dismissed as against this defendant no. 3- petitioner.
57. 6 2016 Rashid & ors Vs. State & ors

6 SCOB[2016]HCD 108
Code of Criminal Procedure, 1898, Section 436;
The learned Sessions Judge, Sunamgonj appears to have fallen in error in law in directing the learned Judicial Magistrate to take cognizance directly inasmuch as from a mere reading of Section 436 of the CrPC, it appears that the learned Sessions Judge is not empowered to directly ask any Judicial Magistrate to take cognizance.
58. 6 2016 Md. Sadek Hossain & ors Vs. Most. Azmeri Begum and ors.

6 SCOB[2016]HCD 112
Evidence Act, 1872, Section 115
From a close reading of Section 115 of the Evidence Act ..., it is quite clear that the legislature does not allow a person from retracting or denying anything that which he might intentionally have said or done either verbally or by action or by omission and the consequence of which might have led some other person to rely on such as true or act upon such belief. This is as we find is clearly barred under the law. It is also significant to note that the bar is not confined to a particular type or class of suits but it applies to any suit or proceeding be it Civil or Criminal whatever may be the nature, class or category of the suit or proceeding. It is evident from perusal of the same that Section 115 in no way distinguishes or otherwise makes any distinction between Civil and Criminal Proceedings. From the language of Section 115 itself it is evident that it applies to all proceedings.
59. 6 2016 Musa Kalimullah Vs Secretary, WR, MoWD & ors

6SCOB[2016] HCD 124
Promotion; time scale
It transpires that for a Steno-Typist of the Board the post of Stenographer is a promotion post and the decision of promotion is to be made on the basis of merit through open competition in which serving Steno-Typists and outsiders may take part. It is true that the Petitioner had earlier drawn the benefits of 3 time-scales as a Steno-Typist. So, on being promoted as Stenographer he has become entitled again to get the benefits of a new-slot of time-scales subject to fulfilling essential conditions like- satisfactory service of 8, 12 or 15 years.
60. 5 2015 Md. Mijanur Rahman Vs. Bangladesh and ors (Zinat Ara, J)

5 SCOB [2015] HCD 1
Meaning of `A person in the service of the Republic or of any statutory public authority`;
Administrative Tribunal
`A person in the service of the Republic or of any statutory public authority` includes a person who is or has retired or is dismissed, removed or discharged from such service but does not include a person in the defence services of Bangladesh or of the Bangladesh Rifles.
61. 5 2015 Md. Shariful Alam Vs Artha Rin Adalat & anr (Zubayer Rahman Chowdhury, J)

5 SCOB [2015] HCD 6
Artha Rin Adalat Ain 2003
Section 6
The language used in the section makes it clear that the plaint has to be filed along with an affidavit, both as to the statements made in the plaint as well as to the documents annexed with the plaint. Therefore, non-compliance with the mandatory requirement of law has rendered the plaint invalid in the eye of law and consequently, the impugned order passed by the learned Judge of the Adalat cannot be sustained in law.
62. 5 2015 Abdul Mazid @ Khoka & ors Vs. State & ors (Moyeenul Islam Chowdhury, J)

5 SCOB [2015] HCD 9
Evidence of interested witnesses;
Section 342 and 537 of CrPC;
Evidence of interested witnesses:
The rule that the evidence of interested witnesses requires corroboration is not an inflexible one. It is a rule of caution rather than an ordinary rule of appreciation of evidence.
63. 5 2015 Renuka Rani Mondol Vs Biswajit Mondol & anr (Borhanuddin, J)

5 SCOB [2015] HCD 33
Section 123 of Transfer of Property Act, 1872;
Gift by a Hindu
Appellate court below allowed the appeal in part holding that the deed was not acted upon since there is no evidence that possession was delivered to the defendant no.1. This finding is not correct. Where the instrument of gift has been registered, delivery of possession is not essential for the validity of a gift by a Hindu.
64. 5 2015 Mrs. Hurun Nahar & ors Vs Mozammel Haque & ors (Krishna Debnath, J)

5 SCOB [2015] HCD 37
Code of Civil Procedure, 1908;
Order 23, Rule1
During the course of pendency of original proceedings in the Trial Court, the Court may permit the plaintiff to withdraw the suit with liberty to file a fresh one, when there is a formal defect in the suit or for any other reason as provided, but such a right is not available to the plaintiff when there is already a judgment against him as aforesaid manner.
65. 5 2015 Coats Bangladesh Ltd Vs Commissioner, Customs Bond Com. & ors. (Sheikh Hassan Arif, J)

5 SCOB [2015] HCD 40
Show cause notice;
closed-minded show cause notice
When a higher authority, namely the NBR, has expressed its opinion agreeing with the proposal sent by the earlier Bond Commissioner (Mr. Helal Uddin), it became very much difficult for the subsequent Bond Commissioner (Mr. Enayet) to go for any other option but to follow the proposal as was agreed upon by the NBR. This being so, this Court is of the view that, the show cause notice dated 25.05.2004 was in fact a closed-minded show cause notice. Therefore, giving reply to the such show cause notice, or attending a hearing pursuant to such show cause notice, became a mere formality for the petitioner. This view is further strengthened when we see the actions taken by the Bond Commissioner against the petitioner at the same time of issuance of the said show cause notice. When the Bond Commissioner requests other concerned authorities to suspend a license for all practical purposes, no reasonable reading can be done from such actions that the said show cause notice was in fact a closed-minded show cause notice inasmuch as that the concerned Commissioner had already decided the fate of the petitioner`s license.
66. 5 2015 State & ors Vs Syed A. Salam & ors (Bhabani Prasad Singha, J)

5 SCOB [2015] HCD 49
Section 340 of CrPC;
Legal Remembrancer`s Manual, 1960
Chapter XII
Paragraph no.6
An Advocate to defend an undefended accused charged with capital punishment should be appointed well in time of the commencement of trial of the case to enable him to study the case and the lawyer should be of sufficient standing and able to render assistance. The lawyer should be provided with the papers similar to that of the Public prosecutor.
67. 5 2015 Mrs. Sitara Siddiq Vs Bangladesh & ors. (Md. Ashraful Kamal, J)

5 SCOB [2015] HCD 57
Abandoned Buildings (Supplementary Provisions) Ordinance, 1985
Section 7 and 8:
The application under sub-section (1) of section 7 shall contain the particulars as stipulated in Sub-section (1) of section 8 and also shall be accompanied by all the documents or the Photostat or true copies, as stipulated in Sub-section (2) of section 8 of the Ordinance No. LIV of 1985. In both the Sub-sections (1) and (2) of section 8 of the said Ordinance, the word `shall` has been used i.e. `shall contain` and `shall be accompanied. So the particulars in sub-section (i) and documents as per sub-section (2) of section 8 of the Ordinance are the essential condition in making an application under sub-section (1) of section 7 of the said Ordinance. Without any of the said particulars and documents, it is not possible to file an application under section 7 of the said Ordinance.
68. 5 2015 Shamsun Nahar Begum Shelly Vs. Bangladesh & ors (Mahmudul Hoque, J)

5 SCOB [2015] HCD 67
The Abandoned Buildings (Supplementary Provisions) Ordinance, 1985
Section 5(1)(b)
Article 7 of P.O. 16 of 1972;
Natural justice
The Government- Respondent never issued and served any notice upon the owner and the occupier under Article 7 of P.O. 16 of 1972 or under Section 5(1)(b) of the Ordinance, 1985. Non-service of notice as required by law disentitled the Government-Respondent to claim that the property was legally declared abandoned and enlisted in the `Kha` list of the Abandoned Buildings. It is also noted that there is nothing on record to show that the Petitioner was ever asked to show cause about inclusion of the property or to surrender the same which has definitely denied the right of natural justice to the Petitioner.
69. 5 2015 Shoel Textile Mills Ltd & ors Vs Bangladesh & ors (Kashefa Hussain, J)

5 SCOB [2015] HCD 74
Bank Companies Act, 1991;
Section 5 GaGa;
Section 27 KaKa;
loan defaulter;
reschedules a loan
The moment a bank or any other financial institutions reschedules a loan or grants any kind of loan, credit facilities or any other sort of financial assistance infavour of any person, it is virtually an admission on its part that the person to whom such financial assistance is being granted is not a loan defaulter under the definition provided in Section 5 GaGa of Bank Companies Act,1991.
70. 5 2015 Jafri Soap and Chemical Ind. & ors Vs. Agrani Bank & ors (S.M. Mozibur Rahman, J)

5 SCOB [2015] HCD 79
Artha Rin Adlat Ain, 2003
Section 19,20,41,42
Without the provisions of Artha Rin Adalat Ain, 2003 any question regarding any proceedings initiated or any order, judgment or decree passed by the Judge of the Artha Rin Adalat cannot be raised in any court or to any authority and no court or authority will take cognizance or accept any application praying for any remedy filed in any court or authority ignoring the said provisions of section 20 of the Artha Rin Adalat Ain, 2003.
71. 5 2015 Rahima Begum VS. The State (Md. Farid Ahmed Shibli, J)

5 SCOB [2015] HCD 84
Penal Code, 1860
Section 201, 302/34;
Code of Criminal Procedure, 1898;
Section 236 and 237;
There might be, as it appears, some animosity or hostility between the accused-appellant`s husband Ali Haider and the deceased`s father Abdur Rashid. But there was no such enmity between the accused-appellant and deceased`s father or mother. In view of the facts above and evidence given by the prosecution, it is beyond our comprehension as to how and on the basis of which the learned Session Judge became convinced with and relied upon the prosecution case of killing Rabbi by the accused-appellant. Since there was no such reason for the accused-appellant to have any motive of killing an innocent minor boy of only 3 1/2 years old, it seems to us hardly possible to believe in the alleged charge of causing death of Rabbi by the accused-appellant.
72. 5 2015 Motiur Rahman @ Moitta & ors Vs. The State
(Amir Hossain, J)

5 SCOB [2015] HCD 91
Section 19A and 19(f) of the Arms Act, 1878;
Exclusive control and possession
The person from whose exclusive control and possession arms and ammunition are found is the only person to be liable.
73. 5 2015 Ramesh Chandra Das & ors Vs. Sureshwar Mazumdar & ors (Khizir Ahmed Choudhury, J)

5 SCOB [2015] HCD 96
Section 106 of Transfer of Property Act
The defendant forfeited their right to stay in the suit properties by denying the title of the plaintiffs and as such the contents of the notice or any purported facts are insignificant here. Because if someone denies title of the land lord, notice under section 106 of the Transfer of Property Act may be dispensed with. Consequently the decision referred in 51 DLR 393 is not applicable here. On the other hand the case reported in 1 BLC AD 156 as reported by Mr. A.M. Amin Uddin has got semblance with the present case.
74. 5 2015 Roli Chamka Vs Kantiomy Chakma & ors (Md. Iqbal Kabir, J)

5 SCOB [2015] HCD 101
Section 64 of the রাঙামাটি পার্বত্য জেলা স্থানীয় সরকার পরিষদ আইন, ১৯৮৯
In our examination it is also found that opposite party received the money, executed a bainapatra and delivered the possession of the schedule land in question and the defendants has no objection to transfer the land by register deed in favour of the plaintiff- petitioner through the Court. The law of this area does not create any bar to transfer the land to the present petitioner. Prior approval is required only for those to transfer the lands who are not inhabitant of the same hill district. Moreover, we have also found that government pleader has no authority to file the suit on behalf of the Deputy Commissioner.
75. 4 2015 Md. Mahbub Alam Vs. The State

4 SCOB [2015] HCD 1
561A of the Code of Criminal Procedure; Inherent power
The allegations as made in the first information report do not disclose any offence against the petitioner. Interference of this Court in exercise of its inherent power under section 561A of the Code of Criminal Procedure before framing charge is justified only when this Court finds, as in the present case, that the allegations as made in the first information report or charge sheet do not constitute the offence alleged against the accused or that on admitted facts no case can stand against the accused.
76. 4 2015 Karnaphuli Industries Ltd Vs The Commissioner of Taxes State

4 SCOB [2015] HCD 4
Income Tax Ordinance 1984, Section 83(2); Audi Alterm Partem
The DCT concern did not comply the provision of section 83(2) before opining that the claimed expenditure has not been adequately evidenced by the assessee applicant. Therefore it appears that the disallowance of expenditure has not only violated the provision of section 83(2) of the Income Tax Ordinance 1984, but also violated the time honored maxim Audi Alterm Partem which obliged a adjudicator to allow adequate opportunity of being head or to submit adequate representation. Accordingly this court finds merit in these seven Income Tax Reference Applications.
77. 4 2015 Shamsur Rahman Vs. Zhang Yu & ors State

4 SCOB [2015] HCD 12
Company Act, 1994, Section 20 & 87(2); EGM; Relationship between the Articles and the law
It is also found that attempts at the EGM held on 20.11.2013 to introduce changes in Article 14, thereby, facilitating the induction of the Respondent No.3 as a director, were equally unwarranted in law and irregular in form. Notably further, this EGM was held upon notice on 10.11.2013 to adopt a special resolution, thereby, falling far short of the statutory twenty-one days notice requirement mandated under Section 87(2) of the Act. That in turn exposes the Company to violation of Section 20 of the Act that authorizes alteration of the Articles by special resolution but only by necessary adherence to the notice period requirement of Section 87(2).
78. 4 2015 Alvi Spinning Mills Ltd & ors Vs. Bangladesh & ors State

4 SCOB [2015] HCD 23
Letter of Credits; contract of sale; case of fraud
The decisions referred to above consistently spelt out that when an irrecoverable Letter of Credit issued / opened and confirmed by the bank such a bank is left with no option but to respect its obligation under the letter of credit and pay if the draft and documents are found to be in order and terms and conditions of such L/C satisfied.
79. 4 2015 Gazi A.K.M. Fazlul Haque & ors Vs. Privatization Commission & ors State

4 SCOB [2015] HCD 42
Article 102 of the Constitution; Privatization Commission (Officers and Employees) Service Regulations, 2002; right to be considered for promotion; Selection Committee; deputation
Only seniority is not the sole yardstick for promotion of any officer of the Commission to the next higher post. Along with his seniority, merit of the officer shall be taken into consideration for promotion to the next higher post by the Selection Committee/DPC. In case of promotion of a Deputy Director to the post of Director of the Commission, he must have completed a minimum of 5(five) years service and his service record must be satisfactory and free from any blemish or stain. If no Deputy Director having the requisite service length and satisfactory service record is available for promotion, only in that event, the post of Director of the Commission may be filled up by deputation.
80. 4 2015 Md. Shajahan Bhuiyan & ors Vs. Md. Nurul Alam & ors State

4 SCOB [2015] HCD 52
State Acquisition and Tenancy Act 1950, Section 86; diluvion; lawful right to lease out
Section 86 of the Act, 1950 clearly provides that a land that has diluvated before the of P.O No. 135 of 1972 (i.e. after April 1956) or that will diluvate in future shall vest in the Government. It follows that irrespective of what ever title or right was acquired by Oli Ullah from the D.S. recorded tenant Zinnat Ali by virtue of the unregistered patta dated 28.1.1931 (Exhibit-ka) and the three rent receipts for the years 1341 to 1362 D.S (Exhibit-Ga-series) it had extinguished as a result of diluvion that took place some time before 1965 i.e. before the Diara Map. It follows that the Government has acquired lawful right to lease out the land that was earlier recorded as D.S. plot No.1657 and 1658.
81. 4 2015 State & ors Vs. Md. Saiful Islam & ors State

4 SCOB [2015] HCD 61
Code of Criminal Procedure, 1898 Section 103; Madak Drabbya Niontran Ain, 1990, Section 36 and 37; search and seizure
Strict non-compliance of section 103 of the Code in order to search and seizure of madak articles either from a person or any place will not render the case unbelievable.
82. 4 2015 BSRM Steels Ltd. & ors. Vs NBR & ors. State

4 SCOB [2015] HCD 80
Income Tax Ordinance, 1984, Section 53 and 82C; Advance payment of income tax; final discharge of tax liability; deduction of tax
According to sub-section (3) of the said Section 53, the importers are given credit for such advance payment of income tax during their assessment of tax in the concerned assessment year. Not only that, according to Section 82C as quoted above, such deduction shall even be deemed to be the final discharge of tax liability of an assessee-importer from that source. Therefore, since the source in the present case in respect of the petitioners is the source of importation of scrap vessels by the ship breaking industries, or sometimes by the petitioners themselves, and there is no dispute that at the time of importation of the scrap vessels AIT were deducted in view of the provisions under Section 53, the said deduction of tax shall be deemed to be the final discharge of liability from that source in view of Clause (g) sub-section (2) of Section 82C of the said Ordinance.
83. 4 2015 Md. Selim Mollah Vs. Bangladesh & ors State

4 SCOB [2015] HCD 86
Druto Bichar Ain, 2002, Section 6; public interest; objective satisfaction
Alongside the five categories of cases, the Government in the public interest can transfer any pending case at any stage of trial to Druto Bichar Tribunal. A question may still arise as to when this particular provision of law gives authority on the Government to transfer any pending criminal case at any stage of trial to any Druto Bichar Tribunal, why five categories of cases relating to the offence of murder, rape, firearms, explosive substances and drug are required to be specifically mentioned. Here the necessity of objective satisfaction on the part of the Government arises as to which cases other than the cases of those five categories are to be transferred in what public interest, and without any objective satisfaction recorded to that effect transfer of any other case to the Tribunal constituted under the Ain is not permissible. The concerned officials of the Ministry of Home Affairs must be careful and expressive in sending any case other than the cases of five categories specifically mentioned in section 6 of the Ain.
84. 4 2015 BBC Vs. Registrar, DPDTM & ors State

4 SCOB [2015] HCD 89
Trade Marks Act, 2009, Section 24 & 30; priority of use of trade mark; action for passing off
Section 30 of the Trade Marks Act, 2009 provides that priority of use of this mark gets paramount consideration compared to registration.

The right created in favour of a registered proprietor of a trade mark is not an absolute right and is subservient to other provisions of the Act. In other words, registration of a trade mark does not provide a defence to the proceedings for passing of as under section 24 of the Act, 2009. A prior user of trade mark can maintain an action for passing off against any subsequent user of an identical trade mark including a registered user thereof.
85. 4 2015 Md. Forhad Hossain Sheikh Vs. The State State

4 SCOB [2015] HCD 102
Circumstantial Evidence; Burden of proof in wife killing case;
Commission of crime can also be proved by circumstantial evidence. Circumstantial evidence is more cogent and convincing than the ocular evidence. It is correctly said that witnesses may tell a lie and it is not difficult to procure false tutored and biased witnesses but it is very much difficult to procure circumstantial evidence.
86. 4 2015 Kazi Mazharul Islam Vs. Bangladesh & ors State

4 SCOB [2015] HCD 115
Article 36 of the Constitution of Bangladesh;
If the government is allowed to restrict a person from going abroad at its discretion, then Article 36 of the Constitution will become nugatory. This Court being the guardian of the Constitution cannot condone such practice.
87. 4 2015 Kazi Md. Salamatullah & ors Vs. Bangladesh & ors State

4 SCOB [2015] HCD 117
Court-conduct of the learned Advocates; norms and etiquettes of the legal profession
Court is well empowered to oversee the professional performance and also to regulate the Court-conduct of the learned Advocates and, in an appropriate case, impose costs upon a learned Advocate for finding his conduct to be unbefitting with the norms and etiquettes of the legal profession. Accordingly, instead of referring this incident to the Bar Council towards drawing up proceedings against the learned Advocate for the petitioners, we are taking a lenient view by warning him with an expectation that this kind of incident shall never be repeated by him in future.
88. 4 2015 Syed Aynul Akhter Vs. Sanjit Kumar Bhowmik & ors State

4 SCOB [2015] HCD 127
Evidence Act, 1872, Section 91 and 92; Code of Civil Procedure, 1908, Order XIV Rule 1; Oral evidence; Documentary evidence; Issue not taken up earlier
We are surprised that the Courts below did not take these rent receipts into any consideration at all and which are relevant documentary evidences. Instead, as is obvious from their findings, the Courts below have erroneously and unlawfully relied upon oral evidences bypassing the documentary evidences and which they are barred from doing under the law. Section 91 and 92 of the Evidence Act expressly bar the reliance upon oral evidences where documentary evidences are there on record.
89. 4 2015 State & ors Vs. Rafiqul Islam & ors State

4 SCOB [2015] HCD 139
Penal Code, 1860, Section 302; Last seen together theory; Retraction of confession
According to the prosecution, in the morning of 05.06.2008 all accused persons with the victim Mamun alive were last seen together at the Gate of Rafiques house no. Ka-109/4, Kureel Bishwaroad and at that time P.W.3 i.e. the Darwan himself saw them coming out together from that house. After they were last seen together, the dead body of the victim was found at an open place of Bholanathpur by the Esapur River on 07.06.2008. In such a situation it is the burden of the accused persons to prove and explain as to how the victim had been taken and done to death there.
90. 4 2015 Shuvash Chandra Das Vs. Customs, Excise & VAT App. Tribunal & ors State

4 SCOB [2015] HCD 171
VAT Act, 1991, Section 37 & 55; Determining amount of evaded VAT; Opportunity of hearing
A notice under section 37 of the VAT Act cannot be issued without first determining the amount of evaded VAT if any. In doing so the authority have to issue notice under section 55(1) of the VAT Act 1991, claiming the evaded VAT and after giving an opportunity of hearing to the party concern, determine the amount of evaded VAT, under section 55(3) of the VAT Act 1991. After such determination of evaded VAT if the defaulter fails to repay the evaded VAT, only then, can proceed under section 37 along with other provisions of the VAT Act.
91. 3 2015 First Appeal No.464 of 2012

3 SCOB [2015] HCD 1
Registration Act,1908 Section 22A Lunacy Act, 1912 Section 18
In view of the aforesaid amendment vide Registration Act,1908 (Act No.XXV of 2004) there is hardly any scope left for anyone to raise a question of forgery of a registered document since the photographs of both the executants are pasted on every instrument and the parties shall sign and put their left impression across their photographs in the instrument. More so, it is no bodies case that the photographs available in the impugned instrument or Heba deed is not the photographs of Kazi Shahidul Islam the father of the plaintiff Nos.1-3 and 5. Under such circumstances the allegation of forgery of the document in question can safely be brushed aside.
92. 3 2015 Writ Petition No. 6324 of 2013
Suo Moto Rule No. 19 of 2013
(Arising out of WP No. 6324/13). with
Writ Petition No. 6791 of 2013.

3 SCOB [2015] HCD 13
Khulna University Act 1990
Section 28 (5):
When the law specifically used the words `প্রত্যেক স্কুলের বিভিন্ন ডিসিপ্লিনের মধ্যে জ্যেষ্ঠতার ভিত্তিতে এবং ভাইস চ্যান্সলর কর্তৃক নির্দিষ্ট ভাবে অধ্যাপকদের মধ্যে উহার ডীন পদ আবর্তীত হইবে` we hold that the post of Dean will rotate firstly among the Disciplines, according to its seniority of being set up/established, and then also among the senior Professors of each Discipline of the school. Thus so far the two interpretations given by the two Ministries are concerned we are of the view that the subsequent interpretation dated 06.03.2013 given by the Ministry of Education is more rational, reasonable and acceptable for the purpose interpretation of section 28 (5) of the Act.
93. 3 2015 I.T. Ref: Application No. 306 of 2013
I.T. Ref. Application No. 307 of 2013
With I.T. Ref: Application No. 308 of 2013
I.T. Ref: Application No. 309 of 2013

3 SCOB [2015] HCD 21
Income Tax Ordinance 1984
Section 75, 93, 94
A return filed under the normal procedure of section 75 of the Income Tax Ordinance 1984 has to be assessed within the period of limitation of six month, so also the ropening procedure against deemed assessment under the Self Assessment Scheme has to be confined to the period of limitation of two years. No proceeding for assessment of any return can be taken after the period for limitation and any such proceeding initiated shall be a nullity.
94. 3 2015 WRIT PETITION NO. 144 OF 2008

3 SCOB [2015] HCD 37
Constitution of Bangladesh
Article 102
Commercial contract
Statutory contract
The writ petition is not maintainable on two counts,- firstly, due to the reason that the dispute arose out of simple commercial contract and not out of statutory contract and secondly, there is no scope to avail writ jurisdiction as there is an equal efficacious alternative forum to settle the dispute through amicable settlement under clause 54.1, adjudication under clause 54.2 and arbitration under clause 54.3 of section 3 of the GCC between the parties.
95. 3 2015 WRIT PETITION NO. 2515 of 2012

3 SCOB [2015] HCD 42
Constitution of Bangladesh
Article 40
Cancellation of license
Right of the citizen
In the case in hand cancellation of license was indeed an unbridled arbitrary outcome of executive feat which certainly had indulged in excesses. The act has a curtailing effect upon Article 40 of the Constitution in particular. It has flouted Article 40 of the Constitution directly. The Constitution being the Supreme law of the land the framers of the same in their wisdom have made some provisions protecting the right of the citizen. To do lawful business or trade subject to restriction of law is one of those provisions which cannot be curtailed or throttled in any manner by any authority.
96. 3 2015 Writ Petition No. 8967 of 2014

Citation: 3 SCOB [2015] HCD 47
Abandoned Buildings (Supplementary Provision) Ordinance, 1985
Court of Settlement Barred by limitation
In our view, the petitioner had rightly approached the Court of Settlement, Dhaka for releasing the property in question from the Kha list of Abandoned Buildings. However, as his case was found to be barred by limitation and since he had no other equally efficacious remedy to enforce his rights, the petitioner was entitled to invoke the writ jurisdiction.
97. 3 2015 Civil Revision No. 706 0f 1998

3 SCOB [2015] HCD 59
Deed of gift Physical possession Paper transaction
There is nothing on record to show that Promoth Nath was a man of unsound mind or that plaintiff had any relationship with Promoth Nath whatsoever so as to take him to the Sub-Registry office and to fraudulently get the kabala executed by Promoth Nath. Defendants never raised any question on this aspect in any manner. The above statement of the executant considered with the rent receipts showing payment of rent for the suit land by the plaintiff for the years 1981 to 1994 and the fact of silence of the two sons of Promoth Nath (defendant No.1 and 2) in not challenging plaintiff`s kabala and the fact of physical possession of the plaintiffs lead me to conclude that plaintiffs` purchase is genuine and that their kabala dated 07.06.1980 was acted upon and that the earlier deed of gift dated 10.01.1979 purportedly made by Promoth Nath in favour of his son was a mere paper transaction so far the suit land is concerned.
98. 3 2015 Civil Revision No. 879 of 2006

3 SCOB [2015] HCD 68
Final court of fact Reassess the evidence Findings of the trial court
The appellate court being last and final court of fact will have to discuss and reassess the evidence on record independently while reversing or affirming the findings of the trial court. In case of reversal it is more incumbent upon the appellate court to reassess the evidence to arrive at his own independent finding. The findings of the trial court should not be easily disturbed as a matter of course and before reversing the findings and decisions of the trial court the appellate court should think twice or more than twice.
99. 3 2015 Death Reference no. 50 of 2010

Citation: 3 SCOB [2015] HCD 74
Penal Code, 1860 Section 302
How to attach weight to the testimony of witness
Sentencing discretion on the part of a Judge is the most difficult task to perform. There is no system or procedure in the Criminal Justice administration method or Rule to exercise such discretion. In sentencing process, two important factors come out- which shall shape appropriate sentence (i) Aggravating factor and (ii) Mitigating factor. These two factors control the sentencing process to a great extent. But it is always to be remembered that the object of sentence should be to see that the crime does not go unpunished and the society has the satisfaction that Justice has been done and court responded to the society`s cry for Justice. Under section 302 of the Code, though a discretion has been conferred upon the Court to award two types of sentences, death or imprisonment for life, the discretion is to be exercised in accordance with the fundamental principle of criminal Justice.
100. 3 2015 ADMIRALTY SUIT NO. 17 of 2015

3 SCOB [2015] HCD 93
Trade Marks Act, 2009 Section 102
When rectification proceeding is pending before this court, Suit for infringement of Trademark pending in the Court below should be stayed in view of Section 102 of the Trade Marks Act, 2009.
101. 3 2015 WRIT PETITION NO. 3203 of 2004

3 SCOB [2015] HCD 108
Value Added Tax Act, 1991
Section 9
Clause-Gha of Rule 22(1) of the VAT Rules, 1991
Since the admitted allegation against the petitioners is that in spite of the increase of price of the raw materials as reflected from the concerned bills of entries and assessment orders thereon, the petitioners did not make any corresponding increase in the declared price of the finished products and since such circumstance was not evidently mentioned under any clauses from Clauses-`Ka` to `Ta` under sub-section (1) of Section 9, we do not find as to how the directions of the concerned officers for readjusting the current account register of the petitioner, or for depositing certain amount through treasury challan, was amenable to the alterative remedy of written objection in view of the provisions under sub-section (2ka) of Section 9.
102. 3 2015 Criminal Appeal No. 1041 of 1997

3 SCOB [2015] HCD 116
Case of drug/narcotics Chemical examination Chemical expert
In the present case being a case of drug/narcotics, it was incumbent on the prosecution to get the seized phensedyl examined by a chemical expert to prove that the seized articles were actually madak drobyo/drug and under what category of madak drobyo/drug it fell. Absence of such chemical examination and contradictions between the two sets of prosecution witnesses, casted a shadow of doubt over the prosecution case.
103. 3 2015 Criminal Revision No.263 of 2012

3 SCOB [2015] HCD 119
Druta Bichar Tribunal Act, 2002
Section 10
In this case remarkably the government does not deny the fact of failure of conclusion of trial of the Druta Bichar Tribunal Case No.07 of 2006 within the stipulated time. As per the provision of section 10 of the Druta Bichar Tribunal Act, 2002, the trial of a Druta Bichar Tribunal Case is to be concluded within 135 days from the date of receipt of the case for trial. No option for the court is left therein except sending the case back to the original court in the event of failure on the part of the tribunal to conclude trial of the case within the stipulated period.
104. 3 2015 Criminal Appeal No. 300 of 1998

3 SCOB [2015] HCD 122
Evidence Act, 1872 Section 3
Evidence of business partners
There is no reason why the evidence of the business partners should be discarded simply because they belonged to a construction firm. They came before the Court and testified to the occurrence. They were fully cross-examined by the defence. Their evidence is also evidence with the meaning of Section 3 of the Evidence Act. The prosecution witness Nos. 2, 4, 6 and 7 are material witnesses though they are business partners of the P.W. No. 5, the informant but cannot be considered as interested witness. There is no reason that the testimony of P.W. Nos. 2, 4, 5, 6 and 7 can be discarded or liable to be flung to the wind simply because they happened to be business partners.
105. 3 2015 Writ Petition No. 3709 of 2015

3 SCOB [2015] HCD 132
Code of Civil Procedure, 1908
Section 136;
Order XXXVIII, Rule 5 Attachment
The Court below has power to order attachment of property situated beyond the local limit of the Court. But the Court passing the Order of attachment cannot directly attach property outside its own jurisdiction and it can only ask the Court in whose jurisdiction the property actually situated to carry out the order of attachment and complete the formalities of attachment. In the present case this Court finds that the Impugned Order passed by the Adalat was sent directly by the Court without sending the same to the District Court for compliance where the property situates. Therefore, the Impugned Order from the face of it is found to be palpably illegal and invalid in law as contained in Section 136 of the Code.
106. 3 2015 WRIT PETITION NO.28 of 2015

3 SCOB [2015] HCD 137
VAT Act, 1991
Section 55 and 56
Section 56 cannot be construed or interpreted in an isolated manner. Section 55 and 56 must be read together and from a perusal of the same, it is evident that Section 56 is mandatorily preceded by Section 55 of the VAT Act,1991 which prescribes the issuance of a Show- Cause Notice followed by other procedures and which is exhaustively laid out in the whole Section. The prescription said out in Section 55(1) (2)(3) are mandatory and no action or initiative can be taken or resorted to for realization of any unpaid, less paid or otherwise evaded etc amount, whatsoever under the provisions of Section 56 of the VAT Act, 1991, unless and until firstly the procedure laid out in Section 55 of the VAT Act has been exhausted by the authorities concerned. The principle of law is that Section 56 automatically presupposes a notice under section 55(1) of the Act, followed by the procedure laid out in Sub-section 2 & 3 of the said section 55 and which the respondents cannot avoid under any circumstances.
107. 3 2015 Writ Petition No. 846 of 2012

3 SCOB [2015] HCD 143
Constitution of Bangladesh Article 102; Doctrine of the legitimate expectation
Doctrine of the legitimate expectation ensures the circumstances in which, the expectation may be ensured or denied and among others the following grounds may also be taken in order to get a remedy under article 102 of the Constitution:- firstly there must be a promise or assurance from the employer or the authority that the incumbent would be assimilated at the end or during the tenure of his service; secondly - the past practice of `আত্মীকরণ` for other persons of similar status has been followed consistently.
108. 3 2015 WRIT PETITION N0. 10011 of 2013 & WRIT PETITION N0. 10023 of 2013

3 SCOB [2015] HCD 150
Writ of certiorari Certiorari jurisdiction
In the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a Court which has jurisdiction over a subject- matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign to itself the role of an Appellate Court and step into re-appreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior court.
109. 3 2015 Criminal Revision No.132 OF 2012

3 SCOB [2015] HCD 158
Penal Code, 1860
Section 161
Prevention of Corruption Act, 1947 Section 5(2)
The offence under section 161 of the Penal Code relates to take illegal gratification by any public servant, while offence under section 5(2) of Act II of 1947 speaks of criminal misconduct by the same if he by corrupt and illegal means abusing his position as public servant obtains for himself any pecuniary advantage. The offences of the above sections are quite different and a person may be punished in each section separately and independently.
110. 3 2015 WRIT PETITION NO. 8925 OF 2012

3 SCOB [2015] HCD 52
Constitution of Bangladesh
Article 102 and 42

অর্পিত সম্পত্তি প্রত্যর্পন আইন, 2001: Alternative remedy Protection of fundamental right
It is a settled proposition of law that an aggrieved party may invoke the writ jurisdiction of the High Court Division under Article 102 of the Constitution straightaway provided the action impugned is malafide, even though there may be an alternative remedy available for him. Since we have found that the inclusion of the case property in `Ka` Schedule of the Gazette Notification dated 06.05.2012 as a vested property is malafide, the instant writ petition, as we see it, is maintainable. Besides, it has been clearly, categorically and unequivocally held in the decision in the case of the Government of Bangladesh represented by the Ministry of Works and another Vs Syed Chand Sultana and others reported in 51 DLR (AD) 24 that the writ-petitioners can come directly to the High Court Division for protection of their fundamental right, even though an alternative remedy is available. So our definite finding is that the petitioners can come directly to the High Court Division for protection of their right to property as contemplated by Article 42 of the Constitution of Bangladesh, even though an alternative forum, that is to say, অর্পিত সম্পত্তি প্রত্যর্পন ট্রাইব্যুনাল is available for necessary legal redress.
111. 3 2015 ফৌজদারী বিবিধ মামলা নং 20859/2010,
Citation:3 SCOB [2015] HCD 98
ফৌজদারী কার্যবিধি ৫৬১এ ধারা
ফৌজদারী কার্যবিধি ৫৬১এ ধারার বিধান অনুযায়ী দন্ডিত আদেশ বাতিলের ক্ষেত্রে তিনটি বিষয়ই বিবেচনায় প্রাধান্য পাইবে, যথা : "আইগত সাক্ষ্য প্রমাণের অভাব" এবং "আদালত গঠনে ত্রুটি" (Quoram-non-judice) এবং "আইনের অপব্যবহার যাহার ফলে ন্যায় বিচার ব্যাহত"।
112. 2 2015 WRIT PETITIONS NO. 9366 of 2011, 9341 of 2011, 8220 of 2011, 9367 of 2011, 9368 of 2011, 9369 of 2011, 9370 of 2011, 2600 of 2012, 5076 of 2012, 5077 of 2012, 5078 of 2012 & 5818 of 2012.

2 SCOB [2015] HCD 1
Negotiable instrument
Holder in due course
Dishonored Cheque
Lawful custody
Until the contrary is proved, it will be presumed that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated, or transferred, was accepted, endorsed, negotiated or transferred for consideration. Section 118(g), however, provides that the holder of a negotiable instrument is a holder in due course; provided that where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
113. 2 2015 CRIMINAL REVISION NO.433 OF 2003

2 SCOB [2015] HCD 18
Alter or amend charge
Guilty under lower section
The Court under section 227 of the Code of Criminal Procedure is competent to alter or amend the charge at any stage of the proceeding before pronouncement of judgment. Since section 302 of the Penal Code is not applicable even after framing a charge under section 302 of the Penal Code, there is no legal bar to find the accused guilty under lower section of 304 Part II of the Penal Code on proper examination of the facts, circumstances and evidence of the case.
114. 2 2015 Criminal Misc. Case No. 19511 Of 2012

2 SCOB [2015] HCD 21
Quashing criminal proceeding
Delay in lodging FIR
Inherent jurisdiction
Section 561A
There is no dispute that the F.I.R. has been lodged with a delay of about four years. But, according to the F.I.R. as well as the Criminal Miscellaneous Application, the informant is a Korean woman and she received the copies of forged documents long after from the investigating officer of a previous case. Moreover, delay by itself is no ground for quashing the criminal proceeding.
115. 2 2015 WRIT PETITION NO. 9147 of 2008

2 SCOB [2015] HCD 27
Banking Companies Act 1991
Credit Information Bureau
Defaulter borrower
Financial institution
Elementary principle of Company law
The process of enlistment of any defaulter name in the CIB list is a continuing process within the meaning of section 5 GaGa read with section 27 KaKa of Banking Companies Act 1991 and also read with Article 42 of Bangladesh Bank Order 1972. If all these provisions are read together one and only inference that could be made is that if any person or a company is indebted to in any manner with any financial institution and the debt remains unpaid, it is the duty of the respondent Bangladesh Bank in its turn to enlist the name of the incumbent in the CIB list nothing more nothing less.
116. 2 2015 Writ Petition No. 735 of 2007

2 SCOB [2015] HCD 32
Administrative actions
Scale of fairness
Duty of a lawyer
Administrative actions by Government and statutory bodies should be judged on the scale of fairness. In other words, no authority can act arbitrarily and whimsically in discharging its duties, thereby affecting the rights and privilege of the property of an individual.
117. 2 2015 Writ Petition No. 9150 of 2007

2 SCOB [2015] HCD 36
Commission Act, 2004: Section 420 of the Penal Code
Bad faith
Section 2(Umo) of the Act contemplates that ceѢa means the offences mentioned in the schedule of the Act. It is an indisputable fact that the alleged offences were not scheduled offences of the Act at the relevant point of time. So the question of enquiry into the alleged offences by the respondent no. 3 is out of the question. What we are driving at boils down to this: the respondent no. 3 was not empowered to enquire into the alleged offences, but none the less, he enquired thereinto. Furthermore, it is an admitted fact that the enquiry report submitted by the respondent no. 3 was treated as an ejahar by the concerned Police Station which gave rise to the instant case. In this regard, Mr. Md. Khurshid Alam Khan has candidly conceded that the treatment of the enquiry report as an ejahar is not sustainable in law. This being the panorama, we feel constrained to hold that the very initiation of the case is de hors the law.
118. 2 2015 CIVIL REVISION NO. 4636 OF 2004

2 SCOB [2015] HCD 41
Co-sharer by purchase
Statutory period
When an application has been made under sub-section (1) any of the remaining co-sharer tenants including the transferee, if one of them, and the tenants holding lands contiguous to the land transferred may within the period referred to in sub-section (1) or within two months of the date of service of notice of the application under clause (b) of sub-section (3) which ever be earlier apply to joint in the said application; any co-sharer tenant or tenant holding land contiguous to the land transferred, who has not applied either sub-section (1) or under this sub-section, shall not have any further right to get pre-emption under this section.
119. 2 2015 CIVIL REVISION NO. 3384 OF 2001

2 SCOB [2015] HCD 44
Identifiable plot
Advocate Commissioners report
Requirement of law is that the property should be identified by boundaries or numbers. When the plots are identified by numbers, boundaries are not necessary. The identifiable plot numbers having been given with total quantum of land against each plot in the schedule of plaint, there is no difficulty in identifying land of the plots.
120. 2 2015 Civil Revision No. 1622 of 2010

2 SCOB [2015] HCD 47
Right in special law
Barring Clause
The general remedy of the suit under section 9 of the Code of Civil Procedure will be impliedly barred where a right is created by a special law and special forum is provided in it.
121. 2 2015 WRIT PETITION NO. 9490 OF 2013

2 SCOB [2015] HCD 54
Lawyers Certificate
Binding Force of Judgment
Truth and Accountability Commission (TAC)
A judgment or order becomes effective (subject to correction of error or review by the same Court, as the case may be) the moment it is pronounced in the open Court. A certificate to that effect issued by a learned lawyer is sufficient proof to the parties or persons concerned, according to the law declared in 44 D.L.R. (AD) 219. Besides, as per provisions of article 111 of the Constitution of the Peoples Republic of Bangladesh, the judgment passed by the Appellate Division is binding on the High Court Division too, alongwith the subordinate Courts. Hence, if the Appellate Division pronounces any judgment then it becomes binding on the High Court Division (in similar cases), whether the same is signed or not. If the High Court Division considers it just and proper to wait till the judgment is pronounced by the Appellate Division to be signed, then it (HCD) can at best keep the matter awaiting judgment. But, it should not pronounce any judgment contrary to the judgment pronounced, in the open Court, by the Appellate Division, on the matter having relevance to the case before this Division. However, to cover this interim period, this Division may pass such interim order as the ends of justice may demand.
122. 2 2015 ADMIRALTY SUIT NO. 17 of 2015

2 SCOB [2015] HCD 58
Refund of the Court fees
Benefit from filing of the suit
The parties are entitled to refund of the Court fees if it is found that the apparatus of the Court and its process have not been used for the cause for which the parties have taken recourse to the proceedings of the Court. This underlining principle of the Court Fees Act as well as the provisions under sub-Section (11) of Section 89A of the Code have also been recognized and affirmed in the cases as referred to by Mr. Hannan, in particular the case of Bhola v. Sardar Muhammad, PLD 1976 Lahore 1268.
123. 2 2015 Writ Petition No. 11346 of 2014

2 SCOB [2015] HCD 62
Article 102 of the Constitution
Aggrieved person
Clean hands
The above conduct of the petitioner, as to non-disclosure of pendency of the representation before the Board, clearly suggests that he attempted to suppress the said fact before this Court and obtained this Rule by misleading the Court for which he deserves to be penalised. An aggrieved person, who wishes to come to this Court for seeking any remedy, must come with clean hands without attempting to hide any fact inasmuch as this Court in exercising the jurisdiction under Article 102 of the Constitution carries out its duty as an extra ordinary forum, unlike the other ordinary Courts. This Court, in essence, is an equity Court, for, the State has provided this provision in the Constitution for adjudication upon the bonafide claims of the citizens who will not have any forum, including civil Court, tribunal or a quasi-judicial body, for vindication of their rights. If a citizen seeks to abuse the said provision, this Court not only turns down his petition, but also penalises him.
124. 2 2015 Writ petition No. 12211 of 2012

2 SCOB [2015] HCD 66
Legitimate Expectation
Public interest
Change in the policy
On the basis of several decisions passed by our Apex Court, now it has been established that generally the legitimate expectation may arise-
I. if there is an express promise given by a public authority; or
II. because of the existence of a regular practice which the claimant can reasonably expect to continue;
III. Such an expectation must be reasonable.
However, if there is a change in the policy or in the public interest the position is altered by a rule or legislation, no question of legitimate expectation would arise.
125. 2 2015 WRIT PETITION NO. 8152 OF 2009

2 SCOB [2015] HCD 70
Article 102 of the Constitution
Discretionary Power
Now it is well settled that the power of the High Court to issue an appropriate writ under Article 102 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent of the acquiescent and lethargic. If there is inordinate delay on the part of the Petitioner in filing a Writ Petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustice.
126. 2 2015 WRIT PETITION N0. 8068 of 2005

2 SCOB [2015] HCD 73
Retrospective operation
Legislative intent
Customs Act
Rate of duty
Tariff value
Imported goods
The question whether a statute operate retrospectively, or prospectively only, in one of legislative intent. In determining such intent, courts observe a strict rule of construction against a retrospective operation, and indulge in the presumption that the legislature intended statutes, or amendments thereof, enacted by it, to operate prospectively only and not retroactively. However, a contrary determination will be made where the intention of the legislature to make the statute retroactive is stated in express terms, or is clearly, explicitly, positively, unequivocally, unmistakably, and unambiguously shown by necessary implication or terms which permit no other meaning to be annexed to them, and which preclude all question in regard thereto, and leave no reasonable doubt thereof.
127. 2 2015 First Appeal No. 77 of 2006

2 SCOB [2015] HCD 77
Insurance claim
Awarding compensation
Regarding the claim (No.viii) we find that the accident has taken place during the contract period and thereafter he took treatment and failed to succeed as a result he suffered a lot and finally he lost one of his legs, which was also held within the time frame of contract and MoU and claims was made within stipulated time mentioned in MoU. So there is nothing wrong to get the benefit of the insurance claim.
128. 2 2015 WRIT PETITION NO. 3606 of 2010
WRIT PETITION NO.1909, 12357, 12358, 7980, 7982, 9355, 7979, 5175, 7981, 3184 and 7766 of 2013; 3210 of 2009; 991 of 2012; 6056, 227, 2672, 1192, 335, 7768, 1956 and 5065 of 2014

2 SCOB [2015] HCD 84
Third party authority
Purported exercise of discretion
Demand of documents
No provision of the said Act of 1991 empowers the VAT authority to direct the petitioner as a VAT registered person to deliver any documents or records directly to any third party authority, i.e. Local and Revenue Audit Directorate. Neither a notice can be issued either directing and deposit of revenue or under section 55(1) of VAT Act on that Count.
129. 2 2015 WRIT PETITION NO. 2412 OF 2007

2 SCOB [2015] HCD 95
Power to make appointment Foreign Exchange Regulation Act, 1947
Section 3
Section 16 of the General Clauses Act
According to Section 16 of the General Clauses Act, where, by any Act of Parliament or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power. As the suspension of licence is not there in Section 3 of the Act of 1947, in our opinion, the provisions of Section 16 of the General Clauses Act can definitely be invoked in order to give a complete and harmonious interpretation of Section 3 of the Act of 1947. What we are driving at boils down to this: the authority making any appointment has the power to suspend the licence of any person appointed.
130. 2 2015 WRIT PETITION NO. 3716 OF 2014

2 SCOB [2015] HCD 99
Enquiry committee
Show cause notice
We have also consulted the rules and, in our considered opinion, a show cause notice, as required under clause (Ka) of Rule- 5.4 giving 7 days time to explain the allegations brought, if any, and further asking, in the same notice, the petitioners as to whether they were willing to appear before the enquiry committee were mandatory on the part of the respondents and such notices ought to have been issued upon the petitioners. We also find that, as per clause (Kha) of Rule 5.4, it is also mandatory that appointing authority should form a 3(three) members enquiry committee and the enquiry committed shall dispose of the disciplinary proceedings, if initiated, within 60 days. But, we find nothing on record to show that any notice was issued upon the petitioners or any enquiry committee was formed required by clause (Kha) or clause (Kha) of Rule 5.4 of the said rules and the impugned memo was not issued following the procedure laid down in clauses (Ka) and (Kha) of Rule 5.4.
131. 1 2015 Income Tax Reference Application No. 159 of 2011Rule No. 53(Ref.) of 2011With
Income Tax Reference Application No. 160 of 2011
Rule No. 54(Ref.) of 2011
Income Tax Reference Application No. 161 of 2011
Rule No. 55(Ref.) of 2011
Income Tax Reference Application No. 162 of 2011
Rule No. 56(Ref.) of 2011
Commercial purpose
Fiscal law
Notification exempting or reducing income tax
The income of the assessee-university/the assessee-college ought to have been treated as tax exempted under SRO No. 178 for the assessment years 2002-2003, 2004-2005, 2005-2006, 2006-2007 and 2007-2008 by the Taxes Authority and the Tribunal.
132. 1 2015 Writ Petition No. 11442 of 2014 Section 216 (1)(Chha) of the Bangladesh Labour Act 2006
We fail to understand how the learned Chairman of the Labour Appellate Tribunal, Dhaka could entertain the appeal of respondent no. 3 in the very first place when, admittedly, there was no judicial order under challenge. In our view, the appeal before the Labour Appellate Tribunal itself was absolutely misconceived and therefore not maintainable at all.
133. 1 2015 Writ Petition No. 11959 of 2013 Writ of Certiorari
Disciplinary proceedings
the appellate authority can hear any appeal preferred against any order by an aggrieved employee and the appeal need not be confined to matters arising out of disciplinary proceedings only
134. 1 2015 Contempt Petition No.264/2010.
(Arising out of Writ Petition No.7694/2010)
Contempt of Court
Court of record
The impugned comment constituted the offence, because; (1) by this comment the contemnor purported to usurp the function of this Division, (2) the comment has the potential of influencing the minds of the people at large as well of the judges, whether or not it actually generated that effect, (3) the comment amounted to prejudging the cause which was awaiting adjudication, (4) the comment was vibrant enough to lead the public as well as the judges concerned to reckon that by issuing the Rule and passing th
135. 1 2015 Death Reference No.36 of 2010 Single witness
Relationship of the witness with the victim
The case of prosecution does not depend on the number of witnesses produced but it can depend upon a single witness whose evidence (testimony) is trustworthy, credible and unimpeachable. Therefore, obviously we can easily draw such inference in this matter that the case of the prosecution can stand very much on a single evidence if it is tangible and credible.
136. 1 2015 Criminal Revision No. 906 of 2010 with
Criminal Revision No. 907 of 2010 with
Criminal Revision No. 908 of 2010 and
Criminal Revision No. 909 of 2010
Corroboration of evidence
Presumption against prosecution
Sub-section (1) of section 138 has not made any qualification of the cheque so returned unpaid either post dated given as a security for repayment of the money as alleged by the accused or any other cheque issued by the drawer from encashment currently. The legislature has not made any difference between a post dated cheque issued as security and a cheque issued for encashment currently. I do not see any scope of making any such difference.
137. 1 2015 Criminal Appeal No. 4103 of 2012 Motive
Culpable homicide
In the absence of any motive, conspiracy, pre-plan or pre-meditation on the part of accused-appellant Muslim while inflicting injuries resulting the death of the victim 7 days after the occurrence, we find that the accused-appellant Muslim had no intention to commit murder but he committed the offence of culpable homicide not amounting to murder.
138. 1 2015 Criminal Appeal No. 6691 of 2011
Criminal Appeal No. 6692 of 2011
Instrument drawn for consideration
Holder in due course
Rebuttable presumption
Whenever any accused leads the evidence to rebut such presumption the burden again shifts to the complainant who is the holder in due course of the chque to proof by the legal evidence that the cheque was drawn in his favour for consideration.
139. 1 2015 Writ Petition No. 6220 of 2007 Locus Standi
We find that that the petitioner Samity does not have any locus-standi to move the writ petition to ventilate the causes of its aggrieved members since it is not a public purpose, rather the purpose for the benefits of individual members of the samity who have individually bought the land and thereafter formed the samity, and as such, we do not find the instant Rule maintainable.
140. 1 2015 WRIT PETITION NO. 5210 of 2013 Stopping payment by Bank
Re-imbursement in respect of the accepted bills
A bank under the law and banking practice, in particular in accordance with the relevant provisions of UCP-600, is bound to make payment or re-imbursement in respect of the accepted bills once they are accepted by the issuing banks, and in view of the said provisions of the UCP-600, namely Article-16, once such acceptance is given, the matter is closed and the concerned banks are precluded from raising any issue thereafter.
141. 1 2015 Criminal Revision No.329 of 2006
Criminal Revision No.334 of 2006
Criminal Revision No.335of 2006With
Criminal Revision No.336 of 2006
Criminal Revision No.337 of 2006
Public servant
Sanction from the Government to prosecute
A Member of Parliament is not a `public servant` within the meaning of section 21 of the Penal Code or section 2 of the Act II of 1947. We, therefore, accept the submission advanced by the learned Advocate for the petitioner only to the extent that in order to prosecute opposite party 2, no sanction from the Government was required.
142. 1 2015 Criminal Miscellaneous Case No.26782 of 2014 Prima-facie case
Seized articles
Incriminating article
On perusal of the FIR of the case, it appears that there is no specific allegation or overt act against the accused-petitioner therein which shows that no prima-facie case is revealed against the accused-petitioner. The column no.5 of the charge-sheet of the case in respect of any seized articles shows that said column is blank meaning thereby that no incriminating articles although the case is under sections 3/4 of the Explosive Substances Act, 1908.
143. 1 2015 Writ Petition No. 9204 of 2013
Writ Petition No. 9205 of 2013
Aggrieved person
Writ of certiorari
গ্যাস বিপনন নিয়মাবলী, 2004 has no compelling or binding effect upon the petitioners since admittedly the same is not law or has no force of law. Therefore, a nexus between the petitioners` grievance and Clause 5.7 of the গ্যাস বিপনন নিয়মাবলী, 2004 by itself cannot be established that the petitioner can seek remedy under Article 102 (2) (a) (ii) of the Constitution.
144. 1 2015 Writ Petition No. 5420 of 2014 Record-of-rights
Revenue Officers
Administrative functionaries
Mutation case
The moment the Revenue Officer would come to know, either through an enquiry conducted by him with the assistance of the Tahshilder or any other staff of his office, or through an application filed by a private party for mutation, that there are disputes regarding the produced papers and documents and there are contending claimants over any land and the matter is pending in the Court for disposal, the concerned Revenue Officer must not proceed further with regard to the said mutation case until the said civ
145. 1 2015 Writ Petition No. 6328 OF 2003 Property of the borrower
Third-party mortgagors
In the event of execution of a decree for realization of decretal amount the court shall proceed with the property of the borrower first and then the property of the third-party mortgagors.
146. 1 2015 Civil Revision No. 4430 of 2011 Consequential order
Penal interest
Bangladesh House Building Finance Corporation Loan Regulations, 1977 and 1996: Under both the repealed Regulations, 1977 and Regulations, 1996 the BHBFC is permitted to charge simple interest on all loans, not the penal interest.
147. 1 2015 Civil Revision No. 940 of 2013 Correction of Evidence
Inherent power of the Court
Alternative remedie
Discretionary power of a court as has been inserted in Section 151 of the Code of Civil Procedure, 1908 cannot be exercised where alternative remedies are available. After administering oath in the open court when the evidence of a witness is recorded by a trial court it cannot be discarded or changed or corrected in the form of modification except recalling the witness following the prescribed provision of law enunciated in the Evidence Act, 1872.
148. 1 2015 WRIT PETITION N0. 3843 of 2004 Chittagong Hill-Tracts Regulation
It is now established that all civil suits will be triable from 1st July, 2008 by the Joint District Judge of the respective 3(three) Hill-Tract Districts and the parties aggrieved thereto may prefer an appeal before the learned District Judge of the respective Hill-Tract Districts and as such, any person aggrieved by the judgment and decree passed by the learned District Judge may prefer civil revisional application before the High Court Division under section 115 of the Code of Civil Procedure 1908
149. 1 2015 Criminal Miscellaneous Case No.49814 OF 2014 Expiry of the statutory period
If the trial of a Druto Bichar Tribunal case is not concluded within the time stipulated in sub-section (1), (2) and (3) of section 10, it shall be sent back to the Court wherefrom the case was transferred.
150. 1 2015 WRIT PETITION NO. 13689 OF 2012 The principles of natural justice
Procedural fairness
Ultra vires
Legitimate expectation
From promise or from established practice, a duty to act fairly and thus to comply with natural justice may arise. Thus the concepts of `fairness` and `legitimate expectation` have expanded the applicability of natural justice beyond the sphere of right.
151. 1 2015 Writ Petition No. 2640 of 2011 Bill of Lading
Unpaid Seller`s Lien
In the present case petitioner submitted an ocean bill of lading issued by EXCALIVOR LOGISTICS who is a freight forwarder and agent. Therefore, as per Article 1(a) of schedule of the Carriage of Goods Sea Act, 1925, EXCALIVOR LOGISTICS is neither an owner nor a chatterer of the vessel and had no authority to issue any bill of lading. So, the bill of lading placed by the petitioner was not a bill of lading as per Article-1 (a) of schedule of `The carriage of goods by Sea Act, 1925.`
152. 1 2015 Criminal Miscellaneous Case No.17553 OF 2006 Juvenile Court
In dealing with the Juvenile Case it is bound to follow the provisions of law as laid down in sub-section 2 of section 7 of the Act, 1974 and Rule 4 of the Rules 1976, i.e., either it has to sit in a building or room different from that in which the ordinary sittings of the Court are held, or on different days or at different times from those at which the ordinary sittings of the Court are held. It means that at least the case should be tried at different times even on the same day than that of other cases of ordinary jurisdiction.
153. 1 2015 Criminal Miscellaneous Case No. 33311 of 2011 Forged document Produced in a Civil court
561A of CrPC
In a proceeding where a forged document has been used, the Court concerned should make the complaint. Since the alleged forged document has been filed in a Civil Court, it is for the concerned Civil Court to lodge any complaint before the Criminal Court if it finds any forgery relating to the said document.
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