High Court Division

(Civil Revisional Jurisdiction) Civil Revision No. 813 of 1999 Janab Ali Mondal and others

V

Md. Anowar Hossain and others Mr. Justice Mirza Hussain Haider Date of Judgment : May 28, 2003 Result—: Rule discharged

Background

Mirza Hussain Haider, J: The defendant-petitioners obtained this Rule calling upon the plaintiff opposite party to show cause as to why the impugned judgment and decree dated 11.2.1999, passed by the learned Additional District Judge, 2nd Court, Jhenidah, in Title Appeal No. 78 of 1996 reversing those dated 23.4.1996 passed by the learned Subordinate Judge (now Joint District Judge),1st Court, Jhenidah, in Title Suit No. 58 of 1986 should not be set aside and/or pass such other of further order or orders as may be deemed fit and proper.

The case of the defendant-petitioners in short, is that on 29.12.1980 the opposite party instituted Title Suit No. 1678 of 1980 for declaration of his title in the Court of Subordinate Judge, Jessore, against the present opposite party i.e. the heirs of Godai Molla. Thereafter when Jhenidah became a new district the suit was transferred to the Court of Subordinate Judge (now Joint District Judge), Jhenidah on 16.3.1986 and renumbered as Title Suit No. 58 of 1986. The plaintiff alleged that the suit property along with other properties originally belonged to one Kunjo Bihari Ghose under the Superior land lord Raja Bhushan Dev Roy Bahadur. Kunjo Bihair Ghose while possessing the suit land died leaving behind his only son Rashik Lal Ghose who inherited the same and subsequently settled 7.08 acre of land, orally, with the plaintiff on 10th Ashar, 1350 BS and since then the plaintiff has been possessing the same peacefully. The plaintiff also stated in his plaint that he entrusted one Godai Mollah to help him in recording his name in the SA record but the plaintiff came to know on 20th Chaitra 1386 BS corresponding to 3.4.1980 that instead of recording the plaintiff's name Godai Mollah got his own name recorded in respect of the suit land in the SA Record.

Deliberation

The present petitioner appeared and contested the suit by filing written statement denying all material allegations of the plaint contending inter alia that admittedly the suit land originally belonged to Kunja Bihari Ghose under Raja Promotha Bhushan Deb Roy Bahadur. But the said defendant claims that Kunja Bihari Ghose, while possessing the

suit property settled the same in favour of Godai Molla by oral settlement. Subsequently Kunja Bihari was chopped to death with dao, kodal and shavol, ornaments were looted, Sheoli, wife of deceased Tapan and Anima were gang raped. Even informant's minor daughter and elderly woman were not spared and subjected to dragging for sexual harassment.

It appears that Nari-O-Shishu Nirjatan Daman Ain, 2000 is a special law which has been enacted to curb the crimes on repression of women and child with heavy hand.

On his connection it is to be noted that all offences under the Ain are non-bailable as provided under section 19 (2). Thereafter Sub-section-3 (subject to order provisions of the Ain) lays down certain condition and restriction and clause (Ka), (Kha) and (Ga).

Clause "Ka" to sub-section 3 provides that no person accused of any offence punishable under this Ain will be released on bail unless the informant party is given the opportunity of being heard. Cause (Kha) (Ga) enjoin that the court is to be satisfied there is a reasonable cause to find the accused guilty of the charge brought against of the accused him exists of in case accused is woman or child being physically crippled, proper trial will not be hampered for his release on bail as preconditions.

Section 25 of the Ain provides that in the matter of lodging complaint of any offence, investigation trial and disposal the provisions of the Code of Criminal Procedure shall apply and the Tribunal constituted under the Ain shall be deemed to be a Court of Sessions and it will exercise all the powers of Court of Sessions in the trial of any offence under the Ain or any other offence pursuant thereto. From the above it is apparent that though the Tribunal and the High Court Division on appeal is empowered to grant bail under the general provision of the Code the power is limited and such power should be exercised subject to specific condition and restriction mentioned in section 19. This restricted power of bail prevails notwithstanding the general provision of section 25 of the Ain. No expressed provision is made for granting bail to any person accused of any offence punishable under this Ain only because bail has not been opposed by the informant or the informant party consents to bail.

Judgement

We are, therefore, of opinion that application filed by the informant praying for considering the bail of the accused is of no consequence in law in granting or refusing the prayer for bail.

In view of the nature of allegations we are not inclined to grant bail to the appellant.

In the result the appeal is dismissed.

Mr. Harendra Nath Nondy, Advocate, for the defendant-petitioners.

Mr. Nurul Amin, with Mrs. Sakila Rowshan, Advocates, for the opposite party.