ABDUL HAKIM Vs. STATE

JUDGEMENT

(1.) This Rule was issued at the instance of the informant petitioner calling upon the Deputy Commissioner, Mymensingh to show cause as to why the impugned Judgment and order dated 03.05.1993 passed by the learned Sessions Judge, Mymensingh in Criminal Revision No. 93 of 1992 affirming those dated 06.02.1992 passed by the learned Upazilla Magistrate, Fulbaria, Mymensingh in Fulbaria P.S. Case No. 5 dated 19.01.1989 correspon-ding to G.R. No. 5(2)1989 under Section 302/34 of the Penal Code, allowing the CID to proceed with the further investigation of the case, should not be quashed and/or such other or further order or orders passed as to this Court may seem fit and proper.

(2.) The petitioner being informant lodged a First Information Report with the Fulbaria Police Station being Fulbaria P.S. Case No.5 dated 19.01.1989 corresponding to G.R. No. 5(2) of 1989 implicating the 11(eleven) accused persons for committing offence under Section 302/34 of the Penal Code. In the said case the police submitted charge sheet on 05.01.1989 against all the FIR named accused under section 302/34 of the Penal Code and the said charge sheet was sent to the Upazilla Magistrate, Fulbaria, Mymensingh for accep-tance. The learned Magistrate by its order dated 14.4.1989 accepted the same but soon after the said charge sheet CID vide its Memo dated 23.05.1989 prayed for permission to hold further investigation into the case; which was allowed by the learned Additional District Ma-gistrate (ADM), Mymensingh on 08.07.1989. Against the said order of further investigation the informant filed a Criminal Revision being No.265 of 1989 before the Sessions Judge, My-mensingh. Subsequently, the learned Sessions Judge after hearing the parties by his Judgment and order dated 04.02.1990 allowing the revision set aside the order of the ADM. Then the state being petitioner filed an application before the High Court Division under Section 561A of the Code of Criminal Procedure challenging the said proceeding and subsequent order of the learned Sessions Judge, Mymen-shingh dated 04.02.1990 which was ultimately allowed by the High Court Division on 31.01.1991 and thus allowed the CID for further investigation.

(3.) Being aggrieved by the said Judgment and order of the High Court Division, the informant moved in the Appellate Division of the Supreme Court and the Hon'ble Judges of the Appellate Division upheld the High Courts Judgment and order dated 31.01.1991. Thereby the case was sent back to the concerned Court of Magistrate to adjudicate the matter but the informant again filed an application stating that since the CID could not investigate the case within the stipulated period, the further investigation should be stopped; upon which the learned Magistrate, Fulbaria, Mymensingh by his order dated 16.01.1992 directed the CID to stop the investigation and also ordered to transmit the case record to the Sessions Judge, Mymensingh for trial. Then on 06.02.1992 all the charge sheeted accused persons appearing before the Upazilla Magistrate prayed for enlarging them on bail and simultaneously filed an application for reviving the order of the learned Magistrate dated 16.01.1992; by which the learned Magistrate stopped the further investigation by CID. In the said application it has been contended inter-alia that the time limit of the case has been elapsed due to a revisional application was filed by the prosecution before the learned Sessions Judge, Mymensingh challenging the order of further investigation by CID and then the matter was moved up to the Appellate Division, as such, the investigation by CID could not be comple-ted within the stipulated period; therefore the statutory period of investigation should not be counted in the present case. The learned Magistrate after hearing both the parties by his order dated 06.02.1992 allowing the said application revived his earlier order dated 16.01.1992 and again directed the CID for further investigation.