Some important case reference,mainly focused of Bangladesh Supreme court's decision. Though it is not organized by chronologically yet this document carry some relevant issues which may help people of legal background.

1. Md. Oliullah
LL.B, LL.M
advocate.oliullah@gmail.com
"When a substituted provision is declared void or repealed, the former provision shall be effective
immediately"
Ful Chand DasV. Mohammad Hamad 34 DLR (AD) 361
When a provision of law repealed by a statutory provision of law repealed by a statutory provision which
is declared ultra vires the constitution, the former provision is automatically revived on such declaration.
If the amended statute is wholly void, the statute sought to be amended is not affected but remains in
force. Where the law was amended but subsequently the amendment was repealed, the amendement has
to be completely ignored and the provisions of the law as they stood prior to amendment are to be taken
into consideration.
Sree Monju KumarSaha Vs. State- 44 DLR 354 (AD)
Bail in a pending appeal in a pending criminal appeal when an appellant files an application for bail, the
Court should not ordinarily issue a Rule. The Court may grant or refuse bail or ask the petitioner to come
up with a separate petition and may hear the state if necessary before disposing of an application for bail.
Section 39 ofSpecific ReliefAct
Abdul Mannan Sheikh Vs. Soleman Bewa 59 DLR 392
The cancellation of a document is much more than a declaratory relief that it is a substantive relief and ad
valorem Court fee will be necessary for such relief under section 7 (IV)(C) of the Court Fees Act.
Corroborative Evidence
The state Vs. Md. Ershad Ali Sikder& ors.12 BLT (HCD) - 125
For corroborative evidence Court must look at the broad spectrum of the approver's version and then find
out whether there is other evidence to corroborate and lend assurance to that version. The nature and
extent of such corroboration may depend upon the facts of different cases. Corroboration need not be in
the form of ocular testimony of witnesses and may even be in the form of circumstantial evidence. It is to
be borne in mind that the evidence of approver is held to be trustworthy, must be shown that the story
given by approver so far as an accused is concerned, must implicate him in such a manner as to give rise
to a conclusion of guilt beyond reasonable doubt. Insistence upon corroboration is based on the rule of
caution and not merely a rule of law.
A Reasonable Doubt
The state v. Md. Gaus Meah @ Rana & ors. 13 BLT(HCD) 136)
A reasonable doubt is not an imaginary, trivial, or merely a possible doubt, but a fair doubt based upon
reason and common sense. it must grow out of the evidence in the case. It is always to be kept in view
that exaggerated devotion to Rule of Benefit of doubt must not nurture fanciful doubt.

2. The requirements ofcorrectly constituting a limited company
Salomon V A Salomon And Co Ltd [1897]AC 22 Case Summary
Separate Legal Personality (SLP) is the basic tenet on which company law is premised. Establishing the
foundation of how a company exists and functions, it is perceived as, perhaps, the most profound and
steady rule of corporate jurisprudence. Contrastingly, the rule of "SLP" has experienced much turbulence
historically, and is one of the most litigated aspects within and across jurisdictions.1 Nonetheless, this
principle, established in the epic case of Salomon v Salomon,2 is still much prevalent, and is
conventionally celebrated as forming the core of, not only the English company law, but of the universal
commercial law regime. Commonly known as: Salomon v Salomon
FACTS
Salomon transferred his business of boot making, initially run as a sole proprietorship, to a company
(Salomon Ltd.), incorporated with members comprising of himself and his family. The price for such
transfer was paid to Salomon by way of shares, and debentures having a floating charge (security against
debt) on the assets of the company. Later, when the company's business failed and it went into
liquidation, Salomon's right of recovery (secured through floating charge) against the debentures stood
aprior to the claims of unsecured creditors, who would, thus, have recovered nothing from the liquidation
proceeds.
To avoid such alleged unjust exclusion, the liquidator, on behalf of the unsecured creditors, alleged that
the company was sham, was essentially an agent of Salomon, and therefore, Salomon being the principal,
was personally liable for its debt. In other words, the liquidator sought to overlook the separate
personality of Salomon Ltd., distinct from its member Salomon, so as to make Salomon personally liable
for the company's debt as if he continued to conduct the business as a sole trader.
ISSUE
The case concerned claims of certain unsecured creditors in the liquidation process of Salomon Ltd., a
company in which Salomon was the majority shareholder, and accordingly, was sought to be made
personally liable for the company's debt. Hence, the issue was whether, regardless of the separate legal
identity of a company, a shareholder/controller could be held liable for its debt, over and above the capital
contribution, so as to expose such member to unlimited personal liability.
RULING
The Court of Appeal, declaring the company to be a myth, reasoned that Salomon had incorporated the
company contrary to the true intent of the then Companies Act, 1862, and that the latter had conducted the
business as an agent of Salomon, who should, therefore, be responsible for the debt incurred in the course
of such agency.The House of Lords, however, upon appeal, reversed the above ruling, and unanimously
held that, as the company was duly incorporated, it is an independent person with its rights and liabilities
appropriate to itself, and that "the motives of those who took part in the promotion of the company are

3. absolutely irrelevant in discussing what those rights and liabilities are".Thus, the legal fiction of
"corporate veil" between the company and its owners/controllers4 was firmly created by the Salomon
case.
In Rylands v Fletcher (1868)LR 3 HL 330
Raland V. Fletcher is one of the most famous and a landmark case in tort. It was an English case in year
1868 and was progenitor of the doctrine of Strict Liability for abnormally dangerous conditions and
activities. This case paved the way for judgment of many more cases on nuisance and liability in case of
negligence. Even if one is not on fault, he can be held liable for negligence. Strict liability states a person
responsible for the damage or loss done occurred to other by his or her activity without the concern of
elements such as negligence, mens rea and any kind of remote liability.
The defendants employed independent contractors to construct a reservoir on their land. The contractors
found disused mines when digging but failed to sealthem properly. They filled the reservoir with water.
As a result, water flooded through the mineshafts into the plaintiff's mines on the adjoining property. The
plaintiff secured a verdict at Liverpool Assizes. The Court of Exchequer Chamber held the defendant
liable and the House of Lords affirmed their decision.
REQUIREMENTS
1. The defendant brought something onto his land
In law, there is a difference between things that grow or occur naturally on the land, and those that are
accumulated there artificially by the defendant. For example, rocks and thistles naturally occur on land.
However,the defendants in Rylands v Fletcher brought water onto the land.
2. Non-natural use of the land
In the House of Lords, Lord Cairns LC, laid down the requirement that there must be a non-natural use of
the land.
Recent examples are:
Ellison v Ministry of Defence (1997) 81 BLR 101, [1997]CLY 3864
3. Something likely to do mischief
The thing brought onto the land must be something likely to do mischief if it escapes. In such a situation
the defendant keeps it in at his peril.
4. Escape
There must be an escape of the dangerous substance from the defendant's land.
5. Foreseeability
the Cambridge Water Case (1994) is relevant in this jurisdiction
REMEDIES
The owner of land close to the escape can recover damages for:
1. Physical harm to the land itself (as in Rylands v Fletcher) and to other property.
2. It is no longer clear if a claimant can recover for personal injury.
DEFENCES
A number of defences have been developed to the rule in Rylands v Fletcher.
1. Consent
The express or implied consent of the claimant to the presence of source of the danger, provided there has
been no negligence by the defendant, will be a defence.
2. Common Benefit

4. If the source of the danger was maintained for the benefit of both the claimant and defendant, the
defendant will not be liable for its escape. This defence is either related to the defence of consent or the
same thing. According to Winfield & Jolowicz, p551, "common benefit seems redundant (and indeed
misleading) as an independent defence".
3. Act of a stranger
The defendant will not be liable if a stranger was responsible for the escape.
Rickards v Lothian [1913] AC 263. The D was not liable when an unknown person blocked a basin on his
property and caused a flood, which damaged a flat below.
4. Statutory authority
A statute may require a person or body to carry out a particular activity. Liability under Rylands v
Fletcher may be excluded upon the interpretation of the statute.
5. Act of God
An act of God is an event which 'no human foresight can provide against, and of which human prudence
is not bound to recognise the possibility' (per Lord Westbury, Tennent v Earl of Glasgow (1864) 2 M
(HL) 22 at 26-27).
Nichols v Marsland (1876) 2 ExD 1. Exceptionally heavy rain caused artificial lakes, bridges and
waterways to be flooded and damage adjoining land. The D was not liable.
However,Nichols v Marsland was doubted by the House of Lords in:
Greenock Corporation v Caledonian Railway [1917] AC 556. The corp. constructed a concrete paddling
pool for children in the bed of a stream and obstructed the natural flow of the stream. Owing to a rainfall
of extraordinary violence the stream overflowed at the pond and damaged the property of the plaintiffs.
Held that the extraordinary rainfall did not absolve the corp. from responsibility and that they were liable
in damages.
6. Default of the claimant
If the escape is the fault of the claimant there will be no liability. Alternatively, there may be contributory
negligence on the part of the claimant.
"Marbury v. Madison (1803) is a landmark case in the field ofJudicial Review"
On this day in 1803, the Supreme Court, led by Chief Justice John Marshall, decides the landmark case of
William Marbury versus James Madison, Secretary of State of the United States and confirms the legal
principle of judicial review–the ability of the Supreme Court to limit Congressional power by declaring
legislation unconstitutional–in the new nation.
The court ruled that the new president, Thomas Jefferson,via his secretary of state,James Madison, was
wrong to prevent William Marbury from taking office as justice of the peace for Washington County in
the District of Columbia. However, it also ruled that the court had no jurisdiction in the case and could
not force Jefferson and Madison to seat Marbury. The Judiciary Act of 1789 gave the Supreme Court
jurisdiction, but the Marshall court ruled the Act of 1789 to be an unconstitutional extension of judiciary
power into the realm of the executive.
In writing the decision, John Marshall argued that acts of Congress in conflict with the Constitution are
not law and therefore are non-binding to the courts, and that the judiciary’s first responsibility is always to
uphold the Constitution. If two laws conflict, Marshall wrote,the court bears responsibility for deciding
which law applies in any given case. Thus,Marbury never received his job.

5. Jefferson and Madison objected to Marbury’s appointment and those of all the so-called “midnight
judges” appointed by the previous president, John Adams, after Jefferson was elected but mere hours
before he took office. To further aggravate the new Democratic-Republican administration, many of these
Federalist judges–although Marbury was not one of them–were taking the bench in new courts formed by
the Judiciary Act, which the lame-duck Federalist Congress passed on February 13, 1801, less than a
month before Jefferson’s inauguration on March 4.
As part of the “Revolution of 1800,” President Thomas Jefferson and his Democratic-Republican
followers launched a series of attacks against the Federalist-controlled courts. The new Democratic-
Republican-controlled Congress easily eliminated most of the midnight judges by repealing the Judiciary
Act in 1802. They impeached Supreme Court justice Samuel Chase,but acquitted him amidst inner-party
squabbles. The Chase acquittal coupled with Marshall’s impeccably argued decision put an end to the
Jeffersonian attack.
what is Legal Character pursuant to section 42 of Specific Relief Act 1877?
The expression "legal character"in section 42 of the act denotes a personal and special right not arising
out of contract or tort, but of legal recognition. [ Mirpur Mazar Co-operative Market Society Ltd vs
Ministry of Works Government of people's Republic of Bangladesh and others 52 DLR 263]
What the plaintiff must prove in a suit under section 9 ofThe Specific ReliefAct :
In a suit under section 9 the plaintiff is to prove -
[Sona Mia vs Prokash AIR 1940 (Cal) 464.
(i) that he was in possession;
(ii) that he has been dispossessed; i.e. deprived of actualphysical possession of land.
(iii) that the dispossession took place without his consent;
(iv) that it was done otherwise than in due course of law;
(v) that the dispossession took place within six month before institution of the suit under section 9 of the
Specific Relief Act.
21 DLR 264 (WP)— [The State vs.Yousuf Ali Khan]
Scandalisation of court is grossest form of contempt. Legal practitioners may be punished for contempt of
court even for language professedly used in discharge of their functions as advocate. Advocate is guilty of
contempt in making wild allegations of corruption against the trying Judge without verifying and
satisfying himself that the allegations were in fact sustainable. He cannot claim any privilege if not acted
in a bonafide diligent manner. Legal practitioners are not agents of persons who pay them but act in the
administration of justice.
The question that arises is whether a man and woman living together for a long time, even without a valid
marriage, would raise as in the present case,a presumption of a valid marriage entitling such a woman to

6. maintenance.
On the question of presumption of marriage, we may usefully refer to a decision of the House of Lords
rendered in the case of Lousia Adelaide Piers & Florence A.M. De Kerriguen v. Sir Henry Samuel Piers
[(1849) II HLC 331], in which their Lordships observed that the question of validity of a marriage cannot
be tried like any other issue of fact independent of presumption. The Court held that law

7. will presume in favour of marriage and such presumption could only be rebutted by strong and
satisfactory evidence.
Acceptance by Performance (section 8 ofthe Contract Act)
Carlill vs Carbolic smoke ball co. 1892 2 QB 484
Where the defendant company advertised to pay $100 to any one who will be caught influenza after using
smoke ball produced by the company and Mrs. Carlill used the smoke ball as per the instructions given by
the company and she was caught influenza and sued to recover $100. Her claim was accepted by the
Court and the Court rejected the arguments of the defendants, inter alia, that the plaintiff should have
notified her intention of acceptance to the defendant.
Doctrine ofFactum Valent
[ 50 DLR (AD) 47, 1997 BLD 289A,1998 MLR 76A]
Hence it is that a marriage once performed and solemnized though it be without the consent of the
guardian has been held by the court to be valid, because the texts which prescribe the rules for the consent
of guardian for the purpose of marriage have been held to be merely directory once the celebration of
marriage in fact is established there shall be a presumption there being of marriage in law and observance
of essential ceremonies.
Aggrieved Party"In Dr. Mohiudding Farooque v. Bangladesh" the Appellate Division held that in so far
as it concerns public wrongs of public injury or invasion of the fundamental rights of an indeterminate
number of people any member of the public being a citizen suffering the common injury or common
invasion in common with others has a right to invoke the jurisdiction under article 102 of the
Constitution.
Asraf Ali @ Sheru vs State [7 BLC 616]
An exculpatory confession is no confession in the eye of law, as in such confession the accused does not
admit his guilty in terms of the offence complained. In a confession of this nature, the confessing accused
conveniently keeps himself away from the crime and poses to be an idle spectator,ostensibly under
duress. Learned Sessions Judge was,therefore,manifestly wrong in convicting the accused appellants for
murdering Ibrahim, essentially on the basis of totally exculpatory confessions, while acquitting accused
Abu Bakkar, who is found to be the real killer of Ibrahim.
Onus ofproving an offence is always upon the prosecution:
[Pulin Mahajan Vs. The State, 16 MLR (AD) 386;8 ADC 982]
Held: In a criminal case onus of proving all the ingredients of an offence is always upon the prosecution
and at no stage does it shift to the defence. This burden is neither neutralised nor shifted. Even in cases
where the defence of the accused does not appear to be credible or absolutely false that burden does not
any the less. Whenever this burden is discharged, it is only when the accused is required to explain the
essential elements in the prosecution case which would negative it. Where the onus shifts, and the
evidence on his behalf probabilities the plea, he will be entitled to the benefit of doubt.
Pardanshin lady- onus is upon the recipients of the document to show that the executrix had proper and
independent advice before she executed the document:
Held: It is now settled principles of law that when a document is executed and registered by a village

8. illiterate pardanshin lady onus heavily lies upon the recipients of the document to show that the executrix
had proper and independent advice before she executed the document in question. In a case of fraud the
question of limitation will run from the date of knowledge and not from the date of execution of the
disputed document. [Md. Abdul Barik and another Vs. Most. Serajan Nessa and another, 8 ADC 16]
Tera Mia vs Crown 7 DLR 539
Where gun-shots were directed towards the lower part of a victim’s body who died subsequently and the
injury was not shown to be one which was sufficient in the ordinary course of nature to cause death. It
was held that, it could not be said the offence committed was one of murder.
A telephone conversation between two private person is not a statement to the police-officer. But a tape –
recorded conversation is admissible subject to three conditions : a. it is relevant to the matter in issue; b.
the voice is identified; and c. the accuracy is proved by the elimination of the possibility of ensuring of
the tape record . (AIR 1973 SC 157)
Government of Bangladesh VS Mirpur Seipucca (tin-shed) Kalayan Samity 54 DLR 364
The acceptance of the secondary evidence by the Subordinate Judge and his decision in the suit relaying
upon such non-admissible evidence are errors of law apparent on the face of the record.
Government of Bangladesh VS Mirpur Seipucca (tin-shed) Kalayan Samity 54 DLR 364
The acceptance of the secondary evidence by the Subordinate Judge and his decision in the suit relaying
upon such non-admissible evidence are errors of law apparent on the face of the record.
Chan vs The Minister of Immigration: 1989: High Court
Facts of the case:
Chan Yee Kin is a citizen of China and was a member of a faction of Red Guards which lost the struggle
for control of that organisation in his local area. He was questioned by
police and was detained for 2 weeks in 1968. He tried to escape but was caught and received increasing
periods of detention. In 1974 he escaped to Macau and stowed away on a ship to Australia which he
entered illegally in 1980.
He applied for refugee status on 29 November 1982. He was refused the status of a 'refugee' within the
meaning of the 1951 Refugee Convention. He challenged the decision to the single judge of the Federal
Court. The Court set aside the decision of the Immigration department and referred to the Minister for
reconsideration. The Minister appealed to the Full Federal Court against the decision. The Full Federal
Court upheld the appeal.
Mr Chan went to the High Court against the decision of the Full Federal Court.
Decision: The court held that the definition of a 'refugee' involved a mixed subjective and objective test.
The question whether or not a person had the status of a 'refugee' within the meaning of the 1951
Convention was one of determination upon the facts as they existed when the person concerned sought
recognition as a 'refugee'.
The Court held the 'persecution' was not defined in the Convention, although Articles 31 and 33 of the
Convention referred to those whose life or freedom might be threatened. There was a generalacceptance

9. that a threat to life or freedom amounted to persecution. Some would confine persecution to a threat to
life or freedom, whereas others would extend it to other measures in disregard of human dignity.
Comment: This case is important as it dealt with the interpreta-tion of the definition of a 'refugee' as
stipulated in the 1951
Convention. The definition, according to the Court, needs both subjective (mental) and objective (facts)
test.
protect him from his mother. He had no case to stand on in the facts presented to the Court.
50 DLR (HCD) 103
অভিয োগ গঠন ভিষযে শুনোনীর সমে আসোমীর দোভিলী প্রমোন তথো দভলল পত্র ভিযিচনো করো োে নো এিং তোর ভিভিযত
আসোমীর ভিরুযে মোমলোিোভতল করো োে নো৤
অসোমীর পক্ষ থথযক মোমলো অিযোহভত থদেোর জনয থকোন দরিোস্ত থদেো থহোক িো নো থহোক আসোমীর ভিরুযে অভিয োগ
গঠনকোরো হযি ভকনো থস ভিষে ২৬৫ ভস ও ২৬৫ ভি ধোরোর ভিধোন অনু োেী দোেরো আদোলত তথো থ থকোন ট্রোইিুযনোযলর
দোেীত্ব হযে উপযরোক্ত ভিষে ভিযিচনো কযরএিং পক্ষযদর িক্তিয শুযন সঠিক ভসেোযে উপভনত হওেো৤ শুধুমোত্র এজোহোযর
নোম উযেি থোকযল এিং আসোমীর ভিরুু্যে পুভলশ অভিয োগ পত্র দোভিল করযল িো অভিয োযগর দরিোযস্ত আসোমীর নোম
উযেি থোকযলই তোর ভিরুযে োভিক িোযি অভিয োগ গঠন করো সভমচীন নে৤
Public Interest litigation
Kazi Mukhlesur Rahman Vs. Bangladesh and others 26 DLR(SC) 44
The fact of this case was as follows :
On May 16 1974, the Prime Minister of Bangladesh and India Signed a treaty in Delhi providing inter alia
that India will retain the southern half of southern Berubari Union No. 12 and the adjacent enclaves and in
exchange Bangladeh will retain the Dahagram and Andorpota enclaves. This treaty was challenged on the
ground that the agreement involves cession of territory and was entered into without lawful authority by
the executive head of government. The petitioner Kazi Mukhlesur Rahman was an advocate and came to
the court as a citizen and as such his standing was in question. Locus Standi was granted by Sayeem CJ
on the ground that Mr. Rahman agitated a question affecting a constitutional issue of grave importance
posing a threat to his fundamental rights that pervade and extend to the entire territory of Bangladesh. The
court decided that the question is not whether the court has jurisdiction but whether the petitioner is
competent to claim a hearing. So the question is in each case. The application, however, was rejected on
the ground of being pre-mature. But since the court observed that a cession of territory needs
parliamentary approval and enactment, the Government soon proceed with the third amendment of the
Constitution.
Adverse possession
Nehal Uddin vs. Amena Khatum[43 DLR 492]
Question of acquisition of title by adverse possession -
possession under a mistake or invalid title is as effective as that of a trespasser and in the case of a claim
of title by adverse possession by co-sharer against another co-sharer,ouster of the latter has to be proved
and possession of the party claiming title by adverse possession must be actual and exclusive for a
continuous period of more than 12 years in assertion of hostile title.

10. Chowdhury Mahmood Hasan and others vs.Bangladesh and others[54 DLR 537]
A person not personally aggrieved may also come if his heart bleeds for his less fortune fellow for any
wrong done by the Government when an action concerns public wrong or invasion on the fundamental
rights of indeterminate number of people, any number of the public suffering the common injury has right
to invoke the writ jurisdiction.
10 BLD (AD) 168
Business transaction between parties- civil liability no basis of criminal proceedings- civil claims not to
be brought in criminal courts as a contrivance to put pressure for re-payment of dues-civil claims to be
settled and sorted out in civil court- to hold otherwise is to ignore the realities of business transaction and
to encourage civil claims to be brought into criminal court.
[AIR 1942 Cal 79]
The object of Section 195 of Cr.p.c is to prevent improper or reckless prosecution by private persons for
offences in connection with the administration of public justice and those relating to the contempt of
lawful authority of a public servant.
WAR CRIMES
AC of the ICTY srtated in Tadic case:
i) war crimes must consists of a serious infringement of an international rule, that is to say must involve
grave consequences for the victim; ii) the rule violated must either belong to the corpus of customary law
or be part of an applicable treaty; and iii) the violation must entail, under customary or conventional law,
the individual criminal responsibility of the person breach the rule.
[Bander Ali vs. state 40 DLR (AD) 200]
In the case of culpable homicide the intention or knowledge is not so positive or definite. The injury
caused may or may not cause the death of the victim. To find that the offender is guilty of murder, it must
be held that his case falls within any of the four clauses of section 300, otherwise he will be guilty of
culpable homicide not amounting to murder. Facts of the case show that death was caused without
premeditation.
42 DLR (AD) 31 [ Shah Alamvs. The State]
A FIR May be lodged by any person for it is meant just to set the machinery of law in action.
1980 Pak.Criminal law Journal 345 [ Md. Hanif vs. the State]
FIR- Delay not explained Satisfactory Held-always fatal to Prosecution.
51 DLR (AD) 22
Section 169 of the Cr.p.c has not given the police officer any power to judge the credibility of the
witnesses and to decide the defence plea of alibi
Sufia KhanamVS Faizunnnessa 39 DLR (AD) 46
If a person’s right and title is clouded by an instrument he may seek a declaration u/s
42 to nullify the effect of such an instrument. A suit for declaration that a deed
whether a sale deed or decree is void comes u/s 39 of the SR Act in terms of this
section But when further prayer is added that by the said deed plaintiff’s right is not
affected. This falls under section 42 – If his suit included the reliefs that the
instrument is question is void and his right has not been affected thereby and or the

11. defendant acquired no right thereby, then the reliefs are covered by both sections 39
and 42.
Sufia KhanamVS Faizunnnessa 39 DLR (AD) 46
A written instrument when is adjudged void, need not be cancelled – plaintiff should
also seek the additional relief by way of setting aside the decree or cancelling the
deed – Suit for mere declaration that an instrument is void, maintainable without a
prayer for its cancellation – Relief by declaration of nullity of any written instrument
and also relief by cancellation of the instrument provided in section 39 , section 42
does not specifically provide for declaration of nullity of any written instrument;
nevertheless a decree for nullity of an instrument in view of the general provision
therein comes under section 42.
Mirza Akbar v.Emperor, [AIR 1940 PC 176]
The words “common intention” signify a common intention existing at the time when the thing was said,
done or written by the one of them. It had noting to do with carrying the conspiracy into effect.
JayendraSaraswatiSwamigal v. State of Tamil Nadu,[AIR 2005 SC 716]
If prima facie evidence of existence of a conspiracy is given and accepted,the evidence of acts and
statements made by anyone of the conspirators in furtherance of the common object is admissible against
all.
Distinction between appeal and revision regarding CPC
An appeal is a continuation of the original proceeding. [F.A Khan v. Pakistan, 16 DLR (SC) 405] in effect
the entire proceedings are before the appellate authority which has power to review the evidence subject
to the statutory limitations prescribed. But in a revision, the revisional authority has no power to review
the evidence unless the finding of fact of the lower court suffers from legal infirmities(S-115).
Meaning ofSHALL (Black's LawDictionary)
As used in statutes and similar instruments, this word is generally imperative or mandatory; but it may be
construed as merely permissive or directory, (as equivalent to "may,") to carry out the legislative intention
and In cases where no right or benefit to any one depends on its being taken in the imperative sense,and
where no public or private right is impaired by its interpretation in the other sense. Also, as against the
government, "shall" is to be construed as "may," unless a contrary intention is manifest. See Wheeler v.
Chicago, 24 111. 105, 76 Am. Dec. 736; People v. Chicago Sanitary Dist., 184 111. 597, 56 N. E. 9.".:;:
Madison v. Daley (C. C.) 58 Fed. 753.
Examination of the Complainant is mandatory
37 DLR 227
Examination of the complainant on oath when taking cognizance of an offence U/S 200 Cr.p.c mandatory.
Failure to do so renders the proceeding liable to be quashed.
37 DLR 223
Failure to examine the complainant is an irregularity, not an illegality.

12. "Groundless"
11 BLD(AD) 110
"Groundless" appearing in both the sections 141A and former section 253, means that the materials
produced before the Magistrate against the accused are either so frivolous, absurd or insufficient that no
useful purpose would be served by framing a charge against the accused.
Mandatory and directory provision
[Kazi Mamunur Rashid v.Bangladesh, 16 BLT 119]
Having regard to the fact that no consequence was provided for the failure to hold parliamentary election
within ninety days of the dissolution of parliament, the time limit prescribed has been held to be directory.
[Sultana Kamalv. Bangladesh, 14 BLC 141]
Generally when no consequence is provided for non-compliance, the provision is held directory.
15 DLR 702
A Magistrate acting Under Section 144 has no business to adjudicate upon any question of title or
possession. The only question before him is whether a breach of the peace is imminent and to make an
order with the object of preventing breach of the peace.
Approver [38 Cr.LJ 852]
Once the approver has accepted a tender of pardon he stands on the same footing as any other witness
with the exception that he is liable to forfeit his tender of pardon if he does not comply with the
conditions on which the tender was made. He may be examined like other witnesses. Confession made by
the approvers are not substantive evidence but may be used only for the purpose of contradicting or
corroborating their depositions in court.
19 BLT 388 [Court is not an arbitrator]
It is held that imposing of condition in granting bail is not sustainable in the eye of law. The learned judge
in rejecting the prayer for bail in this case has forgotten her basic principle that she is bound to dispense
justice in accordance with law and a judge cannot be a arbitrator while dispensing justice.
14 DLR 355 [ Inherent power ofthe court]
Absence of any specific provisions in the code, court has the power to pass necessary orders for ends of
justice.
55 DLR (AD) 131 [Monsur Ali Vs State]
A fugitive has no right to seek any kind of redress as against his grievance, if any, against the judgment
and order of a court convicting him to imprisonment.
5 MLR 334 (HC) [MOBARAK HOSSAIN (MD).@JEWEL VS. THE STATE]
Supply of copy of statement recorded U/S 164 before filing charge sheet is not permissible-statement of
accused recorded under section 164 Cr.p.c. by a Magistrate is a public document within the meaning of
section 74 of the Evidence Act, 1872. An accused is not entitled to get copy of such statement during
investigation before filing charge-sheet under section 173 Cr.p.c.

13. 49 DLR (AD ) 132
There is nothing in law precluding a criminal case on account of civil suit pending against the petitioners
on the same facts. The criminal case stands for the offence, while the civil suit is for realization of money.
Both can stand together.
"Precedent"
[56 DLR 265]
It is basic to the rule of precedent that if a later judgement of an apex court particularly when given
without considering or noticing its earlier decisions on the same issue or point, and comes in conflict or at
variance with its earlier ones, such judgement however latest in time, loses its binding element for being a
judgement made per incuriam.
RudulSah v. State of Bihar, (1983) 4 SCC 141
Nature of the Case:
RudulSah’s case was a public interest litigation (PIL) case filed in the Supreme Court under Article 32 of
the Indian Constitution (whereby one can directly approach the Supreme Court when fundamental rights
have been infringed upon). The petition sought the release of RudulSah from illegal detention, and also
ancillary relief such as rehabilitation and compensation.
Summary:
RudulSah was arrested in 1953 on charges of murdering his wife. He was acquitted by an Additional
Sessions Judge, in 1968, who directed his release from jail, pending further orders. RudulSah languished
in jail for 14 years after his acquittal, until his plight was highlighted in the media in 1982 and led to the
filing of the PIL on his behalf.
By the time the PIL came up for hearing in Court, RudulSah had been released. However,he sought
ancillary relief including payment for his rehabilitation, future medical expenses incurred, and
compensation for his illegal incarceration from the State. The Court directed the State to show cause for
the petitioner’s detention in relation to his ancillary claims, and received a much delayed response in
defence of the incarceration from a state jailor. The Court viewed the State response as a callous
afterthought with no true basis in fact and thus held that the petitioner’s detention was wholly unjustified.
Next, the Court examined whether, under its remedial powers it could adjudicate the petitioner’s claims
for ancillary relief. The Court reasoned that Article 21’s guarantee of the right to life and personal liberty
would be stripped of its significant content if the Court was limited to passing orders releasing individuals
illegally detained. The Court held that the “right to compensation is some palliative for the unlawful acts
of instrumentalities which act in
the name of public interest and which present for their protection the powers of the State as a shield.”
Accordingly, the Court ordered the State to pay 30,000 rupees to the petitioner as an interim measure, in
addition to the 5,000 already paid, noting that the judgment did not preclude the petitioner from bringing
future lawsuits against the State and its officials for appropriate damages relating to his unlawful
detention.
Enforcement of the Decision and Outcomes:
As regards enforcement of the decision, the judgment specified that the amount must be paid within two
weeks from the date of the decision. The Government of Bihar agreed to make the payment.
Significance of the Case:
RudulSah’s case is a landmark judgment in the jurisprudence of state liability. It is considered particularly
important as it led to the emergence of compensatory jurisprudence for the violation of fundamental rights
under the Constitution. It is noteworthy in this context that there is no express provision for awarding
compensation in the text of the Indian Constitution, and that this judgment was on the basis of the Court’s

14. interpretation of the extent of its remedial powers. This was the first case since the inception of the
Supreme Court that awarded monetary compensation to a person for the violation of his fundamental
rights guaranteed under the Constitution. The grant of such monetary compensation was in addition, and
not to the exclusion, to the right of the aggrieved person to bring an action for damages in civil law or in
tort. Following this case,the Supreme Court awarded compensation in several cases. In the subsequent
early cases in which this remedy was considered, the Court held that compensation would be awarded
only in ‘appropriate cases’ which seemed to primarily involve life and liberty rights and were mostly
cases relating to illegal detention and unlawful deaths. Nonetheless, in later cases,it became clear that the
scope had become significantly wider. Since economic and social rights are often considered by the
Supreme Court under the ambit of Article 21 of the Constitution (the right to life which is a fundamental
right), compensation as a constitutional remedy may be available for violations of these rights. For
example, in the case PaschimBangaKhetSamity v State of West Bengal (1996 SCC(4)37), where the
Supreme Court uheld that the right to life included the right to health, compensation was granted by way
of redress with explicit reference to the RudulSah case.
Bail
[Abdul GafurSarder and Another Vs The State and Another]
35 DLR (AD) 279
Principle of granting bail though such granting is discretionary, should be equitably applied.
Section 164 ofCr.PC: Duties ofa Magistrate relating to recording a confessional statement.
[State Vs. Babul Miah, 63 DLR (AD) 10; 16 MLR (AD) 35; 8ADC 66]
Held: The act of recording confession is a very solemn act and in discharging his duties, the Magistrate
must take care to see that the requirements of sub-section (2) of section 164 are fully satisfied. It would,
of course, be necessary in every case to put question prescribed by the High Court Division circulars. No
element of casualness should be allowed to creep in and the Magistrate should be fully satisfied that the
confessional statement which the accused wants to make is in fact and in substance voluntary. The
provisions of sub section (3) of section 164 is mandatory and therefore he is required to fill up Column 7
of the form for recording confession which is a column for recording a brief statement of the Magistrate’s
reason for believing that the statement was voluntarily made. The question or questions, whatever the
form, must be designed to show whether the accused is making the statement voluntarily. The Magistrate
should be fully satisfied that the confessional statement is in fact and in substance voluntary.
Succession
Sheikh Ibrahimvs Nazma Begum[ 44 DLR (AD) 267]
The date of death of the daughter of the propositus, whether it was before or after the coming into force of
the ordinance, is immaterial. It is the date of opening of succession which is of material importance.
Section 39 ofContract Act : Effect ofrefusal ofparty to perform promise wholly_____
Where a person has by his conduct made it impossible for himself to perform the contract in its entirely
within a stipulated time the, the other side is entitled to put an end to the contract and no question of
damages arises. 1929 (All) 62
Section 498 of Cr.PC:The status of the applicant is not at all relevant in considering the application for
anticipatory bail.

15. [The State Vs. Md.Monirul Islamalias Nirab and others, 19 BLT (AD) 144; 16 MLR (AD) 301; 16 BLC
(AD) 53; 8 ADC 620]
Held: In this connection, we should all remember that the power to grant bail, an anticipatory one, should
not be exercised arbitrarily. This is an extraordinary relief and should be granted judiciously and sparingly
only in an exceptional circumstances and not otherwise. The status of the applicant or his high station of
life, affluence is not at all relevant in considering the application for anticipatory bail. But if there is
apprehension that granting of bail may impede public interest such as security of the State or hamper
investigation by the police, the application for bail should be refused.
Presumption ofMarriage
17 BLC (AD) (2012); 2012 BLD (AD) 32 [Mst. Momtaz Begumv AnowarHossain]
Even in the absence of formal proof of a valid marriage, a marriage can be presumed by evidence of
conduct and reputation, and the question of consummation forms often an important element in the status
of valid marriage. Where there has been prolonged and continuous cohabitation as husband and wife
although in the absence of direct proof, a presumption arises that there was a valid marriage.
Rights ofthe accused
38 DLR (AD) 311
Accused presumed to be innocent of the charge till guilty is established by legal evidence.
The Bangladesh Bar Council is a Statutory Autonomous Body of the Government constituted under the
Bangladesh Legal Practitioners and Bar Council Order,1972 (President’s Order No. 46 of 1972). It
consists of 15 (fifteen) Members of whom the Attorney – General for Bangladesh is one and is the
Chairman ex-officio. Others are elected by Advocates for a term of 3 (three) years from amongst
themselves, of whom seven from General Seats and seven from seven Zonal or Group Seats. The elected
members, in their first meeting, elected from amongst themselves a vice-chairman and different standing
Committees, viz- Executive Committee, Finance Committee, Legal Education Committee etc. There is no
membership in the Bangladesh Bar Council. Bangladesh Bar Council is a licensing & regularity body for
all Advocates of Bangladesh.
"Lawyer's Certificate"
44 DLR (AD) 219
When a certificate from an advocate of a superior court is placed before a subordinate court conveying a
prohibitory order the latter should rather believe than doubt the authenticity of such communication.
Evidentiary value ofFIR- It can only be used for the purpose ofcorroborating or contradicting the
maker:
Held: An FIR being an early record and the first version conveyed to the police with the object of putting
the police in motion, is certainly an important document but by the same time, it may be remembered that
it can not be taken as evidence. It can only be used for the purpose of corroborating or contradicting the
maker. It is, therefore,not intended to be treated as the last word of the prosecution since the Code does
not provide that it must be made by an eye witness to the commission of the offence.
[Pulin Mahajan Vs. The State, 16 MLR (AD) 386;8 ADC 982]

16. Sufia KhanamVS Faizunnnessa 39 DLR (AD) 46
A written instrument when is adjudged void, need not be cancelled – plaintiff should
also seek the additional relief by way of setting aside the decree or cancelling the
deed – Suit for mere declaration that an instrument is void, maintainable without a
prayer for its cancellation – Relief by declaration of nullity of any written instrument
and also relief by cancellation of the instrument provided in section 39 , section 42
does not specifically provide for declaration of nullity of any written instrument;
nevertheless a decree for nullity of an instrument in view of the general provision
therein comes under section 42.
Where suit for cancellation is not necessary only declaration is enough for proper relief
Sufia KhanamVS Faizunnnessa 39 DLR (AD) 46
If a person’s right and title is clouded by an instrument he may seek a declaration u/s 42 to nullify the
effect of such an instrument. A suit for declaration that a deed whether a sale deed or decree is void
comes u/s 39 of the SR Act in terms of this section But when further prayer is added that by the said deed
plaintiff’s right is not affected. This falls under section 42 – If his suit included the reliefs that the
instrument is question is void and his right has not been affected thereby and or the defendant acquired no
right thereby, then the reliefs are covered by both sections 39 and 42.