Reviving the 'stopped' judicial proceedings

ON the issue of reviving the stopped judicial proceedings, the adjudicators in Courts of justice usually confront few rudimentary dilemmas. There is also disorientation as to the application of the provision enunciated in section 249 of the Code of Criminal Procedure, 1898 in our administration of criminal justice in Bangladesh. To realise the good meaning and application of the provision the same may be scrutinised minutely.

Our contemplation reveals that in section 249 CrPC, judges of judicial and metropolitan magistracy have been given discretionary option to use the power to stop certain judicial proceedings.  As per the wordings of that section a Metropolitan Magistrate, a Magistrate of the first class, or with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, in any case instituted otherwise than upon complaint may for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment either of acquittal or conviction, and may thereupon release the accused.

It is transpired from the glimpse of the essence of section 249 of the Code of Criminal Procedure in relation to the Courts' power to stop proceedings that proceeding of GR case or Police case can be stopped under section 249 CrPC and the accused persons may be released to that effect by the same Court. But analysing the heading of that provision we find a confusing terminology contrasting the wording of the provision only for the use of the word 'complainant' therein since the word 'complainant' refers to the person who accuses in any complaint case.

Nonetheless, so far as the spirit of the wording of the said provision of CrPC is concerned this power of 'stoppage of proceeding' is only confined for the G.R. cases. It is settled that under the scheme of CrPC there is no such scope of stopping the proceeding of C.R. cases. Moreover the accused persons who are released for the purpose of proceeding stoppage can not in any way be deemed to be finally exempted from the criminal liability of that particular case's allegations. It is very important to understand the difference between the disposal orders of the Courts in relation to the 'acquittal' i.e. conclusive exemption from criminal liability so long the order of acquittal remains unaltered and the 'release' i.e. temporal exemption from criminal liability so long the order of proceeding remains stopped. A person released in an order of proceeding stoppage can be subjected to the criminal trial at any time the stopped proceeding resumes.  

Now, in this context we face a logical question as to whether a stopped case can be revived at all. If the answer of law is in the affirmative then few consequential questions peep in the mind who can order such revival or whether the judge stopping the proceeding can revive the same in a changed subsequent circumstance requiring restoration of the stopped proceedings for the cause of justice.                

To that end, appearing before the Courts ordering the stoppage of the cases the informants recurrently pray for the revival of their cases advancing revival petitions. But it is revealed from the study of relevant provision of law that there is a legal bar to revive a case which is stopped under section 249 by the Magistrate as spelt out in the last portion of Rule 638(2) of Criminal Rules and Orders (CrRO). This legal bar is emanated from the decision given in the case of Niamat Ali Sheikh and others v  Begum Enayetur Noor and others reported in 42 DLR(AD) 250= 13 BLD(AD) 11=10 BCR (AD) 262. On the basis of the above decision, in sub-rule (2) of rule 638 of the Criminal Rules and Orders (Volume-1), it has been mentioned that after stopping of the proceeding and release of the accused by a Magistrate under section 249 of CrPC, there is no scope of reviving the case by him.

Arguably, as the word 'may' is used in the body of the governing section for proceeding stoppage in the CrPC it is not mandatory for the judges of judicial and metropolitan magistracy to stop the proceeding. Moreover, it is widely thought that the power given in that provision given to a magistrate to stop the proceeding also includes the power to start the trial again if the reasons for stopping the proceeding no more exist. In this connection it may be mentioned that in a number of judicial pronouncements of the Indian Jurisdiction, the interpretation is that the magistrate who passes an order of stay or stoppage of trial under section 249 CrPC, may begin the trial again if witnesses are available.

In June 1990 when the Niamat Ali's case was decided by the Appellate Division, there was a provision for stoppage of a proceeding and there was also legislative sanction for reviving the same which was enunciated in section 339D of the CrPC. As a matter of fact, sub-section (4) of section 339C was substituted in 1992 by Act no. XLI of 1992 AD and section 339D was omitted in 1992 AD by Act no. XLII of 1992. In sub-section (4) the words 'shall stand stopped' were used nevertheless in section 249 it is provided that the magistrate may for reasons to be recorded by him, 'stop the proceedings'. In section 339C(4) as the words  'a trial shall stand stopped' were used, there was no scope of reviving the case without legislative sanction and the legislature being sentient of the legal position, provided the statutory legal sanction in section 339D.

Despite the fact that the question of stoppage of trial as provided in section 249 essentially was not the main question for decision in the Niamat Ali's case, the observations made by the Appellate Division in respect of the provision  of section 249 is binding on all subordinate courts. So, in the light of the above quoted decision of our Apex Court there is no legal scope for the Courts ordering the proceeding stoppage to consider the petition of the informants advanced with the prayer to revive the proceeding of their once stopped prosecutions.

Now, after the elucidation of few crucial questions regarding the 'revival' issue we have a clear-cut provision as to the issue of revival of stopped proceedings in the Criminal Rules and Orders maneuvered from the laws emanated by the landmark decision of our Apex Court. Hence, in similar circumstances the petitions seeking 'revival of stopped proceedings' may be lawfully rejected by the same forum which ordained the stoppage of the proceeding. Thus, for ends of justice the prayers of revival may be disposed of in pursuant to the relevant provision of CrRO and the precedent erected by the Apex Court.

THE WRITERS ARE MEMBERS OF BANGLADESH JUDICIAL SERVICE.