Bangladesh Judicial Service (BJS) Written – Probable Problematic Question & Answer Series.

 

Topic: From Conflict to Clarity: Can a Nari-O-Shishu Tribunal Convict Under Section 302 Penal Code When Dowry Element Fails? The Definitive Appellate Division Position (2023–2024)

Question:

The accused was charged, tried, and initially convicted by a Nari-O-Shishu Nirjatan Daman Tribunal under section 11(ka) read with section 30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 for causing the death of his wife allegedly in connection with dowry demand and torture. During the full trial, the prosecution successfully proved beyond reasonable doubt that the accused caused the death of the victim by inflicting injuries amounting to culpable homicide amounting to murder, but utterly failed to establish any dowry demand, prior torture linked to dowry, or any nexus between dowry and the killing.

Discuss critically whether:

(a) The Nari-O-Shishu Nirjatan Daman Tribunal (as trial court) has the jurisdiction and power to alter/amend the charge and convict the accused under section 302/34 of the Penal Code, 1860 instead of section 11(ka) of the Ain, without vitiating the trial or causing prejudice to the accused?

(b) In appeal/revision, the High Court Division (exercising appellate powers under sections 410/423 of the Code of Criminal Procedure, 1898) can directly convert the conviction from section 11(ka)/30 of the Ain to section 302/34 of the Penal Code and decide the appeal on merits, or whether such conversion is impermissible on the ground that the special Tribunal lacks jurisdiction over ordinary Penal Code offences, requiring remand to a Court of Session for retrial?

Support your answer with reference to the evolution of judicial opinion in the High Court Division (including conflicting lines of decisions), the earlier restrictive view of the Appellate Division, and the settled position laid down by the Appellate Division in recent landmark judgments (particularly post-2020 developments). Also, explain the rationale behind the Apex Court's final view regarding prejudice to the accused, the nature of appellate jurisdiction, and the character of the Tribunal as equivalent to a Sessions Court.

Model  Answer (Structured for High Marks in BJS Exam)

Answer:

The issue involves the interplay between special law (Nari-O-Shishu Nirjatan Daman Ain, 2000 – hereinafter “the Ain”) and general law (Penal Code, 1860), the scope of alteration of conviction/charge in special Tribunals, and appellate powers under the Code of Criminal Procedure, 1898 (CrPC). It raises questions of jurisdiction, prejudice, procedural economy, and justice delivery.

Evolution of Judicial Conflict:

For nearly two decades, the High Court Division (HCD) exhibited conflicting views:

• Permissive line — Several decisions allowed conversion/alteration to section 302 Penal Code where dowry/torture elements failed but murder was proved. Examples include: State vs Kamruzzaman (11 BLC 77), State vs Md Abul Kashem Kha (23 BLC 540), State vs Nurul Amin Baitha (7 SCOB 40), and others like State vs Abul Kalam, Eunus Kha, Mannan Gazi, Golam Sarwar @ Ripon. These held that the Tribunal, being functionally equivalent to a Sessions Court (per sections 25–28 of the Ain), could alter charges/convictions, and appeals being continuation of trial, appellate courts could do likewise under CrPC section 423 without remand.
• Restrictive line — Contrary decisions rejected conversion, holding that the special Tribunal has limited jurisdiction only over offences under the Ain, and alteration to Penal Code offences is impermissible (e.g., State vs Bahar Mian, 56 DLR 454, which declared earlier permissive cases per incuriam).

The Appellate Division initially leaned restrictive. In the original judgment in The State vs Nurul Amin Baitha line (Criminal Petition for Leave to Appeal No. 495 of 2015, decided 25.07.2016), it held that conversion from section 11(ka)/30 of the Ain to section 302/34 Penal Code was unlawful.

Settled Position by Appellate Division (2023–2024):

The issue was definitively resolved in favour of permissive conversion through landmark review and subsequent judgments:

• In Criminal Review Petition No. 55 of 2022 in The State vs Nurul Amin Baitha and others (75 DLR (AD) 187, decided 12 March 2023), an eight-member full bench (chaired by CJ Hasan Foez Siddique) overruled the 2016 restrictive holding. Key holdings:
• The HCD, as appellate court under CrPC section 423, has jurisdiction to convert conviction from section 11(ka)/30 of the Ain to section 302/34 Penal Code.
• Appeal is continuation of original trial; appellate court possesses powers co-extensive with trial court.
• The Tribunal under the Ain functions as a Sessions Court (sections 25, 26, 27(3), 28), empowered to amend/alter charges.
• No prejudice to accused: section 302 carries lesser punishment (death/life imprisonment discretionary) than mandatory death under section 11(ka).
• Remand for retrial wastes judicial time/resources on futile proceedings when murder is fully established.
• Reaffirmed in Chaitonya Sarkar Vs The State and Ors (77 DLR (AD) 08, decided 3 January 2024), the most recent Apex pronouncement, emphasizing that offence under section 11(ka) (dowry-linked killing) is graver than simple murder under section 302. Altering to lesser offence causes no prejudice.

Application to (a) Tribunal's Power:

Yes, the Tribunal can alter the charge/convict under section 302 Penal Code. As a Sessions Court-equivalent (per Ain provisions), it applies CrPC mutatis mutandis (including sections 227, 464 on charge alteration). When special element (dowry demand/torture) fails but culpable homicide amounting to murder is proved, the lesser included offence can be invoked to avoid acquittal on technicality and secure ends of justice.

Application to (b) High Court Division's Power:

Yes, the HCD can directly convert and decide on merits without remand. Appellate jurisdiction under CrPC sections 410/423 allows alteration of finding/conviction if evidence supports it and no failure of justice/prejudice occurs. The 2023 review judgment explicitly grants this power, overruling earlier restrictions.

Rationale:

• No prejudice — Lesser penalty; accused had full trial opportunity on facts constituting murder.
• Procedural economy & justice — Avoids multiplicity of proceedings; prevents escape from liability on failure of special ingredient.
• Statutory harmony — Tribunal's dual character (special + Sessions) and CrPC's overriding applicability enable this.
• Graver offence principle — Dowry murder includes all elements of simple murder + aggravating factor; dropping aggravation reduces gravity without vitiating proof.

Thus, the current binding law (post-2023) permits both trial court alteration and appellate conversion, ensuring substantive justice over procedural technicality. This aligns with CrPC's object to prevent failure of justice (section 537) and Supreme Court's supervisory role.

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