Mizanul Islam: On 17-3- 2012 and 19- 3- 2012 two investigation reports have been submitted to the Prosecution, but they have stated that it is confidential and the names of the witness and the name of the relative are also confidential. They have raised the point for the safety of the witness. There is no scope to hide anything on this ground as the names have already came out and the cross examination has been done over their statements.
Haidar Ali: It is not all about the confidentiality.
Mizanul Islam: Yesterday’s conversation was all about the confidentiality but today we are urging on the legal ground. It has been settled which documents ought to be provided by the Prosecution to the defence. [He has read out section- 9 (4) of the ICT Act.]
All the matters of the petition under section- 19 (2) of the ICT Act would be disputed.
Haidar Ali: A rule has been framed about transferring the documents. This issue has already been discussed for several times before this time. So, there is no chance to accept this petition.
Chairman: State about your petition.
Haidar Ali: As the witness Mukund Chakraborti died on 20-4-2012 so the statement given to the investigation officer ought to be accepted as evidence.
Justice AKM Zaheer Ahmed: He has died on 20th April, have you tried to bring him before that day?
Haidar Ali: We have tried but failed to do that.
Justice AKM Zaheer Ahmed: When you have applied for accepting his statement as evidence then the Tribunal didn’t find any ground to accept that.
Haidar Ali: My application has been rejected, but not the statement has been rejected.
Justice AKM Zaheer Ahmed: Your ground has not been accepted on that time. Now what kind of importance has been arisen to accept that?
Haidar Ali: See the page- 2 of the application which mentions his name. He has died but his statements are ought to be taken.
Mizanul Islam: The statements before this Tribunal are being taken since November, they have filed the petition on March by stating that- they won’t be able to produce the 46 witnesses. They have shown 5 grounds for the non production of the witnesses which includes- one witness is sick, one is missing since 4 months, several others are being absconded, some others are being threatened and frightened for giving statement. The name of this witness was not included in those 16 witnesses; his name was included in the other 31 witnesses holding the serial no: 35 and the Tribunal have not found any reasonable ground to accept the statement in absence. Today suddenly, they have filed a petition and stating that- the witness has died and his statement should be taken in evidence. They have not even provided the death certificate.
Chairman: Why don’t you attach the death certificate here Prosecution? Go and attach it right at this moment.
Justice Anwarul Huq: When the name was included in the serial no: 35 it was not accepted, now the new ground is that- the man died. There might not be any ground after this ground. Now the Prosecution thinks that- this ground is so important.
Chairman: Now, if a bail prayer once was being rejected for a ground, then if it would not be permitted to apply again for a new ground?
Tajul Islam: Today one of my bail prayers in the High Court Division has been rejected on the same ground.
Chairman: On that case what can I say?
Chairman passed an order (summary below)
Accused Delwar Hossain Syedee has been produced before the Tribunal after a long gap.
Two applications have been filed by the Defence and the Prosecution.
Prosecution has submitted to accept in evidence the statement of the witness late Mukund Chakraborty who has died on 20-4-2012.
And Mizanul Islam from the defence has submitted that two reports have been annexed with the application under section- 19 (2) of the ICT Act and for the ends of justice the IO should be cross examined on those grounds. Prosecution opposed by saying that the defence should not be allowed to ask questions to the IO about those points.
We have heard both the application of the defence mentioned that those reports have been given to the Prosecution but not to the Defence.
In the order we have considered the matters and allowed the statements of 15 witnesses to be taken in evidence in absence, in the order the grounds of satisfaction has been expressed.
Legally it is construed that those two documents are not in the hand of the defence and in technical manner they have asked the IO about those but legally cannot raise those questions. We are in the view that the reports are not in their hand and their petition is rejected.
Regarding the receiving evidence of the statement of witness Mukund Chakrabarti made before the IO. Mr. Syed Haidar Ali submitted by annexing the death certificate that the witness has died on 20-04-2012 at the Sadar Hospital, Pirojpur, as such he submitted to receive the statement on the basis of section- 19 (2) of the ICT Act.
Mizanul Islam by opposing the prayer submitted by the prosecution stated that- the statement made by the witness is not so important for this case, once the witness’s statement has been rejected to be taken in evidence in absence. So, the Tribunal should not allow it. There is nothing in the record that- after the rejection the Prosecution has not tried to bring him. So, Mizanul Islam says he is not so important, so cannot be considered after his death.
We have heard both. Section- 19 (2) of the ICT Act- 1973 states that [read out.]
We find there is nothing in the Act that to receive the statement it must be valuable and if once a prayer is rejected it ought not be accepted. This petition was filed after his death. So, there is no ground to reject. Let the statement to the IO be taken in evidence. The defence ought to cross examine the IO on late Mukund Chakrabarti.
It also appears that Mr. Mizanul Islam’s physical condition is not good today and he needs some more time to cross examine the IO on some more points including the safe home.
On last occasion we gave him time to complete within today. We find that- some more time is required for him to complete.
We direct the defence to complete within 13 August, 2012 and no further times will be allowed.