IN THE SUPREME COURT OF

BANGLADESH HIGH COURT

DIVISION
(CRIMINAL APPELLATE JURISDICTION)

Mr. Justice Ashish Ranjan Das

And
Mr. Justice Md. Riaz Uddin Khan

In the matter of:

A petition of appeal under section 84 of the
Information and Communication Technology
Act, 2006
In the matter of:
Mohammad Hafizur Rahman
Æomplainant- Appellant
Versus
The State and another
„.-Respondents
Mr. Sarwar Ahmed with
Mr. A.K.M. Mamunur Rashid, Advocates mFor
the Complainant-Appellant Ms. Salina Akter,
Advocate
„.For the Respondent No. 2
Mr. S.M. Asraful Hoque, D.A.G with
Mr. Sheikh Serajul Islam Seraj, D.A.G
Ms. Fatema Rashid, A-A.G
Mr. Md. Shafiquzzaman, A.A.G. and
Mr. Md. Akber Hossain, A.A.G mFor the State
Judgment on: 11.01.2024

This Criminal Appeal is an outcome of the order

dated Ø7.IØ.2021 passed by the learned Judge of the Cyber
Tribunal, Rajshahi dismissing a petition of complaint filed
directly before
the Cyber Tribunal alleging offence under section 25 and 29 of
the Digital Nirapatta Ain, 2e18.
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Succinct facts for disposal of this appeal are that the

complainant appellant filed the petition of complaint before the
Cyber Tribunal, Rajshahi alleging inter alia that he found from
his Facebook ID that the accused from his (accused) facebook
link uploaded some false and defamatory statements regarding
his promotion at Bangladesh Border Guard and his father' s
certificate of valiant freedom fighter claiming that those are false
which constitute offence under section 25(I)(ka) and 29(1) of the
Digital Nirapatta Ain, 2018 hence the petition of complaint
against the accused.
After receiving the petition of complaint the Tribunal
examined the complainant under section 20 of the Code of
Criminal Procedure and perusing the petition Of complaint and
other materials enclosed thereto dismissed the case on the finding
that there is no ingredient of any offence under Digital Nirapatta
Ain, 2018 to take cognizance of the case. Challenging this
order the complainant preferred this Appeal before this Court
with an application for condonation of delay of 301 days.
This Court initially issued rule on delay and however,
finally condoned the aforesaid delay.
Mr. Sarwar Ahmed, the learned Advocate appearing for the
appellant submits that the finding Of the Cyber Tribunal is wrong
as there are materials or ingredients of section 25 as well as
section 29 of the Digital Nirapatta Ain, 2018 in the petition of
complaint against the respondent No. 2 as he posted through his
facebook link some false defamatory story about the complainant
and his father.
He then submits that according to section 48 of the Ain,
2018 the Tribunal could not take cognizance of any case other
than on receiving a report from the police and as such the
complainant ought to have go to the Police Station but instead he
filed complaint directly to the Tribunal and in such
circumstances the Tribunal should have sent the case to the
Police
Station, the appropriate authority and to ask
the police to proceed in according with law. The Tribunal
committed illegality by not sending the case to the police or
asking the complainant to go to the police to register the case.
In support of this submission the learned advocate cited a Full
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Bench decision of this Court in the case of Mst. Anjuara

Khatun Vs. the State and another reported in 2016 BLD 318.
He finally submits that the complainant went in wrong
forum and because of that substantial time has been elapsed to
go the Police Station now and if this Court thinks it fit may
give observation on the unusual delay caused for going to the
wrong forum upon which the complainant had no negligence
or control.
On the other hand the opposite party No. 2 though did
not file any counter affidavit but entered appearance through
his learned Advocate. Ms. Salina Akter, the learned Advocate
appearing for the opposite party No. 2 submits that the Digital
Nirapatta Ain, 2018 is a special law and special provision
should prevail over the provision of the general law, that is,
Code of
Criminal Procedure. According to section 48 of the Ain, 2Ø18
irrespective of anything provided under the Code of Criminal
Procedure, the Cyber Tribunal has no jurisdiction or authority to
entertain any complaint other than on a report by Police and in such
view of the matter the Tribunal rightly dismissed the petition of
complaint. It is not the court's duty to give advice to the litigant
people to go to the appropriate forum or authority to register their
allegation but it is the court's discretion and it cannot be said that
court committed illegality for not sending the case to the police or
asking the complainant to go to the police, the learned advocate for
the respondent no. 2 finally submits.
We have heard the learned Advocates of both the parties,
perused the materials on record available before us including the
impugned order and the relevant law.
It appears from the impugned order that the Cyber Tribunal
in dismissing the petition of complaint did not give any reason
except in a single sentence saying that there is no ingredient of
any offence under Digital
Nirapatta Ain, 2018. It is well settled provision of law that when
cognizance is taken the Court or Magistrate does not need to give
any reason but in dismissing the complaint the court or Magistrate
must briefly stated the reason for dismissing the same.
There is no doubt that Digital Nirapatta Ain, 2018 is a special
law having special procedure. Any alleged offence under the Ain is
triable by the Cyber Tribunal established under the Information and
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Communication Technology Act, 206. Section 3 of the Ain, 2018

provides that if any provision of any other law is inconsistent with
any provision of this Ain, the provision of this Ain shall apply.
Chapter VII of this Ain provided the procedure of investigation of
offences and trial. There is time limit for investigation provided in
section 40 of the Ain.
Section 48 of the Ain, 2018 starts with a non obstanti clause
saying that notwithstanding anything contained in the Code of
Criminal Procedure, the Tribunal shall not take
cognizance of any offence except upon a report
made in writing by any police officer. Section 50 of the Ain provides
that save as anything contrary to the provision of this Ain, the
provision of the Code of Criminal Procedure shall be applicable to
the investigation, trial, appeal and all incidental matters related to
any offence ubder this Ain. So, it is crystal clear that the Code of
Criminal procedure is applicable only where there is no specific
provision provided in the Ain, 2018.
Unlike the Nari-O-Shishu Nirjatan Daman Ain, 200 there is
no provision in the Digital Nirapatta Ain, 2018 that if anyone is
refused by the police to register a case (s)he can directly go to the
Cyber Tribunal. However, in the present case admittedly the
complainant
appellant did not even approach the police. The decision cited by the
learned advocate for the complainant appellant regarding the
jurisdiction and authority of Nari-O-Shishu Nirjatan Daman Tribunal
is not in any way helps his argument as there is specific provision in
the Ain, 200 to go to the Tribunal after being refused by police but
in the Ain, 2018 there is no such provision.
It appears from section 48 of the Digital Nirapatta Ain, 2018
that there is specific bar in taking cognizance of any offence alleged
to have been committed under the Ain, 2e18 other than on a report in
writing by a police officer. The Cyber Tribunal rightly refused to take
cognizance of the offence citing wrong reason but should held that
without a report in writing by police officer, the Tribunal is barred to
take cognizance of any offence directly. So, the Cyber Tribunal did
not commit any illegality in dismissing the petition of complaint
directly filed before it. In such view of the matter, the
instant appeal has no substance.
It trans out from the record that the
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instant criminal appeal has been filed in delay

of 301 days and the delay has been condoned

though causing of delay was not adequately
explained. However, it is long settled provision of law that generally
a criminal offence cannot be abated because of the time limit except
there is any specific time limit provided in any law. For example
section 138 of the Negotiable Instruments Act, 1881, section 7(b) of
the Dowry
Prohibition Act, 1980 etcetera. In the present case we do not
find any prohibitory provision of time limit in filing case under
Digital Nirapatta Ain, 2018. It is also long settled that if any
delay occurs in filing any case there must be reasonable
explanation of such delay.
In the result, the Appeal is dismissed with the above
observations.
Send down the lower court's record along with a copy of
this judgment at once.

I agree.