The Prevention of Corruption Act, 1947 (II of 1947)
Section 2- Trustee is a public servant The petitioner prayed for set aside the charge leveled against her on the ground that she purchased the property not as Prime Minister but as trustee of Shahid Ziaur Rahman trust, the Appellate Division helds that as per provision of Section 2 of the Prevention of the Corruption Act, 1947 trustee is also a public servant. Khaleda Zia VS The State & another, [1 LM (AD) 553]
Section 5(1)-Criminal misconduct- Section 5(1) of the Act defines criminal misconduct. Charge does not refer to misappropriation of money, but the words "above mentioned acts" contained in the charge necessarily imply the offence of criminal breach of trust. The charge specifically refers to the offences under sections 161 and 167 of the Penal Code. Mostafa Kamal vs State, 66 DLR 534
Section 5(1)(a)(b)(c) and (d)-The alleged agreement for sale was executed in favour of Monjur Ahmed, who is a distinct person and not a member of his family. The High Court Division has totally ignored that aspect of the matter. Though the petitioner has challenged the order of taking cognizance of the offence, we noticed that the initiation of the proceeding itself is an abuse of the process of the court and no fruitful purpose will be served if we allow the criminal case to proceed with. Chairman, RAJUK vs Manzur Ahmed @ Manzoor Ahmed, 68 DLR (AD) 337
Sections 5(1)(c) (d) & 5(2)-Appa- rently the ingredients of criminal misconduct are available, and the allega- tion if proved is a punishable under section 5(2) of the Act. Begum Khaleda Zia vs State, 64 DLR 1
Section 5(1)(c) (d)-The doctors of the Central Jail Hospital, who are public servants have misused their power and position for which, exemplary actions should be taken against them. State vs Mahtab Uddin Ahmed Chowdhury (Minar), 68 DLR (AD) 230
Section 5(1)(d)-Advance-The word advance is nothing but a synonym to be take money at a time from provident fund or other type of loan. AKM Mosharraf Hossain vs State, 65 DLR 564
Section 5(1)(d)-The allegation against the petitioner that she otherwise abused her office or abetted others to use the office for any illegal gain within the meaning of criminal misconduct as defined in section 5(1) of the Act, or her alleged involvement as an abettor under section 109 of the Penal Code cannot be deter- mined in a separate criminal proceeding and the same must be adjudicated in the proceeding by the Special Judge. Begum Khaleda Zia vs Anti-Corruption Commis- sion, 68 DLR 1
Section 5(1)(d)-Distinction of NIKO case-It appears from the confession of co- accused that bribe was given to the then Sate Minister for Energy and Mineral Resources, AKM Mosarraf Hossain, Selim Bhuiyan and Gias uddin-al-Mamun to ensure that the 'JVA' is to be finalized and singed which clearly comes within the ambit of definition of criminal misconduct given in section 5(1) of the Act. The issue is determination of criminal liability of the writ-petitioner in respect of the alleged offence under sections 409/109 of the Penal Code read with section 5(2) of the Act, that is, criminal breach of trust by public servant and abetment of the offence that took place in the process of executing the 'JVA'. The High Court Division has noted that abetment under section 109 of the Penal Code is such an offence which can be inferred from the conduct of the accused and attending circumstances of the case. The case is quite distinguishable from the other case which was already quashed by the High Court Division. Begum Khaleda Zia vs Anti-Corruption Commission, 69 DLR (AD) 181
Section 5(1)(d)-Admittedly the accused petitioner was the then Prime Minister of the People's Republic of Bangladesh who accorded approval as the head of the final authority to issue work- order in favour of CMC consortium, the third lowest among the three bidders, inspite of recommendation of the Chair- man, Petro Bangla for re-tender which according to the respondents has caused huge loss and damage to the Public Exchequer as the same constitute criminal breach of trust. Begum Khaleda Zia vs State, 70 DLR (AD) 99
Section 5(1)(d)-The delayed payment of lease money to a private association cannot be construed as 'criminal misconduct' within the meaning of section 5(1) of the Act II of 1947. Besides, opposite party being Chairman of UCCA Ltd. was an ornamental head, not the chief executive and he had only recommended the co- accused-lessees of the power tillers on their applications for lease. The allegation of mis-appropriation was mainly directed against the lessees and opposite party 2 was made an accused for abatement. Realiza- tion of lease money is actually a routine work of the association, for non performance of which opposite party being an ornamental head of the association should not be held liable. Zakir Hossain Sarkar vs State, 70 DLR 203
Section 5(1)(d) and 5(2)-The prima facie evidence SO far available as prosecution material is enough to constitute the offence of criminal misconduct punishable under section 5(2) of the Act because 5(1)(d) clearly brings the case under 5(2) of the Act. Mahmudul Islam Chowdhury vs State, 64 DLR 262
Sections 5(1)(d) and 5(2)-The convict-appellant was self drawing officer and it was his duty to arrange an accommodation for withdrawing his salary from the fund of the Ministry of Industry. Instead of doing so it he has influenced his parent department where he rendered no service for the period under dispute which appears to be abuse his official position as public servant. AKM Mosharraf Hossain vs State, 65 DLR 564
Sections 5(1)(d) and 5(2)-The issue as to whether the Prime Minister is the public servant is irrelevant in the case inasmuch as section 109 of the Penal Code is present in the case and other public servants are also accused in the case. Begum Khaleda Zia vs Anti-Corruption Commission, 68 DLR 1
Sections 5(1)(2)-Mere failure to return back any property from the legal custody of a public servant is not misappropriation unless and until it reveals that he had a intention to misappropriate the same for his personal gain. A Kader Zilani (Md) vs State, 67 DLR 130
Section 5(2)- In respect of trial of offences punishable under section 409 of the Code and section 5(2) of the Act under the Criminal Law Amendment Act, the accused-Ambassador may be tried for all such offences irrespective of dates of commission of the same. ATM Nazimullah Chowdhury vs State, 65 DLR 500
Section 5(2)- Trial and conviction of an accused both under section 409 of the Penal Code and under section 5(2) of the Prevention of Corruption Act are legally justified; but he cannot be punished twice under the provisions of those two enactments. ATM Nazimullah Chowdhury vs State, 65 DLR 500
Section 5(2)-Whether the accused have committed any offence within the meaning of section 409/109 of the Penal Code read with section 5(2) of Act II of 1947 or not are to be decided after recording evidence by the trial Court. Anti- Corruption Commission vs Md Shahidul Islam @ Mufti Shahidul Islam, 68 DLR (AD) 242
Section 5(2)-The prosecution has been able to prove that such wrongful loss has been caused by the convict petitioner by misusing his power and authority as the Ambassador and head of Mission. All the allegations have been proved by all the Pws who corroborated each other in every detail. None of the PWs were cross examined because of the abscondence of the convict petitioner. Be that as it may, all the allegations brought against the convict petitioner for which charge were framed having been proved by the PWs and corroborated by each other, the High Court Division found him guilty of all the charges, except the allegation of renting a new residence for the Ambassador. Finding and decision of the High Court Division in convicting the convict upon modifying and reducing the sentence and fine imposed by the trial Court calls for no interference. ATM Nazimullah Chowdhury vs State represented by the Deputy Commissioner, 69 DLR (AD) 344
Section 5(2), 6(5)
The Learned Special Judge, Pabna before whom
the case is now pending. has already written to the appropriate authority for
sanction as required under section 6(5) of the Criminal Law Amendment Act
before framing of charge against the accused persons. It is now well-settled
that proceeding of a case starts with framing of charge. So we find no reason
for queasiest of the entire proceeding, as the provision of section 6(5) of the
Criminal Law Amendment Act has already been com- piled with before commencement
of the proceeding of the case. However, it is observed that the order of taking
cognizance in this case before obtaining necessary sanction of the Government
has been illegal. gal. The Special Judge, Pabna will, therefore, have to take
cognizance of the case afresh after compliance of the previsions of law for getting
necessary sanction of the Government. Md. Nurul Amin vs The State (Amirul Kabir
Chowdhury J)(Criminal) 3ADC 580
Section 5(2) Possession of the leasing out the Railway's property- We are of the view that the High Court Division's judgment will not stand on the way if the Ministry of Railway after holding proper inquiry finds that the allotment and/or leasing out of the said property has been made by Nazmul Huda by misuse of power, it can cancel the lease and/or allotment of the property in favour of বাংলাদেশ মানবাধিকার বাস্তবায়ন সংস্থা, and to take possession of the said property, if it has not been taken over in the mean time.. ......Anti-Corruption Commission =VS= Nazmul Huda, [3 LM (AD) 7]
Prevention of Corruption Act, 1947 [India)
Section 5 (2)- Illegal gratification- The quantum of sentence that may be awarded depends upon a variety of factors including mitigating circumstances peculiar to a given case. The courts generally enjoy considerable amount of discretion in the matter of determining the quantum of sentence. In doing so, the courts are influenced in varying degrees by the reformative, deterrent and punitive aspects of punishment, delay in the conclusion of the trial and legal proceedings, the age of the accused, his physical/health condition, the nature of the offence, the weapon used and in the cases of illegal gratification the amount of bribe, loss of job and family obligations of the accused are also some of the considerations that weigh heavily with the courts while determining the sentence to be awarded.
We find that Firstly, the incident is of the year 1985; Secondly, this case is pending for the last 34 years; Thirdly, the appellant has now reached to the age of 78 years; Fourthly, he is suffering from heart ailment, as stated by the learned counsel for the appellant, and is also not keeping well; Fifthly, he has so far, during the trial and after suffering conviction, undergone total jail sentence of one month and 10 days; Sixthly, he has been on bail throughout for the last 34 years and did not indulge in any criminal activities nor breached any conditions of the bail granted to him; Seventhly, the bribe amount was Rs.1200/; and lastly, in the last 34 years, he has suffered immense trauma, mental agony and anguish.
8 reasons which, in our view, are the special reasons satisfy the requirements of proviso to Section 5 (2) the PC Act. This Court, therefore, invoke the powers under proviso to Section 5 (2) of the PC Act and accordingly alter the jail sentence imposed on the appellant by the two Courts below and reduce it to "what is already undergone by the appellant", i.e., 1 month and 10 days.
The appellant is, therefore, now not required to undergo any more jail sentence. However, in case he fails to deposit a fine amount of Rs. 10,000/after adjusting the sum of Rs.3000/, if already paid by the appellant, he will have to undergo simple imprisonment for a period of one month. ...Ambi Ram =VS= State of Uttarakhand, [6 LM (SC) 114]
Prevention of Corruption Act, 1988 [India]
Section 7, 13(1)(d) Reduce the
Sentence- While appreciating the evidence, the High Court should have given proper weight to the views of the trial court as to the credibility of all evidence of PWs 1 and 3. When the findings recorded by the trial court is based upon appreciation of evidence, the High Court was not right in reversing the judgment of the trial court. In so far as the sentence of imprisonment is concerned for conviction under Section 13(1)(d) of the Act, the trial court imposed sentence of imprisonment of two years upon each of the accused. The occurrence was of the year 1991 that is about 27 years ago. Considering the passage of time, we deem it appropriate to reduce the sentence of imprisonment of two years to the statutory minimum imprisonment of one year. The respondents/accused Nos.1 and 2 shall surrender themselves to serve the a remaining sentence within two weeks from today, failing which, they shall be taken into t custody...... State of Gujarat =VS= Navinbhai Chandrakant Joshi, [5 LM (SC) 87]
Section 7- High Court has exceeded in its jurisdiction in exercise of the revisional jurisdiction It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence.
Having considered the reasoning given by the High Court and the grounds which are weighed with the High Court while discharging the accused, we are of the opinion that the High Court has exceeded in its jurisdiction in exercise of the revisional jurisdiction and has acted beyond the scope of Section 227/239 Cr.P.C. While discharging the accused. The High Court materially erred in negating the exercise of considering the transcript in detail and in considering whether on the basis of the material on record the accused is likely to be convicted for the offence under Section 7 of the PC Act or not. As observed hereinabove, the High Court was required to consider whether a prima facie case has been made out or not and whether the accused is required to be further tried or not. At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible. At this stage, it is to be noted that even as per Section 7 of the PC Act, even an attempt constitutes an offence. Therefore, the High Court has erred and/or exceeded in virtually holding a mini trial at the stage of discharge application.
The impugned judgment and order passed by the High Court discharging the accused under Section 7 of the PC Act is unsustainable in law and the same deserves to be quashed and set aside and is accordingly hereby quashed and set aside and the order passed by the learned Special Judge framing charge against the accused under Section 7 of the PC Act is hereby restored. Now the case is to be tried against the accused by the competent court for the offence under Section 7 of the PC Act, in accordance with law and its own merits. State of Rajasthan VS Ashok Kumar Kashyap, [10 LM (SC) 15]
