Anti-Corruption Commission Act [V of 2004)
Sections
3, 4, 5, 18(2) and 26-Notice under section 26 read with section 18 of the Act
was issued in conformity with the purposes of the ACC Act and functions of the
Commission when the Commission was not properly constituted as per provisions
of section 5 of the Act though as an institution the Commission was very much
in existence as per provisions of sections 3 and 4 of the Act, inasmuch the
Commission was having its Head Office in Dhaka and its Branch Offices all over
the country. According ex-post facto approval to the issuance of order/notice
by the Secretary of the Commission is very much legal pursuant to the
provisions of section 18 (2) of the Act and in conformity with the purposes,
objectives and functions of the Commission. Moudud Ahmed vs State. 68 DLR (AD)
118
Sections
5 and 18(2)- In 62 DLR (AD) 290 the vires of the law, section 18(2), was not
challenged before a competent court of law and no issue in respect of vires of
the law was raised, deliberated upon and decided by the competent court. Therefore,
in a hearing of a Criminal Petition for Leave to Appeal a provision of law
cannot be struck down or repealed by indirect means or by implication. Moudud
Ahmed vs State, 68 DLR (AD) 118
Section
9- Act of 2009 though not included in the schedule to the ACC Act, 2004, yet
Section 9 of the Ain of 2009 provides that the offences committed under the
said Ain shall be deemed to be scheduled offences under the ACC Act, 2004.
Tarique Rahman vs Governmentof Bangladesh 63 DLR (AD) 18.
Section
15-Schedule offences Offences punishable under sections 420, 462A, 4628, 466,
467, 468, 469 and 471 of the Penal Code have been inserted in the schedule for
the first time as offences triabie by the Special Judge under the Durnity Daman
Commission Ain without specifying as to whether those offences are connected
with the offences mentioned under the Prevention of Corruption Act and offences
punishable under sections 161, 162, 163, 164, 165, 166, 167, 168, 169, 217,
218, 409 and 477A of the Penal Code have been arrayed as offences triable by
the Special Judge. By reason of this insertion of those offences, the
investigations and trials of the proceedings under the said offence have been
postponed and thereby administration of criminal justice is being hampered.
Yunus (Md) vs State, 68 DLR (AD) 109
Sections
17, 18 and 33-Ain of 2004 has given exclusive power to the Commission to
conduct it's cases including appeals in exercise of powers under section 5(2)
of the Code read with section 17, 18 and 33 of the Ain, 2004. Commission is a
necessary party in appeals to be filed by the convicts and that the Commission
through its prosecution unit has exclusive power to defend the judgments passed
by a Special Judges in appeals pending in the High Court Division by
accused-persons. Anti- Corruption Commission vs Monjur Morshed Khan, 64 DLR
(AD) 124
Sections
17, 18 and 33-The High Court Division failed to notice that provision for
instructing the public prosecutor by a private lawyer contained in section 493
is not applicable to cases instituted under the Ain of 2004 in view of the fact
that the Ain of 2004 is a special law providing provisions for investigation,
inquiry, filing of cases and conducting them. Anti-Corruption Commission vs
Monjur Morshed Khan, 64 DLR (AD) 124
Sections
17, 18, 19, 20, 28 and 33- The Commission under the Ain of 2004 has been given
exclusive power to conduct cases instituted under the Ain. Anti- Corruption
Commission vs Monjur Morshed Khan, 64 DLR (AD) 124
Sections
17, 19 and 20-Power of Commission-Unless and until the then Bureau, now the
Commission, is satisfied that there is prima-facie materials against a public
servant, who has allegedly committed an offence under the Ain, the Commission
normally does not disturb such public servant in the manner the police officer
can arrest an ordinary offender on the basis of information regarding the
commission of cognizable offence. Under the Ain of 2004, the horizon has been
expanded and besides a public servant, the Commission has power to hold inquiry
in respect of schedule offences against any person who has allegedly committed
any offences. Anti-Corruption Commission, Dhaka vs Abdul Azim, 69 DLR (AD) 208
Sections
17, 19, 20 and 21-Anti- Corruption Commission Act is applicable in respect of
public servant as well as "any other person". The Prevention of
Corruption Act, 1947 and Anti-Corruption Commission Act and Criminal Law
Amendment Act, 1958 are the enactments which are meant for the benefit of the
public. The main aim of those Acts are eradiction of the corruption which is
permeating every nook and corner of the country. Corruption by public servants
has now reached a monstrous demension in Bangladesh. Its tentacles have been
grappling even the institutions established for the protection of the State.
Those must be intercepted and impeded the orderly functions of the public
officer, through strong legislative, executive as well as judicial exercises
the corrupt public ser vants could even paralyze the functioning of such
institutions and thereby hinder the democratic polity. Hence, the laws should
be so interpreted which would serve the object of the Acts. Anti-Corruption
Commission vs Md Shahidul Islam @ Mufti Shahidul Islam, 68 DLR (AD) 242
Section
17(Ka) Schedule offences Offences punishable under sections 420, 462A, 4628,
466, 467, 468, 469 and 471 of the Penal Code have been inserted in the schedule
for the first time as offences triable by the Special Judge under the Durnity
Daman Commission Ain without specifying as to whether those offences are connected
with the offences mentioned under the Prevention of Corruption Act and offences
punishable under sections 161, 162, 163, 164, 165, 166, 167, 168, 169, 217,
218, 409 and 477A of the Penal Code have been arrayed as offences triable by
the Special Judge. By reason of this insertion of those offences, the
investigations and trials of the proceedings under the said offence have been
postponed and thereby administration of criminal justice is being hampered.
Yunus (Md) vs State, 68 DLR (AD) 109
Section 17(Ta) and
19(Cha)
Constitution of
Bangladesh, 1972
Article 36 r/w
Anti-Corruption
Commission Act, 2004
Section 17(Ta) and
19(Cha)
The provision provided
in Article 36 safeguard the right to go abroad against executive interference
which is not supported by ‘inacted law’– It is observed:-
1. The fundamental
right guaranteed under Article 36 of the Constitution is non-absolute right.
The right to leave one’s country has therefore never been considered an
absolute right. The right may be restricted in certain circumstances.
2. Article 36 of the
Constitution permits imposition of restrictions. However, such restrictions
must be by way of the law enacted and must be reasonably needed in the public
interest.
3. Without backing of
law imposition of restriction on the freedom of movement by an executive order
will be unconstitutional.
4. The legislative view
of what constitute reasonable restriction shall not be conclusive and final and
that it shall be subjected to supervision by the Court.
5 . A restriction in
order to be referred to as reasonable shall not be arbitrary and shall not be
beyond what is required in the interest of the public. The restriction imposed
shall have a direct or proximate nexus with the object sought to be achieved by
the law.
6. Freedoms if absolute
would always be detrimental to smooth functioning of the society.
Reasonableness demands proper balancing.
7. The right to leave
the country and to possess a passport may be restricted, most notably if the
person’s presence is required due to their having been charged with a criminal
offence. However, merely because a person is involved in a criminal case, he is
not denude of his fundamental rights.
8. Restriction may be
imposed on travel in order to prevent exit from the country by persons who leave
quickly to avoid due process of law. However, this would be subject to
confirmation by the appropriate Court within a period of 3 working days.
With
the observations, all the petitions are disposed of. ...Durnity Daman
Commission, Dhaka =VS= G.B. Hossain, (Civil), 2021(2) [11 LM (AD) 97]
Section
17-Section 17 of the ACC Act, 2004 the ACC shall enquire into and conduct
investigation of offences mentioned in the schedule and file cases on the basis
of inquiry or investigation and conduct prosecution of the case before the
Court of Special Judge. Tarique Rahman vs Government of Bangladesh 63 DLR (AD)
18.
Sections
18 & 26-Section 26 envisages that before issuance of the notice, the
Commis- sioner(s) must be satisfied about the allegation. It is their satisfaction
and of nobody elses. But by sub-section (2) of section 18, the Commissioners
can only ratify the 'satisfaction' of the Secretary which is certainly not
stipulated in section 26. Anti-Corruption Commission vs Dr Mohiuddin Khan
Alamgir 62 DLR (AD) 290.
Section
18(1)-The views expressed in the 62 DLR (AD) 290 and 297 paragraphs 42 and 43
of this Division do not convey the correct principle of law. Because the
preamble of the Act, 2004 envisages that for constitution of an independent
Com- mission, for prevention of corruption and offences relating to corruption
and for enquiry into, and investigation of corrup- tion and certain other
offences and matters connected thereto the Act is enacted. Sub- section (1) of
section 18 provides that subject to the provisions of this Act the Commission
may, in the discharge of its duty, empower any Commissioner or Officer of the
Commission to do an act on its behalf and the Commissioner or Officer would be
able to exercise the power. Moudud Ahmed vs State, 68 DLR (AD) 118
Sections
18(2)-The observations of this Division are not relevant in the case, because
the respondent did not raise any objection as to the issuance of notice/order
under section 26 (1) of the Act while he was in custody. Rather he complied
with the same by submitting the statement of assets and liabilities within the
stipulated time. Moreover, he was allowed to submit long after the stipulated
date a supple- mentary statement of assets and liabilities which was marked as
an exhibit during the course of trial. This issue was not raised, deliberated
upon and decided before the trial court and the High Court Division in as much
as no such issue was raised and deliberated upon before the Appellate Division
and that this observation being an obiter dictum cannot operate as a binding
precedent, which is not a law declared by the Appellate Division pursuant to
Article 111 of the Constitution and, as such, it is not binding on the High
Court Division and all other courts and tribunals as a legal precedent. Moudud
Ahmed vs State, 68 DLR (AD) 118
Section
18(2)- The observations of this Division are not tenable in law because
sub-section (2) of section 18 of the Act in unequivocal terms made it
abundantly clear that the Commission can accord ex-post facto approval pursuant
to the amending Ordinance. Moudud Ahmed vs State, 68 DLR (AD) 118
Sections
18(2)- The view expressed by this Division regarding the effect of section
18(2) of the Act, granting ex-post facto approval of any act done or power
exercised by an Officer of the Commission during the period when the Commission
was not properly constituted as per section 5 of the Act does not reflect the
correct principle of law. Moudud Ahmed vs State,68 DLR (AD) 118
Section
18(2)- Sub-section (2) of section 18 of the Act enables the Commis- sion to
accord ex-post facto approval to any act done or power exercised by the Officer
of the Commission which is very much inconformity with the purposes, objectives
and functions of the Commission but not the approval of the satisfaction of the
Secretary. Moudud Ahmed vs State, 68 DLR (AD) 118
Section
18(2)-In view of the section 18 (2) of the Act notice issued by the Secretary
of the Commission was given ex- post facto approval on satisfaction of the new
Commission through the resolution in as validated by the ex-post facto amending
Ordinance, it cannot be said that the notice under section 26(1) of the Act was
defective. Moudud Ahmed vs State, 68 DLR (AD) 118
Section
18(2)- Since the amendment was effected within the validity period of the
Ordinance and action was taken under the amended section 18 within the validity
period and that the period for which ex-post facto approval accorded was a very
short period that is from 7th February to 24th February 2007 when the
Commission was not properly constituted, it is immaterial to argue that the
Ordinance being a temporary law the provision of the General Clauses Act, 1887
is not applicable in the case. Moudud Ahmed vs State, 68 DLR (AD) 118
Section
18(2)-In disposing the leave petition, if the opinion formed by this Division
on the effect of the ex-post facto amending Ordinance is treated to be correct,
then it would amount to declaring the law ultra vires or repeal of the law,
section 18(2), without examining the vires of the law by a competent court.
declaring a law ultra vires or striking down a law or treating a law to be
repealed or nullity without having assailed the vires of the law would
tantamount to legislation by the court which is unknown to our jurispru- dence.
Moudud Ahmed vs State, 68 DLR (AD) 118
Section
18(2) and 26-The obser- vations of this Division in paragraph 44 of the
judgment in respect of service of notice under section 26 read with section
18(2) of the ACC Act upon the respondent No. 1 when he was in custody was not
an issue in the case before the court. The very observa- tion was not at all
necessary for the decision of the case and does not relate to the material
facts in issue. The observations made in 62 DLR (AD) 290 and 297 para 44 is
contrary to the purpose and intendment of the Act, 2004. Moudud Ahmed vs State,
68 DLR (AD) 118
Section 19
Anti-Corruption
Commission Rules, 2007
Rule 8 and 11 and 20
If
Appellate Division meticulously examine the above two provisions i.e., section
19 of the Act, 2004 and 20 of Rules, 2007, coupled with rule 8 and 11 of the above
Rules, then this Division has no hesitation to hold that those provisions have
been made for the interest and benefit of a person(s) against whom an inquiry
or investigation is going on as he is giving opportunity to defend himself in
inquiry or investigation stage. Thus, there is no room to say that issuance of
such notice by the Commission or its authorized officer is harassing, malafide
and prejudiced to the concerned person(s). .....Durnity Daman Commission =VS=
Md. Ashraful Haque, (Civil), 2023(1) [14 LM (AD) 499]
Section 20
Continuation
of the investigation of the case in question by the police after coming into
force of the Ain, 2004 was illegal and without jurisdiction.
...Kaisor-uz-Zaman(Md.) =VS= Deputy Commissioner, Sylhet, (Criminal), 2021(1)
[10 LM (AD) 483]
Sections
20(1)- Sub-section (2) of section 3 of the Act of 1957 authorized the
government to empower the officers of Bureau to enquire into and investigate
into cases in respect of offences specified in the schedule 'which the police officers'
had in connection with the investigation of such offences. This power of the
government has been invested to the Commission under sub-section (1) of section
20 of the Ain. In exercise of that power the Commission has issued the
notification. It says that notwithstanding anything contained in the Code, the
Commission can empower any officer for investigation of any offence under the
Ain by gazette notification. Durniti Daman Commission vs Sheikh Amin Uddin, 69
DLR (AD) 373
Sections
20(1) and 32-There was no scope to hold that sanction of the Government was
mandatory to make inquiry of the offence of the case as per provision of
section 188 of the Code. Section 188 of the Code was not applicable to this
particular case and rather it was inconsistent with the provision of sections
20(1) and 32 of the Ain, 2004 and sections 4(4) and 6(1) of the Act,
1958.Mafruza Sultana vs State, 67 DLR (AD) 227
Section
20
The
"offence" committed within the mischief of the Money Laundering
Protirodh Ain is cognizable, non- compoundable and non-bailable. "Of-
fence" means any act or omission made punishable by any law for the time
being in force.
Cognizable
offence means an offence for which a police officer may, in accordance with the
second schedule of the Code of Criminal Procedure or under any other law for
the time being in force, arrest the person (s) related to the offence without
warrant.
The
Appellate Division observed that neither in the Code of Criminal Procedure nor
in the Durniti Daman Commission Ain nor in the judgment delivered by the
Appellate Division in the case of Durnity Daman Commission Vs. Dr. Mohiuddin
Khan Alamgir reported in 62 DLR (AD) 290 it has been said that investigating
agencies are not empowered to arrest any person in connection with an
cognizable offence before institution of a case. Since the allegation against
the petitioner is that he has committed a cognizible offence there is no legal
impediment to arrest him. The Observations made above by the High Court
Division are not consistent with the sound proposition of law. Accordingly, the
above quoted observations made by the High Court Division are hereby expunged.
Consequently, both the petitions are disposed of. Durnity Daman Commission
represented by its Chairman, Segun- bagicha, Dhaka-Vs. Dr. Khandaker Mo-
sharraf Hossain and another (Criminal) 20 ALR (AD) 10-12
Section
20-The moment the Ain, 2004 came into force, the police had lost its
jurisdiction to continue with the investigation of the case and was legally
obliged to stop the investigation of the case.
The
Appellate Division held that in view of the unambiguous and clear language used
in sub-section (1) of section 20 of the Ain, 2004 read with sub-section (3) of
section 38 thereof, the moment the Ain, 2004 came into force, the police had
lost its jurisdiction to continue with the investigation of the case and was
legally obliged to stop the investigation of the case and send the same to the
Commission to complete the investigation by it and submit the report accordingly,
instead the police continued with the investigation and submitted the report on
29.10.2004 under section 173 of the Code in flagrant violation of the said
provisions of the Ain. Therefore, the report submitted by the police was not a
report in the eye of law and on such report, the Senior Special Judge could not
take cognizance of the offence under section 409 of the Penal Code against the
petitioner and the two other accused. Md. Kaisor-uz-Zaman -Vs- The State,
represented by the Deputy Commissioner. Sylhet and another (Criminal) 16 ALR
(AD) 183-192
Section 20Ka(1)
Durnity Daman
Commission Ain (as amended by Act XVI of 2013)
Section 20Ka(1) read
with
The Code of Criminal
Procedure
Section 561A
Quashing the proceeding
of Special Case No. 21 of 2007– The First Information Report was lodged on
12-5-2015 and the Investigating Officer, holding investigation, submitted its
report on 30-12-2016. The Senior Special Judge, Cox's Bazar took cognizance of
the offence against the respondent and others on 19-4-2017 under sections
409/420/109 of the Penal Code read with section 5(2) of the Act II of 1947.
We do not find any such
default clause in section 20Ka that if the Investigating Officer fails to
complete the investigation within stipulated time or extended time the
proceeding shall stand stopped or to be dropped. The only provision is that if
the Investigation Officer fails to complete the investigation within time, the
Commission shall appoint another Investigating Officer and shall take step
against the Investigating Officer.
In view of the
aforesaid provision of law, the High Court Division committed an error of law
in quashing the proceeding holding that since the mandatory provision had not
been complied with, the proceeding was liable to be quashed. The conclusion
arrived at by the High Court Division is erroneous.
The
petition is disposed of. The judgment and order of the High Court Division is
set aside. The Divisional Special Judge, Chittagong is directed to proceed with
the case in accordance with law. …Anti-Corruption Commission =VS= Md Shafiul
Alam, (Criminal), 2020 (1) [8 LM (AD) 620]
Section 20Ka(1)(2)
Directory provisions
are not intended by the legislature to be disregarded yet the seriousness of
non-compliance is not considered so great that liability automatically attaches
for failure to comply–– Investigating Officer failed to investigate the
respective cases within the stipulated time. ––In case of failure to complete
investigation within 120 days and within the extended period of 60 days the
Investigating Officer of the case is to be changed and there is no consequence
in the law to the effect that in case of failure to complete investigation
within the time stipulated in section 20Ka(1) and extended period in section
20Ka(2) of the Act the proceeding initiated is to be treated as bad in law.
Although directory provisions are not intended by the legislature to be
disregarded yet the seriousness of non-compliance is not considered so great
that liability automatically attaches for failure to comply. The word
"shall" is not always decisive. Since there is no consequence except
the provision of changing the Investigating Officer, Appellate Division is of
the view that there is no scope to quash the proceeding on the ground that as the
Investigating Officer failed to complete investigation within time stipulated
in 20Ka(1) and 20Ka(2) of the Act, the proceeding would render be void.
.....Anti-Corruption Commission =VS= Md Monjurul Huq, (Criminal), 2023(1) [14
LM (AD) 318]
Section 21-Since these offences punish able under the Ain are cognizable, a private person or a police officer or an officer of the Commission may arrest a suspected offender if he is satisfied that such suspected person has committed a cognizable offence either punishable under the Ain or under any other Ains, and lodge an FIR with the local police station without the permission of the Commission. If the police finds that the offence attracts the offences punishable under the Durnity Daman Ain, it may intimate the matter to the Commission for taking action under the Ain. Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku vs Anti-Corruption Commission (Criminal) 70 DLR (AD) 109
Sections
21-The Appellate Division held that makes it clear that since these offences
punishable under the Ain are cognizable, a private person or a police officer
or an officer of the Commission may arrest a suspected offender if he is
satisfied that such suspected person has committed a cognizable offence either
punishable under the Ain or under any other Ains, and lodge an FIR with the
local police station without the permission of the Commission. If the police
finds that the offence attracts the offences punishable under the Durnity Duman
Ain, it may intimate the matter to the Commission for taking action under the
Ain. Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku Vs. Anti Corruption
Commission and another (Criminal) 16 ALR (AD) 197-203
Section
21-Since these offences punishable under the Ain are cognizable, a private
person or a police officer or an officer of the Commission may arrest a
suspected offender if he is satisfied that such suspected person has committed
a cognizable offence either punishable under the Ain or under any other Ains,
and lodge an FIR with the local police station without the permission of the
Commission. If the police finds that the offence attracts the offences
punishable under the Durnity Daman Ain, it may intimate the matter to the
Commission for taking action under the Ain. Iqbal Hasan Mahmood alias Iqbal
Hasan Mahmood Tuku vs Anti-Corruption Commission, 70 DLR (AD) 109
Section
26-The question of prior knowledge of the Commission before issuing notice
under section 26 is not required to be reflected in the FIR or the police
report. The law enjoins the Commission to exercise its discretion and in
exercising its discretion, the offender does not have any say. It may collect
information on the basis of notice issued under section 26 or it may form its
opinion from other sources. Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku
vs Anti- Corruption Commission, 70 DLR (AD) 109
Sections
26 and 27-Section 26 and section 27 of the Act are independent from each other
and there is no nexus between these two sections. Section 27 being an
independent section provides that if there are sufficient reasons to think that
a person has acquired or amassed property illegally which is beyond his known
source of income then he may be sentenced to suffer imprisonment for a term not
more than 10 years and not less than 3 years and to pay fine and the property
in question is liable to be confiscated. Before issuance of any notice under
section 26 of the Act upon a person the Commission must have knowledge that the
said person has acquired property beyond known source of income. Moudud Ahmed
vs State, 68 DLR (AD) 118
Sections
26 and 27-Offences punishable under sections 26 and 27 of the Ain, 2004 are
distinct offences and that no notice is required by the Commission for
prosecution of an offender in respect of an offence punishable under section 27
of the Ain. ACC vs Mofazzal Hossain Chow- dhury Maya, 67 DLR (AD) 230
Sections
26 and 27-Offences punish able under sections 26 and 27 are independent
offences and the filing of a case punishable under section 27 is not dependent
upon issuance of notice under section 26 of the Ain. Iqbal Hasan Mahmood alias
Iqbal Hasan Mahmood Tuku vs Anti-Corruption Commission, 70 DLR (AD) 109
Section 26 and 32
Section 26 and 32
Authority of the Commission to issue notice requiring a person to submit
statement of his assets and liabilities.Requirement of sanction for the
prosecution to be accompanied with the charge-sheet.
Requirement of the law
is that the person asking to submit statement of his assets and liabilities
must be given reasonable time and opportunity. Directing to submit the
statement at the time the person was in detention is not a legal notice in the
eye of law. Proceedings initiated on such invalid notice and the conviction and
sentence passed therein is illegal and not sustainable in law. Only one
sanction of the Commission is necessary.
Anti-Corruption
Commission, represented by its Chairman Vs. Dr. Mohiuddin Khan Alamgir and
others 15 MLR (2010) (AD) 406.
Sections 26(1) and
27(1)
No
notice is required to be served by the Commission for prosecution of an
offender in respect of an offence punishable under section 27(1) of the said
Ain– The offences punishable under sections 26(1) and 27(1) of the Ain, 2004
are distinct and that no notice is required to be served by the Commission for
prosecution of an offender in respect of an offence punishable under section
27(1) of the said Ain. The High Court Division on misconstruction of law
quashed the proceedings. We find no cogent ground to depart from the same. In
view of the above, we find infirmity of the judgment of the High Court
Division. The impugned judgment of the High Court Division is set-aside.
...Anti-Corruption Commission =VS= Ruhul Quddus Talukder Dulu, (Criminal),
2021(1) [10 LM (AD) 495]
Section 26
Notice– A notice must
allow a reasonable time to check-up the details of the assets of a person, if
necessary, on examination of his records and after consultation with his
lawyers and other concerned persons– The notice dated 18.02.2007 was not a
notice required by law, the notice directed the respondent no. 1, a detenu, to
submit return of his assets within a period of 72 hours, is itself a worst
example of arbitrary action on the part of the concerned authority. A notice
must allow a reasonable time to check-up the details of the assets of a person,
if necessary, on examination of his records and after consultation with his
lawyers and other concerned persons. Section 26 certainly does not envisage a
notice upon a person who is in detention and he is not expected to give any
details of his assets within the time specified. The person concerned must be
afforded a fair and reasonable opportunity to respond to the notice, otherwise,
it is no notice in the eye of law. A notice issued under section 26 of the Act
to a detenu, away from his hearth and home, cannot be said to be a fair and
bonafide exercise of power.
That the notice dated
18.02.2007, issued by Secretary to the Commission, was without any lawful
authority, as such, void and any proceeding based on the said void notice is a
nullity in the eye of law. …Anti-Corruption Commission =VS= Dr. Muhiuddin Khan
Alamgir, (Criminal), 2020 (1) [8 LM (AD) 607]
Sections 26 and 27(1)
Anti-Corruption
Commission Act, 2004
Sections 26 and 27(1)
The Income Tax
Ordinance, 1984
Sections 165 and 166
The Code of Criminal
Procedure
Sections 235(2)/236/403
The Anti-Corruption
Commission of offence where the wealth of a person is found not in
proportionate to his known sources of income. The intention of the legislature
behind the enactment of ACC Act, 2004 is prevent corruption–– It has been held
that the Income Tax Ordinance is purely a law relating to prevention of tax
evasion and realization of income tax, which is completely distinct offence
unlike the present one which relates to corruption. ––It is evident that the
offences under Sections 26 and 27(1) of the ACC Act, 2004 and Sections 165 and
166 of the Income Tax Ordinance, 1984 are completely separate and distinct and
one is not dependant on others. Therefore, the present case under Sections 26
and 27(1) of the ACC Act, 2004 shall proceed independently. Although the
petitioner was earlier acquitted in a case under Sections 165 and 166 of the
Income Tax Ordinance, 1984 it will not put any embargo on the trial of the
present case. .....Mirza Abbas Uddin Ahmed =VS= The State, (Criminal), 2022(2)
[13 LM (AD) 643]
Section 26(1)
Afresh notice issue––
Appellate Division does not find any substantial wrong in the issuance of
notice by the ACC. The ACC may issue notice in writing, if require, any person
being an individual to furnish, on the date specified in the notice, a
statement of wealth. ––Since notice was issued on 12-1-2009 and challenging
that notice the petitioner got Rule and an order of stay operation of the
impugned notice and that, in the meantime, more than 10 years has elapsed and
that in that notice there was direction to submit wealth statement of the
petitioner within 7(seven) days from the date of issuance of the notice which
has expired long ago, This Division is of the view that said notice lost its
effectiveness. ––In view of the aforesaid facts and circumstances, the ACC may
issue notice afresh if it feels the need. .....Sigma Huda =VS= Ministry of Home
Affairs, Bangladesh, (Civil), 2023(1) [14 LM (AD) 190]
Section 26
The Commission has
discretionary power to proceed against the alleged offender under any
provisions of the Ain, but its satisfaction is subject to the confirmation by
the court. The question of prior knowledge of the Commission before issuing
notice under section 26 is not required to be reflected in the FIR or the
police report. The law enjoins the Commission to exercise its discretion and in
exercising its discretion, the offender does not have any say. It may collect
information on the basis of notice issued under section 26 or it may form its
opinion from other sources. .....Iqbal Hasan Mahmood Tuku =VS= Anti-Corruption
Commission, (Criminal), 2018 (2) [5 LM (AD) 226]
Section 26(1)
We are of the view that
the High Court Division erred in law in holding the view that the dispute as to
non-service of notice cannot be looked into in writ jurisdiction. Police report
clearly shows that no notice was served upon the petitioner, inasmuch as, she
was away from the country. Accordingly, the High Court Division has committed
fundamental error in not interfering with the matter. As the point is subtle
one as to service of notice under section 26(1) for submission of wealth
statement we are not inclined to drag the matter by granting leave and dispose
of the petition summarily since both the parties are present before us. We
direct the Durnity Daman Commission to issue proper notice upon the petitioner
to her known address without delay and dispose of the matter in accordance with
law. The judgment of the High Court Division and the proceedings initiated
against the petitioner quashed. .....Syeda Iqbal Mand Banu =VS= Anti-Corruption
Commission, (Civil), 2018 (1) [4 LM (AD) 338]
Sections 26 & 27
The offences punishable
under sections 26 and 27 of the Ain, 2004 are distinct and that no notice is
required to be served by the Commission for prosecution of an offender in
respect of an offence punishable under section 27 of the said Ain. The High
Court Division on misconstruction of law quashed the proceedings. The question
has already been settled by this Division. .....Anti-Corruption Commission =VS=
Mosaddek Ali Falu(Md), (Criminal), 2017 (2)– [3 LM (AD) 512]
Section 26(2), 27(1)
The Code of Criminal
Procedure, 1898
Section 561A
The Anti-Corruption
Commission Act, 2004
Section 26(2), 27(1)
r/w
The Penal Code, 1860
Section 109
The Emergency Power
Rules, 2007
Section 15(D)(5)
Appellate Division is
of the view that the petitioner was a fugitive in the eye of law when she filed
the application under section 561A of the Code of Criminal Procedure. Direction
of the High Court Division in the concluding portion of the impugned judgment
and order that: “However, since at the time of issuing the Rule this Court
dispensed with the appearance of the petitioner, she should be allowed to
appear before the concerned Court without any hindrance. The petitioner is
directed to appear before the concerned Court within 08(eight) weeks from the
date of taking cognizance of the offence, if any so that she can defend herself
in accordance with law.” -is outside the purview of law and hence struck off.
Thus the impugned judgment and order is modified with the above observation.
Accordingly, the criminal petition for leave to appeal is dismissed. .....Dr.
Zubaida Rahman, wife of Tarique Rahman =VS= The State, (Criminal), 2022(1) [12
LM (AD) 523]
Sections 26(2) and
27(1)
Durnity Daman
Commission Ain, 2004
Sections 26(2) and
27(1) r/w
The Emergency Powers
Rules, 2007
Rule 15Gha (5)
It is established that
the accused has disproportionate to his known source of income or that he has
committed an offence by concealment of and/or suppression of wealth as per
provisions of Durnity Daman Commission Ain. The Court is required to look into
the allegations made in the first information report that whether the same
discloses any offence or not. If the allegations do not disclose an offence the
High Court Division is perfectly justified in invoking its inherent power on
the reasoning that the continuation of the proceeding is a sheet-abuse of the
process of the Court. The learned Judges of the High Court Division, in the
premises, are perfectly justified in refusing to exercise their inherent power
in the facts and circumstances of the case. The appeal is dismissed.
.....Habibur Rahman Mollah (Ex-MP) =VS= State, (Criminal), 2022(1) [12 LM (AD)
644]
Sections 26(1) and
27(1)
দুর্নীতি
দমন
কমিশন
আইন,
২০০৪
Section 27 r/w
The Prevention of
Corruption Act, 1947
Sections 5(1)(e) and
5(2)
The Penal Code
Section 109
From the testimonies it
is luminous that the evidence of prosecution are so incompatible, improper and
unreasonable which are not only reprehensible, rather, full of dissonance and
totally blameworthy. The prosecution case, therefore, cannot be believable.
Carefully
gone through the judgment of the trial Court and the judgment of the High Court
Division. On perusal of the judgment of the High Court Division, we find that
the High Court Division has elaborately discussed the evidences and considered
the facts and circumstances of the case, recorded the acquittal in accordance
with law. This petition is dismissed. ...Anti-Corruption Commission =VS= Md.
Lutfor Rahman, (Criminal), 2021(1) [10 LM (AD) 510]
Section
26(1)- Police report clearly shows that no notice was served upon the
petitioner, inasmuch as, she was away from the country. The High Court Division
has committed fundamental error in not interfering with the matter. As the
point, is subtle one as to service of notice under section 26(1) for submission
of wealth statement we are not inclinedto drag the matter by granting leave and
dispose of the petition summarily since both the parties are present before us.
Syeda Iqbal Mand Banu vs Anti-Corruption Commission. represented by ts
Chairman, 70 DLR (AD) 66
Sections
26(1) and 27(1)-Section 27 is independent of the notice served under section
26(1) of the Act and the proceedings under section 27(1) have no nexus with the
notice served by the ACC under section 26(1) of the Act demanding statement of
assets and liabilities of the accused. Moudud Ahmed va State, 68 DLR (AD) 118
Section
26(2)(Ka) Cleat prima-facie case has been made out therein against the
petitioner under the first part of section 26(2)(Ka) of the Ain, 2004 making
him liable for prosecution. Dr. Tapan Kumar Dey vs State, 65 DLR (AD) 1
Sections
26(2) and 33-Anticipatory Bail/ Pre-arrest Bail It is an extra- ordinary remedy
and an exception to the general rule of bail which can be granted only in
extra-ordinary and exceptional circumstances upon a proper and intelli- gent
exercise of discretion. The High Court Division cannot exercise its discretion
whimsically at its suit will. The High Court Division has not properly
exercised its discretion in granting the accused-respondent on anticipatory
bail. ACC vs Jesmin Islam, 67 DLR (AD) 1
Sections
26(2) and 27(1)
In a proceeding under section 561A the High Court Division should not be drawn to an inquiry as to the truth or otherwise of the facts which are not in the prosecution case.
The High Court Division cannot exercise its extraordinary powers unless the applicant has accompanied a copy of the FIR, the police report and the order taking cognizance of the offence by the competent court if he comes out with a case that the allegations do net constitute any offence, and if the applicant challenges his conviction on the ground that the conviction is based on no legal evidence, he is required to accompany a copy of the judgment along with the petition for satisfying the High Court Division that the conviction is based no legal evidence.
The
High Court Division cannot exercise its powers if the applicant is a fugitive
from justice.
The Appellate Division observed that there is no gainsaying that in the instant case the High Court Division has not at all applied its judicial mind while exercising its inherent powers. It has also travelled to that. extent that it has entertained the petition which has not been accompanied with a copy of the impugned judgment passed by the tribunal. In the absence of any judgment, how it has been satisfied that tribunal has abused its power in convicting the respondent or that the conviction has been given in the absence of legal evidence. Once again the Appellate Division observe that the High Court Divi- sion cannot exercise its extraordinary powers unless the applicant has accompanied a copy of the FIR, the police report and the order taking cognizance of the offence by the competent court if he comes out with a case that the allegations do net constitute any offence, and if the applicant challenges his conviction on the ground that the conviction is based on no legal evidence, he is required to accompany a copy of the judgment along with the petition for satisfying sfying the High Court Division that the conviction is based no legal evidence. Apart from that, there is no scope on the part of the High Court Division to exercise its extra ordinary powers. The High Court Division cannot exercise its powers if the applicant is a fugitive from justice. Anti-Corruption Commission -Vs. Md. Shahjahan Omar and another (Criminal) 20 ALR (AD) 25-27
Sections 26 and 27 read with
Prevention of Corruption Act [II of 1947]
Section
5(2) -Whether grant of leave against a judgment of the High Court Division is a
precondition to an appeal, and whether the Appellate Division can reject a
leave petition summarily without granting leave.
The
Appellate Division held that it is not a precondition in any leave petition as
per Rules and practice being followed. Under article 103 of the constitution a
litigant has acquired right;
(a)
if the High Court Division certifies that the case involves a substantial
question of law as to the interpretation of constitution,
(b)
the High Court Division has confirmed a sentence of death or sentenced a person
to death or imprisonment for life, and
(c)
the High Court Division has imposed punishment on a person for contempt. In
respect of a leave petition, the applicant has no right at all.
He
seeks leave of the court to enter into the gate of appeal. It is absolutely
discretionary power of this court. If this court grants leave then the
applicant has entered into the appellate forum. If the case covers clauses (a)
to (c) above, there will be no necessity to obtain leave from this court. The
applicant has no necessity of praying for granting leave. In respect of leave
petition, the court may refuse leave and dismiss the petition summarily either
ex-parte or after issuing notice upon the respondent. Normally notice is served
by the petitioner through his Advocate-on- record before filing the petition.
While hearing the petition for leave to appeal, the court is called upon to see
whether the petitioner has a case so that he should be granted leave from the
judgment of the High Court Division. In that case, also the court is not
exercising the appellate jurisdiction. It is exercising the discretionary
jurisdiction to grant or not to grant leave to appeal. The petitioner who seeks
leave is outside the gate of appeal although he is aspiring to enter the
appellate forum. Whether he enters or not in the appellate forum would depend
upon the merit of the leave petition. If the court grants leave, he will enter
into the appellate forum and if the court does not grant leave he does not
enter into the appellate forum. He still remains in the discretionary
jurisdiction of the court. Therefore, granting of leave is not sine qua non in
a leave petition. Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku -Vs- Anti
Corruption Commission and another (Criminal) 16 ALR (AD) 197-203
Sections
26 and 27
It
is now settled that the offences punishable under sections 26 and 27 of the
Durnity Daman Commission Ain, 2004 are distinct and independent offence and no
notice is required for prosecution of an offender in respect of an offence
punishable under section 27 of the said Ain.
The
Appellate Division has already been settled by this Division in the case of ACC
vs Iqbal Hasan Mahmood reported in 66 DLR (AD) 185. We find no cogent ground to
depart from the same. In view of the above, the Appellate Division finds
infirmity in the judgment of the High Court Division and the Appellate Division
has no option other than to send back the matter on remand for fresh hearing by
the High Court Division. The impugned judgment of the High Court Division is
set aside. The matter is sent back on remand to the High Court Division for
disposal of the appeal on merit afresh. The High Court Division shall dispose
of the appeal on merit expeditiously. The leave petition is accordingly
disposed of with the above observations and directions. Anti- Corruption
Commission Vs. Md Ariful Haque Chowdhury and another (Criminal) 23 ALR (AD) 30
Sections
26 and 27-It is now settled that the offences punishable under sec- tions 26
and 27 of the Durnity Daman Commission Ain, 2004 are distinct and that no
notice is required by the Com- mission for prosecution of an offender in
respect of an offence punishable under section 27 of the said Ain.
The
Appellate Division observed that the High Court Division has not at all applied
its judicial mind in acquitting the respon dent. The question has already been
settled by this division and Appellate Division finds no cogent ground to
depart from the same. In view of the above, Appellate Di- vision finds
infirmity of the judgment of the High Court Division and Appellate Di- vision
has no option other than to send back the matter on remand for fresh hear- ing by
the High Court Division. Anti Corruption Commission -Vs.- Md. Gias Uddin Al
Mamun and another (Criminal) 10 ALR (AD) 276
Section
26-Satisfaction-Satisfaction must be of the Commission itself constituted of no
other person than its Commissioners. The relevant order to submit assets may be
issued by any of its authorised officials but the decision to issue such an
order must be recorded by the Commis- sioner(s). Anti-Corruption Commission vs
Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.
Section
26-If any person acts beyond his authority, to the prejudice of any person,
such acts cannot be ratified or validated by post facto legislation, his action
remains void. Anti-Corrup- tion Commission vs Dr Mohiuddin Khan Alamgir 62 DLR
(AD) 290.
Section
26-Notice-A notice must allow a reasonable time to check-up the details of the
assets of a person, if necessary, on examination of his records and after
consultation with his lawyers and other concerned persons. Section 26 certainly
does not envisage a notice upon a person who is in detention and he is not
expected to give any details of his assets within the time specified. The
person concerned must be afforded a fair and reasonable opportunity to respond
to the notice, otherwise, it is no notice in the eye of law. A notice issued
under section 26 of the Act to a detenu, away from his hearth and home, cannot
be said to be a fair and bonafide exercise of power. Anti-Corruption Commission
vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.
Sections
26 & 27-Whether the appellant has disproportionate wealth, he has concealed
his known source of income, there is mis-joinder of charges and the trial of
the appellant on facts allegedly committed prior to the promulgation of Durnity
Daman Commission Ain, 2004 constitute an offence under the Durnity Daman
Commission Ain are disputed facts can only be decided on evidence at the trial.
Habibur Rahman Mollah vs State 62 DLR (AD) 233.
Sections
26 & 27-Since the prosecution case is almost over and the appellant put his
defence by cross-examining the witnesses, in view of the consistent views of
the superior Courts of this sub-continent that the High Court Division which
exercising its power under section 561A of the Code should not usurp the
jurisdiction of the trial Court. Habibur Rahman Mollah vs State 62 DLR (AD)
233.
Section
26(2)- No legal impediment for the Commission to issue fresh notice under
section 26 of the Act, if so advised, but not in those cases where the accused
has already been acquitted on merit of the case as is in this case.
Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.
Sections
26(2) and 33- Anticipatory Bail/pre-arrest Bail - It is an extra- ordinary
remedy and an exception to the general rule of bail which can be granted only
in extra-ordinary and exceptional circumtrances upon proper and a intelligent
exercise of discretion. The High Court Division cannot exercise its discretion
whimsically at its suit will. The High Court Division has not properly
exercised its discretion in granting the accused- respondent on anticipatory
bail. We have given a cursory glance of the application for pre-arest bail.
'The grounds are also not relevant for the purpose of exercising discretion in
the case. More so, the case having been filed by the Durnity Daman Commission
in exercise of its power under Act of 2004, the Durnity Daman Commission is a
necessary party but, the accused- respondent has not made it a party.
Durnity
Daman Commission. -Vs.- Jesmin Islam and another 5 ALR (AD)2015(1) 46
Sections
26(2) and 33- Anticipatory Bail/pre-arrest Bail It is an extra- - ordinary
remedy and an exception to the general rule of bail which can be granted only
in extra-ordinary and exceptional circumtrances upon a proper and intelligent
exercise of discretion. The High Court Division cannot exercise its discretion
whimsically at its suit will. The High Court Division has not properly
exercised its discretion in granting the accused- respondent on anticipatory
bail. We have given a cursory glance of the application for pre-arest bail.
'The grounds are also not relevant for the purpose of exercising discretion in
the case. More so, the case having been filed by the Durnity Daman Commission
in exercise of its power under Act of 2004, the Durnity Daman Commission is a
necessary party but, the accused- respondent has not made it a party.
Durnity
Daman Commission. -Vs.- Jesmin Islam and another 5 ALR (AD)2015(1) 46
Section 26-The question of prior knowledge of the Commission before issuing notice under section 26 is not required to be reflected in the FIR or the police report. The law enjoins the Commission to exercise its discretion and in exercising its discretion, the offender does not have any say. It may collect information on the basis of notice issued under section 26 or it may form its opinion from other sources. Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku vs Anti-Corruption Commission (Criminal) 70 DLR (AD) 109
Sections 26 and 27-Offences punishable under sections 26 and 27 are independent offences and the filing of a case punishable under section 27 is not dependent upon issuance of notice under section 26 of the Ain. Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku vs Anti-Cor- ruption Commission (Criminal) 70 DLR (AD)109
Section 26(1) Police report clearly shows that no notice was served upon the petitioner, inasmuch as, she was away from the country. The High Court Division has committed fundamental error in not interfering with the matter. As the point, is subtle one as to service of notice under section 26(1) for submission of wealth statement we are not inclinedto drag the matter by granting leave and dispose of the petition summarily since both the parties are present before us. Syeda Iqbal Mand Banu va Anti-Corruption Commission, represented by its Chairman (Civil) 70 DLR (AD) 66
Section 27-If any person commits any cognizable offence in presence of a private person, he may detain the offender and handover him to the police or report the police that he has detained an offender while committing a crime. A police officer or a private person has been given power to arrest a person for commission of a cognizable offence on the spot. Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku vs Anti-Corruption Commission (Criminal) 70 DLR (AD) 109
Section 27-An officer of the Commission or a police officer cannot have a final say in respect of an occurrence which is punishable under section 27 of the Ain or any other provision of the said Ain. The officer may find case against an offender after investigation that the allegation prima-facie discloses an offence under section 27. The final decision in respect of the allegation is of the Court i.e. the special Judge and his decision is also subject to the decision of the appellate court which can affirm, modify, set aside the judgment or send the matter on remand for fresh trial. Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku vs Anti-Corruption Commission (Criminal) 70 DLR (AD) 109
Section
27-Section 109 of the Penal Code is included in paragraph 'Gha' of the schedule
to the ACC Act, 2004 for abetment to any offence under the schedule is
committed by any sort of involvement or complicity. Such offence could never be
intended or could be a substantive offence. The High Court Division held that
no such offence of abetment could be conceived of in respect of an offence
under section 26(2) or 27(1) of the ACC Act, 2004. Accordingly, lodging of FIR,
taking cognizance, initiation of criminal proceedings against the
writ-petitioners are unwarranted, unauthorized and without juris- diction.
Anti-Corruption Commission vs Shamima Begum 62 DLR (AD) 277.
Section
27-In the absence of any statement of assets; there was no scope to submit any
explanation for acquisition of assets there was no scope for him to submit any
explanation for acquisition of the assets. No citizen could be arraigned for
such a severe offence in the absence of service of any notice or order for
explaining the source of income. Offence of abetment under section 109 equally
could not be conceived of with regard to such an offence. Anti-Corruption
Commission vs Nargis Begum 62 DLR (AD) 279.
Section
27(1)-Bail in a pending appeal- The matter of granting bail by the High Court
Division, during the period of emergency, in a pending appeal filed by the
convict who has been convicted and sentenced under the provision of
Anti-Corruption Commission Act, 2004 in case of short sentence not exceeding 3
years, when the appeal could not be disposed of within 90 working days for no
fault of the appellant and/or in the case of serious illness endangering life
to be certified by duly constituted Medical Board, may consider the matter of
granting bail in an appropriate case in an appeal. Government of Bangladesh vs
Sabera Aman 62 DLR (AD) 246.
Section
27
The
evidence of prosecution are so incompatible, improper and unreasonable which
are not only reprehensible, rather, full of dissonance and totally blameworthy.
The prosecution case, therefore, cannot be believable.
The
Appellate Division has carefully gone through the judgment of the trial Court
and the judgment of the High Court Division. On perusal of the judgment of the
High Court Division, the Appellate Division finds that the High Court Division
has elaborately discussed the evidences and considered the facts and
circumstances of the case, recorded the acquittal in accordance with law. Per
contra judgment and order of conviction passed by the trial Court upon
misreading the evidences on record without properly appreciating the materials
on record. Mr. A.K.M. Fazlul Hoque, the learned Advocate for the leave
petitioner could not make out a case in favour of the judgment and conviction
of the trial Court. The submissions advanced by him referring a decision of
this Division is not applicable in the case in hand as the facts of the referred
case is distinguishable. The submissions advanced by him without any legal
prove, hence, bears no substances. The Appellate Division does not find any
misreading or misconstruing of the evidences in the judgment passed by the High
Court Division, rather, the opinion and decision of the High Court Division are
self explanatory infavour of acquittal in accordance with law after proper
appreciation of materials on record, which does not call for any interference
by this Division. Therefore, the Appellate Division finds no merit in the leave
petition. Hence, this petition is dismissed. Anti-Corruption Commission -Vs.
Md. Lutfor Rahman and others (Criminal) 22 ALR (AD) 10
Section
27-Section 27 is an independent provision and for initiation of a proceeding against
any person under the provision, no notice is required to be served. If the
prosecution can establish that any person has acquired or amassed wealth which
is beyond his known source of income, he may be prosecuted and con victed under
section 27(1). Anti-Corruption Commission vs Iqbal Hasan Mahmood, 66 DLR (AD)
185
Section
27-The findings made in the impugned judgment and also in the case of Mohiuddin
Khan Alamgir (15 BLC 107. Para 971 shall be deemed to have been modified in
respect of the assessment made by the PWD officials in that the assessment of
valuation of any property made by PWD officials shall have evidentiary value
when no such assessment is made and accepted as correct by another independent
depart- ment of the Government authorized in that behalf. State vs Faisal
Morshed Khan, 66 DLR (AD) 236
Section
27-There may be a situation when there is no assessment of valuation by any
competent authority of the Govern- ment exercising power in that behalf and in
such a case, the Anti-Corruption Commis- sion has no other option but to take
the assistance of the PWD officials in making assessment of the valuation of
any property. Therefore, it cannot be said that the assessment of valuation
made by the PWD officials does not have any eviden- tiary value in all
situations. State vs Faisal Morshed Khan, 66 DLR (AD) 236
Section
27-If any person commits any cognizable offence in presence of a private
person, he may detain the offender and handover him to the police or report the
police that he has detained an offender while committing a crime. A police
officer or a private person has been given power to arrest a person for
commission of a cogni zable offence on the spot. Iqbal Hasan Mahmood alias
Iqbal Hasan Mahmood Tuku vs Anti-Corruption Commission, 70 DLR (AD) 109
Section
27-An officer of the Commission or a police officer cannot have a final say in
respect of an occurrence which is punishable under section 27 of the Ain or any
other provision of the said Ain. The officer may find case against an offender
after investigation that the allegation prima-facie discloses an offence under
section 27. The final decision in respect of the allegation is of the Court
i.e. the special Judge and his decision is also subject to the decision of the
appellate court which can affirm, modify, set aside the judgment or send the
matter on remand for fresh trial. Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood
Tuku vs Anti- Corruption Commission, 70 DLR (AD) 109
Section 27(1)
Section 27(1)
Conviction and sentence Bail in appeal on humanitarian ground
In the instant case the
convict- appellant was convicted and sentenced to 3 (three) years simple
imprisonment. In appeal the High Court Division allowed him the bail on
humanitarian consideration which the apex court found justified and held the
High Court Division committed no illegality.
Anti-Corruption
Commission, represented by its Chairman, Dhaka Vs. Barrister Mir Mohammad Helal
ZJddin and another 15 MLR (2010) (AD) 216.
Section 27(1)
Anti-Corruption
Commission Act, 2004
Section 27(1) read with
The Penal Code
Section 109
The defence questioned
the legality of the sentence of the convict petitioner on the ground that the
initiation of proceeding against him is illegal and as such all subsequent
proceedings are also illegal.
The defence took
another plea that the authority did not assess the market value of furniture,
seized from his house, properly and rather the assessment has been made on the
basis of the market rate prevailing after 14 years. It appears that the
assessment of such furniture has been made by the engineer of Public Works Department
(PWD) who is the authorised and appropriate person to assess the market value
of that furniture.
The defence took
another plea that during the pendency of Rule Nisi issued in Writ Petition No.
1190 of 2008, proceeding of the criminal case is illegal, but the defence
failed to produce any stay order obtained in that Rule Nisi in proceeding of
such case. As a result the submission of the learned advocate for the defence
also does not find any legal basis.
Findings and decision
arrived at by the High Court Division being based on proper appreciation of
fact and law the same do not call for any interference by this Division. This
criminal petition for leave to appeal is dismissed. …Mohammad Osman Gani =VS=
The State, (Criminal), 2020 (1) [8 LM (AD) 354]
Section 27
An officer of the
Commission or a police officer cannot have a final say in respect of an
occurrence which is punishable under section 27 of the Ain or any other
provision of the said Ain. The officer may find case against an offender after
investigation that the allegation prima-facie discloses an offence under
section 27. The final decision in respect of the allegation is of the Court
i.e. the special Judge and his decision is also subject to the decision of the
appellate court which can affirm, modify, set aside the judgment or send the
matter on remand for fresh trial. It has all the powers of the trial court.
.....Iqbal Hasan Mahmood Tuku =VS= Anti-Corruption Commission, (Criminal), 2018
(2) [5 LM (AD) 226]
Section 27(1)
The Anti-Corruption
Commission Act, 2004
Section 27(1) read with
The Penal Code, 1860
Section 109, 161 read
with
The Prevention of
Corruption Act, 1947 Section 5(2)
Bail– The judgment in
both the appeals are set aside but the appellate court, in case of short
sentence not exceeding 3 years, when the appeal could not be disposed of within
90 working days for no fault of the appellant and/or in the case of serious illness
endangering life to be certified by duly constituted Medical Board, may
consider the matter of granting bail in an appropriate case in an appeal.
...Anti-Corruption Commission =VS= Barrister Mir Mohammad Helal Uddin,
(Criminal), 2020 [9 LM (AD) 681]
Section 28
Durnity Daman
Commission Ain, 2004
Section 28 r/w
Criminal Law Amendment
Act–1958
Section 3(2)
These provisions are
self explanatory and in this regard no further explanation is necessary. The
Sessions Judge in a Sessions Division is ex-officio Senior Special Judge and
therefore, he has all the powers of a Special Judge within the meaning of the
Criminal Law Amendment Act and the Durnity Daman Commission Ain.
The Appellate Division
held that the offences punishable under the Money Laundering Protirod Ain are
schedule offences of the Durnity Daman Commission Ain and section 28 of the Ain
of 2004 clearly provides that the offences punishable under the said Ain shall
exclusively be triable by the Special Judge which includes the Senior Special
Judge. Therefore, the High Court Division was totally unmindful in arriving at
such conclusion. The decisions referred by the High Court Division in Nurul
Huda V. Bahar Uddin, 41 DLR(HCD)395 and Zaved Khan V. ACC, 63 DLR(HCD)221 are
also to the same extent based on misconception of law. .....Anti Corruption
Commission & others =VS= Abdul Azim & others, (Civil), 2016-[1 LM (AD)
136]
Section
28-The provision of the Anti-Corruption Commission Act shall prevail over any
other law. Anti-Corruption Com mission vs Md Shahidul Islam @ Mufti Shahidul
Islam, 68 DLR (AD) 242
Section
32-Section 32 of the Act prescribes for the sanction of the Commission which is
a mandatory requirement of law for taking cognizance of offences punishable
under the Act and the investigating officer is required to accord prior
sanction of the Commission after completion of the investigation and submit the
same together with the copy of the sanction letter given by the Commission. ACC
vs Md Bayazid, 65 DLR (AD) 97
Section
32-The Rules framed under a power conferred by a section of an Act should be
read as part of that section and not as an additional section to that Act.
Anti-Corruption Commission vs Md Bayazid, 65 DLR (AD) 97
Section
32 (1) - Further Investigating The Appellate Division held that the High Court
Division observed that under section 173 (3 B) of the Code the Investigating
Officer does not require any permission from the court concerned for further
investigation and hence after completion of further investigation filing of
supplementary charge sheet does not suffer from any illegality. The High Court
Division has treated the subsequent investigation as a further investigation
and the report as a supplementary charge sheet, which is not illegal. Chowdhury
Mohidul Haque -Vs.- Anti-Corruption Commission 5 ALR (AD)2015(1) 71
Section
32, Sub-sections 32(1) and 32(2).
Sanction
for prosecution from the Anti Corruption Commission is necessary for taking
cognizance of an offence under the Act. The investigation officer is required
under the law to obtain prior sanction of the Commission before submission of
the charge-sheet after completing investigation and the charge-sheet must
accompany charges under the amended provision of law, his prior sanction is
necessary for filing a case. Anti-Corruption Commission -Vs.- Mohammad Bayazid
2 ALR (2013)(AD) 109
Sub-section
32(1)
Before
amendment of section 32(1) of the Anti-Corruption Commission (Amendment
Ordinance, 2007) prior sanction from the Anti-Corruption Commission was a
pre-condition for filing a case under this Act. Anti-Corruption Commission
-Vs.- Mohammad Bayazid 2 ALR (2013)(AD) 109
Sub-section
32(2)
In
reamins unaffected by the Amendment of 2007.
Under
the amended provision the words' for filing case' have been deleted.
Sanction
for prosecution is now necessary only for the purpose of taking cognizance of
the offence. Prior sanction for filing a case under the Anti- Corruption Act as
required before the Amendment ment is not now necessary. Anti-Corruption
Commission -Vs.- Mohammad Bayazid 2 ALR (2013)(AD) 109
Section
32
The
High Court Division has scope only to see whether there are materials on record
showing that the allegations made in the FIR and the charge sheet, constit-ute
an offence. If there be any such material the proceeding shall not be quas-hed.
In that case the trial Court will decide the case on the basis of evidence to
be adduced by the parties in the case.
The
Appellate Division held that for the purpose of quashing a proceeding, one of
the following conditions must be fulfilled:
(1)
Interference even at an initial stage may be justified where the facts are so
preposterous that even on admitted facts no case stands against the accused;
(II)
Where the institution and continuation of the proceeding amounts to an abuse of
the process of the Court;
(III)
Where there is a legal bar against the initiation or proceeding; continuation
of the
(IV)
In a case where the allegations in the FIR or the petition of complaint, even
if taken at their face value and accepted in their entirety, do not constitute
the offence alleged and
(V)
The allegations against the accused al- though constitute an offence alleged
but there is either no legal evidence adduced in support of the case or the
evidence adduced clearly or manifestly fails to prove the charge. Begum Khaleda
Zia. - Vs. The State and another. (Criminal) 15 ALR (AD) 188-192
Section
32-No sanction is required to file a complaint (অভিযোগ)
and the unamended as well as the amended section 32 requires only one sanction
from the Commission. Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir 62
DLR (AD) 290.
Section
32-Sanction from the Commis- sion will be required when the charge-sheet is
filed under sub-section (2) and on receipt of the charge-sheet along with a
copy of the letter of sanction the Court takes cognizance of the offence for
trial, either under the original section 32 or the amended section 32. As a
matter of fact, only one sanction will be required under section 32, unamended
or amended. Anti-Corruption Com- mission vs Dr Mohiuddin Khan Alamgir 62 DLR
(AD) 290.
Section
32-After completion of the investigation, the Investigating Officer, under sub-
section (2) of section 32, on obtaining the sanction from the Commission, would
submit the police report before the Court along with a copy of the letter of
sanction. The Court, under sub-section (1), would take cognizance, only when
there is such sanction from the Commission. Both the sub-section (1) and
sub-section (2) of the section 32 envisages only one sanction, not two. Sub-
section (1) does not spell out or even envisage filing of any fresh sanction
when the sanction to prosecute has already been filed along with the
charge-sheet of the Investigating Officer. It only envisages that without such
sanction from the Commission (কমিশনের অনুমোদন ব্যতিরেকে) as spelt out in sub-section (2), no Court
shall take cognizance of the offence (কোন আদালত এই আইনের অধীন কোন অপরাধ বিচারার্থ আমলে গ্রহণ করিবে না) under sub-section (1) of section 32.
Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.
Section
32(1)(2)-The requirement of sub- section (1) of section 32 was complied with
when the charge-sheet was filed along with a copy of the sanction from the
Commission. As such, there was no illegality in taking cognizance by the
learned Judge of the Metropolitan Senior Special Judge. Anti-Corruption
Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.
Section 32(2)
Section 32(2) Does not
apply to cases prior to the Act coming into operation No res-judicata.
There
is no res-judicata in the Criminal jurisdiction except the bar provided under
section 403 Cr.p.c. When steps under section; 6(5) of the Criminal Law
Amendment Act,1958 were duly taken, there was no legal requirement to obtain
sanction any more. Section 32 of the Anti-Corruption Commission Act,2004 has no
manner of application to the cases prior to the Acts coming into force. Mostafa
Kamal and others Vs. Salahuddin Ahmad and others 14 MLR (2009) (AD) 412.
Section 32(2)
Does not apply to cases
prior to the Act coming into operation No res-judicata.
There is no
res-judicata in the Criminal jurisdiction except the bar provided under section
403 Cr.p.c. When steps under section; 6(5) of the Criminal Law Amendment
Act,1958 were duly taken, there was no legal requirement to obtain sanction any
more. Section 32 of the Anti-Corruption Commission Act,2004 has no manner of
application to the cases prior to the Acts coming into force. Mostafa Kamal and
others Vs. Salahuddin Ahmad and others 14 MLR (2009) (AD) 412.
Section
32-The sanction for filing charge sheet has been granted on the basis of which
the investigating officer submitted the charge sheet and the Court took
cognizance of the offence against the petitioner and, as such, the submission
of the counsel that 'there is no prior sanction in this case' has no basis.
Begum Khaleda Zia vs State, 70 DLR (AD) 99
Section
32(1)(2)-Form-3-Under the amended provision the words 'for filing case' have
been deleted and sanction is necessary only for the purpose of taking cognizance
of the offence. The prior sanction as was required for filing a case under the
Act is not necessary. Sub-section (2) of section 32 has not been amended which
requires the investigating officer to accord prior sanction of the Commission
before submitting police report. In accordance with sub-section (2) of section
32 prior sanction for submission of the charge-sheet was duly taken. The
question is whether sanction for filing the case as noticed by the High Court
Division is necessary or not. In Form-3 appended to the Anti-Corruption Rules
in the subject matter as well as the contents to be included in the order of
sanction letter, it was mentioned sanction for filing case/ submission of
charge-sheet' was necessary. Form-3 appended to the Rules, 2007 was printed in
accordance with unamended provision of sub-section (1) of section 32 under
which provision for filing a case under the Act prior sanction of the Com-
mission was required to be taken. Anti- Corruption Commission vs Md Bayazid, 65
DLR (AD) 97
Section 32
Anti-Corruption
Commission Act, 2004
Section 32 r/w
The Criminal Amendment
Act, 1958
Section 6(5)
Sanction requirement to
file Anti-corruption Case–
Section 32 of the
Anti-Corruption Commission Act, 2004 while giving the direction. Since in the
instant case cognizance was taken long back before the coming into being of
Anti Corruption Commission Act, 2004, Section 32 of the Act shall have no
application in the instant case. Since by Section 28(2) requirement of sanction
under Section 6(5) of Criminal Amendment Act, 1958 was done away the case can
proceed now without any sanction in accordance with law and therefore Section
32(2) of Anti Corruption Commission Act, 2004 has no manner of application in
the instant case. .....Mostafa Kamal =VS= Salahuddin Ahmad, (Civil), 2018 (2)
[5 LM (AD) 431]
Section 32
Prior sanction for
filing charge sheet–
The sanction for filing
charge sheet has been granted on the basis of which the investigating officer
submitted the charge sheet and the Court took cognizance of the offence against
the petitioner and, as such, the submission of the counsel that 'there is no
prior sanction in this case' has no basis. .....Begum Khaleda Zia =VS= State,
(Criminal), 2018 (1) [4 LM (AD) 359]
Section 32(2)-Form-3-It was mentioned in Form-3 that it was drawn up in exercise of powers under section was drawn up in exercise of powers under section 32 of the Act, there was nothing to infer that it was in accordance with the amended provision. Anti-Corruption Com- mission vs Md Bayazid, 65 DLR (AD) 97
Section 32(2)-Form-3-Under the amended provision no prior sanction of the Commission for filing a case is necessary in accordance with Form-3. Anti-Corruption Commission vs Md Bayazid, 65 DLR (AD) 97
Section 32-The sanction for filing charge sheet has been granted on the basis of which the investigating officer submitted the charge sheet and the Court took cognizance of the offence against the petitioner and, as such, the submission of the counsel that 'there is no prior sanction in this case' has no basis. Begum Khaleda Zia vs State (Criminal) 70 DLR (AD) 99
Section 33-Public Prosecutor Functions-The function of the Public Prosecution is to produce witnesses on behalf of the prosecution and to examine them in accordance with law and to get the relevant documents proved by the witnesses in support of the prosecution case and to place the argument before the Court with reference to the evidence on record and the law. Public Prosecutor cannot have and must not have any role to dispense justice by a Court and therefore, even if the case of the accused is accepted that the Public Prosecutor rebuked him and made comment while PWI was examined cannot be the grounds for creation of apprehension in the mind of the accused. Anti-Corruption Commission vs AKM Shamim Hasan, 64 DLR (AD) 82
Section
33-Anti-Corruption Com- mission-Necessary Party-As per the provisions of
section 33 of the Ain, it is the Commission which shall have a permanent
prosecution unit consisting of necessary number of prosecutors for prosecuting
the cases investigated by it and triable by the Special Judge. So, the Commission
was a necessary party to be impleaded in the application filed before the High
Court Division under section 561A of the Code. And admittedly, it is the
Commission which lodged the FIR and the charge-sheet was submitted in the case
by its officer after investigation, but the Commission was not made a party in
the miscellaneous case before the High Court Division. The Commission had no
chance to say its version on the letter allegedly issued by it. Dr. Tapan Kumar
Dey vs State, 65 DLR (AD) 1
Sections
35(2) and 38(3)- The Ain is a special law and this Ain will prevail over any
other law. It will be inappropriate if the language used in Ain is used in
narrower meaning and this provision for scrutiny is for the purpose of
retaining the employees and officers of the Bureau in the Commission
permanently. This appoint- ment of the investigation officer without scrutiny
will not affect the police reports in view of the savings clause. The functions
of the Commission shall continue in the same manner as has been undertaken by
the Bureau in view of sub-section (3) of section 38 of the Ain read with
sub-sections (2) and (3) of section 3 of the Anti- Corruption Act, 1957.
Durniti Daman Commission vs Sheikh Amin Uddin, 69 DLR (AD) 373
Sections
38(2)-There cannot be any doubt to infer that the activities of the defunct
Bureau will be suspended by reason of the abolition of the Bureau, rather all
activities will continue until the Commission is fully established. Durniti
Daman Commission vs Sheikh Amin Uddin, 69 DLR (AD) 373
Section 38
The General Clauses
Act, 1897
Section 6 r/w
Durnity Daman
Commission Ain, 2004
Section 38
The action taken under
the repealed Act shall continue as if it has not been repealed¬– By reason of
abolition of Bureau of Anti-Corruption, no offender can claim any right of
non-prosecution under the new Ain. More so, in view of section 6 of the General
Clauses Act, proceedings of the case shall be continued from the stage the old
law was repealed unless different intention appears in the repealing enactment.
There is nothing in the new enactment restricting the continuation of the
pending proceedings, rather it saved those proceedings. We have, already
settled the point in controversy in an unreported case in Civil Petition No.
1321 of 2013' disposed of along with CP Nos.235-237 of 2016. This court held
that 'even if the Commission is not constituted under the Ain, the actions
taken under the repealed Act shall continue as if it has not been repealed.
There cannot be any doubt to infer that the activities of the defunct Bureau
will be suspended by reason of the abolition of the Bureau, rather all activities
will continue ' .....Sayed Liaquat Hossain =VS= Barrister Md Rafiqul Islam Mia,
(Civil), 2017 (2)– [3 LM (AD) 440]
Section 38(2)
Sub-section (2) saved
all actions undertaken by the Bureau of Anti-Corruption in exercise of powers
under the Anti-Corruption Act. Though the Ain of 2004 came into force of 9th
April, 2004, the Commission was constituted on 21st November, 2004. The
sanction letter was accorded on 25th October, 2004, before the constitution of
the Commission. Therefore, the sanction can be taken as has been accorded in
accordance with sub-section (2) of section 38. More so, after the constitution
of the Commission, the latter has accorded sanction of the charge sheet by
letter under memo dated 21st November, 2004. Even if it is assumed that the
previous sanction was not made in accordance with law, by reason of the
according sanction of the charge-sheet by the Commission, there is no legal bar
in prosecuting with the respondent in accordance with the Ain, 2004. .....Sayed
Liaquat Hossain =VS= Barrister Md Rafiqul Islam Mia, (Civil), 2017 (2)– [3 LM
(AD) 440]
Section 38(3)- There is no scope to hold the view that the police reports submitted by the officers of the defunct Bureau in the cases can be said to be illegal or without jurisdiction since the investigation officer has not been retained by the Commission after scrutiny. Secondly, the Ain clearly provides that the investigation into any allegation pending under the repealed Act shall be performed by the Commission under the Ain. Durniti Daman Commission vs Sheikh Amin Uddin, 69 DLR (AD) 373
