Criminal Law Amendment Act [XL of 1958]
Section 2(b)-Realising the impor- tance of honesty and probity in public life and to weed out the corruption rampant amongst the public servants, the legislators thought it fit and proper to frame a comprehensive legislation in the form of Anti-Corruption Commission Act. Before that they provided the expanded definition of "public servant" substituting 2(b) quoted in Act. Anti-Corruption Commission vs Md Shahidul Islam @ Mufti Shahidul Islam, 68 DLR (AD) 242
Section 2(b)
Whether the Managing Director or an Employee of a Private Limited Company registered under the Companies Act, 1913 is a public servant within the meaning of Section 2(b) ' Criminal Law Amendment Act, 1958.
In the instant case, M/s. Master Industries was established by its sponsors and it registered under the Companies Act and started functioning. It is no body's case the M/s. Master Industries Ltd. is established by or under any law. By no stretch of imagination it can not be said that Managing Director or an employee of a Private Limited Company registered under Companies Act is a local authority or statutory corporation or a body corporate, therefore a Managing Director or an employee of Private Limited Company registered under the Companies Act, 1913 not be said to be public servant within ling of section 2(b) of the Criminal Amendment Act only because the firm was registered under the Companies Act to start functioning. Khurshid Alam & Ors.Vs. Azizur Rahman & Ors 13 BLT (AD)-211
Sections 3 and 4-Notification was published in the official gazette on 8-5- 2014 but the same was given effect from the date of its communication. Pursuant to the said notification, the respondent No. 4, joining as Special Judge, Court No. 3, lawfully assumed jurisdiction vested in that Court and passed order or orders in the proceedings pending in that Court. Begum Khaleda Zia vs Bangladesh, represented by the Secretary, Ministry of Law, 67 DLR (AD) 133
Sections 3 and 4(2)-When a public functionary is found to have been acting in a particular capacity in normal course, the Court may presume that he has duly been empowered to act in that capacity. Begum Khaleda Zia vs Bangladesh, represented by the Secretary, Ministry of Law, 67 DLR (AD) 133
Section 3(2)
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, [1 LM (AD) 136]
Section 3-Power of Special Judge- Creation of new Districts or Sessions Divisions does not require fresh Notifications as to Senior Special Judges. When a public functionary is found to have been acting in a particular capacity in normal course the Court may presume that he has been duly empowered to act in that capacity. Mozahar Ali Howlader vs Lal Miah Talukder 44 DLR (AD) 250.
Section 4- There is no denial as to the issuance of the letter for sanction of trial. There is also no denial that the required sanction has neither been received nor refused within sixty days. In such view the sanction be deemed to have been accorded. Atiquzzaman Khan vs State 57 DLR (AD) 100.
Section 4(1)- There are authorities which have found it improper for an enquiry to be held against a person by a person belonging to the same department.
In the present case it cannot be said that the Special Judge has acted with sound discretion in asking the ASP to hold an enquiry when admit- tedly officers much above him have been made accused in the case. The Additional Attorney- General submitted that since the Deputy Commissioner and Superintendent of Police were already transferred there was no reason to apprehend that the ASP would not be able to hold an influence free enquiry. It is difficult to accept the submission of the learned Additional Attorney-General, for, it is not necessary to be personally present to influence an enquiry. Abdur Rahim vs State 49 DLR (AD) 51.
Sections 4(1), 10(1A)
The Criminal Law Amendment Act, 1958
Sections 10(1A), 4(1)
The Money Laundering Protirodh Ain, 2012
Section 4(2)/ 4(3)
A case under the Money Laundering Protirodh Ain, 2012 the Magistrate has no jurisdiction to deal with the application for bail of an accused as he has no jurisdiction to take cognizance of an offence under the said Ain of 2012– A prayer for bail before the Chief Metropolitan Magistrate, Dhaka and the learned Metropolitan Magistrate concerned by the order on the same day enlarged them on bail. Being aggrieved by and dissatisfied with the said order of granting bail to the accused respondents, the present victim-petitioners filed an application for cancellation of bail of the said accused vide Miscellaneous Case No.6012 of 2021 before the Metropolitan Sessions Judge, Dhaka. The learned Metropolitan Sessions Judge, Dhaka after hearing the said Miscellaneous Case by its order dated 26.09.2021 rejected the same and maintained the order of bail passed by the Metropolitan Magistrate, Dhaka.
Thereafter, the present victim-petitioners moved an application under section 10(A) of the Criminal Law Amendment Act, 1958 vide Criminal Revision No.2330 of 2021 before the High Court Division. A Division Bench of the High Court Division on 22.11.2021 issued a Rule and also stayed the operation of the order dated 26.09.2021 passed by the Metropolitan Sessions Judge till disposal of the Rule and the accused-respondents were directed to surrender before the Chief Metropolitan Magistrate, Dhaka within a period of 02(two) weeks from the date of receipt of the order by him. Since the application under section 10(1A) of the Act of 1958 filed by the victim-petitioners is not amenable in the High Court Division and the High Court Division wrongly applied its jurisdiction, thus the Rule issuance order and all the orders including the impugned order passed by the High Court Division, in the said Rule is nullity in the eye of law and are liable to be interfered with. Accordingly, this leave petition is disposed of. .....Minaz Ahmed =VS= Arif Motahar, (Criminal), 2022(1) [12 LM (AD) 499]
Provisions made under section 4 of the Cr. Law Amendment Act enabling the Special Judge to take cognizance of an offence either on a complaint or police report can not be construed as meaning that the requirement under clause (e) of section 195 (1) Criminal Procedure Code for making a complaint in writing by the court concerned can be rendered nugatory and may be dispensed with since section 6 of Cr. Law Amendment Act provides that provisions of the Criminal Procedure Code which are not inconsistent with the provisions of Criminal Law Amendment Act shall be applicable in a trial held by a Special Judge under the Cr.Law Amendment Act. Muslim Khan Vs. State (1986) 38 DLR (AD) 60.
Sections 4(3)- The wider territorial juris- diction of the Divisional Special Judge has not conferred upon him any higher authority than that of the Senior Special Judge. In relation to the Senior Special Judge, the Divisional Special Judge is like any other Special Judge power of taking cognizance of offence has not been given to him. State vs Divisional Special Judge Khulna Division 44 DLR (AD) 215.
Sections 4(3) & 10(3)-High Court Division may transfer a case pending in the court of any Special Judge to the court of another Special Judge irrespective of the territorial limits of either of the two Special Judges. But the jurisdiction of transfer of a case by the Senior Special Judge is limited within his district. The two sections have therefore no conflict. State vs Divisional Special Judge, Khulna Division 44 DLR (AD) 215.
Sections 4(4) and 6(1)-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 5(6)- Neither in the Criminal Procedure Code nor the Criminal Law Amendment Act there is any provision for enabling an accused to make an application for further investigation of the offence.
A Special Judge may, in any case where he deems it necessary, order an investigation. It is only in cases where he finds any ambiguity in the police reports, he may make an order for further materials from the investigation agency.
The Appellate Division held that the purpose for filing the application is to ascertain for what purpose the money was transmitted from Kuwait. This cannot be a subject matter for further investigation of the case at such belated stage. Neither in the Criminal Procedure Code nor the Criminal Law Amendment Act there is any provision for enabling an accused to make an application for further investigation of the offence for the purpose as alleged in the application. What is provided under section 173(3B) is that the investigation officer has been given discretionary power to file a supplementary police report at any time before conclusion of the trial. If he finds further materials against the accused or any other accused persons, he may make such investigation without the intervention of the court. Under the Criminal Law Amendment Act, the Special Judge has been given discretionary power to direct or make for an order of investigation. This power can be exercised at the initial stage of the proceedings. The language used there is that a Special Judge may, in any case where he deems it necessary, order an investigation. It is only in cases where he finds any ambiguity in the police reports, he may make an order for further materials from the investigation agency. On a plain reading of the petition filed by the petitioner, the Appellate Division has noticed that she wants to prove a fact in support of her defence and this is none of the case of the investigation officer to ascertain that fact. It is the defence which enables it to prove a fact in support of its defence and therefore, the application filed by the petitioner is misconceived one. The Appellate Division finds no error in the order of the High Court Division that calls for interference. This petition is accordingly dismissed. Begum Khaleda Zia. Vs. State and another (Criminal) 21 ALR (AD) 53-55
Section 5(6) read with Sec. 6A & 8
Further investigation of the case under section 5(6) of the Criminal Law Amendment Act, 1958–
Section 8 of the Criminal Law Amendment debars de-novo trial for an offence punishable under the Criminal Law Amendment Act. Moreso. under section 6A of the Act, a special time limit has been fixed for concluding trial of a case providing that the trial shall have to be concluded within 45 days from the date of taking cognizance of the offence and if the trial cannot be concluded within the said time, the Special Judge after recording reasons in writing conclude the trial within 15 days next thereafter. In this case more than 7 (seven) years elapsed from the date of taking cognizance of the offence. Moreso, the trial of the case is almost over. The examination of the alleged offenders is also over. On 2-2-2017 the petitioner has been examined. From the record, it appears that the learned Special Judge has assigned proper reasons in rejecting the application.
The application filed by the petitioner is misconceived one. We find no error in the order of the High Court Division that calls for interference. ...Begum Khaleda Zia =VS= State, (Criminal), 2019 (1) [6 LM (AD) 85]
Section 6(1B)-Any number of offences punishable under the Criminal Law Amendment Act irrespective of the period over which the offence was committed, may be tried at one trial. All the offences committed over any length of period of time could be tried in one trial upon framing one charge. State vs Md Ibrahim Ali, 66 DLR (AD) 33
Section 6(1B)-While quashing the criminal proceeding this court observed that the period of occurrence in respect of the incident is hit by section 234 of the Code. This observation is made through overlooking sub-section (1B) of section 6 of the Act, 1958. The observation is expunged. Manzur Ahmed vs Government of the People's Republic of Bangladesh, 70 DLR (AD) 155
Section 6(2)-Section 6(2) is a special provision and Special Judge is authorized to accept the prayer for tendering pardon. The trial Court is directed to allow other accused to cross-examine the approvers as per provision law at the time of examining them as approvers of the case. Gias Uddin Al-Mamun (Md) vs State, 69 DLR (AD) 322
Section 6-Withdrawal from the prosecution is subject to consent by the trial Judge and when the accused persons are still absconding the discretion ought not to have been exercised. Sreemati Prativa Rani Dey (Tirtha) vs Dr Mohammad Yousuf Chittagong Medical College 52 DLR (AD) 8.
Section 6-Reference to High Court Divi- sion-Provisions of the Criminal Procedure Code will apply to the proceedings of the Court of Special Judge only for the purpose of hearing and disposal of a special case. Transfer of a case from one Special Judge to another Special Judge does not appear to fall within the provision for hearing and disposal of a case. State vs Divisional Special Judge, Khulna Division 44 DLR (AD) 215.
Section 6-Accused is a public servant- Order of sanction to prosecute him submitted in court along with charge-sheet-Court of trial perused the sanction order and noted "seen" thereon, but omitted to mention it either in Order- sheet or in the Judgment-Witnesses including the Investigation Officer remained silent about it while deposing. The trial is not vitiated by illegality in spite of the omission on he part of the prosecution to refer to the evidence as to the order of sanction since the trial is found to have been held by the Court on perusal of the order of sanction. Liakat Ali vs State 42 DLR (AD) 30.
Section 6(5)- The imperative language of the provision, "the Special Judge shall, immediately on receipt of the complaint", leaves no manner of doubt that before any step is taken the Special Judge has to address the Government in case of sanction not being accompanied with a petition of complaint.
It is true that in a case under the Act a Special Judge may, where he deems if necessary, order an investigation by any officer in whose jurisdiction the offence was wholly or partly committed. This step also, however, cannot be taken without complying being that the Government may not give any sanction to prosecute at all. Abdur Rahim vs State 49 DLR (AD) 51.
Section 6(5)-The question whether the public servant concerned should be prosecuted or not is entirely within the jurisdiction of the appropriate Government. The Special Judge has no say in the matter. It is not for him to decide whether a prima facie case has been made out against the public servant or not.
For the present we find no contrary opinion to the requirement of complying with the proviso to section 6(5) if any petition of complaint is not accompanied by sanction as required. The imperative language of the proviso, "the Special Judge shall, immediately on receipt of the complaint" leaves no manner of doubt that before any step is taken the Special Judge has to address the Government in case of sanction not being accompanied with a petition of complaint. Abdur Rahim vs State 48 DLR (AD) 167.
Section 6(5)-It is not necessary to personally represent to influence an enquiry by a subordinate Junior Officer. There are authorities which have found it improper to hold an enquiry against a person by a person belonging to the same department (29 CrLJ 1928, 1958). Abdur Rahim vs State 48 DLR (AD) 167.
Section 6(IA)- In view of this amended section there was no necessity of further publication of the notification in any daily. Atiquz- zaman Khan vs State 57 DLR (AD) 100.
Section 6(5) The minimum requirement of this section appears to be that the authority while according sanction must have the facts of the case in order to take a decision as to whether it should accord any sanction for the prosecution. M Mojibul Haque vs DG, Bangladesh Bureau of Anti-Corruption 55 DLR 24.
Section 6(2)
The impugned order that Special Judge considering prosecution case and others materials on record allowed the prayer for tendering pardon and also allowed this respondent Nos. 3 and 4 as approvers. From the section 6 sub section 2 of the Criminal Law Amendment Act, 1958. .....Gias Uddin Al-Mamun (Md) =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 558]
Section 6(2)- Special Judge with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, may for reasons to be recorded in writing tender pardon to such person on condition of his taking a full and true disclosure of the whole of the circum- stances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and any pardon so tendered shall, for the purposes of sections 339 and 339A of the Code of the Criminal Procedure. Gias Uddin Al- Mamun (Md) vs State, 69 DLR (AD) 322
Section 6(2)
The Special Judge, recording the reasons, accepted the prayer for tendering pardon. In such view of the matter, we do not find any wrong in the judgment of the High Court Division. However, the trial Court is directed to allow other accused to cross-examine the approvers as per provision law at the time of examining them as approvers of the case. .....Gias Uddin Al-Mamun (Md) =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 558]
Section 6(2)- There is no specific allegation in the application that the approvers willfully concealed anything essential or gave false evidence, so they are liable to be tried, in such view of the matter, the second prayer made by the petitioner is not so relevant for him. The person who is authorised to grant certificate is the Public Prosecutor who has been conducting the case. It is not the case here that the approvers have failed to comply with the conditions of pardon, either by willfully concealing anything essential or by willfully giving false evidence, the High Court Division rightly refused to interfere with the order of Special Judge in view of the prevailing facts and circumstances of the case. Gias Uddin al-Mamun (Md) vs State, 70 DLR (AD) 123
Section 6(3) The Court is required to issue process unless he considers, and gives his reasons in writing that the application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. The trial Court opined that a list of 271 defence witnesses would cause vexation, delay the trial and the ends of justice would be defeated. And for that reason he restricted the number of defence witnesses to a maximum of 10. The High Court Division did not find any reason to interfere with that decision. Monirul Islam Khan vs State, 70 DLR (AD) 104
Section 6(5)
It is now well settled that sanction confers jurisdiction upon the Special Judge for taking cognizance of an offence against a government servant. Mere statement in the charge-sheet that some sort of sanction was received without producing the sanction order before the court and putting in the same to the evidence in order to show that the sanction order was valid and proper is not enough. Memo of the S.P. was not filed nor it is found with the lower court records and so it was not possible for the High Court Division to ascertain whether it was a permission to submit charge-sheet or a sanction order for prosecution and that S.P. was not the proper authority to sanction. The High Court Division concluded as follows:- "From the lower court record it does not appear that the learned Special Judge took notice of such a patent fact and that any sanction letter was ever produced before the learned Judge and that he ever wrote under section 6(5) of the Criminal Law (Amendment) Act to the proper authority for the sanction. It is now well settled that sanction confers jurisdiction upon the Special Judge for taking cognizance of an offence against a government servant. Mere statement in the charge-sheet that some sort of sanction was received without producing the sanction order before the court and putting in the same to the evidence in order to show that the sanction order was valid and proper is not enough. In the High Court Division view the trial has been held without sanction from the proper authority and as such the trial held by the Special Judge is without jurisdiction and the impugned order of conviction and sentence is illegal." In view of above position the Appellate Division finds no reason to interfere with the judgment and order passed by the High Court Division and accordingly the appeal is dismissed. The State -Vs.- Md. Moslemuddin (Criminal) 23 ALR (AD) 20
Section 6(5) -"working days"
Since the decision of the Government not to accord sanction against the ap- pellants was not given within 60 days, it would be deemed that sanction had been accorded.
The Appellate Division observed that the words "working days" have not been mentioned in the proviso to section 6(5) of the Criminal Law Amendment Act, 1958. Therefore, the High Court Division was justified in holding that since the Government's decision not to accord sanction against the appellants was intimated beyond 60 days, it would be deemed that sanction had been accorded according to the proviso to section 6(5) of the Criminal Law Amendment Act, 1958. Mahboobur Rahman and others. -VS- Md. Kayser Parvej (Milon) and others. (Criminal) 11 ALR (AD) 88-92
Section 6 (5)
The learned Judges held that since sub-section (5) of section 6 of the Act, 1958 was repealed on 18.04.2004 by Act XXII of 2004, there-fore, "at the time of submission of police report, on 29.10.2004 prior sanction of the Government for prosecuting the accused was not required under the law in existence." So, taking of cognizance of the offence under section 409 of the Penal Code against the petitioner by the Senior Special Judge on 12.03.2005 in the absence of any sanction was not illegal or without lawful authority. In view of our findings that 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, the question as to whether prior sanction of the Government or the Commission was required for taking cognizance by the Senior Special Judge against the petitioner.
The learned Senior Special Judge, Sylhet acted illegally and without jurisdiction in taking cognizance of the offence under section 409 of the Penal Code against the petitioner and other two accused, on the basis of the report, filed by the police under section 173 of the Code and the High Court Division also erred in affirming the same. However, in view of the fact that the case was initiated as back as on 17.12.2003.
Accordingly, this petition is disposed of in the following terms:
(a) The order dated 12.03.2005 passed by the Senior Special Judge, Sylhet in Special Case No. 1 of 2005 taking cognizance against the petitioner and the other accused under section 409 of the Penal Code and the impugned judgment and order passed by the High Court Division in affirming the same are set aside.
(b) The report submitted by Sub-Inspector of police, Md. Moinul Islam of Kotwali police station on 29.10.2004 in the case under section 173 of the Code of Criminal Procedure is declared to be no report in the eye of law and the same is quashed.
(c) The Senior Special Judge, Sylhet is directed to send the case records to the District office of the Durnity Daman Commission, Sylhet for investigating of the case afresh by it as per the provisions of the Ain, 2004 and the Bidhimala framed there under keeping in view of the observations and the findings given by this Court in the judgment. ...Kaisor-uz-Zaman(Md.) =VS= Deputy Commissioner, Sylhet, (Criminal), 2021(1) [10 LM (AD) 483]
Section 6(5)
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, [5 LM (AD) 431]
Section 6(5)
Appellant filed a petition of complaint before the learned Senior Special Judge against the Deputy Commissioner, Super-in-tendent of police, and some other local officials alleging offence's under sections 166/217/114 of the Penal Code and section 5(2) of the Prevention of Corruption Act, 1947- Complainant was examined on oath and the A. S .P. was asked to submit a report upon holding an inquire into the complaint made- the grievance of the appellant is that the learned Special Judge Committed a two fold wrong (1) is not having acted in terms of the proviso to section 6(5) of the Act and (2) having called for a report, of all persons, from the A. S. P. when senior officers above him were complained against- Held: In the Present case it cannot be said that the learned Special Judge has acted with sound discretion in asking the A. S. P. to hold an inquire when admittedly officers much above him have been made accused in the case- The order passed by the learned Senior Special Judge is found to be wholly unsustainable in that he has failed to comply with the proviso to section 6(5) of the Act which, on all accounts, was a first step that was required to be taken by him, on receipt of the complaint. Mr. Abdur Rahim Vs. The State 4BLT (AD)-187
Section 6(5)
Prior sanction - where the prosecution report does not indicate of obtaining sanction to the prosecution of a public servant cognizance cannot be taken. But the proviso to Section 6(5) has given authority to the Senior Special Judge to send a letter to the appropriate authority for getting sanction and if no response is received within 60 days from the date of receipt of the letter by the Government then it should be deemed to have been duly accorded. Jalaluddin Choudhury & Ors. Vs. The State & Anr. 9 BLT(AD)-95
Section 6(5)
A petition of complaint was filed before the Senior Special Judge against the police personnel and some other local officials without any sanction of the government and upon examining the complainant on oath the ASP was directed to submit a report after holding an enquiry. The Imperative language of the proviso, “the Special Judge shall, immediately on receipt of complaint,” leaves no manner of doubt that before any step is taken the Special Judge has to address the Government in case of sanction not being accompanied with a petition of complaint and even the Special Judge cannot pass an order of investigation by any police officer without complying with the proviso to section 6(5) of the Act as the Government may not give any sanction to prosecute at all and it cannot be said that the learned Special Judge has acted with sound discretion in asking the ASP to hold an enquiry when admittedly officers much above him have been made accused in this case and the High Court Division wrongly rejected the revisional petition on the ground of being premature. Abdur Rahim @ Md. Abdur Rahim vs State 1 BLC (AD) 141
Section 6(5)
Sanction as sought for by the Special judge of the Government for persecution of the accused to be accorded within 60 days on the expiry of which it shall be presumed that sanction has been duly accorded. Subsequent refusal to accord sanction after 60 days is of no consequence.
The Appellate Division held the position of law under section 6(5) of the Criminal Law Amendment Act, 1958 is clear and as such set aside the impugned judgment and order of the High Court Division and directed the Special Judge, Sunamganj to proceed with the Special case in accordance with law. Malek Hussain Pir Vs. Begum Nurjahan Khanam and others 15 MLR (2010) (AD) 109
Section 6(5)
Criminal Law (Amendment) Act, 1958
Section 6(5)
Penal Code, 1860
Section 401, 431/467
Prevention of Corruption Act, II of 1947
Section 5(2)
The trial has been held without sanction from the proper authority and as such the trial held by the Special Judge is without jurisdiction–– “From the lower court record it does not appear that the learned Special Judge took notice of such a patent fact and that any sanction letter was ever produced before the learned Judge and that he ever wrote under section 6(5) of the Criminal Law (Amendment) Act to the proper authority for the sanction. It is now well settled that sanction confers jurisdiction upon the Special Judge for taking cognizance of an offence against a government servant. Mere statement in the charge-sheet that some sort of sanction was received without producing the sanction order before the court and putting in the same to the evidence in order to show that the sanction order was valid and proper is not enough. In my view the trial has been held without sanction from the proper authority and as such the trial held by the Special Judge is without jurisdiction and the impugned order of conviction and sentence is illegal.” Appellate Division finds no reason to interfere with the judgment and order passed by the High Court Division and accordingly the appeal is dismissed. .....The State =VS= Md. Moslemuddin, (Criminal), 2023(1) [14 LM (AD) 257]
Section 6A
Emergency Powers Rules, 2007
Rule 19Ka - Time limit under both the provisions is held directory, and not mandatory.
As there is no consequence provided, in the event of the failure to conclude trial within the time specified the apex court held the provisions of 339C of the Code of Criminal Procedure, 1898, section 6A of Criminal Law Amendment Act, 1958 and rule 19Ka of the Emergency Power Rules, 2007 as directory and not mandatory. However the apex further advised to take disciplinary action against the judge concerned for his willful negligence in not complying with the provisions of the law in appropriate cases. A.H.M. Mustafa Kamal @ Lotus Kamal Vs. Government of Bangladesh 14 MLR (2009) (AD) 45.
Section 8
Conviction after expiry of time limit—
When the trial could not be concluded within the time limit, there was, in fact, no proceeding after the expiry of the period. Trial held and conviction given after the expiry of the time limit is illegal. The State Vs. Md. Minhazuddin Khan— 4, MLR (1999) (AD) 147
Section 8-The High Court Division rightly acquitted the accused in view of the provision of section 8 of the Criminal Law Amendment Act as the trial having not been concluded within the period of 2 years it was without jurisdiction. State vs Md Minhazuddin Khan 51 DLR (AD) 142.
Section 8(a)- Where the charge has been framed under section 409 of the Penal Code and section 5(2) of Act II of 1947, and in the absence of any provision for revival of the case on the expiry of the period of 2 years provided in section 8(a) of the Criminal Law Amendment (Amend- ment) Act there was no legal authority to revive the case under the provision of the Code of Criminal Procedure. Nur Israil Talukder vs State 52 DLR (AD) 51.
Section 9
Section 9 Provides for confiscation of property to the extent connected with the offence - When the charges under section 5(2) of the Prevention of Corruption Act, 1947 read with section 109 of the Penal Code, 1860 are established section 9 of the Criminal Law (Amendment) Act, 1958 imposes a duty upon the trial judge hath he imposes a sentence of imprisonment or not, he shall impose a sentence of fine and pass an order confiscating the property of the accused connected with the offence. The apex court held that the confiscated property cannot be restored to the offender. M.A. Sattar and others Vs. The State 14 MLR (2009) (AD) 168.
Section 9-Punishment of offences- Sentence of fine is not in conformity with section 9 of the Act. When the Special Judge imposes a sentence of imprisonment, he is required to impose a sentence of fine which shall not be less than the gain found to have been derived by the accused by the commission of the offence. State vs Md Abul Hossain, 64 DLR (AD) 39
Section 10-The High Court Division has not at all applied its judicial mind in acquitting the respondent. The question has already been settled by this Division and we find no cogent ground to depart from the same. The matter is sent back on remand to the High Court Division for disposal of the appeal on merit afresh. ACC vs Mofazzal Hossain Chowdhury Maya, 67 DLR (AD) 230
Section 10-The accused are aged persons and in consideration of the amount of mis-appropriation, reduce their period of sentence of imprisonment for the period they have already undergone. State vs Md Abul Hossain, 64 DLR (AD) 39
Section 10-The expression "এই বিধিমালার অধীন" refers to the Emergency Powers Rules as a whole. It cannot mean and refer to Rule 10 only; otherwise the expression would have been "উক্ত বিধির অধীন" i.e. under the aforesaid Rule. Anti- Corruption Commission vs Barrister Nazmul Huda 60 DLR (AD) 57.
Secton 10-The language of Rule 11(3) admits of no ambiguity and therefore, there is hardly any scope for interpretation. The intention of the law makers is manifested in the express words used in sub-rule 3 leaving no scope to doubt that such power of granting bail by the appellate Court has been taken away by express provisions. ACC vs Barrister Nazmul Huda 60 DLR (AD) 57.
Section 10
Provides for alternative remedy by way of appeal—
Constitution of Bangladesh—
Article 102— The power of the High Court Division under writ jurisdiction is limited. It can not exercise the power of appellate court in writ jurisdiction—
The apex court firmly held that a fugitive in law and justice is not entitled to get the protection of law unless he surrenders in the proper court—
The writ petitioner was convicted and sentenced in a trial held in his absence. Instead of surrendering before the trial court he instituted the writ petition through his authorised agent which the High Court Division entertained and made conflicting orders from time to time with regard to his bail, stay of the operation of sentence, and the manner of surrendering before the proper court by violating the long established principles of law, norms and practice which the apex court deprecated and disapproved in strong words and directed the convict-writ petitioner to surrender before the trial court. Anti-Corruption Commission Vs. Dr. H.BM Iqbal Alamgir and others 15 MLR (2010) (AD) 103.
Section 10(1A)
Criminal Law Amendment Act, 1958
Section 10(1A)
Money Laundering Protirodh Ain, 2012
Section 2(11)
Stayed the bail granting order–– The First Information Report (FIR) and result of investigation disclosed the specific and definite allegation of offence of money laundering. The Investigating Officer reports that specific and definite allegations of money laundering against the respondent is noticeable and the blue print towards commission of the offence alleged has been disclosed as serious and repulsive activities of the respondents in misappropriating money through illegal suspicious transaction to the other authorities and in such a state of affairs, the respondent should not be enlarged on bail. ––Having considered those fact, circumstances and materials on record, this Division finds that accepting bail of the respondent is not a legal and just one and thus. ––The judgment and order dated 26-1-2021 passed by the High Court Division in Criminal Miscellaneous Case No. 1799 of 2020 is hereby set-aside. Accepting the bail of Rashedul Huq Chishti is hereby set-aside. .....Durnity Daman Commission =VS= Rashedul Huq Chishti, (Criminal), 2023(1) [14 LM (AD) 300]
Section 10
Criminal Law Amendment Act, 1958
Section 10
Emergency Power Rules, 2007
Section 11(2)
The Penal Code, 1860
Sections 161/109
Granting ad-interim bail–– It appears that the High Court Division has correctly followed the observations made by this Division in Criminal Appeal No.6 of 2008 in grant¬ing bail to the respondent No.1. ––It further appears that the appeal could not be disposed of within ninety days and the respondent has already served out a substantial portion of sentence. Appellate Division does not find that the judgment and order of the High Court Division suffers from any infirmity. Accordingly the petition is dismissed. .....Anti-Corruption Commission =VS= Sigma Huda, (Criminal), 2023(1) [14 LM (AD) 497]
Section 10(3)
The Criminal Law Amendment Act, 1958
Section 10(3) r/w
The Prevention of Corruption Act II 1947
Section 5(2) of Act II 1947 r/w
The Penal Code
Sections 409/109
Transfer the Case under Sec. 5(2) of the Act II 1947 read with Sec. 409/109 of the Penal Code–
The petitioner is entitled to get an order of transfer if she shows circumstances from which it can be inferred that there is apprehension that she would not get justice from the Judge concerned and that the same is reasonable in the circumstances alleged but a mere allegation of apprehension is not enough; the Court will consider whether the apprehension is reasonable, genuine and justifiable.
Taking into consideration the entire facts and circumstances of the case and the materials on record, we are of the view that the petitioner has failed to make out a case that she has reasonable apprehension of not availing justice from the presiding Judge of the Special Court No. 5, Dhaka. The petition is dismissed. ...Begum Khaleda Zia =VS= State, (Criminal), 2019 (1) [6 LM (AD) 91]
Sections 10(1A), 4(1)
The Criminal Law Amendment Act, 1958
Sections 10(1A), 4(1)
The Money Laundering Protirodh Ain, 2012
Section 4(2)/ 4(3)
A case under the Money Laundering Protirodh Ain, 2012 the Magistrate has no jurisdiction to deal with the application for bail of an accused as he has no jurisdiction to take cognizance of an offence under the said Ain of 2012– A prayer for bail before the Chief Metropolitan Magistrate, Dhaka and the learned Metropolitan Magistrate concerned by the order on the same day enlarged them on bail. Being aggrieved by and dissatisfied with the said order of granting bail to the accused respondents, the present victim-petitioners filed an application for cancellation of bail of the said accused vide Miscellaneous Case No.6012 of 2021 before the Metropolitan Sessions Judge, Dhaka. The learned Metropolitan Sessions Judge, Dhaka after hearing the said Miscellaneous Case by its order dated 26.09.2021 rejected the same and maintained the order of bail passed by the Metropolitan Magistrate, Dhaka.
Thereafter, the present victim-petitioners moved an application under section 10(A) of the Criminal Law Amendment Act, 1958 vide Criminal Revision No.2330 of 2021 before the High Court Division. A Division Bench of the High Court Division on 22.11.2021 issued a Rule and also stayed the operation of the order dated 26.09.2021 passed by the Metropolitan Sessions Judge till disposal of the Rule and the accused-respondents were directed to surrender before the Chief Metropolitan Magistrate, Dhaka within a period of 02(two) weeks from the date of receipt of the order by him. Since the application under section 10(1A) of the Act of 1958 filed by the victim-petitioners is not amenable in the High Court Division and the High Court Division wrongly applied its jurisdiction, thus the Rule issuance order and all the orders including the impugned order passed by the High Court Division, in the said Rule is nullity in the eye of law and are liable to be interfered with. Accordingly, this leave petition is disposed of. .....Minaz Ahmed =VS= Arif Motahar, (Criminal), 2022(1) [12 LM (AD) 499]
Sections 10(1)(a) and 11-Since the paper books for the appeal pending before the High Court Division are ready, the High Court Division is directed to dispose of the appeal. Durnity Daman Commission vs Begum Khaleda Zia alias Khaleda Zia, 70 DLR (AD) 137
Section 10(2)-The Commission under the Ain of 2004 has been given exclusive power to conduct cases instituted under the Ain. Anti-Corruption Commis- sion vs Monjur Morshed Khan, 64 DLR (AD) 124
Section 10(3)-A transfer should not readily be granted for any imaginative ground of a litigant. Where the ground for transfer is not substantiated as such does not exist, case cannot be transferred. Begum Khaleda Zia vs State, 70 DLR (AD) 175
Section 10(3)-Petitioner has failed to make out a case that she has reasonable apprehension of not availing justice from the presiding Judge of the Court. Begum Khaleda Zia vs State, 70 DLR (AD) 175
Section 10(3)-Mere allegation like substantial prejudice, non-availability of the congenial atmosphere for a free trial cannot be the ground for transfer of a case. Begum Khaleda Zia vs State, 70 DLR (AD) 175
Section 10(3)-The apprehension must not only be entertained, but must appear to the Court to be a reasonable apprehension. Mere existence of a surcharged atmosphere without there being proof of inability for holding fair and impartial trial cannot be made a ground for transfer of a case. Begum Khaleda Zia vs State, 70 DLR (AD) 175
Section 10(3) read with
Mere allegation of apprehension is not enough; the Court will consider whether the apprehension is reasonable, genuine and justifiable.
A transfer should not readily be granted for any imaginative ground of a litigant. Where the ground for transfer is not substantiated as such does not exist, case cannot be transferred.
The Appellate Division held that the petitioner is entitled to get an order of transfer if she shows circumstances from which it can be inferred that there is apprehension that she would not get justice from the Judge concerned and that the same is reasonable in the circumstances alleged but a mere allegation of apprehension is not enough; the Court will consider whether the apprehension is reasonable, genuine and justifiable. However, the assurance of fair trial is the first imperative of the dispensation of justice and the central criterion for the court, learned Special Judge shall look into it carefully. Taking into consideration the entire facts and circumstances of the case and the materials on record, the Appellate Division is of the view that the petitioner has failed to make out a case that she has reasonable apprehension of not availing justice from the presiding Judge of the Special Court No. 5, Dhaka. Begum Khaleda Zia Vs. The State & another (Criminal) 19 ALR (AD) 78-80
Section 11
Bail–– The petitioner has undergone imprisonment for 2 (two) years out of imprisonment of 10 (ten) years. In the application for bail, it has been stated that the petitioner is aged about 68 years and that he is a member of the Supreme Court Bar Association and that he has been suffering from various ailments. The petitioner has also taken the ground of prevailing Covid situation. ––Appellate Division is inclined to enlarge the petitioner on bail pending hearing of the criminal petition subject to the satisfaction of learned Special Judge, 2nd Court, Dhaka. This Division is also inclined to stay the order of confiscation and realisation of fine till disposal of the criminal petition. .....Mir Mohammad Nasir Uddin =VS= Deputy Commissioner, Dhaka, (Criminal), 2022(2) [13 LM (AD) 587]
