Prevention of Corruption Act [II of 1947]
Section 2-Trustee is a public servant.
The petitioner prayed for set aside the charge leveled against her on the ground that she purchased the property not as Prime Minister but as trustee of Shahid Ziaur Rahman trust, the Appellate Division helds that as per provision of Section 2 of the Prevention of the Corruption Act, 1947 trustee is also a public servant. Begum Khaleda Zia-Vs. The State and another (Criminal) 7 ALR (AD) 308
Section 2
Trustee is a public servant–
The petitioner prayed for set aside the charge leveled against her on the ground that she purchased the property not as Prime Minister but as trustee of Shahid Ziaur Rahman trust, the Appellate Division helds that as per provision of Section 2 of the Prevention of the Corruption Act, 1947 trustee is also a public servant. .....Khaleda Zia =VS= The State & another, (Criminal), 2016-[1 LM (AD) 553]
Section 5(1)(a)(b)(c) and (d)-The alleged agreement for sale was executed in favour of Monjur Ahmed, who is a distinct person and not a member of his family. The High Court Division has totally ignored that aspect of the matter. Though the petitioner has challenged the order of taking cognizance of the offence, we noticed that the initiation of the proceeding itself is an abuse of the process of the court and no fruitful purpose will be served if we allow the criminal case to proceed with. Chairman, RAJUK vs Manzur Ahmed @ Manzoor Ahmed, 68 DLR (AD) 337
Section 5(1)(c) (d)-The doctors of the Central Jail Hospital, who are public servants have misused their power and position for which, exemplary actions should be taken against them. State vs Mahtab Uddin Ahmed Chowdhury (Minar), 68 DLR (AD) 230
Section 5(1)(d)-Distinction of NIKO case-It appears from the confession of co- accused that bribe was given to the then Sate Minister for Energy and Mineral Resources, AKM Mosarraf Hossain, Selim Bhuiyan and Gias uddin-al-Mamun to ensure that the 'JVA' is to be finalized and singed which clearly comes within the ambit of definition of criminal misconduct given in section 5(1) of the Act. The issue is determination of criminal liability of the writ-petitioner in respect of the alleged offence under sections 409/109 of the Penal Code read with section 5(2) of the Act, that is, criminal breach of trust by public servant and abetment of the offence that took place in the process of executing the 'JVA'. The High Court Division has noted that abetment under section 109 of the Penal Code is such an offence which can be inferred from the conduct of the accused and attending circumstances of the case. The case is quite distinguishable from the other case which was already quashed by the High Court Division. Begum Khaleda Zia vs Anti-Corruption Commission, 69 DLR (AD) 181
Section 5(1)(d)-Admittedly the accused petitioner was the then Prime Minister of the People's Republic of Bangladesh who accorded approval as the head of the final authority to issue work- order in favour of CMC consortium, the third lowest among the three bidders, inspite of recommendation of the Chair- man, Petro Bangla for re-tender which according to the respondents has caused huge loss and damage to the Public Exchequer as the same constitute criminal breach of trust. Begum Khaleda Zia vs State, 70 DLR (AD) 99
Section 5(1)-The accused-petitioner's conduct is certainly a criminal misconduct because receipt of money from Nurun Nahar and consequent making of a fresh recall order as a public servant have been proved and so the Court ought not to have acquitted him of that charge. Azizul Hoque vs State 51 DLR (AD) 216.
Section 5(1)(d) (e)- Embezzlement of State money by a person who was the President of the country and using the same for his personal benefit or living or having properties dispropor- tionate to his known source of income will definitely come within the ambit of moral turpitude. Hussain Mohammad Ershad vs Zahedul Islam Khan 54 DLR (AD) 1.
Section 5(2)- The charge of substantive offence of cheating against the respondent having failed, the other respondents cannot be held guilty of the offence of abetment. State vs Md Iqbal Hossain 48 DLR (AD) 100.
Section 5(2)- The High Court Division was totally wrong in holding that the accused pet- itioner cannot be tried under Act II of 1947 along with other Penal Code offences. Mahbubul Alam vs State 50 DLR (AD) 125.
Section 5(2)- Illegal gratification-Trap case-Because of tough requirement of proof beyond reasonable doubt the laying of trap is the only method for detecting crimes like bribery which are committed in covert manner. Such a method is not prohibited. For laying a trap the Investigating Officer cannot be said to be thereby instigating commission of the offence. Principles of accomplice evidence cannot be extended to the evidence of trap witness, because the latter cannot be termed as accomplice. As to corroboration of trap witnesses no hard and fast rule can be given. There may be cases where the Court may accept evidence of trap witnesses. Shahabullah vs State 43 DLR (AD) 1.
Section 5(2)-Allegation was that the appellant dishonestly misappropriated 10 bags of powder milk, which was meant for distribution among the poor students-Defence version was that he did not submit any application seeking allotment of relief powder milk nor did he take delivery of them Question arose as to whether the legality of the conviction on the ground of contradictory and insufficient evidence which necessarily calls for the scrutiny of the evidence is maintainable.
Held "We have given our anxious consi- deration to the facts of the case and discrepancy in evidence as to 8 bags or 10 bags and our conclusion is this conviction cannot be sustained". Moslemuddin Talukder vs State 42 DLR (AD) 103.
Section 5(2)-The provision of section 5A of the Act II of 1947 and section 3(2) of the Anti- Corruption Act, 1957 when read with paragraph 59 of the Anti-Corruption Manual, it is seen that investigation of offences enumerated in Act II of 1947 and in the schedule of the Anti-Corruption Act, 1957 by an Assistant Inspector of the Bureau of Anti-Corruption is neither irregular nor illegal. Bangladesh vs Md Amjad Ali Mridha 56 DLR (AD) 119.
Secion 5(2)- 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. State vs Md Moslem- uddin 56 DLR (AD) 174.
Section 5(2)- In order to implement the scheme of the law, the law-makers brought the appeals and trial etc. under the Emergency Powers Rules to avoid delay in the disposal and to ensure that the convicts do not run away on getting bail. ACC vs Barrister Nazmul Huda 60 DLR (AD) 57.
Section 5(2)-Fugitive has no locus standi to file any petition-The petitioner is a fugitive from justice when he moved the petition and obtained the Rule Nisi. This Court repeatedly argued that a fugitive from justice is not entitled to obtain a judicial order defying the process of the Court. When a person wants to seek remedy from a Court of law, he is required to submit to the due process of the Court and unless he surrenders to the jurisdiction of the Court, the Court will not pass any order in his aid. Anti-Corruption Com- mission vs ATM Nazimullah Chowdhury 62 DLR (AD) 225.
Section 5(2)
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 5(2)- There is no legal bar to holding trial of the case by the Special Judge because if there is abetment of offence by any person other than public servant the Special Judge has power to hold trial against him.
Though the offence is not related to or connected with offences punishable under the Prevention of Corruption Ain or other offences punishable under the Criminal Law Amendment Act, the FIR and police report disclose offences under the Penal Code. The case was initially started before the amendment and accordingly the ordinary criminal court is competent to hold the trial of the case.
There is no legal bar to holding the trial by the Special Judge since there are allegations that the accused respondents along with two others had withdrawn money without completing construction works of a three storey building.
The offences punishable under sections 420, 462A, 462B, 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. The Appellate Division also finds no cogent ground for inclusion of those offences in the schedule to the Durnity Daman Commission Ain. Unless and untill those offences are related to or connected with the offences described in the schedule to the Durnity Damay Commission Ain, if the cases in respect of those offence are investigated by the police officers who have power to investigate those offences and the judicial Magistrates who have power to inquire try in respect of those offences should inquire and try those offence and the ordinary criminal courts are allowed to proceed with the trial of those offences, the ends of justice will be defeated. Al haj Md. Yunus -Vs.- The State and another (Criminal) 19 ALR (AD) 172-175
Section 5(2)-Whether the accused have committed any offence within the meaning of section 409/109 of the Penal Code read with section 5(2) of Act II of 1947 or not are to be decided after recording evidence by the trial Court. Anti- Corruption Commission vs Md Shahidul Islam @ Mufti Shahidul Islam, 68 DLR (AD) 242
Section 5(2)-The prosecution has been able to prove that such wrongful loss has been caused by the convict petitioner by misusing his power and authority as the Ambassador and head of Mission. All the allegations have been proved by all the Pws who corroborated each other in every detail. None of the PWs were cross examined because of the abscondence of the convict petitioner. Be that as it may, all the allegations brought against the convict petitioner for which charge were framed having been proved by the PWs and corroborated by each other, the High Court Division found him guilty of all the charges, except the allegation of renting a new residence for the Ambassador. Finding and decision of the High Court Division in convicting the convict upon modifying and reducing the sentence and fine imposed by the trial Court calls for no interference. ATM Nazimullah Chowdhury vs State represented by the Deputy Commissioner, 69 DLR (AD) 344
Section 5(2)
The Penal Code, 1860
Section 161 r/w
The Prevention of Corruption Act, 1947
Section 5(2)
The High Court Division without application of its judicial mind quashed the proceedings– When there is conflict between the parent law and this Rule, the law will prevail over the rules. Rules made under a statue must be treated for all purposes of construction or obligations exactly as if they were in the Act and are to be of same effect as if contained in the Act. The copy of the sanction letter as quoted in the judgment clearly shows that the Anti-Corruption Commission has accorded sanction for submission of police report. Therefore, there is no illegality or impropriety on the part of the learned Special Judge in taking cognizance of the offences and also in framing charge against the respondent. The High Court Division without application of its judicial mind quashed the proceedings. Since charge had already been framed in the case against the respondent as back as on 26th January, 2009 and about 4(four) years had elapsed in the meantime, Appellate Division finds it not necessary to examine the question by granting leave which would unnecessarily delay the disposal of the case. The reason upon which the High Court Division quashed the proceeding is apparently contrary to law. The impugned judgment of the High Court Division is not tenable in law and accordingly, it is liable to be interfered with. The judgment of the High Court Division is accordingly set aside. This Division directs the learned Special Judge to proceed with the case in accordance with law. .....Anti Corruption Commission =VS= Mohammad Bayazid, (Criminal), 2022(1) [12 LM (AD) 621]
Section 5(2)
The Penal Code, 1860
Sections 420/409/109 r/w
Prevention of Corruption Act, 1947
Section 5(2) r/w
Evidence Act, 1872
Section 115
The amount misappropriated may be small or large; it is the act of misappropriation sentence is reduce to the period already undergone– The amount misappropriated may be small or large; it is the act of misappropriation that is relevant. The High Court brought a new jurisprudence in the criminal justice system that since the respondent deposited the entire amount, the case was barred by the principles of estoppel.
However, since the instant case has been initiated in 1999 and the High Court Division acquitted the respondent of the charge, Appellate Division is of the view that it would not be proper to send the respondent No.1 in jail after 22 years of the initiation of the instant proceeding, particularly, when the bank had adjusted the entire amount withdrawn. Considering the facts and circumstances, the judgment and order of the High Court Division is set-aside. The judgment and order of conviction of the respondent ordered by the trial Court is upheld. However, his sentence is reduced to the period already undergone. The respondent No.1 is directed to pay a fine of Taka 5,000, in default, he will suffer sentence of rigorous imprisonment for a period of 15 days. .....Anti-Corruption Commission =VS= Omar Faruk, (Criminal), 2022(1) [12 LM (AD) 517]
Section 5
The Contract Act, 1872
Section 23
The Prevention of Corruption Act, 1947
Section 5
Joint Venture Agreement–– Appellate Division hold that the High Court Division has rightly declared the Joint Venture Agreement for the Development and Production of Petroleum from the Marginal/Abandoned Chattak and Feni Fields (JVA) dated 16.10.2003 between the writ respondent Nos.3 and 4 to be without lawful authority and of no legal effect and thus, void ab initio and also legally declared the Gas Purchase and Sale Agreement for the sale of gas from Feni Gas Field (“GPSA”) dated 27.12.2006 between the writ respondents No.2, as Buyer, and a Joint Venture between the writ respondent Nos.3 and 4, as Seller, to be without lawful authority and of no legal effect and thus, void ab initio and attached the assets of writ respondent Nos.4 and 5, including their shareholding interest in Tullow Bangladesh Limited concerning Block-9. The civil petition is dismissed without any order as to costs. .....Niko Resources (Bangladesh) Ltd. =VS= Prof. M. Shamsul Alam, (Civil), 2023(2) [15 LM (AD) 108]
Section 5(2)
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, [6 LM (AD) 91]
Section 5(1), 5(2)
The Penal Code, 1860
Section 109 r/w
The Prevention of Corruption Act, 1947
Section 5(1), 5(2)
The High Court Division has come to a finding that it appeared from the confession of co-accused that bribe was given to the then Sate Minister for Energy and Mineral Resources, AKM Mosarraf Hossain, Selim Bhuiyan and Gias uddin Al Mamun to ensure that the `JVA' is to be finalized and singed which clearly comes within the ambit of definition of criminal misconduct given in section 5(1) of the Prevention of Corruption Act, 1947. The High Court Division has held that in the instant case, the issue is determination of criminal liability of the writ-petitioner in respect of the alleged offence under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947, that is, criminal breach of trust by public servant and abetment of the offence that took place in the process of executing the `JVA' . The High Court Division has noted that abetment under section 109 of the Penal Code is such an offence which can be inferred from the conduct of the accused and attending circumstances of the case. .....Begum Khaleda Zia =VS= Anti-Corruption Commission, [3 LM (AD) 177]
Section 5(2)
The Penal Code, 1860
Section 161 r/w
The Prevention of Corruption Act, 1947
Section 5(2) r/w
The Code of Criminal Procedure, 1898
Section 561A r/w
Durnity Daman Commission Bidhimala, 2007
Rule 16
A proceeding cannot be quashed depending on alleged procedural error in the method of collection of evidence to be adduced and used. The High Court Division failed to distinguish the allegations of demands, acceptance and attempts to accept gratifications and those with the procedure to collect evidence to substantiate allegations of acceptance and attempts to accept gratifications or demands, thereby, erroneously quashed the proceedings. .....Anti Corruption Commission =VS= Md. Rezaul Kabir, [3 LM (AD) 509]
Section 5(2)
The Penal Code, 1860
Sections 409/420467/468/471 r/w
The Prevention of Corruption Act, 1947
Section 5(2) r/w
Code of Criminal Procedure, 1898
Sections 233 & 234
Section 233 clearly provides that every distinct offence there shall be tried separately and if there is violation of the said provision, the trial will be vitiated. The Appellate Division held that this section 234 provides that when a person accused of more offences than one for the same kind of offence committed within a space of 12(twelve) months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with and tried at one trial for any number of them not exceeding three. In the FIR there is specific allegation of misappropriation of money for a period of over 10(ten) years of ten different incidents of similar nature. Therefore, the misappropriation was made in respect of more offences of same kind beyond a space of twelve months. There cannot be any trial for more than 3(three) offences of similar nature against an accused person. Section 233 clearly provides that every distinct offence there shall be tried separately and if there is violation of the said provision, the trial will be vitiated. The language used in this section is obligatory and not directory. The exception does not cover the case of the petitioner and therefore, the trial is hit by misjoinder of charges. .....Bashir Ahmed =VS= DC, Magura, [3 LM (AD) 541]
Section 5(2)
The Penal Code, 1860
Sections 409/109 r/w
The Prevention of Corruption Act, 1947
Section 5(2) r/w
The Emergency Powers Rules, 2007
Rule 15
Re-calling the P.Ws for cross examination– In our view this observation of the learned Judges of the High Court Division is uncalled for and not contemplated by settled principles of criminal justice. Any individual accused person is liable to answer the charges brought against him and the prosecution is bound to prove the charges levelled against each individual accused beyond reasonable doubt, and hence, no individual can be compelled nor can it be suggested to any accused that he should adopt the cross-examination made on behalf of another accused. Accordingly, the following words-“Re-calling our earlier observation, however, we think that justice will meet to its end if the accused-petitioner exercises option, if thinks so, to adopt the cross-examination on behalf of the other accused-petitioners, specially of Tareq Rahman…………” are hereby expunged. However, for the reasons stated and in view of the discussion above we do not find any illegality in rejecting the accused petitioner’s application for re-calling the witnesses already examined and cross-examined. .....Begum Khaleda Zia =VS= The State, [4 LM (AD) 353]
Section 5(2)
The Penal Code, 1860
Section 409 r/w
The prevention of Corruption Act, 1947
Section 5 (2)
The provisions of Section 222(2) read with Section 234 (1) require that if there are more than one offences committed over a period of more than 12 months then the offences may not be charged in one charge, whereas Section 6 (1B) provides that 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. Clearly, therefore, the provision in the Criminal Law Amendment Act is not consistent with the provision of the Code of Criminal Procedure. Since Section 409 of the Penal Code read with Section 5(2) of Prevention of Corruption Act come within the schedule of Criminal Law Amendment Act, the offences are liable to be tried as per the provisions of the Criminal Law Amendment Act, which being special law will prevail over the general law, i.e. the Code of Criminal Procedure. ...The State =VS= Ibrahim Ali (Md.), [10 LM (AD) 385]
Section 5(2)
The Penal Code, 1860
Section 409 r/w
The prevention of Corruption Act, 1947
Section 5 (2)
The accused has paid back all the money which he is alleged to have defalcated. That again cannot be a ground for acquittal, if it is found from evidence that he in fact committed the offence. Upon conviction, it is the discretion of the Court to award punishment in accordance with law and taking into consideration all the facts and circumstances of the case, including any mitigating circumstances. To that extent the period of sentence may be more or less depending on the facts of the case and the circumstances of the accused. ...The State =VS= Ibrahim Ali(Md.), [10 LM (AD) 385]
Section 5(2)
The Penal Code, 1860
Sections 409/408/467/468/471/109/420 r/w
The Prevention of Corruption Act, 1947
Section 5(2) ,
The Money Laundering Protirodh Ain, 2002
Section 13,
The Money Laundering Protirodh Ain, 2009
Section 4(2) and
The Money Laundering Protirodh Ain, 2012
Section 4(2)(3)
We are of the view that it cannot be said that there exists no prima facie case against the respondent No.1. Without exhausting the trial stage, no decision can be taken regarding the allegations brought against him in the charge sheet under Sections 409/408/467/468/ 471/109/420 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947, Section 13 of the Money Laundering Protirodh Ain, 2002, Section 4(2) of the Money Laundering Protirodh Ain, 2009 and Section 4(2)(3) of the Money Laundering Protirodh Ain, 2012. The petition is disposed of. The judgment of the High Court Division is set aside. The order of the Mahanagar Senior Special Judge so far as it relates to the present respondent No.1 is also set aside. ...Durnity Daman Commission =VS= Ezbahul Bar Chowdhury, [10 LM (AD) 500]
Sections 5(1)(e) and 5(2)
Anti-Corruption Commission Act, 2004
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 5(2)
The Prevention of Corruption Act, 1947
Section 5(2) r/w
The Emergency Powers Rules, 2007
Rule 19Ka r/w
General Clauses Act, 1897
Possession of the leasing out the Railway’s property–
We are of the view that the High Court Division's judgment will not stand on the way if the Ministry of Railway after holding proper inquiry finds that the allotment and/or leasing out of the said property has been made by Nazmul Huda by misuse of power, it can cancel the lease and/or allotment of the property in favour of বাংলাদেশ মানবাধিকার বাস্তবায়ন সংস্থা, and to take possession of the said property, if it has not been taken over in the mean time. .....Anti-Corruption Commission =VS= Nazmul Huda, (Civil), 2017 (2)– [3 LM (AD) 7]
Sections 5(1)(e) and 5(2)
Anti-Corruption Commission Act, 2004
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, [10 LM (AD) 510]
Section 5(1)(c)(d)
The Code of Criminal Procedure, 1898
Section 498 r/w
Prevention of Corruption Act (11 of 1947)
Section 5(1)(c)(d)
Ad interim bail– Interfering with the administration of justice by the doctor’s false reports–
These reports the trial of a sensational murder case is being delayed and thereby, they have been interfering with the administration of justice. By sending him to Ibrahim Cardiac Hospital instead of sending him to BSMMU, the doctors of the Central Jail. Hospital, who are public servants have misused their power and position for which, exemplary actions should be taken against them. .....State =VS= Mahtab Uddin Ahmed Chowdhury, [1 LM (AD) 476]
Section 5(2)
The Code of Criminal Procedure, 1898
Section 561A r/w
The Penal Code
Sections 409/109 r/w
The Prevention of Corruption Act, 1947
Section 5(2)
On perusal of the statements made in the FIR and the charge sheet it appears that there are some materials which may constitute offence punishable under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 considering which the High Court Division held that `there is clear and strong prima facie case of dishonest misappropriation of public property or otherwise disposal of public property in violation of law constituting offence punishable under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947'. .....Begum Khaleda Zia =VS= State, [4 LM (AD) 359]
Section 5(2)
The Code of Criminal Procedure, 1898
Section 561A r/w
Prevention of Corruption Act[II of 1947]
Section 5(2)
Taking into consideration the facts and circumstances of the case, including the fact that the criminal proceedings against all the other co-accused, including the borrowers who are alleged to have been given loan by the bank, upon connivance of other bank officials and the appellant, having been quashed the Appellate Division is of the view that further proceedings against the appellant will be a futile exercise. Moreover, the occurrence having taken place more than 25 years ago, proceeding against the appellant is liable to result in time and expense leading to nought. .....Md.Shafiuddin =VS= The State, [1 LM (AD) 527]
Section 5(1)
Criminal Misconduct- It has been prove that the accused petitioner obtained from Nurun Nahar begum Tk. 3,093/- towards satisfaction of the loan taken by her husband. The accused petitioner after accepting the amount prepared a false re-order and gave a photocopy of that order to Nurun Nahar - Held: The accused petitioner's conduct is certainly a criminal misconduct because receipt of money fn Nurun Nahar and consequent making of a false recall order as a public servant have been proved. Md. Azizul Hauqe Vs. The State 7 BLT (AD)-121.
Section 5(1)
Criminal misconduct
The accused-petitioners conduct is certainly a criminal misconduct because receipt of fresh money from Nurun Nahar and consequent making of a fresh recall order as a public servant have been proved.
It has been proved that the accused-petitioner obtained from Nurun Nahar Begurn tk. 3,093/- towards satisfaction of the agricultural loan taken by her husband. The accused-petitioner did not deposit the said money in the proper head. In that view of the matter it cannot be said that the accused- petitioner’s role was that of a bonafide act performed without mens rea. Md. Azizul Hoque Vs The State, 19BLD (AD) 2
Section 5(2)
The High Court Division acted wrongly in setting aside the conviction and sentence of the appellant under section 5(2) of Act II of 1947 when in fact the offence was committed by a public servant and criminal misconduct is indeed attracted in spite of a separate conviction and sentence under sections 409/109 of the Penal Code that by itself cannot be ground to set aside the conviction under section 5(2) of Act II of 1947 when the offence is committed by a public servant. Jalaluddin Ahmed alias Jalaluddin Ahmed vs State 3 BLC (AD) 216.
Section 5(2)
Section 110 of Banking Companies Act, 1991 also provides that a Manager, Officer and other functionaries of the Banking Company are deemed to be public servants under section 21 of the Penal Code and hence the appellant and the respondent are public servants and the case has been rightly instituted in the Court of Special Judge against the respondent. More so, section 5 of Act II of 1947 speaks of the offences as mentioned in the schedule of the Act to be tried by Special Judges and in the schedule there are sections 403 and 477A of the Penal Code with which the accused has been charged for committing misconduct as a public servant. International Finance Investment and Commerce Bank Ltd vs Abdul Quayum and another 4 BLC (AD) 255.
International Finance Investment and Commerce Bank Ltd vs Abdul Quayum and another 4 BLC (AD) 255
Section 5(2)
A public servant by definition in the Penal Code will prospectively be deemed to be a public servant under Act II of 1947 when he commits an offence as public servant after the amendment of the Penal Code. International Finance Investment and Commerce Bank Ltd vs Abdul Quayum and another 4 BLC (AD) 255.
Section 5(2)
Sentence—It is a case of temporary defalcation which is a serious offence. The ends of justice will be met in the facts and circumstances of the case if the sentence of fine of each of the appellants is maintained and the substantive sentence is reduced to the period already undergone as prayed for. Sekander Ali Howlader and others vs State 4 BLC (AD) 116
Section 5(2)
Both the trial Court as well as the High Court Division believed the evidence of PWs 4-5 that despite repeated reminders and despite the resolution taken by the Upazila Parishad, the petitioner did not submit the completion report of the project even during the trial and, as such, the case of the petitioner has been ended on appreciation on evidence for which it merits no consideration. GM Nawsher Ali vs State 2 BLC (AD) 183
Section 5(2)
Punishment for criminal misconduct-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 whether 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 5A
Investigation by Assistant Inspector of BAC does not render the proceedings illegal.
From the reading of section 5A of the Prevention of Corruption Act, 1947 and section 3(2) of the Anti-Corruption Act, 1957 and paragraph 59 of Anti-Corruption Manual, it appears that investigation of offence under the Prevention of Corruption Act, 1947 by the Assistant Inspector, BAC is not without jurisdiction. Government of Bangladesh represented by Solicitor, Ministry of Law, Justice and Parliamentary Affairs Vs. Md. Amjad Ali Mridha and others, 9 MLR (2004) (AD) 231.
Section 5(2)
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 5(l)(d) and 5(l)(e)
Conviction and sentence for criminal misconduct and for possession of pecuniary resources disproportionate to his known sources of income—
Constitution of Bangladesh— Article 103(3)— Special Leave to appeal when not granted but sentence is modified—
When the evidence in the chain of events are abundantly clear and consistent showing the abuse of official power by public servant the conviction and sentence are held to be justified and the leave petition is rejected with the modification of sentence and with observation that mere technicalities of non-elaboration of evidence which did not prejudice the convict-appellant will not serve any useful purpose if the leave is granted. Lt. General (Retd.) H.M. Ershad Vs. The State, 6 MLR (2001) (AD) 11.
Section 5(2)
Criminal misconduct and punishment— Reduction of sentence—
The convict-appellant an office peon having been found to have been acted in connivance with others in creating false appointment letters and convicted and sentenced to suffer three years R.I. and pay fine and on compassionate view the sentence was reduced to the term already served with the remissions of fine, such an order does not suffer from any illegality calling for any Interference. Abdul Latif Miah (Md.) Vs. The State, 6 MLR (2001) (AD) 192.
Section 5(2)
Criminal misconduct— conviction and sentence— when charge well proved— No interference is called for- Advocate's conduct is deprecated for misleading submission—
When conviction and sentence against the convict-appellant who were public servants at the time of commission of offence are well established by consistent evidence on record such conviction and sentence do not call for any interference. Advocate's conduct for misleading submission that the convict appellants were not public servants has been deprecated. Abdul Bari and another Vs. The State, 6 MLR (2001) (AD) 55.
Section 5(2)
Criminal misconduct in relation to misappropriation under section 409 of the Penal Code-In a case of criminal misconduct read with misappropriation under section 409 of the Penal Code where the charge stands proved, the substantive sentence is remitted on depositing the amount of fine only on compassionate ground of health problem by the apex court. Mohibul Islam Vs. The State, 6 MLR (2001) (AD) 79.
Section 5(2)
Offence of criminal misconduct by abuse of official position—
In a case where the Minister and the Secretary acted merely on the recommendation of tender committee, they are not liable for any commission of offence, if any, committed by the members of the tender committee. When no offence is disclosed either in the FIR or in the charge sheet, the proceedings initiated thereon being abuse of the process of the court are held by the apex court to have been rightly quashed by the High Court Division. State Vs. Mohammad Nasim and others, 10 MLR (2005) (AD) 213.
Section 5(2)
Detention of pass port—
When the convict-appellant has been allowed bail without any restriction on his movement his passport cannot be kept under detention. The State Vs. M. M. RahmatuJlah-1. MLR (1996) (AD) 448.
Section 5(2)
Joint trial of schedule and non schedule offences— When permissible—
Joint trial of offence under section 5(2) of the Prevention of Corruption Act with the offences under the Penal Code is permissible in law when they are connected in same transaction. Mahbubul Alam Vs. The State— 3, MLR (1998) (AD) 120.
Section 5(2)
The High Court Division acted wrongly in setting aside the conviction and sentence of the appellant under section 5(2) of Act II of 1947 when in fact the offence was committed by a public servant and criminal misconduct is indeed attracted in spite of a separate conviction and sentence under sections 409/109 of the Penal Code that by itself cannot be ground to set aside the conviction under section 5(2) of Act II of 1947 when the offence is committed by a public servant. Jalaluddin Ahmed alias Jalaluddin Ahmed vs State 3 BLC (AD) 216.
Section 5(2)
Section 110 of Banking Companies Act, 1991 also provides that a Manager, Officer and other functionaries of the Banking Company are deemed to be public servants under section 21 of the Penal Code and hence the appellant and the respondent are public servants and the case has been rightly instituted in the Court of Special Judge against the respondent. Moreso, section 5 of Act II of 1947 speaks of the offences as mentioned in the schedule of the Act to be tried by Special Judges and in the schedule there are sections 403 and 477'A of the Penal Code with which the accused has been charged for committing misconduct as a public servant. International Finance Investment and Commerce Bank Ltd vs Abdul Quayum and another 4 BLC (AD) 255.
Section 5(2)
A public servant by definition in the Penal Code will prospectively be deemed to be a public servant under Act II of 1947 when he commits an offence as public servant after the amendment of the Penal Code. International Finance Investment and Commerce Bank Ltd vs Abdul Quayum and another 4 BLC (AD) 255.
Section 5(2)
Sentence—
It is a case of temporary defalcation which is a serious offence. The ends of justice will be met in the facts and circumstances of the case if the sentence of fine of each of the appellants is maintained and the substantive sentence is reduced to the period already undergone as prayed for. Sekander Ali Howlader and others vs State 4 BLC (AD) 116.
Section 5(2)
The Penal Code, 1860
Sections 420
The Prevention of Corruption Act, 1947
Section 5(2)
Bail–– High Court Division didn’t exercise its discretion judiciously, rather perversely in releasing the convict on bail–– This Division’s standard practice is that it won’t interfere with the discretion exercised by the High Court Division. When discretion is exercised judiciously, not perversely, the same generally is not interfered with by the Apex Court, which is reluctant in interfering with the discretionary power of the High Court Division.–– 46 DLR (AD) 143 where it has been held that: "...Since the matter before us relates to bail only, we need not consider the merit of the appeal. In appeals involving short term of imprisonment the appellate Court should either dispose of the appeals or consider the release of the accused on bail. We do not think that in the instant case it was necessary for the learned Single Judge to write a long judgment for the purpose of disposal of the bail petition. The learned Single Judge should better dispose of the appeal very expeditiously failing which he may consider the question of bail if raised again...."–– In present case, our considered view as eloquent above is that the High Court Division didn’t exercise its discretion judiciously, rather perversely in releasing the respondent-convict on bail; hence, interference is called for. .....Durnity Daman Commission =VS= Md. Kutub Uddin Ahmmed, (Criminal), 2022(2) [13 LM (AD) 441]
Section 5(2)
Both the trial Court as well as the High Court Division believed the evidence of PWs 4-5 that despite repeated reminders and despite the resolution taken by the Upazila Parishad, the petitioner did not submit the completion report of the project even during the trial and, as such, the case of the petitioner has been ended on appreciation on evidence for which it merits no consideration. GM Nawsher Ali vs State 2 BLC (AD) 183.
Section 5(2)
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 5
The Penal Code, 1860
Sections 468/471/409/120
The Prevention of Corruption Act
Section 5
Code of Criminal Procedure, 1898
Section 561A
The petitioner did not misappropriate even a single piece of those CI sheets, so, filing of the instant case was malafide, preposturous and had been brought only to harass the appellant which is liable to be quashed–– From the contents of the FIR and statements quoted above it appears that 36 pieces of CI sheets were recovered from the Madrasha. Out those CI sheets, 19 pieces were recovered removing those from the constructed roof of the tin shed of Madrasha and rests were seized from inside the Madrasha. Earlier those were sanctioned for Madrasha on the basis of the application made by the authority of the Madrasha. That is, no CI sheet was recovered from the custody and control of the appellant. Only allegation is that the appellant, keeping those CI sheets in his custody for few days, delivered those sheets to the Madrasha authority. ––That is, admittedly, he did not misappropriate those CI sheets and those were not recovered from his custody and control. That was a trivial matter that has been given undue importance. Moreover, in the meantime 14 years has elapsed. After 14 years, it will not be appreciatable for a ordinary prudent and senseable man to allow the instant case to proceed with. Taking into consideration the facts and circumstances of the case, the FIR and other prosecution papers taken in pursuance thereof, would be an abuse of the process of Court. Thus, the appeal is allowed. The instant GR Case is dropped. .....Abu Taher (Md) =VS= State, (Criminal), 2023(1) [14 LM (AD) 297]
Section 5(2)
Penal Code, 1860
Section 161 read with
Section 5(2) of the Prevention of Corruption Act, 1947 And
Section 561A of the Code of Criminal Procedure, 1898 And
Durnity Daman Commission Bidhimala, 2007
Rule 16:
A proceeding cannot be quashed depending on alleged procedural error in the method of collection of evidence to be adduced and used. The High Court Division failed to distinguish the allegations of demands, acceptance and attempts to accept gratifications and those with the procedure to collect evidence to substantiate allegations of acceptance and attempts to accept gratifications or demands, thereby, erroneously quashed the proceedings. …Anti Corruption Commission Vs. Md. Rezaul Kabir & ors, (Criminal), 8 SCOB [2016] AD 144
প্রবেশন অব অফেন্ডার্স অর্ডিন্যান্স, ১৯৬০
ধারা ৫
দায়রা আদালত হিসেবে ক্ষমতাপ্রাপ্ত যেকোন আদালত বা ট্রাইব্যুনাল এবং ১ম শ্রেণীর ম্যাজিস্ট্রেটের ক্ষমতাপ্রাপ্ত যেকোন আদালত বা ট্রাইব্যুনাল-এই আইনের বিধান প্রয়োগ করতে পারবে। সুতরাং বিশেষ ক্ষমতা আইন, ১৯৭৪ (Special Powers Act, 1974)-এর ধারা ২৯, সন্ত্রাস বিরোধী আইন, ১৯৯২ (Anti-Terrorism Act, 1992)-এর ধারা ১৫(১), সন্ত্রাস বিরোধী আইন, ২০০৯ (Anti-Terrorism Act, 2009)-এর ধারা ২৭(৩), নারী ও শিশু নির্যাতন (বিশেষ বিধান) আইন, ১৯৯৫-এর ধারা ২৩(১), জন নিরাপত্তা (বিশেষ বিধান) আইন, ২০০০-এর ধারা ২১(১), নারী ও শিশু নির্যাতন দমন আইন, ২০০০-এর ধারা ২৫(১), ক্রিমিনাল ল এ্যামেন্ডমেন্ট এ্যাক্ট, ১৯৫৮-এর ধারা ৬(১) (ক) এবং ফরেন এক্সচেঞ্জ রেগুলেশন এ্যাক্ট, ১৯৪৭-এর ধারা ২৩ক (৩)-এ উল্লেখিত বিধান অনুসারে ক্ষেত্রমতে ট্রাইব্যুনাল অথবা আদালতসমূহ দায়রা আদালত বলে গণ্য হবে। দ্রুত বিচার আইন, ২০০২-এর ধারা ১২(২) অনুসারে ১ম শ্রেণীর ম্যাজিস্ট্রেট আদালত বলে গণ্য হবে এবং ফরেন এক্সচেঞ্জ রেগুলেশন এ্যাক্ট, ১৯৪৭-এর ধারা ২৩ক (৩) অনুসারে ক্ষেত্রবিশেষ ট্রাইব্যুনাল ১ম শ্রেণীর ম্যাজিস্ট্রেট আদালত অথবা দায়রা আদালত বলে গণ্য হবে। উপরোক্ত আলোচনার প্রেক্ষিতে দেখা যাচ্ছে যে, কোন কোন বিশেষ আইনে অপরাধের ক্ষেত্রেও "প্রবেশন অব অফেন্ডার্স অর্ডিন্যান্স, ১৯৬০" প্রয়োগ করা যাবে। নুর মোহাম্মদ- বনাম- সরকার এবং অন্যান্য (Criminal) 21 ALR (AD) 87-90
