High Court Division
(Criminal Appellate Jurisdiction)
Moyeenul Islam Chowdhury J
Kazi Md Ejarul Haque Akondo J
Basiratun Naher …………..
…………….Petitioner
vs State and other……………
…………………….Opposite-Parties
Judgment
October 6th, 2013.
Code of Criminal Procedure (V of 1898) Section 241A
The Court is not required to assign any reason at the time of framing any charge against an accused in a case. But the Court is mandated by law to assign reasons at the time of discharging him from the case. . ….. (15)
Code of Criminal Procedure (V of 1898)
Section 439
Penal Code
(XLV of 1860)
Section 109
Question of ‘mens rea’ of an accused cannot be gone into in a criminal revision under Section 439 of the Code. That is essentially a matter of evidence and trial.
It is admitted that the principal accused Abdus Salam Khan did not implicate her in the commission of the offence in his judicial confession made under Section 164 of the Code of Criminal Procedure. It is further admitted that at the relevant time, she was a probationary officer at Janata Bank, Purana Paltan Branch, Dhaka. Undeniably she signed the ‘seized documents. It is her submission that she signed the documents bonafide and under instructions from her superior officers and, as such, she had no ‘mens rea’.
It is a settled proposition of law that the question of ‘mens rea’ of an accused cannot be gone into in a Criminal Revision under Section 439 of the Code of Criminal Procedure. That is essentially a matter of evidence and trial. If we, for the sake of argument, accept this submission of the accused-petitioner right now, that will amount to begging the question. Her alleged bonafides can only be proved during the trial of the case. At this stage, we cannot presuppose her alleged bona fides or innocence.’ ………….(12)
Abdul Quader Chowdhury vs State, 28 DLR (AD) 38; Ali Akkas vs Enayet Hossain, 17 BLD (AD) 44 = 2 BLC (AD) 16 and Sher Ali vs State, 46 DLR (AD) 67 ref.
Abdul Baset Majumdar with Md Kamrul Huda, Advocates-For the Petitioner.
Md Khurshedul Alam, DAG with Maimuda Parveen, AAG and Md Abdul Bari, AAG -For the State-Opposite-Party No.1.
Md Khurshid Alam Khan Advocate-For the Anti-Corruption Commission-Added Opposite-Party No.2.
Judgment
Moyeenul Islam Chowdhury J: On an application under Section 435 read with Section 439 of the Code of Criminal Procedure, 1898 filed, by the petitioner, a Rule was issued calling upon the opposite-parties to show cause as to why the impugned order dated 7-8-2012 passed by the learned Metropolitan Senior Special Judge, Dhaka in Metropolitan Special Case No. 63 of 2012 arising out of ACC GR Case No. 100 of 2010 corresponding to Motijheel Police Station Case No. 60 dated 29-11-2010 under sections 409/420/467/471/109 of the Penal Code, 1860 read with Section 5(2) of the Prevention of Corruption Act, 1947 should not be set-aside and why the petitioner should not be discharged from the case and/or such other or further order or orders passed as to this Court may seem fit and proper. By the impugned order dated 7-8-2012, the learned Metropolitan Senior Special Judge, Dhaka charged the accused-petitioner along. with ‘others under Sections 409/420/467/471/109 of the Penal Code, 1860 read with Section 5(2) of the Prevention of Corruption Act, 1947 and rejected the application for discharge of the accused-petitioner from the case.
2. Facts relevant for the purpose of disposal of the Rule may be, briefly, stated as follows:
On 29-11-2010, one Md Monirul Hayder Khan, Deputy Director (Accounts) of Bangladesh Inland Water Transport Authority (BIWTA) lodged an ejahar with Motijheel Police Station, Dhaka Metropolitan Police, Dhaka against the accused Abdus Salam Khan, Assistant Accounts Officer, Accounts Division, BIWTA, Dhaka on the allegations, inter alia, that upon scrutiny of the Current Bank Account No. 001024193 of the BIWTA Workers’ Union, it transpired that some unusual transactions took place by forging the signatures of the authorized President and Treasurer of the Trustee Board of the Workers’ Group Insurance Scheme of the BIWTA and the accused Abdus Salam Khan withdrew a huge amount of Taka 3,50,00,000 in collusion with the concerned bank officials. After the commencement of the investigation of the case pursuant to the lodgment of the ejahar, the accused Abdus Salam Khan made a confessional statement before a Metropolitan Magistrate on 12-1-2011 where in he confessed that he had withdrawn a prodigious sum of money by 30/32 cheques/pay orders from 2008 to October, 2010 and embezzled the same. During investigation, a prima facie case was made out against the said accused Abdus Salam Khan and others including the present accused-petitioner. During investigation, it transpired from the seized records that through Janata Bank, Purana Paltan Branch, Dhaka, the present accused-petitioner abetted the alleged offence of misappropriation of money committed by the accused Abdus Salam Khan. In due course, the learned Metropolitan Senior Special Judge, Dhaka took cognizance against the accused-petitioner and others and charged them under Sections 409/420/467/471/109 of the Penal Code, 1860 read with Section 5(2) of the Prevention of Corruption Act, 1947 by the impugned order dated 7-8-2012.
3. Mr Md Kamrul Huda, learned’ Advocate appearing on behalf of the accused petitioner, submits that it is an admitted fact that the accused-petitioner was a probationary executive officer of Janata Bank, Purana Paltan Branch, Dhaka at the time of the commission of the alleged offence and it appears that the petitioner signed the relevant documents under instructions from her superior officers bonafide and since she was a novice probationary officer at the material time, she had no ‘mens rea’ and in that view of the matter, she ought to have been discharged from the case by the learned Metropolitan Senior Special Judge, Dhaka.
4. Mr Abdul Baset Majumdar, another learned Advocate appearing on behalf of the accused-petitioner, submits that a departmental inquiry committee found the accused-petitioner innocent and she signed the relevant documents under instructions from her superior officers bonafide and as she was found innocent by the departmental inquiry committee, she cannot be prosecuted for the alleged abetment of the offence committed by the principal accused Abdus Salam Khan and given this scenario, the learned trial Judge ought to have discharged the petitioner from the case.
5. On the other hand, Mr Md Khurshid Alam Khan, learned Advocate appearing on behalf of the Anti-Corruption Commission opposite-party No. 2, submits that in view of the seized documents, it is palpably clear that the accused-petitioner signed those documents; but her alleged bonafides in the matter of signing the documents is a matter of evidence and trial and that cannot be gone into in this Criminal Revision under Section 439 of the Code of Criminal Procedure.
6. Mr Md Khurshid Alam Khan also submits that in the face of the averments made in the charge-sheet vis-a-vis the accused-petitioner, her prima facie criminal liability is apparent on the face of the record.
7. We have heard the submissions of the learned Advocates Mr Md Kamrul Huda and Mr Abdul Baset Majumdar and the counter submissions of the learned Advocate Mr. Md. Khurshid Alam Khan and perused the application and relevant Annexures annexed thereto.
8. Section 561A of the Code of. Criminal Procedure contemplates that nothing in this Code shall be deemed to limit or affect the inherent power of the High Court Division to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. So it appears that the scope of Section 561A of the Code is very limited.
9. In this regard, in the decision in the case of Abdul Quader Chowdhury vs The State reported in 28 DLR (AD) 38, the Appellate Division has clearly spelt out the categories of cases where the High Court Division should interfere under Section 561A of the Code of Criminal Procedure. In that decision, the Appellate Division has observed as-follows:
(a) Interference even at an initial stage may be justified where the facts are so preposterous that even on the admitted facts, no case can stand against the accused;
(b) Where institution’ or continuance of criminal proceedings against an accused-person may amount. to an abuse of the process of the Court or when the quashing of the impugned proceedings would secure the ends of justice;
(c) Where there is a legal bar against institution or continuance of a criminal case against an accused-person;
(d) In a case where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged and in such cases, no question of weighing and appreciating evidence arises; and
(e) The allegations made against the accused-person do constitute an offence alleged, but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge.
10. The above-mentioned categories of cases as spelt out by our Appellate Division in the decision reported in 28 DLR (AD) 38 have been subsequently followed in the case of AU Akkas vs Enayet Hossain reported in 17 BLD (AD) 44 =2BLC (AD) 16 .
11. In the case of Sher Ali (Md) and others vs The State reported in 46 DLR (AD) 67, the Appellate Division has held that the inherent power may be invoked independent of powers conferred by any other provisions of the Code of Criminal Procedure and this power may be exercised to quash a proceeding or even a conviction on conclusion of a trial if the Court concerned had no jurisdiction to hold the said trial or the facts alleged against the accused do not constitute any criminal offence, or the conviction has been based on ‘no evidence’ or otherwise to secure the ends of justice.
12. Reverting to the case in hand, indisputably the accused-petitioner is not FIR-named. It is admitted that the principal accused Abdus Salam Khan did not implicate her in the commission of the offence in his judicial confession made under Section 164 of the Code of Criminal Procedure. It is further admitted that at the relevant time, she was a probationary officer at Janata Bank, Purana Paltan Branch, Dhaka. Undeniably she signed the seized documents. It is her submission that she signed the documents bonafide and under instructions from her superior officers and, as such, she had no ‘mens rea’. It is a settled proposition of law that the question of ‘mens rea’ of an accused cannot be gone into in a Criminal Revision under Section 439 of the Code of Criminal Procedure. That is essentially a matter of evidence and trial. If we, for the sake of argument, accept this submission of the accused-petitioner right now, that will amount to begging the question. Her alleged bonafides can only be proved during the trial of the case. At this stage, we cannot presuppose her alleged bonafides or innocence.
13. The relevant portion of the chargesheet against the accused-petitioner runs as follows:
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14. From the above averments made in the charge-sheet, we have no hesitation in holding that the accused-petitioner cannot eschew her prima facie criminal liability.
15. It is a settled proposition of law that the Court is not required to assign any reason at the time of framing any charge against an accused in a case. But the Court is mandated by law to assign reasons at the time of discharging him from the case. As the accused-petitioner was charged under sections 409; 420/467/471/109 of the Penal Code, 1860 read with Section 5(2) of the Prevention of Corruption Act, 1947, the learned Metropolitan Senior Special Judge was not required to assign any, reason. That being so, he did not commit any illegality, impropriety or incorrectness in passing the impugned order. In other words, the learned trial Judge legally, properly and correctly framed charge against the accused-petitioner. Against this backdrop, we do not find any merit in the Rule. The Rule, therefore, fails.
16. Accordingly, the Rule is discharged.
17. The Court below is, however, directed to proceed with the trial of the case in accordance with law.
Let a copy of this judgment be immediately transmitted to the Court below.
