(Criminal Revisional Jurisdiction)
Md Nazrul Islam
Talukder J
KM Hafizul Alam J
Durnity Daman Commission … Petitioner
vs
Md Siddiqur Rahman and others……… Opposite Parties
Judgment
January 23rd, 2019
Criminal Law Amendment Act (XL of 1958)
Section 4(2)
Sub-Section (2) of Section 4 of the Act, which contemplates that the Senior Special
Judge shall have exclusive jurisdiction to take cognizance of all offences triable under the Act committed or deemed to have been committed within that area. The law has expressly empowered the Senior Special Judge to take cognizance against the accused with regard to schedule offences of the Durnity Daman Commission Ain, 2004. The cognizance against the accused was taken by the Special Judge, which is apparently illegal and unlawful in the eye of law since it was not done in conformity with law. . ….. (19 & 20)
Md Khurshid Alam Khan, Advocate-For the Petitioner.
Kamrul Islam, Advocate-For the Accused- Opposite-Party Nos.1-3, 5-11.
Md Habibur Rahman Advocate with Md Delwer Hossain Lasker, Advocates-For the Accused-Opposite Parly No.4.
Abdul Matin Khasru with Pankaj Kumalr Kundu and Ariful Islam, Advocates-For the Accused-Opposite Party No.12.
AKM Amin Uddin DAG with Helena Begum (China), AAG-For the State-Opposite Party.
Judgment
Md Nazrul Islam Talukder J : On an application under Section 10(1A) of the Criminal Law Amendment Act, 1958, this Rule, at the instance of Durnity Daman Commission, was issued calling upon the opposite-parties to show cause as to why the Order No.6 dated 17-4-2017 and order No.8 dated 27-4-2017 passed by the learned Special Judge, Cumilla in Special Case No.43 of 2017 arising out of GR No.963 of 2015 corresponding to Brahmanbaria Model Thana Case No.37 dated 12-10-2015 under Sections 409/467/468/471/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947, now pending in the Court of learned Special Judge, Cumilla taking cognizance and granting bail to the accused opposite-party Nos.1-12, should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. The prosecution case, in short, is that on 12-10-2015, one Mohammad Nurul Huda, Assistant Director of the Durnity Commission, Daman Combined District Office, Cumilla being informant lodged a First Information Report before the Officee-in-Charge of Sadar Model Police Station, Brahmanbaria against the accused opposite party Nos.I-12 and others under Sections 409/467/468/471/109 of the Penal Code read with Section 5(2) the Prevention of Corruption Act, 1947 alleging, inter-alia, that the FIR named accused persons including accused opposite party Nos.I-12 in collusion with each others misappropriated Taka 16,06,02,962/24 from the Sonali Bank, Brahmanbaria Branch, Brahmanbaria. By this way, the accused opposite party Nos.I-12 and others committed offences under Sections 409/467/468/471 / 109 of the Penal Code read with Section 5(2) the Prevention of Corruption Act,1947. Accordingly, Brahmanbaria Model Thana Case No.37 dated 12-10-2015 under Sections 409/467/468/471/109 of the Penal Code read with section 5(2) the Prevention of Corruption Act, 1947 was initiated against the accused persons including the accused opposite party Nos. 1-12. Hence the FIR.
3. Since the allegations brought against the accused are schedule offences of the Durnity Daman Commission Ain, 2004, the Investigating Officer of the Durnity Daman Commission investigated the case. During investigation, the Investigating Officer collected the materials on record, recorded the statement of witnesses and after conclusion of investigation submitted memo of evidence before the Durnity Daman Commission. The Commission after perusal of memo of evidence gave sanction under Section 32 of the Anti-Corruption Commission Act, 2004. After obtaining sanction, the Investigating Officer submitted charge-sheet along with sanction before the Chief Judicial Magistrate, Brahmanbaria being Charge-sheet No. 73 dated 12-2-2017 under Sections 409/467/468/ 471/109/201 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 against the accused-opposite party Nos. 1-12 and others.
4. After submission of the charge-sheet, the case record was transmitted to the Court of learmed Senior Special Judge, Brahmanbaria and having received the case record on 22-3-2017, the same was registered as Special Case No.5 of 2017 and fixed for cognizance hearing on 27-4-2017.
5. Anyway, on 30-3-2017, the learned Senior Special Judge, Brahmanbaria without taking the case for cognizance hearing transferred the case record to the Court of learned Special Judge, Cumilla for trial. Having received the case record, the case was registered as Special Case No. 43 of 2017 and then the learned Special Judge fixed the case for cognizance hearing on 27-4-2017.
6. However, by order No.8 dated 27-42017, the learned Special Judge, Cumilla took cognizance against accused opposite party Nos. 1-12 under Sections 409/467/468/471/109/201 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947.
7. By order No. 6 dated 17-4-2017 and order No.8 dated 27-4-2017, the learned Special Judge, Cumilla also enlarged the accusedopposite party Nos. 1-12 on bail.
8. Feeling aggrieved by the impugned orders, the Dumity Daman Commission has filed the criminal revision before this court under Section 10(IA) of the Criminal Law Amendment Act, 1958 and obtained this Rule along with an order of stay of the proceeding.
9. At the very outset, Mr Md Khurshid Alam Khan, the learned Advocate appearing on behalf of the petitioner, submits that the order of taking cognizance by the learned Special Judge, Cumilla has not been passed in accordance with the law and it is contrary to Sub-section (2) of Section 4 of the Criminal Law Amendment Act, 1958, which indicates that the learned Senior Special Judge shall have exclusive jurisdiction to take cognizance of all offences triable under this Act committed or deemed to have been committed within that area, but in the instant case, the cognizance has been taken by the learned Special Judge, Cumilla, not by the learned Senior Special Judge, and, as such, the order of taking cognizance by the learned Special Judge, Cumilla is an error which is apparent on the face of the record and the law as well and in that view of the matter, the order of taking cognizance is liable to be set aside.
10. He next submits that since the order of taking cognizance has not been passed by the learned Senior Special Judge, Brahmanbaria, the trial of the case may be questionable in future and that being the reason, the order of taking cognizance by the learned Special Judge, Cumilla is liable to be set-aside and the learned Senior Special Judge, Brahmanbaria may be directed to take the matter for cognizance hearing in accordance with law since as per law, the learned Senior Special Judge, Brahmanbaria shall have exclusive jurisdiction to take cognizance of all offences as alleged in the FIR and charge-sheet and, as such, the impugned order of taking cognizance is liable to be set-aside.
11. He then submits that on the dates of surrender, the learned Special Judge, Cumilla granted bail to the accused-opposite-party Nos.1-12 on some flimsy grounds though there are specific allegations of misappropriation of money against the accused-opposite party Nos.1-12 and, as such, the impugned orders of bail are liable to be set-aside.
12. He candidly submits that that the learned Special Judge, Cumilla without considering the gravity of offences most illegally granted bail to the accused-opposite party Nos.1-12 and, as such, the impugned orders of bail should be set-aside.
13. He categorically submits that a prima-facie case with regard to misappropriation of money has been made out against the accused opposite party No.1-12 in the FIR and charge-sheet and, as such, the question of bail under Sections 409/467/468/471/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 does not arise at all but the learned Special Judge, Cumilla committed serious illegality in granting bail to the accused opposite-party Nos.1-12 and for this reason, the impugned orders of bail should be set-aside.
14. On the other hand, the learned Advocates appearing for the accused-opposite party Nos. 1-12, submit that there is no legal bar to taking cognizance against the accused opposite party Nos. 1-12 by the learned Special Judge, Cumilla in spite of the fact that as per Sub-section (2) of Section 4 of the learned Senior Special Judge, Brahmanbaria shall have exclusive jurisdiction to take cognizance of all offences triable under the Anti-Corruption Commission Act, 2004 and in that view of the matter, the order of taking cognizance by the learned Special Judge, Cumilla is a mere irregularity but not an illegality in the eye of law and, as such, the Rule should be discharged.
15. They next submit that the accused opposite party Nos. 1-12 being enlarged on bail never misused the privilege of bail in any manner and they are regularly attending the court below and considering these aspects of the case, the orders of bail passed by the learned Special Judge, Cumilla should not be set-aside making the Rule absolute.
16. They lastly submit that there is no certainty that the trial of the case would be concluded within a short span of time and that being the reason, the impugned orders of bail should not be set-aside.
17. We have gone through the revisional application under Section 10(lA) of the Crimial 13. He categorically submits that a prima- Law Amendment Act, 1958 filed by the Durnity Daman Commission and perused the prosecution materials annexed thereto. We have also considered the submissions made by the learned Advocates for the respective parties and considered the same to the best of our wit and wisdom. One going through the FIR, it appears that the accused-opposite party Nos.112 and others in collaboration with each other misappropriated an amount of Taka 16,06,02,962.24. Upon holding investigation into the matter, the Investigating Officer having found truthfulness of the allegations submitted charge-sheet against the accused-opposite party Nos. 1-12 and others under the aforesaid Sections.
18. Following the submission of the charge-sheet, the learned concerned Magistrate transmitted the case record to the learned Senior Special Judge, Brahmanbaria, who upon receiving the case record fixed the case for cognizance hearing on 27-4-2017 numbering the case as Special Case No.5 of 2017. However, without taking the case for cognizance hearing, the learned Senior Special Judge, Brahmanbaria by an order dated 30-3-2017, transferred the case along with the case record to the court of learned Special Judge, Cumilla for trial. Having received the case record, the case was registered as Special Case No. 43 of 2017 and the learned Special Judge, Cumilla, by an order dated 27-4-2017, took cognizance against the accused-opposite Nos. 1-12 and others under Sections 409/467/468/471/109/201 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947. Apart from this, the learned Special Judge, Cumilla, by orders dated 17-4-2017 and 27-4-2017 enlarged the accused opposite party Nos. 1-12 on bail. Under the circumstances, the question arises as to whether the order of taking cognizance and the orders of granting bail to the accused-opposite party Nos. 1-12 by the learned Special Judge, Cumilla were passed in accordance with law or not. In this Rule, we are concerned with two issues-one is of taking cognizance and the other is of granting bail to the accused.
19. Before coming to a decision in the first issue, it will be wise and worthwhile to go through Sub-section (2) of Section 4 of the Criminal Law Amendment Act, 1958 which contemplates that the learned Senior Special Judge shall have exclusive jurisdiction to take cognizance of all offences triable under this Act Committed or deemed to have been committed within that area. So, in view of the above, we have no hesitation to say that the law has expressly empowered the learned Senior Special Judge to take cognizance against the accused with regard to schedule offences of the Anti-Corruption Commission Act, 2004.
20. Here, in the instant case, the cognizance against the accused was taken by the learned Special Judge, Cumilla, which is apparently illegal and unlawful in the eye of law since it was not done in conformity with law. Accordingly, we are of the view that the order so far taking cognizance against the accused opposite party Nos. 1-12 by the learned Special Judge, Cumilla deserves to be knocked down for ends of justice.
21. Now we want to take up the second issue for discussion and decision. It is evident from the record that the accused-opposite Nos. 1-12 were enlarged on bail by the learned Special Judge, Cumilla on 17-4-2017 and 27-4-2017 respectively. It is true that there is allegations of misappropriation of money against the accused but those are subject to proof on taking evidence from the respective parties by the learned trial judge. As per submissions of the learned Advocates for the accused, the accused-opposite party Nos. 1-12 never misused privilege of bail and they are attending the court below regularly. The learned Advocate for the Anti-Corruption Commission could not produce any scrap of paper to show that the accused-opposite Nos. 1-12 ever misused the privilege of bail in any manner. Moreover, there is no certainty that the trial of the case would be concluded within a short span of time. Considering the facts and circumstances of the case, we are not inclined to interfere with the orders of bail granted to the accused-opposite Nos. 1-12 by the learned Special Judge, Cumilla.
22. Having Considered all the facts and circumstances of the case and the submissions made by the learned Advocates for the respective parties, we are inclined to make the Rule absolute in part.
23. Accordingly, the Rule so far as it relates to taking cognizance against the accused opposite Nos. 1-12 is made absolute and the Rule with regard to granting bail to the accused-opposite party Nos. 1-12 by the learned Special Judge, Cumilla is discharged.
24. In consequence thereof, the impugned order dated 27-4-2017 so far relating to taking cognizance against the accused-opposite party Nos. 1-12 is set-aside and the learned Senior Special Judge, Brahmanbaria is directed to take the matter for cognizance hearing in accordance with law and to do the needful following the law and the impugned order No. 6 dated 17-4-2017 and order No. 8 dated 27-4-2017 in respect of granting bail to accused-opposite party Nos. 1-12 by the learned Special Judge, Cumilla is affirmed and they shall remain on bail till conclusion of the trial of the case.
25. However, the learned trial judge shall be at liberty to cancel the bail of the accusedopposite party Nos. 1-12 if they misuse the privilege of bail in any manner.
26. The learned Special Judge, Cumilla is directed to transmit the case record to the court of learned Senior Special Judge, Brahmanbaria within 7 (seven) days from the date of receipt of this judgment and order.
Communicate this judgment and order to the learned Senior Special Judge, Brahmanbaria and to the learned Special Judge, Cumilla at once.
