High Court Division
(Criminal Appellate Jurisdiction)
Moyeenul Islam
Chowdhury J
Kazi Md Ejarul Haque
Akondo J
Jahangir Hossain Molla ………………Petitioner
vs
State and another …………… Opposite-Parties*
Judgment
October 6th, 2013.
Code of Criminal Procedure (V of 1898)
Section 561A
Penal Code (XLV of 1860)
Section 109
Whether the petitioner had any ‘mens rea’ or not in the commission of the alleged offence is a question of fact and that can only be gone into during the trial of the case …. (14)
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 (Md) vs State, 46 DLR (AD) 67 ref.
Yusuf Hossain Humayun with Md Motiur Rahman, Advocates-For the Petitioner.
Md Khurshedul Alam, DAG with Mahmuda 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 561A 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 proceedings of Metro 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, now pending before the Metropolitan Senior Special Judge, Dhaka, should not be quashed and/or such other or further order or orders passed as to this Court may seem fit and proper.
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 wherein 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. Anyway, the accused-petitioner invoked the jurisdiction of the High Court Division under Section 561A of the Code of Criminal Procedure with a view to quashing the proceedings of the case pending in the Court below and obtained the instant Rule.
3. At the outset, Mr Yusuf Hossain Humayun, learned Advocate appearing on behalf of. the accused-petitioner, submits that the accused-petitioner is not named in the FIR and the FIR-named accused is Abdus Salam Khan and it is on record that the FIR-named accused Abdus Salam Khan made a judicial confession under Section 164 of the Code of Criminal Procedure on 12-1-2011; but he did not implicate the accused-petitioner in the commission of the offence.
4. Mr Yusuf Hossain Humayun further submits that not a single witness has implicated the accused-petitioner in the commission of the offence in his statement recorded under Section 161 of the Code of Criminal Procedure; but curiously enough, the accused-petitioner has been charge-sheeted by the Anti-Corruption Commission through no fault of his own and in this perspective, the proceedings of the case are an abuse of the process of the Court and, as such, the same are liable to be quashed.
5. Per contra, Mr Md Khurshid Alam Khan, learned Advocate appearing on behalf of the Anti-Corruption Commission-opposite party No.2, submits that the FIR-named accused Abdus Salam Khan withdrew and misappropriated the huge amount of money through Janata Bank, Purana Paltan Branch, Dhaka by resorting to forgery in collusion with the accused-petitioner and other bank officials and in this view of the matter, the accused-petitioner can not skirt around his prima facie criminal liability.
6. Mr Md Khurshid Alam Khan also submits that the abetment of the offence by the accused-petitioner is prima facie evident on the face of the record in view of the seizure of the relevant documents and papers by the Anti-Corruption Commission, though not a single prosecution witness has implicated the accused-petitioner in the commission of the offence in his statement under Section 161 of the Code of Criminal Procedure.
7. We have heard the submissions of the learned Advocate Mr Yusuf Hossain Humayun 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 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 Ali Akkas vs Enayet Hossain reported in 17 BLD (AD) 44 = 2 BLC (AD) 16.
11. In the case of Sher Ali vs 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. Coming back to the present case, it is admitted that the petitioner is not FIR named. It is further admitted that not a single witness in his statement recorded under Section 161 of the Code of Criminal Procedure has implicated the petitioner as an abettor of the alleged substantive offence punishable under Section 409 of the Penal Code. But none the less, the petitioner has been charge-sheeted as an abettor. In this context, the relevant portion of the charge-sheet as regards the petitioner may be quoted below verbatim:
ÒMZ 15-2-2011 wLªt Zvwi‡L RbZv e¨vsK wjt, cyivbv cëb kvLv, XvKv n‡Z RãK…Z †iKW©cÎ ch©v‡jvPbvq †`Lv hvq †h, Avmvgx †gvt Ave`ym mvjvg Lvb KZ©”c‡ÿi Aby‡gv`b A_ev †iRy‡jkb QvovB RbZv e¨vsK wjt, cyivbv cëb kvLv, XvKvi Kg©KZ©v‡`i †hvMmvR‡m weAvBWweøDwUG Kg©Pvix `jxq exgv Uªvw÷ †ev‡W©i PjwZ wnmve bs-00102493 Gi `ywU Gm, Gm KvW© cwieZ©b K‡i‡Qb| MZ 24-3-2009 wLªt Zvwi‡L weAvBWweøDwUG Kg©Pvix `jxq exgv Uªvw÷ †ev‡W©i mfvcwZ †gvt Ave`yj AvDqvj Ges †Kvlva¨ÿ †gvt gwgbyj nvq`vi Lv‡bi Rvj ¯^vÿi m¤^wjZ Gm,Gm KvW© ms‡hvRb Kiv n‡q‡Q| GKB fv‡e 18-5-2010 wLªt Zvwi‡L weAvBWweøDwUG Kg©Pvix `jxq exgv Uªvw÷ †ev‡W©i mfvcwZ wn‡m‡e †MvcvjP›`ª mvnv‡K Rvj ¯^vÿi m¤^wjZ AviI GKwU Gm Gm KvW© hy³ Kiv n‡q‡Q| Avmvgx †gvt Ave`ym mvjvg Lvb cwiKwíZfv‡e A_© AvZ¥mv‡Zi AwfcÖv‡q D³ Gm, Gm KvW© mg~n cwieZ©b K‡i‡Qb| D‡jøL¨, MZ 18-5-2010 wLªt Zvwi‡L ev ZrcieZx© mg‡q †Mvcvj P›`ª mvnv weAvBWweøDwUG Kg©Pvix `jxq exgv Uªvw÷ †ev‡W©i mfvcwZi `vwq‡Z¡ wQ‡jb bv| RbZv e¨vsK wjt, cyivbv cëb kvLv XvKvi Kg©KZ©vMb h_vµ‡g (1) AvjvDwÏb Avn‡g`, Gwmó¨v›U Gw·wKDwUf Awdmvi, (2) †gvt Rg‡ki Avjx, Gwmó¨v›U Gw·wKDwUf Awdmvi Ges (3) ‡gvt Rvnv½xi †nv‡mb †gvj¨v, g¨v‡bRvi cÖgyL weAvBWweøDwUG Kg©Pvix `jxq exgv Uªvw÷ †ev©‡Wi mfvcwZ †Kvlva¨‡ÿi ¯^vÿi Rvj †R‡bI Ges KZ©”cÿ KZ©”K †Kvb †iRy‡jkb ev Aby‡ivacÎ bv _vKv m‡Ë¡I Avmvgx †gvt Ave`ym mvjvg Lvb‡K A_© AvZ¥mv‡Z mnvqZvi Rb¨ Gm, Gm (†¯úwm‡gb wmM‡bPvi) KvW© mg~n cwieZ©b K‡i g~j Avmvgx †gvt Ave`ym mvjvg Lvb‡K A_© AvZ¥mv‡Z mnvqZv K‡i `Û wewai 109 avivq Ges 1947 m‡bi `ybx©wZ cÖwZ‡iva AvB‡bi 5(2) avivq kvw¯Í‡hvM¨ Aciva K‡i‡Qb|Ó
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13. From the above averments made in the co charge-sheet, it is crystal clear that prima facie the petitioner abetted the alleged offence.
14. In this connection, we would like to observe that whether the petitioner had any ‘mens rea’ or not in the commission of the alleged offence is a question of fact and that can only be gone into during the trial of the case. What we are driving at boils down to this: since there are allegations of abetment of the alleged offence against the accused-petitioner, he will have to go through the process of trial. At this stage, we do not find any reason whatsoever to quash the proceedings of the case. In the result, we do not find any merit in the Rule. The Rule, therefore, fails.
15. Accordingly, the Rule is discharged.
16. 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.
