High Court Division :
(Criminal Revisional Jurisdiction)
Bhabani Prasad
Singha J
SM Mozibur Rahman J
Ziauddin Ahmed …..
…. Accused -Petitioner
vs
State…………
……………………..Opposite-Party
Judgment
September 10th, 2015.
Code of Criminal Procedure (V of 1898)
Section 561 A
Anti-Corruption Act (XXVI of 1957)
Section 3
Investigation by an ASI does not per se become without jurisdiction and a proceeding cannot be quashed mainly because there is irregularity, if any, in the investigation. ….(10)
Md Abul Hossain vs State, 19 BLD (AD) 97 = 4 BLC (AD) 122 ref.
None appears- For the Petitioner
Md Khurshid Alam Khan, Advocate- For the ACC
Judgment
Bhabani Prasad Singha J : This Rule W,15 issued calling upon the opposite party to show cause as to why the proceedings of Special Case No.4 of 1913 arising out of Bajitpur PS Case No. 9 (11) /87 GR Case No. 75(2)/87 under Sections 420/468/478/109 of the Penal Code read with Section 5(2) of the Anti-Corruption Act, 1947 pending in the Court of Additional Sessions Judge and Special Judge, Kishoreganj 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 facts leading the this instant Criminal Revision case under Section 561A of the Code of Criminal Procedure, 1898 are that on 28-11-1987 one Serajuddin Ahmed, Assistant Inspector DAB, Kishoreganj lodged a written First Information Report with Bajitpur PS, Kishoreganj alleging that the accused Afsar Ali Akanda on the strength of some false papers showed him as a primary school teacher of Saygoan Govt. Primary School, PS Bedarganj, Faridpur from 16-9-1978 to 16-9-1981 and he on the strength of false transfer order of the DDPf, Dhaka Division to the effect that he has been transferred to Purakandi Govt. Primary School under Bajitpur PS and District Kishoreganj as an Assistant Teacher. He with his false Service Book, LPC and transfer order appeared before Ziauddin Ahmed, the then Thana Education Officer, Bajitpur, Kishoreganj who directed the Head Master concerned to accept his joining report. Accordingly, the accused Md Afsar Ali Akanda joined there and served there as an Assistant Teacher from 30-9-1981 to 31-7-1984 and drew Taka 16,028.62 in total as salary and allowances by adopting the means of forgery and cheating.
3. After investigation, chargesheet was submitted against the accused-petitioner and others under Sections 420/468/471/109/409/ 420 of the Penal Code read with Section 5 (2) of the Anti-Corruption Act, 10-17.
4. After submission of chargesheet in this case, it was transmitted to the Senior Special Judge, Kishoreganj and was numbered as Special Case No.4 of 1993.
5. Being aggrieved by and dissatisfied with the impugned proceedings in Special Case No.4. of 1993, the accused-petitioner preferred the instant Criminal Revision under Section 561 A of the Code of Criminal Procedure and obtained the Rule.
6. No one appears on behalf of the accused-petitioner although the case appeared in the cause list for several dates.
7. Mr Md Khurshid Alam Khan, the learned Advocate appearing on behalf of the State submits that the revisional application under section 561A of the Code of Criminal Procedure has been filed agitating. that the investigation being conducted by an ASI, of police without obtaining sanction from the Bureau of Anti-Corruption and hence without jurisdiction; that the said point of agitation has already been decided by the Appellate Division in the case of Md Abul Hossain vs State reported in 19 BLD (AD) 97 = 4 BLC (AD) 122 and, as such, the question of sanction before taking cognizance does not arise at all. The learned Advocate further submits that there being no merit in the case, the Rule is liable to be discharged.
8. Heard the submission of the learned Advocate and perused the materials on record.
9. On perusal of the instant revisional application, it appears that the accused-petitioner has filed the instant revision on the grounds that although the accused-petitioner and others are public servant, without prior sanction from the Government proceeding against them is violative of Section 5(2) of the Anti-Corruption Act, 1947; that the investigation of the case was taken out by an AST of Police and, as such the impugned proceedings is liable to be quashed.
10. It is worth mentioning that another Division Bench of High Court Division in Criminal Revision Case No. 202 of 1993 and Criminal Revision Case No. 1805 of 1992 arising out of the same case, discharged the Rules issued in aforesaid Criminal Revision Cases holding that no substance was found in the Rule relying on the case of Md Abul Hossain vs State reported in 19 BLD (AD) 97 = 4 BLC (AD) 122. Our Apex Court, in said case, held that in view of the provision of Section 3 of the Anti-Corruption Act, 1947, the investigation held by an AST of the Bureau of Anti-Corruption was not illegal and without jurisdiction. Our Apex Court further held in the same decision that the investigation by an ASI does not per se become without jurisdiction and a proceeding cannot also be quashed mainly because there is irregularity, if any, in the investigation. We are in respectful agreement with the aforesaid decision of our Apex Court.
11. In the light of discussion made here above, we find no substance in the Rule and, as such, it is liable to be discharged.
12. In the result, the Rule is discharged.
The interim order passed at the time of issuance of the Rule stands vacated.
Let a copy of this judgment be transmitted down to the court concerned at once.
(Criminal Revisional Jurisdiction)
Bhabani Prasad
Singha J
SM Mozibur Rahman J
Ziauddin Ahmed …..
…. Accused -Petitioner
vs
State…………
……………………..Opposite-Party
Judgment
September 10th, 2015.
Code of Criminal Procedure (V of 1898)
Section 561 A
Anti-Corruption Act (XXVI of 1957)
Section 3
Investigation by an ASI does not per se become without jurisdiction and a proceeding cannot be quashed mainly because there is irregularity, if any, in the investigation. ….(10)
Md Abul Hossain vs State, 19 BLD (AD) 97 = 4 BLC (AD) 122 ref.
None appears- For the Petitioner
Md Khurshid Alam Khan, Advocate- For the ACC
Judgment
Bhabani Prasad Singha J : This Rule W,15 issued calling upon the opposite party to show cause as to why the proceedings of Special Case No.4 of 1913 arising out of Bajitpur PS Case No. 9 (11) /87 GR Case No. 75(2)/87 under Sections 420/468/478/109 of the Penal Code read with Section 5(2) of the Anti-Corruption Act, 1947 pending in the Court of Additional Sessions Judge and Special Judge, Kishoreganj 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 facts leading the this instant Criminal Revision case under Section 561A of the Code of Criminal Procedure, 1898 are that on 28-11-1987 one Serajuddin Ahmed, Assistant Inspector DAB, Kishoreganj lodged a written First Information Report with Bajitpur PS, Kishoreganj alleging that the accused Afsar Ali Akanda on the strength of some false papers showed him as a primary school teacher of Saygoan Govt. Primary School, PS Bedarganj, Faridpur from 16-9-1978 to 16-9-1981 and he on the strength of false transfer order of the DDPf, Dhaka Division to the effect that he has been transferred to Purakandi Govt. Primary School under Bajitpur PS and District Kishoreganj as an Assistant Teacher. He with his false Service Book, LPC and transfer order appeared before Ziauddin Ahmed, the then Thana Education Officer, Bajitpur, Kishoreganj who directed the Head Master concerned to accept his joining report. Accordingly, the accused Md Afsar Ali Akanda joined there and served there as an Assistant Teacher from 30-9-1981 to 31-7-1984 and drew Taka 16,028.62 in total as salary and allowances by adopting the means of forgery and cheating.
3. After investigation, chargesheet was submitted against the accused-petitioner and others under Sections 420/468/471/109/409/ 420 of the Penal Code read with Section 5 (2) of the Anti-Corruption Act, 10-17.
4. After submission of chargesheet in this case, it was transmitted to the Senior Special Judge, Kishoreganj and was numbered as Special Case No.4 of 1993.
5. Being aggrieved by and dissatisfied with the impugned proceedings in Special Case No.4. of 1993, the accused-petitioner preferred the instant Criminal Revision under Section 561 A of the Code of Criminal Procedure and obtained the Rule.
6. No one appears on behalf of the accused-petitioner although the case appeared in the cause list for several dates.
7. Mr Md Khurshid Alam Khan, the learned Advocate appearing on behalf of the State submits that the revisional application under section 561A of the Code of Criminal Procedure has been filed agitating. that the investigation being conducted by an ASI, of police without obtaining sanction from the Bureau of Anti-Corruption and hence without jurisdiction; that the said point of agitation has already been decided by the Appellate Division in the case of Md Abul Hossain vs State reported in 19 BLD (AD) 97 = 4 BLC (AD) 122 and, as such, the question of sanction before taking cognizance does not arise at all. The learned Advocate further submits that there being no merit in the case, the Rule is liable to be discharged.
8. Heard the submission of the learned Advocate and perused the materials on record.
9. On perusal of the instant revisional application, it appears that the accused-petitioner has filed the instant revision on the grounds that although the accused-petitioner and others are public servant, without prior sanction from the Government proceeding against them is violative of Section 5(2) of the Anti-Corruption Act, 1947; that the investigation of the case was taken out by an AST of Police and, as such the impugned proceedings is liable to be quashed.
10. It is worth mentioning that another Division Bench of High Court Division in Criminal Revision Case No. 202 of 1993 and Criminal Revision Case No. 1805 of 1992 arising out of the same case, discharged the Rules issued in aforesaid Criminal Revision Cases holding that no substance was found in the Rule relying on the case of Md Abul Hossain vs State reported in 19 BLD (AD) 97 = 4 BLC (AD) 122. Our Apex Court, in said case, held that in view of the provision of Section 3 of the Anti-Corruption Act, 1947, the investigation held by an AST of the Bureau of Anti-Corruption was not illegal and without jurisdiction. Our Apex Court further held in the same decision that the investigation by an ASI does not per se become without jurisdiction and a proceeding cannot also be quashed mainly because there is irregularity, if any, in the investigation. We are in respectful agreement with the aforesaid decision of our Apex Court.
11. In the light of discussion made here above, we find no substance in the Rule and, as such, it is liable to be discharged.
12. In the result, the Rule is discharged.
The interim order passed at the time of issuance of the Rule stands vacated.
Let a copy of this judgment be transmitted down to the court concerned at once.
