High Court Division
(Criminal Miscellaneous Jurisdiction)
Khondker Musa
Khaled J
Md Azizul Haque J
Shanik Chandra Barmon .……..
Accused- Petitioner
Vs
State and another .
………. . Opposite-Parties·
Judgment
November 2nd, 2010
Anti-Corruption Commission Rules, 2007
Rule 13(3)
Penal Code (XLV of 1860) Section 408
The petition of complaint containing specific allegation against an employee of the Grameen Bank under Section 408 of the Code should not be thrown away for legal defect giving opportunity to the offender to go scot-free. The Magistrate shall send the petition of complaint to the Commission in accordance with procedure laid down under Rules 13(3) of the Bidhimala to deal with ill accordance with law.
The complaint case was evidently filed on 12-1-2008 and the Rules came into force on 29-3-2007. Cognizance was taken after commencement of the Rules and, as such, the Petition of Complaint ought to have been sent to the Commission as provided under Rule 13(3) of the Rules, 2007. Since the criminal proceeding was initiated illegally violating the Rule 13, such illegal proceeding, if allowed to continue, it would be sheer abuse of process of the Court. The impugned criminal proceeding from the stage of taking cognizance is liable to be quashed.
But at the same time the petition of complaint containing specific allegation against an employee of the Grameen Bank under Section 408 of the Code should not be thrown away for legal defect giving opportunity to the offender to go scot-free. The Magistrate shall send the petition of complaint to the Commission in accordance with procedure laid down under Rules 13(3) of the Bidhimala to deal with in accordance with law.
None appears-For the Petitioner.
Abdur Razaque Khan with Md Nurul Huda, Advocates-For the Opposite Party No.2.
Md Mamunur Rashid, AAG-For the Opposite-Party No.1 (State)
Judgment
Khondker Musa Khaled J: On an application under Section 561 A of the Code of Criminal Procedure, this Rule was issued calling upon the opposite-parties to show cause as to why the proceedings of CR Case No. 54 of 2008 under Section 408 of the Penal Code, now pending in the Court of Senior Judicial Magistrate, Nilphamari, should not be quashed or any other order passed as this. Court may deem fit and proper.
2. By the same Rule issuing order, all proceedings of the above mentioned CR Case was also stayed.
3. The relevant facts for disposal of the Rule are that the opposite party No. 2 Md Rafiqul Islam, Branch Manager, Grameen Bank, Deemla, Nilphamari, filed a Petition of Complaint on 10-12-2007 against the sole accused-petitioner Shanik Chandra Borman, who was an employee of the Grameen Bank. During the years 2003-2006, he was entrusted with the responsibility of collecting installments from the members of the Grameen Bank. At that. time, he misappropriated a total amount of Taka 65,886 from the collection. A departmental proceeding was drawn up on the charge of misappropriation of money belonging Grameen Bank and ultimately he was dismissed from the service on 8-3-2006. Inspite of repeated demands, the accused-petitioner did not pay the money of the Bank. Hence, the complaint case has been filed under Section 408 of the Penal Code.
4. The learned Magistrate was pleased to take cognizance against the accused-petitioner under sections 408/420 of the Penal. Code after recording initial statement of the complainant under Section 200 of the Code of Criminal Proceeding procedure. Thereafter, the Chief Judicial Magistrate sent the case for trial and the accused-petitioner submitted an application under Section 24lA for his discharge, but it was rejected and charge was framed against the sole accused-petitioner under Section 408 of the Penal Code.
5. Being aggrieved by the initiation of the proceeding, the accused-petitioner preferred this application under Section 561A of the Code of Criminal Procedure and obtained the Rule and stay order.
6. None appears on behalf of the accused petitioner when the case is taken up for hearing.
7. Mr Abdur Rezaque Khan, the learned Advocate appearing on behalf of the opposite party No.2 (Complainant) has filed counter affidavit-in-opposition today and opposed the Rule.
He submits that the petitioner was departmentally dealt with and such action in the departmental proceeding does not in any way create bar to initiate criminal proceeding under section 408 of the Penal Code when there is allegation attracting the criminal offence.
The learned Advocate, however, concedes that since the offence under section 408 of the Penal Code has been included as schedule offence of Anti-Corruption Commission Act, 2004, the complaint ought to have been sent to the Commission for investigation. According the Rules 13(1) of the Durnity Daman Commission Rules 2007, sanction of the Commission is necessary. In this respect, the learned Advocate has referred to the judgment dated 4-5-2010 passed by this Court in Criminal Misc. Case No. 14525 of 2008 and submits that this “Rule may also be disposed of in accordance with the same observation and findings.
8. We have gone through the ground staken in the application for quashment. It is stated that the Bank authority has no power to start a criminal case against the employee of the Grameen Bank for the purpose of recovery of defalcated amount. So initiation of the criminal proceeding is an abuse of process of the Court and it is liable to be quashed.
9. On perusal of the petition of complaint, it appears that there is specific and clear allegation against the accused-petitioner to the effect that the accused was an entrusted employee of the Grameen Bank, but he misappropriated money of the Bank dishonestly. Therefore, the allegation attracts the ingredients of the offence under Section 408 of the Penal Code. In such view of the matter, the case was maintainable. But the legal position is that an offence under section 408 has been inserted as a schedule offence of the Durnity Daman Commission Ain, 2004 and it is clearly stated in Rule 13 of the Durnity Daman Commission Rules, 2007 that without sanction of the Commission in respect of any schedule offence, no cognizance in the criminal proceeding can be taken. The relevant provisions of the Durnity Daman Rules, 2007 may profitably be reproduced below:-
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10. In view of such specific Rules, the learned Magistrate appears to have no legal authority to start the impugned criminal proceeding on the basis of complaint directly by taking cognisance Under Section 408 of the Penal Code after commencement of the aforesaid Rules. The complaint case was evidently filed on 12-1-2008 and the Rules came into force on 29-3-2007.
So it appears that cognizance was taken after commencement of the Rules and, as such, the Petition of Complaint ought to have been sent to the Durnity Daman Commission as provided under Rule 13(3) of the Durnity Daman Commission Rules, 2007. Since the impugned criminal proceeding was initiated illegally violating the Rule 13, such illegal proceeding, if allowed to continue, it would be sheer abuse of process of the Court.
As such, we hold the view that the impugned criminal proceeding from the stage of taking cognizance is liable to be quashed. But at the same time it must be noted here that the petition of complaint containing specific allegation against an employee of the Grameen Bank under Section 408 of the penal Code should not be thrown away for such legal defect giving opportunity to the offender to go scot-free.
In such view of the matter, the learned Magistrate shall send the petition of complaint to the Durnity Daman Commission in accordance with procedure laid down under Rules 13(3) of the Durnity Daman Bidhimala, 2007 to deal with in accordance with law.
11. Accordingly, the Rule is made absolute.
The impugned proceeding is hereby quashed from the stage of taking cognizance. But the Petition of Complaint shall remain unaffected and the learned Magistrate shall transmit the Petition of Complaint to the Durnity Daman Commission immediately in accordance with the aforesaid Rules, 2007.
Send a copy of the judgment and order to the Court below immediately.
