Appellate Division
(Criminal)
Surendra Kumar
Sinha CJ
Nazmun Ara Sultana J
Syed Mahmud
Hossain J
Ali Haider Chowdhury ………Petitioner
vs
State represented by the DC, Dhaka and anr…. Respondents
Judgment February 11th, 2015
Code of Criminal Procedure (V of 1898)
Section 161
Anti-Corruption Commission Rules, 2007
Rule 10
Penal Code (XLV of 1860)
Section 109
The petitioner was neither named in the FIR nor in the statements, of the witnesses under section 161 of the Code, he was a beneficiary of the alleged illegal transaction which was allegedly done in connivance with the accused named in the FIR and the charge-sheet. Since the petitioner was engaged in the said transaction and was also a beneficiary of it, a prima facie case of abetment regarding manipulation of the tender for sale of the abandoned property had been disclosed against him in the materials collected by the prosecution: …….(8)
Code of Criminal Procedure (V of 18,98)
Section 561A
It is a question, of fact to be resolved on taking evidence by the trial Court as to whether the petitioner participated or abetted in manipulating the tender for sale of the property in question or whether the is a bonafide purchaser for valude of it. Whether the allegations. of abetment in manipulating the tender for sale of the case property were true or false could only be resolved at the trial. …….. (9 and 10)
SM Rezaul Karim, Advocate, instructed by Md Aftab Hossain, Advocate-o-Record-For the Petitioner.
None Represented-Respondents.
Judgment
Syed Mahmud Hossain J: This criminal petition for leave to appeal is directed against the judgment and order dated 8-11-2012 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No. 20499 of 2009 under section: 561A of the Code of Criminal Procedure discharging the Rule.
2. The leave-petitioner herein, Ali Haider Chowdhury, filed an application before the High Court Division under section 561A of the quashing the impugned proceeding of Special Case No, 23 of 2007 arising out of ACC GR No. 25 of 2007 corresponding to Motijheel Police Station Case No. 140 dated 29-3-2007 under sections 409/109 of the Penal Code and read with section 5(2) of the Prevention of Corruption Act 1947 and Rule 15 of the Emergency Power Rules, 2007 now pending, before the Special Judge, Court No. 3, Dhaka and obtained rule in Criminal Miscellaneous Case No. 20499 of 2009.
3. At the time of issuance of Rule, all further proceedings of Special Case No, 23 of 2007 were stayed for a period of 1 (one) year or till, disposal of Writ Petition Nos. 6869, 7336, 7190, 7229 of 2008 whichever is earlier.
4. The learned Judged of the High Court Division after hearing the parties by their judgment and order dated 8-11-2012 discharged the, Rule and vacated the order of stay granted at the time of issuance of Rule and directed the leave-petitioner to surrender before the concerned court below within 7 days from the date of a copy of receipt of the judgment.
5. Feeling aggrieved by and dissatisfied with the impugned judgment and order passed by the High Court Division, the leave-petitioner has, preferred, this criminal Petition for leave to appeal before this Division.
6. Mr SM Rezaul Karim, learned Advocate, appearing on behalf of the leave petitioner, submits that the petitioner, was not named in the FIR and that none of the witnesses in their statements under section 161 of the Code of Criminal Procedure implicated him in the occurrence and, as such, the impugned judgment should be set-aside. He further submits that the allegations of abetment brought against the leave-petitioner could not be established during investigation and that continuance of this criminal proceeding against him in an abuse of the process, of the Court and that the High Court Division, without considering this important question of law discharged the Rule and as such, the impugned judgment should be set-aside.
7. We have considered the submissions of the learned Advocate, perused the impugned, judgment and the materials on record.
8. The High Court Division came to a finding that though the leave petitioner was neither named in the FIR nor in the statements of the witnesses under section 161 of the Code of Criminal Procedure he was a beneficiary of the alleged illegal transaction which was allegedly done in connivance with the accused named in the FIR and the charge-sheet. The High Court Division further found, that since the petitioner was a beneficiary of the illegal transaction and he was engaged in the illegal transaction, a prima facie case of abetment regarding manipulation of the tender for sale of the abandoned property had been disclosed against him in the materials collected by the prosecution.
9. The High, Court Division then found that whether petitioner had any role; in the illegal transaction or whether he abetted the principal accused in manipulating the tender for sale of the case Property or whether he is a bonafide purchaser for value were all disputed questions of fact which could be resolved on taking evidence by the ‘trial’ Court. The High Court, Division also held that whether the allegations’ of abetment in manipulating the tender for sale of the case property were true or false could only be resolved at· the trial of the case. Therefore, the High Court Division concluded that the impugned proceeding initiate against respondent No: 1 under sections 409 and 109 of the Penal Code should not be quashed.
10. The findings arrived at and the decision made by the High Court Division having been made on proper appreciation of law and fact do not call for interference. Accordingly, this criminal petition is dismissed.
(Criminal)
Surendra Kumar
Sinha CJ
Nazmun Ara Sultana J
Syed Mahmud
Hossain J
Ali Haider Chowdhury ………Petitioner
vs
State represented by the DC, Dhaka and anr…. Respondents
Judgment February 11th, 2015
Code of Criminal Procedure (V of 1898)
Section 161
Anti-Corruption Commission Rules, 2007
Rule 10
Penal Code (XLV of 1860)
Section 109
The petitioner was neither named in the FIR nor in the statements, of the witnesses under section 161 of the Code, he was a beneficiary of the alleged illegal transaction which was allegedly done in connivance with the accused named in the FIR and the charge-sheet. Since the petitioner was engaged in the said transaction and was also a beneficiary of it, a prima facie case of abetment regarding manipulation of the tender for sale of the abandoned property had been disclosed against him in the materials collected by the prosecution: …….(8)
Code of Criminal Procedure (V of 18,98)
Section 561A
It is a question, of fact to be resolved on taking evidence by the trial Court as to whether the petitioner participated or abetted in manipulating the tender for sale of the property in question or whether the is a bonafide purchaser for valude of it. Whether the allegations. of abetment in manipulating the tender for sale of the case property were true or false could only be resolved at the trial. …….. (9 and 10)
SM Rezaul Karim, Advocate, instructed by Md Aftab Hossain, Advocate-o-Record-For the Petitioner.
None Represented-Respondents.
Judgment
Syed Mahmud Hossain J: This criminal petition for leave to appeal is directed against the judgment and order dated 8-11-2012 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No. 20499 of 2009 under section: 561A of the Code of Criminal Procedure discharging the Rule.
2. The leave-petitioner herein, Ali Haider Chowdhury, filed an application before the High Court Division under section 561A of the quashing the impugned proceeding of Special Case No, 23 of 2007 arising out of ACC GR No. 25 of 2007 corresponding to Motijheel Police Station Case No. 140 dated 29-3-2007 under sections 409/109 of the Penal Code and read with section 5(2) of the Prevention of Corruption Act 1947 and Rule 15 of the Emergency Power Rules, 2007 now pending, before the Special Judge, Court No. 3, Dhaka and obtained rule in Criminal Miscellaneous Case No. 20499 of 2009.
3. At the time of issuance of Rule, all further proceedings of Special Case No, 23 of 2007 were stayed for a period of 1 (one) year or till, disposal of Writ Petition Nos. 6869, 7336, 7190, 7229 of 2008 whichever is earlier.
4. The learned Judged of the High Court Division after hearing the parties by their judgment and order dated 8-11-2012 discharged the, Rule and vacated the order of stay granted at the time of issuance of Rule and directed the leave-petitioner to surrender before the concerned court below within 7 days from the date of a copy of receipt of the judgment.
5. Feeling aggrieved by and dissatisfied with the impugned judgment and order passed by the High Court Division, the leave-petitioner has, preferred, this criminal Petition for leave to appeal before this Division.
6. Mr SM Rezaul Karim, learned Advocate, appearing on behalf of the leave petitioner, submits that the petitioner, was not named in the FIR and that none of the witnesses in their statements under section 161 of the Code of Criminal Procedure implicated him in the occurrence and, as such, the impugned judgment should be set-aside. He further submits that the allegations of abetment brought against the leave-petitioner could not be established during investigation and that continuance of this criminal proceeding against him in an abuse of the process, of the Court and that the High Court Division, without considering this important question of law discharged the Rule and as such, the impugned judgment should be set-aside.
7. We have considered the submissions of the learned Advocate, perused the impugned, judgment and the materials on record.
8. The High Court Division came to a finding that though the leave petitioner was neither named in the FIR nor in the statements of the witnesses under section 161 of the Code of Criminal Procedure he was a beneficiary of the alleged illegal transaction which was allegedly done in connivance with the accused named in the FIR and the charge-sheet. The High Court Division further found, that since the petitioner was a beneficiary of the illegal transaction and he was engaged in the illegal transaction, a prima facie case of abetment regarding manipulation of the tender for sale of the abandoned property had been disclosed against him in the materials collected by the prosecution.
9. The High, Court Division then found that whether petitioner had any role; in the illegal transaction or whether he abetted the principal accused in manipulating the tender for sale of the case Property or whether he is a bonafide purchaser for value were all disputed questions of fact which could be resolved on taking evidence by the ‘trial’ Court. The High Court, Division also held that whether the allegations’ of abetment in manipulating the tender for sale of the case property were true or false could only be resolved at· the trial of the case. Therefore, the High Court Division concluded that the impugned proceeding initiate against respondent No: 1 under sections 409 and 109 of the Penal Code should not be quashed.
10. The findings arrived at and the decision made by the High Court Division having been made on proper appreciation of law and fact do not call for interference. Accordingly, this criminal petition is dismissed.
