High Court Division :
(Criminal Miscellaneous Jurisdiction)
M Enayetur Rahim J
Shahidul Karim J
Arshad Hossen (Md) and another………….
……………… ………Petitioners
vs
State and another …………
……… Opposite Parties
Judgment
March 23rd 2017
Money Laundering Protirodh Ain (VIII of 2009)
Sections 14 and 21
The Court has got the ample authority to appoint a receiver or manager before or after publishing the official gazette or in the news paper regarding the details of property attached, confiscated or freezed. Section 21 of the Ain of also gives power to the Court to determine the terms and conditions of a receiver or manager including their remuneration as well as maintenance costs.
Abdullah-al-Mamun, with Mehadi Hasan and Omar Faruk, Advocates-For the Petitioners.
Ahmed Sohel, Advocate-For the Anti-Corruption Commission (Opposite party No.2).
Judgment
M Enayetur Rahim J : On an application under Section 561A of the Code of Criminal Procedure, this Rule was issued calling upon the opposite parties to show cause as to why the order dated 25-8-2011 regarding the appointment of receiver passed by the Divisional Special Judge, Dhaka in Special Case No.138 of 2011, should not be quashed and/ or pass such other or further order or orders as to this Court may seem fit and proper. (As written in the Rule issuing order).
2. On 19-4-2011 Mohammad Ibrahim, an Assistant Director of Anti-Corruption Commission (herein after referred to as Commission), lodged a First Information Report with Dhanmondi Police Station against the present accused petitioners for committing offence of Money Laundering under the Money Laundering Protirodh Ain, 2002 (herein after referred to as Ain of 2002) and Money Laundering Protirodh Ain, 2009 (herein after referred to as Ain of 2009) alleging, inter-alia that the accused petitioners inclusion with each other having committed corruption and forgery acquired immoveable property worth of Taka 24,90,60,000 (Twenty four Crore, ninety lacs and sixty thousand) and movable property worth of Taka 3,93,92,500.88 (three crore, ninety three lacs, ninety two thousand and five hundred). The accused petitioners acquired the above wealth illegally and transferred and transformed the same in illegal manner by purchasing flats, plots, shops, bonds etc. The alleged offence was committed in between the year 2006 to 2008. On the basis of the said first information report Dhanmondhi Police Station Case No.10 dated 19-4-2011 under Section 2 (U) and 4(2) of Money Laundering Protirodh Ain, 2009 and Section (V)(A)(Av) read with Section 13 of Money Laundering Protirodh Ain, 2002 was started.
3. After completion of the investigation the Commission submitted chargedsheet on 30-6-2011 against the present accused petitioners under the above provisions of law.
4. On being ready for trial the case record was transmitted to the Court of Divisional Special Judge, Dhaka wherein it was registered as Special Case No.138 of 2011.
5. During investigation of the case at the instance of the Commission the learned Metropolitan Senior Special Judge, Dhaka by his order dated 22-5-2011 attached the immovable properties relating to the case and thereafter, on 25-8-2011 an application under Section 21 of the Ain of 2009 was filed by the Commission for appointment of receiver to look after the properties attached.
6. The learned Divisional Special Judge by the impugned order dated 25-8-2011 allowed the said application and appointed the public prosecutor Shahin Ahmed as receiver of the attached properties. In the said order the learned Special Judge also observed that the receiver would be responsible for any damage of the properties attached and he would be entitled to get 20% of the total income from the properties attached as remuneration.
7. Being aggrieved by the said order, the accused petitioners by filling an application under Section 561A of the Code of Criminal Procedure have obtained the present rule.
8. Mr Abdullah al Mamun, the learned Advocate appearing for the accused petitioners submits that the impugned order was passed by the learned Divisional Special Judge without giving an opportunity to the accused petitioners of being heard and the same is inconsistent with the Ain of 2009. Referring to Section 14 of the Ain of 2009 Mr Mamun also submits that as per law after making an order of attachment the court shall publish the details of the property attached in the official gazette as well as at least in one widely circulated National News paper, but in the instant case the learned Special Judge without publishing any gazette as to the properties attached most illegally appointed receiver, which is a clear violation of the mandatory provision of law.
9. Mr Mamun further submits that the learned Special Judge in appointing the receiver has failed to apply its discretionary power as contemplated in Section 21 of the Ain of 2009 and as such the impugned order is liable to be set aside.
10. Mr Ahmed Sohel, the learned Advocate appearing for the opposite party Commission submits that the learned Special Judge passed the impugned order within the ambit of law and as such it does not call for any inference by this court in exercise of its power under Section 561A of the code of Criminal Procedure and therefore, the Rule is liable to be discharged.
11. Heard the learned Advocates for the parties, perused the impugned order and other connected materials produced before us.
12. Section 21 of the Ain of 2009 makes the provision for appointing manager or receiver for maintaining/supervising the attached, freezed and confiscated property. The said provision runs as follows:
“??? ??????????, ???????? ?? ???????????? ???????? ?????????????? ???? ????¯’??? ?? ???????????? ?????? Ñ?? ????? ????? ??? ???????? ???????, ????? ?? ????????? ??? ????, ????????? ??¯’? ?? ???? ???? ???? ????????????? ??? ?????????? ??????? ?????????? ??????? ????????? ???????? ?? ????? ?????????, ????¯’????, ?????? ?? ???? ??????? ?????????? ????, ?????, ????? ????????, ?????? ??????? ??? ????? ?????? ????? ??? ??????? ?? ???? ????????? ???? ????????? ????¯’??? ?? ???????????? ????? ????? ???????”
(underlines upplied)
13. If we consider the above provision of law coupled with the allegations made against the accused petitioners and the fact that the case properties have already been attached by the Court we have no hesitation to hold that the learned Special Judge has committed no illegality in appointing the receiver for proper management of the properties attached. More so, under the law the learned Special Judge is quiet competent to pass such an order of attachment.
14. Since the impugned order was passed within the ambit of law by a Court of competent jurisdiction as such there is no room to say that the impugned order passed by the learned Special Judge is without jurisdiction and thus, there is no scope to quash the said order.
15. Mr Mamun has tried to convince us that before publishing the gazette with regard to the properties attached the court has no jurisdiction to appoint any receiver for the same.
16. Section 14(3) of the Ain of 2009 runs as follows:
“??(?) ??-???? (?) ?? ????? ??? ?????????? ?? ????? ???? ?????? ??? ???? ????? ????????? ????? ??????? ?????? ???????????? ?????? ???? ?????? ?????? ??? ?????? ??? ???? ???????? ????? ????? ???????? ????????? ????? ?????? ??????”
17. On scrutiny of the relevant provisions of law, in particular, Sections 14 and Section 21 of the Ain of 2009 it is crystal clear that after attachment, freezing or confiscation of any case property the court has the jurisdiction to appoint receiver or manager for its management, if the investigation agency applied for. We do not find any specific provision in the Ain of 2009 that the court concerned is precluded from appointing receiver before publishing details of the properties attached in gazette or news paper. The power of the Court concerned is very wide in the appointment of receiver or manager for the property attached. The Court has got the ample authority to appoint a receiver or manager before or after publishing the official gazette or in the news paper regarding the details of property attached, confiscated or freezed. Moreover, Section 21 of the Ain of 2009 also gives power to the Court to determine the terms and condition of a receiver or manager including their remuneration as well as maintenance costs.
18. Thus, we find no substance in the submissions of the learned Advocate for the accused petitioners that the appointment of receiver before publishing gazette is illegal and violation of mandatory provision of law as well as the Court has no authority to fix remuneration for the receiver.
19. Having considered and discussed above, we do not find any merit in the rule.
21. However, considering the fact that the accused petitioners have been residing with their family members in Flat No.B-5, Plot No, 20, Road No.4 (Park View), Dhanmandi, Dhaka, we direct the receiver not to create any disturbance in the possession and enjoyment of the said property by the accused petitioners till conclusion of trial.
Communicate a copy of this judgment and order at once.
(Criminal Miscellaneous Jurisdiction)
M Enayetur Rahim J
Shahidul Karim J
Arshad Hossen (Md) and another………….
……………… ………Petitioners
vs
State and another …………
……… Opposite Parties
Judgment
March 23rd 2017
Money Laundering Protirodh Ain (VIII of 2009)
Sections 14 and 21
The Court has got the ample authority to appoint a receiver or manager before or after publishing the official gazette or in the news paper regarding the details of property attached, confiscated or freezed. Section 21 of the Ain of also gives power to the Court to determine the terms and conditions of a receiver or manager including their remuneration as well as maintenance costs.
Abdullah-al-Mamun, with Mehadi Hasan and Omar Faruk, Advocates-For the Petitioners.
Ahmed Sohel, Advocate-For the Anti-Corruption Commission (Opposite party No.2).
Judgment
M Enayetur Rahim J : On an application under Section 561A of the Code of Criminal Procedure, this Rule was issued calling upon the opposite parties to show cause as to why the order dated 25-8-2011 regarding the appointment of receiver passed by the Divisional Special Judge, Dhaka in Special Case No.138 of 2011, should not be quashed and/ or pass such other or further order or orders as to this Court may seem fit and proper. (As written in the Rule issuing order).
2. On 19-4-2011 Mohammad Ibrahim, an Assistant Director of Anti-Corruption Commission (herein after referred to as Commission), lodged a First Information Report with Dhanmondi Police Station against the present accused petitioners for committing offence of Money Laundering under the Money Laundering Protirodh Ain, 2002 (herein after referred to as Ain of 2002) and Money Laundering Protirodh Ain, 2009 (herein after referred to as Ain of 2009) alleging, inter-alia that the accused petitioners inclusion with each other having committed corruption and forgery acquired immoveable property worth of Taka 24,90,60,000 (Twenty four Crore, ninety lacs and sixty thousand) and movable property worth of Taka 3,93,92,500.88 (three crore, ninety three lacs, ninety two thousand and five hundred). The accused petitioners acquired the above wealth illegally and transferred and transformed the same in illegal manner by purchasing flats, plots, shops, bonds etc. The alleged offence was committed in between the year 2006 to 2008. On the basis of the said first information report Dhanmondhi Police Station Case No.10 dated 19-4-2011 under Section 2 (U) and 4(2) of Money Laundering Protirodh Ain, 2009 and Section (V)(A)(Av) read with Section 13 of Money Laundering Protirodh Ain, 2002 was started.
3. After completion of the investigation the Commission submitted chargedsheet on 30-6-2011 against the present accused petitioners under the above provisions of law.
4. On being ready for trial the case record was transmitted to the Court of Divisional Special Judge, Dhaka wherein it was registered as Special Case No.138 of 2011.
5. During investigation of the case at the instance of the Commission the learned Metropolitan Senior Special Judge, Dhaka by his order dated 22-5-2011 attached the immovable properties relating to the case and thereafter, on 25-8-2011 an application under Section 21 of the Ain of 2009 was filed by the Commission for appointment of receiver to look after the properties attached.
6. The learned Divisional Special Judge by the impugned order dated 25-8-2011 allowed the said application and appointed the public prosecutor Shahin Ahmed as receiver of the attached properties. In the said order the learned Special Judge also observed that the receiver would be responsible for any damage of the properties attached and he would be entitled to get 20% of the total income from the properties attached as remuneration.
7. Being aggrieved by the said order, the accused petitioners by filling an application under Section 561A of the Code of Criminal Procedure have obtained the present rule.
8. Mr Abdullah al Mamun, the learned Advocate appearing for the accused petitioners submits that the impugned order was passed by the learned Divisional Special Judge without giving an opportunity to the accused petitioners of being heard and the same is inconsistent with the Ain of 2009. Referring to Section 14 of the Ain of 2009 Mr Mamun also submits that as per law after making an order of attachment the court shall publish the details of the property attached in the official gazette as well as at least in one widely circulated National News paper, but in the instant case the learned Special Judge without publishing any gazette as to the properties attached most illegally appointed receiver, which is a clear violation of the mandatory provision of law.
9. Mr Mamun further submits that the learned Special Judge in appointing the receiver has failed to apply its discretionary power as contemplated in Section 21 of the Ain of 2009 and as such the impugned order is liable to be set aside.
10. Mr Ahmed Sohel, the learned Advocate appearing for the opposite party Commission submits that the learned Special Judge passed the impugned order within the ambit of law and as such it does not call for any inference by this court in exercise of its power under Section 561A of the code of Criminal Procedure and therefore, the Rule is liable to be discharged.
11. Heard the learned Advocates for the parties, perused the impugned order and other connected materials produced before us.
12. Section 21 of the Ain of 2009 makes the provision for appointing manager or receiver for maintaining/supervising the attached, freezed and confiscated property. The said provision runs as follows:
“??? ??????????, ???????? ?? ???????????? ???????? ?????????????? ???? ????¯’??? ?? ???????????? ?????? Ñ?? ????? ????? ??? ???????? ???????, ????? ?? ????????? ??? ????, ????????? ??¯’? ?? ???? ???? ???? ????????????? ??? ?????????? ??????? ?????????? ??????? ????????? ???????? ?? ????? ?????????, ????¯’????, ?????? ?? ???? ??????? ?????????? ????, ?????, ????? ????????, ?????? ??????? ??? ????? ?????? ????? ??? ??????? ?? ???? ????????? ???? ????????? ????¯’??? ?? ???????????? ????? ????? ???????”
(underlines upplied)
13. If we consider the above provision of law coupled with the allegations made against the accused petitioners and the fact that the case properties have already been attached by the Court we have no hesitation to hold that the learned Special Judge has committed no illegality in appointing the receiver for proper management of the properties attached. More so, under the law the learned Special Judge is quiet competent to pass such an order of attachment.
14. Since the impugned order was passed within the ambit of law by a Court of competent jurisdiction as such there is no room to say that the impugned order passed by the learned Special Judge is without jurisdiction and thus, there is no scope to quash the said order.
15. Mr Mamun has tried to convince us that before publishing the gazette with regard to the properties attached the court has no jurisdiction to appoint any receiver for the same.
16. Section 14(3) of the Ain of 2009 runs as follows:
“??(?) ??-???? (?) ?? ????? ??? ?????????? ?? ????? ???? ?????? ??? ???? ????? ????????? ????? ??????? ?????? ???????????? ?????? ???? ?????? ?????? ??? ?????? ??? ???? ???????? ????? ????? ???????? ????????? ????? ?????? ??????”
17. On scrutiny of the relevant provisions of law, in particular, Sections 14 and Section 21 of the Ain of 2009 it is crystal clear that after attachment, freezing or confiscation of any case property the court has the jurisdiction to appoint receiver or manager for its management, if the investigation agency applied for. We do not find any specific provision in the Ain of 2009 that the court concerned is precluded from appointing receiver before publishing details of the properties attached in gazette or news paper. The power of the Court concerned is very wide in the appointment of receiver or manager for the property attached. The Court has got the ample authority to appoint a receiver or manager before or after publishing the official gazette or in the news paper regarding the details of property attached, confiscated or freezed. Moreover, Section 21 of the Ain of 2009 also gives power to the Court to determine the terms and condition of a receiver or manager including their remuneration as well as maintenance costs.
18. Thus, we find no substance in the submissions of the learned Advocate for the accused petitioners that the appointment of receiver before publishing gazette is illegal and violation of mandatory provision of law as well as the Court has no authority to fix remuneration for the receiver.
19. Having considered and discussed above, we do not find any merit in the rule.
21. However, considering the fact that the accused petitioners have been residing with their family members in Flat No.B-5, Plot No, 20, Road No.4 (Park View), Dhanmandi, Dhaka, we direct the receiver not to create any disturbance in the possession and enjoyment of the said property by the accused petitioners till conclusion of trial.
Communicate a copy of this judgment and order at once.
