High Court Division :
(Criminal Miscellaneous Jurisdiction)
Md Ashfaqul Islam J
AKM Zahirul Hoque J
Judgment
August 27th, 2014.
Lutful Kabir alias
Kabir alias Lutful Kabir………….
Accused Petitioner
vs
State & another…….
Opposite-Party
Code of Criminal Procedure (V of 1898)
Section 561A
The allegations and accusation as the petitioner is facing in the proceeding apparently seem to be at a very initial stage and this Division sitting on an application under Section 561A it would be loath to give a decision on the truth or otherwise of those allegations that have been brought against the petitioner. Only on evidence both oral or documentary as well as circumstantial, decision can be arrived at by the trial court on the issue.
Section 561A
Defence materials-Quashing of the proceeding has been disapproved by the Appellate Division and this Division when defence materials are highlighted in an application under Section 561A.
Code of Criminal Procedure (V of 1898) Section 561A
Defence materials in whatever manner whatever be its gravity cannot be and should not be considered in a case under Section 561A.
Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir, 62 DLR (AD) 290; Nazim Uddin (Md Chairman vs Government of Bangladesh, 61 DLR 81 ; Habibur Rahman Mollah vs State, 61 DLR 1 ; Aza-e-Sadat vs Bangladesh, 62 DLR 455; Moulana Motiur Rahman Nizami vs Anti-Corruption Commission, 17 BLC 1; A. Kader Chowdhury vs State, 28 DLR (AD) 38; Ali Akkas vs State, 17 BLD (AD) 44 = 2 BLC (AD) 16 and Rahela Khatun vs Abul Hossain, 48 DLR (AD) 213 ref.
Dewan Abdun Naser with Muhammad Rezaul Kabir Khan, Advocates-For the Petitioner.
Mahbubey Alam, Attorney-General, SM Monir-uzzaman , DAG-For the State.
Md Khurshid Alam Khan, Advocate-For Opposite Party No. 2
Judgment
Md Ashfaqul Islam J: At the instance of the petitioner Md Lutful Kabir alias Kabir alias Lutful Kabir, this Rule was issued calling upon the opposite parties to show cause as to why the proceeding of Special Case No.4 of 2008 under Sections 409/109 of the Penal Code read with Section 5(2) of the Act of 1947 pending before the Special Judge, Court No.3, Sher-e-BangIa Nagar, Dhaka should not be quashed so far as it relates to the accused petitioner. At the time of issuing Rule the entire proceeding of Special Case No.4 of 2008 was stayed and the accused-petitioner was enlarged on bail by this Division.
2. The background leading to the issuance of the Rule, in short, is that the accused petitioner joined as Assistant Engineer (Mechanical) under Chittagong Port Authority in 1973. Lastly he performed his duties as member of Chittagong Port Authority. He retired from his service on 3-8-2006. That on 2-9-2007 one Golam Shahariar Chowdhury, Deputy Director Anti-Corruption Commission, lodged a first information report with Tejgaon Police Station against the present petitioner and others under Sections 409/109 of the Penal Code read with Section 5(2) of Act II 1947. In the first information report, it was inter-alia, stated that in an inquiry of Anti-Corruption Commission, it revealed that the Government decided to handling the containers as of ICD internal container depot (hereinafter called ICD) Dhaka and Chittagong Port Authority through a single contractor. For that purpose the Chittagong Port Authority floated a tender on 1-3-2003.
The terms and conditions of the said tender inter- alia, was that only experienced equipment owner, supplier, equipment user and equipment intending firms and port user experienced in container handling and shipping are eligible for participating in tender. The interested firms must also submit their documents relating to technical experience. As many as 25 bidders participated in the bid. The technical evaluation committee in their report stated that Global Agro Trade Private Company Limited (hereinafter called GATCO) adjudged as the lowest bidder though it had no prior experience in handling container. In spite of that GATCO was declared as responsive one and was recommended to the Chittagong Port Authority to make the contract to the owner of GATCO. The port authority had placed recommendation with the Ministry of Shipping who sent it to the Ministerial Committee for purchase with their recommendation on 12-11-2003. The said committee refused to accept the proposal and recommended to cancel the proposal and for issue of re-tender notice. But when the recommendation of the committee was sent to Mrs. Khaleda Zia, the then Prime Minister on 6-12-2003, who without considering the recommendation of the Ministerial Committee for purchase sent the matter back to the said committee for reconsideration. Thereafter the Ministerial Committee for purchase being influenced with owners of GATCO approved the proposal of the Shipping Ministry and recommended to give the work to GATCO which was subsequently approved by the then Prime Minister Mrs Khaleda Zia. Thus the accused persons in collusion with the other, helped to give work order to the inexperienced company namely GATCO for which container handling at Chittagong Port Authority was seriously hampered. Exporters and Importers, C & F agents and Bangladesh Railway suffered huge loss. The Government suffered loss with a tune of Taka 1,000 crore. GATCO managed to get the said work, with the help of Arafat Rahman Koko son of Mrs. Khaleda Zia the then Prime Minister and Ismail Hossain Saymon son of late Lieutenant Colonel (Retd.) Akbar Hossain, the then Shipping Minister.
3. On the basis of such allegation FIR has been lodged without any sanction from the Anti-Corruption Commission. The Anti-Corruption Commission hereinafter (referred to as Duduk) investigated the case. During investigation statement of witnesses under Section 161 of the Code of Criminal Procedure was recorded. The Investigation Officer also collected other materials on record and after investigation he submitted Memo of Evidence before the Duduk. Confessional statement under Section 164 of the Code of Criminal Procedure was given by some of the accused before the Metropolitan Magistrate, Dhaka. Duduk after perusing the Memo of Evidence accorded sanction under Section 32 of the Duduk Ain, 2004 (hereinafter referred to as Ain 2004).
4. The Investigation Officer after obtaining sanction from the Commission submitted charge-sheet along with the sanction before the Chief Metropolitan Magistrate, Dhaka being Charge-sheet No.169 dated 13-5-2008 under sections 409/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 (II of 1947) read with Rule 15 of the Emergency Power Rules, 2007 against the accused-petitioner and others. After submission of the charge-sheet the case record was transmitted to the Court of Metropolitan Senior Special Judge, Dhaka and registered the same as Metro Special Case. Accordingly, Metropolitan Senior Special Judge, Dhaka took cognizance against the accused petitioner and others under Sections 409/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 (II of 1947) read with Rule 15 of the Emergency Power Rules, 2007. Thereafter the Metropolitan Senior Special Judge transferred the case record to the Court of Special Judge, Court No.3, Dhaka wherein the case was renumbered as Special Case No.4 of 2008. On 22-9-2007 the police arrested the petitioner. It is at this stage the petitioner moved this Division and obtained the present Rule and order of stay and also bail by this Division.
5. Mr Dewan Abdun Naser, the learned counsel for the petitioner after placing FIR, Charge-Sheet and other materials on record pressed into service some arguments. The main thrust of his argument is that the ingredients of Sections 409/109 of the Penal Code read with Section 5(2) of Act II of 1947 have not been established against the petitioner inasmuch as the FIR and the Charge-sheet even if taken in its entirety or so to say even if admitted to be true do not disclose any evidence as aforesaid against the petitioner. In elaborating his submissions the learned counsel contends that from the facts and circumstances of the case as it appears from the materials on record the petitioner has no connection with the acceptance of the offer as made by the GATCO and higher authority of the country including the then Prime Minister and the Members of the purchase committee who are the instrumental for the acceptance of the offer and in such view of the matter involvement of the petitioner in the instant case tantamounts to abuse of process of the Court. So the same is liable to be quashed.
6. On the other hand, Mr Mahbubey Alam, the learned Attorney-General for the State and Mr Md Khurshid Alam Khan, the learned counsel appeared for the Duduk and opposes the Rule. Mr Khan has made elaborate argument which has been adopted by the learned Attorney-General. Mr Khan submits whether the accused petitioner had any role in the illegal tender process or whether he has abated the principal accused in manipulating the tender for which the allegations as aforesaid have been brought against him are all disputed question of fact which may be resolved on taking evidence by the trial court. He submits that abatement is an offence which may be inferred from the conduct of the accused related to the circumstances of the case. Without evidence either oral or documentary there cannot be the just decision on the issue.
7. Next he submits that on mere reading of the charge-sheet a clear case of misconduct/ abatement has been disclosed against the accused petitioner which clearly attract an offence under Section 5(1)(c)(d) of the Prevention of Corruption Act 1947. Therefore he concludes that it is too early to take any decision as such, on the truth or otherwise of the allegation under Section 561(A) of the Code of Criminal Procedure when the trial could not proceed because of the order of stay by this Division. In support of his contention the learned counsel placed reliance on several decisions rebutting different aspect that has been contended by the learned counsel for the petitioner which are by now well settled judicial pronouncement of the Appellate Division as well as this Division. He has referred to the case of Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir reported in 62 DLR (AD) 290, Nazim Uddin (Md) Chairman vs Government of Bangladesh represented by the Secretary, Ministry of Law reported in 61 DLR 81, Habibllr Rahman Mollah vs State reported in 61 DLR 1 which was upheld by the Appellate Division reported in 62 DLR (AD) 23, the case of Aza-e-Sadat (Md) vs Bangladesh reported in 62 DLR 455, Moulana Motiur Rahman Nizami vs Anti-Corruption Commission (popularly known as Boropukuria Coal Mine case) 17 BLC 1 and so on. Mr Khan has drawn our attention to the decision of A. Kader Chowdhury vs State reported in 28 DLR (AD) 38. Reflection of which could be found in the case of Ali Akkas vs State 17 BLD (AD) 44= 2 BLC (AD) 16 and submits that the allegation made against the petitioner do not attract any of the categories that has been propounded in those decisions.
8. However, the learned counsel for the petitioner also candidly concedes the issues those are settled by the Apex Court and set at rest. They are no longer a resintegra. But at the same time he also contends that the allegations as leveled against the petitioner do attract the categories of the case where this Division should interfere to quash the same in that the allegation even if taken at there face value and accepted in their entirety do not constitute the offence alleged and, as such, no question of appreciating evidence at all arises.
9. Be that as it may, we have heard the learned counsel of both sides and considered their submissions. We have gone through the petition, FIR, Charge-Sheet and other materials on record carefully and with precision. To cut the story short it would be profitable to quote a pertinent portion from the FIR and the charge-sheet. In the FIR it has been stated that, ÒAbymÜv‡b †`Lv hvq †gvU 25wU cÖwZôvb `icÎ µq K‡i| Gi g‡a¨ 6wU cÖwZôvb `icÎ `vwLj K‡i| PeK KZ…©K MwVZ 3 (wZb) m`‡m¨i KvwiMwi cÖ¯Íve g~j¨vqb KwgwU cÖvß `icÎmg~n g~j¨vqb K‡i| D³ KwgwUi m`m¨ wQ‡jb Rbve G Gg mv‡bvqvi †nv‡mb, cwiPvjK (cwienb) PÆMÖvg e›`i KZ…©cÿ, Rbve Avn‡g` Aveyj Kv‡mg, cÖavb A_© I wnmve iÿY Awdmvi, PÆMÖvg e›`i KZ…©cÿ Ges Rbve jyZdzj Kwei, cwiPvjK (wet I gvt) PÆMÖvg e›`i KZ…©cÿ| `icÎ KvwiMwi g~j¨vqb KwgwUi cÖwZ‡e`‡b `ic‡Îi 8.2.2 (TTT) bs kZ© Abyhvqx `i`vZv †Møvevj G‡MÖv †UªW (cÖvt †Kv¤úvbx wjt Gi gvwjK/cwiPvjKM‡Yi K‡›UBbvi n¨v‡Ûwjs Kv‡Ri †Kvb AwfÁZv ‡bB g‡g© D‡jøL Kiv n‡jI GKB cÖwZ‡e`‡bi †k‡k G‡m Zv‡`i‡K †imcbwmf †NvlYv K‡i Ges Zv‡`i AbyK~‡j Kvh©v‡`k cÖ`v‡bi mycvwik K‡i| Zv‡`i AbyK~‡j A‰ea mycvwikmn cÖwZ‡e`b PeK †ev‡W©i Aby‡gv`b c~e©K gš¿Yvj‡q †cÖiY Kiv nq|Ó
10. The allegations as against the petitioner in the charge-sheet are as under :
ÒG Ae¯’vq gvbbxq cÖavbgš¿x KZ…©K gwš¿mfv µq msµvšÍ KwgwUi wm×v‡šÍi mve-ms‡ÿc Abyhvqx wVKv`vi wb‡qvM msµvšÍ cÖ¯ÍvewU 29-2-2004 ZvwiL Aby‡gvw`Z nq| cieZx©‡Z G wm×všÍ gš¿x cwil` wefvM †bŠ-cwienb gš¿Yvjq‡K AewnZ K‡i| †bŠ-cwienb gš¿Yvjq M¨vU‡Kv‡K wVKv`vi wb‡qv‡Mi wm×všÍ PeK‡K Rvwb‡q †`q| cieZx©‡Z 24-3-2004 ZvwiL ÒPeKÓ Gi mv‡_ M¨vU‡Kv Gi wVKv`vi wb‡qvM msµvšÍ Pzw³ m¤úvw`Z nq|
Dc‡i DwjøwLZ wVKv`vi wb‡qvM msµvšÍ NUbvi weeiY, cÖvß mvÿ¨ cÖgvY I e³e¨ ch©v‡jvPbvi †h mg¯Í Aciva cÖvß mvÿ¨ cÖgvY I e³e¨ ch©v‡jvPbvq †h mg¯Í Aciva msNwUZ n‡q‡Q Zvi weeiYmn `vqx e¨w³‡`i wPwýZc~e©K wb‡gœ we¯ÍvwiZ D‡jøL Kiv n‡jvt
(1) PÆMÖvg e›`i KZ…©cÿ KZ…©K MwVZ g~j¨vqb KwgwUi (1) Rbve G Gg mv‡bvqvi ‡nv‡mb, cwiPvjK cwienb, (2) Rbve Avn‡g` Aveyj Kv‡mg, cÖavb A_© I wnmve iÿY Awdmvi, (3) Rbve †gvt jyZdzj Kexi, cwiPvjK (wet I hvt) KZ…©K `ic‡Îi KvwiMwi g~j¨vq‡b M¨vU‡Kv‡K †imcbwmf †NvlYv K‡i‡Q wKšÍ †UÛvi WKz‡g›Um Ges †UÛvi †bvwUk Gi kZ©vbyhvqx wbgœwjwLZ Kvi‡Y KvwiMwifve M¨vUv‡Kv †imcbwmf n‡e bv|Ó
11. The allegations and accusation as the petitioner is facing in the proceeding apparently seem to be at a very initial stage and this Division sitting on an application under Section 561A it would be loath to give a decision on the truth or otherwise of those allegations that have been brought against the petitioner. Only on evidence both oral or documentary as well as circumstantial, decision can be arrived at by the trial court on the issue. In many decisions we have found that quashing of the proceeding has been disapproved by the Appellate Division and this Division when defence materials are highlighted in an application under Section 561A. One of the decision is Rahela Khatun vs Abul Hossain 48 DLR (AD) 213. 12. We, therefore, find substance in all the submissions pressed into service by Mr Khurshid Alam Khan which are based on unimpeachable authorities of the Apex Court. All the decisions cited by him unequivocally echoed on the point that the defence materials in whatever manner or whatever be its gravity cannot be and should not be considered in a case under section 561A by this Division.
13. Back in the year 2008 the Rule was obtained staying the proceeding of the Special Case and our considerate view is that the proceeding as against the petitioner should resume forthwith. Several segments are open before the parties in the proceeding. Hence, it would be worthwhile for the petitioner to face the proceeding and ventilate his grievances therein. Moreover, the charge has not been framed yet because of the stay of the proceeding. Considering the overall aspect that we have discussed it is our decision that this Rule does not merit any substance which should be discharged outright.
14. In the result, the Rule is discharged, however, without any order as to cost.
15. The order of stay granted earlier by this Court is hereby recalled and vacated.
However, during the trial the petitioner shall continue on bail already granted to him by this Division.
Communicate at once.
(Criminal Miscellaneous Jurisdiction)
Md Ashfaqul Islam J
AKM Zahirul Hoque J
Judgment
August 27th, 2014.
Lutful Kabir alias
Kabir alias Lutful Kabir………….
Accused Petitioner
vs
State & another…….
Opposite-Party
Code of Criminal Procedure (V of 1898)
Section 561A
The allegations and accusation as the petitioner is facing in the proceeding apparently seem to be at a very initial stage and this Division sitting on an application under Section 561A it would be loath to give a decision on the truth or otherwise of those allegations that have been brought against the petitioner. Only on evidence both oral or documentary as well as circumstantial, decision can be arrived at by the trial court on the issue.
Section 561A
Defence materials-Quashing of the proceeding has been disapproved by the Appellate Division and this Division when defence materials are highlighted in an application under Section 561A.
Code of Criminal Procedure (V of 1898) Section 561A
Defence materials in whatever manner whatever be its gravity cannot be and should not be considered in a case under Section 561A.
Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir, 62 DLR (AD) 290; Nazim Uddin (Md Chairman vs Government of Bangladesh, 61 DLR 81 ; Habibur Rahman Mollah vs State, 61 DLR 1 ; Aza-e-Sadat vs Bangladesh, 62 DLR 455; Moulana Motiur Rahman Nizami vs Anti-Corruption Commission, 17 BLC 1; A. Kader Chowdhury vs State, 28 DLR (AD) 38; Ali Akkas vs State, 17 BLD (AD) 44 = 2 BLC (AD) 16 and Rahela Khatun vs Abul Hossain, 48 DLR (AD) 213 ref.
Dewan Abdun Naser with Muhammad Rezaul Kabir Khan, Advocates-For the Petitioner.
Mahbubey Alam, Attorney-General, SM Monir-uzzaman , DAG-For the State.
Md Khurshid Alam Khan, Advocate-For Opposite Party No. 2
Judgment
Md Ashfaqul Islam J: At the instance of the petitioner Md Lutful Kabir alias Kabir alias Lutful Kabir, this Rule was issued calling upon the opposite parties to show cause as to why the proceeding of Special Case No.4 of 2008 under Sections 409/109 of the Penal Code read with Section 5(2) of the Act of 1947 pending before the Special Judge, Court No.3, Sher-e-BangIa Nagar, Dhaka should not be quashed so far as it relates to the accused petitioner. At the time of issuing Rule the entire proceeding of Special Case No.4 of 2008 was stayed and the accused-petitioner was enlarged on bail by this Division.
2. The background leading to the issuance of the Rule, in short, is that the accused petitioner joined as Assistant Engineer (Mechanical) under Chittagong Port Authority in 1973. Lastly he performed his duties as member of Chittagong Port Authority. He retired from his service on 3-8-2006. That on 2-9-2007 one Golam Shahariar Chowdhury, Deputy Director Anti-Corruption Commission, lodged a first information report with Tejgaon Police Station against the present petitioner and others under Sections 409/109 of the Penal Code read with Section 5(2) of Act II 1947. In the first information report, it was inter-alia, stated that in an inquiry of Anti-Corruption Commission, it revealed that the Government decided to handling the containers as of ICD internal container depot (hereinafter called ICD) Dhaka and Chittagong Port Authority through a single contractor. For that purpose the Chittagong Port Authority floated a tender on 1-3-2003.
The terms and conditions of the said tender inter- alia, was that only experienced equipment owner, supplier, equipment user and equipment intending firms and port user experienced in container handling and shipping are eligible for participating in tender. The interested firms must also submit their documents relating to technical experience. As many as 25 bidders participated in the bid. The technical evaluation committee in their report stated that Global Agro Trade Private Company Limited (hereinafter called GATCO) adjudged as the lowest bidder though it had no prior experience in handling container. In spite of that GATCO was declared as responsive one and was recommended to the Chittagong Port Authority to make the contract to the owner of GATCO. The port authority had placed recommendation with the Ministry of Shipping who sent it to the Ministerial Committee for purchase with their recommendation on 12-11-2003. The said committee refused to accept the proposal and recommended to cancel the proposal and for issue of re-tender notice. But when the recommendation of the committee was sent to Mrs. Khaleda Zia, the then Prime Minister on 6-12-2003, who without considering the recommendation of the Ministerial Committee for purchase sent the matter back to the said committee for reconsideration. Thereafter the Ministerial Committee for purchase being influenced with owners of GATCO approved the proposal of the Shipping Ministry and recommended to give the work to GATCO which was subsequently approved by the then Prime Minister Mrs Khaleda Zia. Thus the accused persons in collusion with the other, helped to give work order to the inexperienced company namely GATCO for which container handling at Chittagong Port Authority was seriously hampered. Exporters and Importers, C & F agents and Bangladesh Railway suffered huge loss. The Government suffered loss with a tune of Taka 1,000 crore. GATCO managed to get the said work, with the help of Arafat Rahman Koko son of Mrs. Khaleda Zia the then Prime Minister and Ismail Hossain Saymon son of late Lieutenant Colonel (Retd.) Akbar Hossain, the then Shipping Minister.
3. On the basis of such allegation FIR has been lodged without any sanction from the Anti-Corruption Commission. The Anti-Corruption Commission hereinafter (referred to as Duduk) investigated the case. During investigation statement of witnesses under Section 161 of the Code of Criminal Procedure was recorded. The Investigation Officer also collected other materials on record and after investigation he submitted Memo of Evidence before the Duduk. Confessional statement under Section 164 of the Code of Criminal Procedure was given by some of the accused before the Metropolitan Magistrate, Dhaka. Duduk after perusing the Memo of Evidence accorded sanction under Section 32 of the Duduk Ain, 2004 (hereinafter referred to as Ain 2004).
4. The Investigation Officer after obtaining sanction from the Commission submitted charge-sheet along with the sanction before the Chief Metropolitan Magistrate, Dhaka being Charge-sheet No.169 dated 13-5-2008 under sections 409/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 (II of 1947) read with Rule 15 of the Emergency Power Rules, 2007 against the accused-petitioner and others. After submission of the charge-sheet the case record was transmitted to the Court of Metropolitan Senior Special Judge, Dhaka and registered the same as Metro Special Case. Accordingly, Metropolitan Senior Special Judge, Dhaka took cognizance against the accused petitioner and others under Sections 409/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 (II of 1947) read with Rule 15 of the Emergency Power Rules, 2007. Thereafter the Metropolitan Senior Special Judge transferred the case record to the Court of Special Judge, Court No.3, Dhaka wherein the case was renumbered as Special Case No.4 of 2008. On 22-9-2007 the police arrested the petitioner. It is at this stage the petitioner moved this Division and obtained the present Rule and order of stay and also bail by this Division.
5. Mr Dewan Abdun Naser, the learned counsel for the petitioner after placing FIR, Charge-Sheet and other materials on record pressed into service some arguments. The main thrust of his argument is that the ingredients of Sections 409/109 of the Penal Code read with Section 5(2) of Act II of 1947 have not been established against the petitioner inasmuch as the FIR and the Charge-sheet even if taken in its entirety or so to say even if admitted to be true do not disclose any evidence as aforesaid against the petitioner. In elaborating his submissions the learned counsel contends that from the facts and circumstances of the case as it appears from the materials on record the petitioner has no connection with the acceptance of the offer as made by the GATCO and higher authority of the country including the then Prime Minister and the Members of the purchase committee who are the instrumental for the acceptance of the offer and in such view of the matter involvement of the petitioner in the instant case tantamounts to abuse of process of the Court. So the same is liable to be quashed.
6. On the other hand, Mr Mahbubey Alam, the learned Attorney-General for the State and Mr Md Khurshid Alam Khan, the learned counsel appeared for the Duduk and opposes the Rule. Mr Khan has made elaborate argument which has been adopted by the learned Attorney-General. Mr Khan submits whether the accused petitioner had any role in the illegal tender process or whether he has abated the principal accused in manipulating the tender for which the allegations as aforesaid have been brought against him are all disputed question of fact which may be resolved on taking evidence by the trial court. He submits that abatement is an offence which may be inferred from the conduct of the accused related to the circumstances of the case. Without evidence either oral or documentary there cannot be the just decision on the issue.
7. Next he submits that on mere reading of the charge-sheet a clear case of misconduct/ abatement has been disclosed against the accused petitioner which clearly attract an offence under Section 5(1)(c)(d) of the Prevention of Corruption Act 1947. Therefore he concludes that it is too early to take any decision as such, on the truth or otherwise of the allegation under Section 561(A) of the Code of Criminal Procedure when the trial could not proceed because of the order of stay by this Division. In support of his contention the learned counsel placed reliance on several decisions rebutting different aspect that has been contended by the learned counsel for the petitioner which are by now well settled judicial pronouncement of the Appellate Division as well as this Division. He has referred to the case of Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir reported in 62 DLR (AD) 290, Nazim Uddin (Md) Chairman vs Government of Bangladesh represented by the Secretary, Ministry of Law reported in 61 DLR 81, Habibllr Rahman Mollah vs State reported in 61 DLR 1 which was upheld by the Appellate Division reported in 62 DLR (AD) 23, the case of Aza-e-Sadat (Md) vs Bangladesh reported in 62 DLR 455, Moulana Motiur Rahman Nizami vs Anti-Corruption Commission (popularly known as Boropukuria Coal Mine case) 17 BLC 1 and so on. Mr Khan has drawn our attention to the decision of A. Kader Chowdhury vs State reported in 28 DLR (AD) 38. Reflection of which could be found in the case of Ali Akkas vs State 17 BLD (AD) 44= 2 BLC (AD) 16 and submits that the allegation made against the petitioner do not attract any of the categories that has been propounded in those decisions.
8. However, the learned counsel for the petitioner also candidly concedes the issues those are settled by the Apex Court and set at rest. They are no longer a resintegra. But at the same time he also contends that the allegations as leveled against the petitioner do attract the categories of the case where this Division should interfere to quash the same in that the allegation even if taken at there face value and accepted in their entirety do not constitute the offence alleged and, as such, no question of appreciating evidence at all arises.
9. Be that as it may, we have heard the learned counsel of both sides and considered their submissions. We have gone through the petition, FIR, Charge-Sheet and other materials on record carefully and with precision. To cut the story short it would be profitable to quote a pertinent portion from the FIR and the charge-sheet. In the FIR it has been stated that, ÒAbymÜv‡b †`Lv hvq †gvU 25wU cÖwZôvb `icÎ µq K‡i| Gi g‡a¨ 6wU cÖwZôvb `icÎ `vwLj K‡i| PeK KZ…©K MwVZ 3 (wZb) m`‡m¨i KvwiMwi cÖ¯Íve g~j¨vqb KwgwU cÖvß `icÎmg~n g~j¨vqb K‡i| D³ KwgwUi m`m¨ wQ‡jb Rbve G Gg mv‡bvqvi †nv‡mb, cwiPvjK (cwienb) PÆMÖvg e›`i KZ…©cÿ, Rbve Avn‡g` Aveyj Kv‡mg, cÖavb A_© I wnmve iÿY Awdmvi, PÆMÖvg e›`i KZ…©cÿ Ges Rbve jyZdzj Kwei, cwiPvjK (wet I gvt) PÆMÖvg e›`i KZ…©cÿ| `icÎ KvwiMwi g~j¨vqb KwgwUi cÖwZ‡e`‡b `ic‡Îi 8.2.2 (TTT) bs kZ© Abyhvqx `i`vZv †Møvevj G‡MÖv †UªW (cÖvt †Kv¤úvbx wjt Gi gvwjK/cwiPvjKM‡Yi K‡›UBbvi n¨v‡Ûwjs Kv‡Ri †Kvb AwfÁZv ‡bB g‡g© D‡jøL Kiv n‡jI GKB cÖwZ‡e`‡bi †k‡k G‡m Zv‡`i‡K †imcbwmf †NvlYv K‡i Ges Zv‡`i AbyK~‡j Kvh©v‡`k cÖ`v‡bi mycvwik K‡i| Zv‡`i AbyK~‡j A‰ea mycvwikmn cÖwZ‡e`b PeK †ev‡W©i Aby‡gv`b c~e©K gš¿Yvj‡q †cÖiY Kiv nq|Ó
10. The allegations as against the petitioner in the charge-sheet are as under :
ÒG Ae¯’vq gvbbxq cÖavbgš¿x KZ…©K gwš¿mfv µq msµvšÍ KwgwUi wm×v‡šÍi mve-ms‡ÿc Abyhvqx wVKv`vi wb‡qvM msµvšÍ cÖ¯ÍvewU 29-2-2004 ZvwiL Aby‡gvw`Z nq| cieZx©‡Z G wm×všÍ gš¿x cwil` wefvM †bŠ-cwienb gš¿Yvjq‡K AewnZ K‡i| †bŠ-cwienb gš¿Yvjq M¨vU‡Kv‡K wVKv`vi wb‡qv‡Mi wm×všÍ PeK‡K Rvwb‡q †`q| cieZx©‡Z 24-3-2004 ZvwiL ÒPeKÓ Gi mv‡_ M¨vU‡Kv Gi wVKv`vi wb‡qvM msµvšÍ Pzw³ m¤úvw`Z nq|
Dc‡i DwjøwLZ wVKv`vi wb‡qvM msµvšÍ NUbvi weeiY, cÖvß mvÿ¨ cÖgvY I e³e¨ ch©v‡jvPbvi †h mg¯Í Aciva cÖvß mvÿ¨ cÖgvY I e³e¨ ch©v‡jvPbvq †h mg¯Í Aciva msNwUZ n‡q‡Q Zvi weeiYmn `vqx e¨w³‡`i wPwýZc~e©K wb‡gœ we¯ÍvwiZ D‡jøL Kiv n‡jvt
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11. The allegations and accusation as the petitioner is facing in the proceeding apparently seem to be at a very initial stage and this Division sitting on an application under Section 561A it would be loath to give a decision on the truth or otherwise of those allegations that have been brought against the petitioner. Only on evidence both oral or documentary as well as circumstantial, decision can be arrived at by the trial court on the issue. In many decisions we have found that quashing of the proceeding has been disapproved by the Appellate Division and this Division when defence materials are highlighted in an application under Section 561A. One of the decision is Rahela Khatun vs Abul Hossain 48 DLR (AD) 213. 12. We, therefore, find substance in all the submissions pressed into service by Mr Khurshid Alam Khan which are based on unimpeachable authorities of the Apex Court. All the decisions cited by him unequivocally echoed on the point that the defence materials in whatever manner or whatever be its gravity cannot be and should not be considered in a case under section 561A by this Division.
13. Back in the year 2008 the Rule was obtained staying the proceeding of the Special Case and our considerate view is that the proceeding as against the petitioner should resume forthwith. Several segments are open before the parties in the proceeding. Hence, it would be worthwhile for the petitioner to face the proceeding and ventilate his grievances therein. Moreover, the charge has not been framed yet because of the stay of the proceeding. Considering the overall aspect that we have discussed it is our decision that this Rule does not merit any substance which should be discharged outright.
14. In the result, the Rule is discharged, however, without any order as to cost.
15. The order of stay granted earlier by this Court is hereby recalled and vacated.
However, during the trial the petitioner shall continue on bail already granted to him by this Division.
Communicate at once.
