(Criminal)
Surendra Kumar Sinha CJ
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Judgment
February 11th, 2015.
Anti-Corruption Commission ………..Petitioner
[In all the Petitions]
vs
Mehedi Hasan and another. ……………… Respondents [In Criminal Petition No.514 of 11]
Md Emdadul Islam and others ……..Respondents
[In Civil Petition No.652 of 13]
Ahmed Akbar Sobhan and others …………..Respondents
[In Criminal Petition No.293 of 12]
SM Anwar Hossain & others
………………..Respondents
[In Criminal Petition No.284 of 13]
Hasna Ahmed and anothers ………… Respondents
[In Criminal petition No. 241 of 13]
Constitution of Bangladesh, 1972
Articles 102(2)
There is no scope for quashing a criminal proceeding under the writ-jurisdiction unless the vires of the law involved is challenged. The vires of the law involved in the case has not been challenged. Therefore, there is no scope for aggrandizement of jurisdiction of the High Court Division in quashing a criminal proceeding. Consequently, the High Court Division was not justified in quashing criminal cases in exercise of its power under Article 102 of the Constitution……….. (27)
Penal Code (XLV of 1860) Section 109
Abetment-Prima-facie allegation of abetment regarding manipulation of the tender for sale of the abandoned property, has been disclosed from materials collected by the prosecution. Therefore, the prosecution should not be debarred from proving the allegations of abetment by evidence which may be oral, documentary and circumstantial-in nature ……….(21)
Penal Code (XLV of 1860)
Section 109
Abetment-Abetment is such an offence which can be inferred from the conduct of the accused and attending circumstances of the case. It may be proved either by oral, or documentary or circumstantial evidence.
The allegations of abetment in manipulating the tender for sale of abandoned properties have been prima facie found to be true in the police report submitted by the investigation officer duly empowered by the Anti-Corruption Commission. Admittedly, respondent No.1 of all the criminal petition participated in the tender for sale of the properties in question and he is a beneficiary of the illegal transaction. Moreover, respondent No.1 of all the criminal petitions was involved in the alleged illegal transaction for purchasing the case properties either in his own name or in favour of his organization or in the name of his designated person from the principal accused. The elements certainly attract the ingredients of abetment in manipulating the tender for sale of the abandoned properties.
Code of Criminal Procedure (V of 1898)
Section 561A
Disputed questions of fact cannot be determined by the High Court Division by invoking its’ extraordinary jurisdiction under Section 561A of the Code. What’s more whether the allegations of abetment in manipulating the tender for sale of disputed properties are true or false can only be resolved during the trial of the case. The admissibility, propriety or sufficiencies of materials collected by the prosecution are matters of evidence. . ….. (22)
Md Khurshid Alam Khan, Advocate, instructed by Shahanara Begum, Advocate-on-Record.-For the Petitioner. (In Criminal Petition No.514 of 2011.
Md Khurshid Alam Khan, Advocate, instructed by Md. Zahirul Islam, Advocate-on-Record- For the Petitioner. (In Criminal Petition No. 652 0/ 2013 & Criminal Petition Nos. 292-2930/2012)
Md Khurshid Alam Khan, Advocate, instructed by Sufia Khatun, Advocate-on-Record- For the Petitioner. (In Criminal Petition Nos. 284-285 of 2013)
Rokanuddin Mahmud, Senior Advocate, instructed by Mvi. Md Wahidullah, Advocate-on-Record-For the Respondents. (In Criminal Petition No. 514 of 2011)
Sheikh Fazle-Noor-Taposh, Advocate, instructed by
Zainul Abedin, Advocate-on-Record-For the
Respondents. (In Criminal Petition No. 652 of 2013)
Ahsanul Karim, Advocate, instructed by Nurul Islam Chowdhury, Advocate-on-Record-For the Respondents. (In Criminal Petition Nos. 292-93 of 2012)
Ahsanul Karim, Advocate, instructed by Mvi. Md Wahidullah, Advocate-on-Record-For the Respondents.
None Represented-Respondents. (In Criminal Petition No. 141 of 2013)
Judgment
Syed Mahmud Hossain J: Delay in filing all the Criminal Petitions for Leave to Appeal and Civil Petition for Leave to Appeal is hereby condoned.
2. Respondent No. 1 herein, Mehedi Hasan, filed an application before the High Court Division under Section 561A of the Code of Criminal Procedure for quashing the proceeding of Special Case No. 18 of 2007, corresponding to ACC GR No. 25 of 2007 arising out of Motijheel Police Station Case No. 140(3) dated 29-3-2007 under sections 409/109 of the Penal Code, now pending in the Court of Special Judge, Court No. 3, Dhaka and obtained Rule in Criminal Miscellaneous Case No. 9051 of 2011.
3. The learned Judges of the High Court Division upon hearing the miscellaneous case by the judgment and order dated 16-6-2011 made the Rule absolute and quashed the proceeding of Special Case No. 18 of 2007 now pending in the Court of Special Judge, Court No.3, Dhaka so far it relates to respondent No. 1.
4. Against the judgment and order dated 16-6-2011 passed by the High Court Division, Anti-Corruption Commission filed this criminal petition for leave to appeal before this Division.
5. Respondent No. 1 herein, Md Emdadul Islam, filed the writ petition before the High Court Division challenging the proceedings of Special Case Nos. 12-26 of 2007 corresponding to Metro Special Case Nos. 116, 116(Ka), 116(Kha), 116 (Ga) 116(Gha), 116 (Uma), 116(Cha), 116(Cha), 116(Ja), 1l6(Jha), 116(Nio),) 16(Ta), 116(Tha), 116(Da) and 116(Dha) of 2007 arising out of ACC GR No.· 25 of 2007 corresponding to Motijheel P.S Case No. 140 dated 29-3-2007 under section 5(2) of the Prevention of Corruption Act, 1947 and sections 409 and 109 of the Penal Code read with Rule 15 of the Emergency Power Rules, 2007 now pending before the Special Judge, Court No.3, Dhaka and the impugned memo ,dated 20-9-2007 issued by writ-respondent No. 2 and obtained Rule Nisi in Writ Petition No. 7242 of 2008.
6. The learned Judges or the High Court Division upon hearing the Rule by the impugned judgment and order dated 26-1-2011 made the Rule absolute and set aside all the proceedings of above special cases corresponding to above metro special cases under the said sections now pending before the Court of Special Judge, Court No.3, Dhaka.
7. Against the said judgment and order dated 26-1-2011 passed by the High Court Division, the Anti-Corruption Commission filed Civil Petition for Leave to Appeal No. 652 of 2013 before this Division.
8. Respondent No. 1 herein, Ahmed Akbar Sobhan alias Shah Alam, filed the applications before the High Court Division under section 561A, of the Code of Criminal Procedure for quashing the proceedings of Special Case Nos. 13 and 14 of 2007, corresponding to Metro Special Case Nos. 116(Ka) and 116(Kha) of 2007 dated 29-3-2007 arising out of ACC GR No. 25 of 2007 corresponding to Motijheel Police Station Case No. 140(3) dated 29-3-2007 Under sections 409 of the Penal Code read with section 109 of the Panal Code against respondent No. 1, now pending in the Court of Special Judge, Court No: 3, Dhaka and obtained Rule in Criminal Miscellaneous Case Nos. 16422-16423 of 2011.
9. The learned Judges of .the High Court Division upon· hearing the miscellaneous cases by the judgment and order dated 5-12-2011 made the Rules absolute and quashed the proceedings of Special Case Nos. 13 and 14 of 2007, corresponding to Metro Special Case Nos 116(Ka) and 116 (Kha) of 2007 dated 29-3-2007 arising out of ACC OR No. 2S of 2007 corresponding to Motijheel Police Station Case No. 140(3) dated 29-3. 2007 under section 409 of the Penal Code read with section 109 of the Penal Code against respondent No.1, now pending in the Court of Special Judge, Court No.3, Dhaka, so far it relates to respondent No.1.
10. Against the said judgment and order dated 5-12-2011 passed by the High Court Division, the Anti-Corruption Commission, filed Criminal Petitions for Leave to Appeal Nos. 292 and 293 of 2012 before this Division.
11. Respondent, No. 1 herein, SM Anwar Hossain, filed the applications before the High Court Division under section 56IA of the Code of Criminal Procedure for quashing the proceedings of Special Case No. 24 and 25 of 2007, corresponding to Metro Special Case Nos. 116(Da) and 116(Tha) of 2007 dated 29-3-2007 arising out of ACC GR No, 25 of 2007 corresponding to Motijheel Police Station Case No. 140 dated 29-3-2007 under sections l40/409 of the Penal Code against him, now pending in the Court of Special Judge, Court No.3, Dhaka and obtained Rules in Criminal Miscellaneous Case Nos. 26562-26563 of 2009.
12. The learned Judges of the High Court Division upon hearing the miscellaneous cases by the judgment and order dated 15-12-2010 made the Rules absolute and qu~hed the proceedings of Special Case No. 24 and 25 of 2007, corresponding to Metro Special’ Case Nos. 116(Da) and 116(Tha) of 2007 dated 29-3-2007 arising out of ACC OR No. 25 of 2007 corresponding to Motijheel Police Station Case No. 140 dated 293-2007 under sections 140/409 of the Penal Code, now pending in the Court of Special Judge, Court No.3, Dhaka so far it relates to respondent No.1.
13. Against the judgment and order dated 1512-2010 passed by the High Court Division, the Anti-Corruption Commission, filed Criminal Petitions for Leave to Appeal Nos. 284-285 before this Division.
14. Respondent No. 1 herein, Mrs Hasna Ahmed, filed an application before the High Court Division under section 561A of the Code of Criminal Procedure for quashing the proceeding of Special Case No. 22 of 2007 under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947, now pending in the Court of Special Judge, Court No. 3, Dhaka and obtained Rule in Criminal Miscellaneous Case No. 14295 of 2008 so far as it relates to respondent No.1.
15. The learned Judges of the High Court Division upon hearing the miscellaneous cases by the judgment and order dated 1-12-2010 made the Rule absolute and quashed the proceeding of Special Case No. 22 of 2007 under Sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act; 1947, now pending in the Court of Special Judge, Court No.3, Dhaka, so far as it relates to respondent No.1.
16. Against the judgment and order dated 1-12-2010 passed by the High Court Division, the Anti-Corruption Commission, filed Criminal Petition for Leave to Appeal No. 141 of 2013.
17. Mr Khurshid Alam Khan, learned Advocate, appearing on behalf of the leave-petitioner of all the criminal petitions, submits that although respondent No.1 of all the criminal petitions was not named in the FIR he has been charge sheeted by the Anti-Corruption Commission and that the case consists of a bundle of fact which can only be thrashed out during trial of the case but an application under Section 561A of the Code of Criminal Procedure is not maintainable and, as such, the impugned judgment delivered by the High Court Division should be set aside. He further submits that respondent No. 1 of all the criminal petitions is a beneficiary of the illegal transactions and, as such, he cannot be left out from the case and moreover, prima facie case of abetment has been made out against him and, as such, the impugned judgment and order passed by the High Court Division should be set aside.
18. Mr Rokanuddin Mahmud, learned Senior Advocate, Mr Sheikh Fazle-Noor-Taposh, learned Advocate, Mr Ahsanul Karim, learned Advocate, appearing on behalf of the respondent No. 1 in respective petitions, support the impugned judgments and orders delivered by the High Court Division.
19. Mr Khurshid Alam Khan, learned Advocate, appearing on behalf of the leave-petitioner in Civil Petition No. 652 of 2013, submits that it is now well settled by this Division that a criminal proceeding cannot be challenged in the writ jurisdiction and that the High Court Division committed serious illegality in quashing 15 criminal cases (Special Case Nos. 12-26 of 2007) in a single writ petition and, as such, the impugned. judgment and order passed by the High Court Division cannot be sustained in law. He further submits that respondent No. I is a member of the tender evaluation committee and that he failed to evaluate tender documents and manipulated the tender process and that the High Court Division without considering those aspects of the case made the Rule absolute and, as such, the impugned judgment should be set aside.
20. We have considered the submissions of the learned Advocates of both the sides, perused the impugned judgments and the materials on record.
21. Admittedly, respondent No. 1 of all the criminal petitions was not named in the FIR What is important to note here is that sections 107 and 109 of the Penal Code contemplate that abetment may be· said to have been committed by a person who by his engagement or act or illegal omission instigates a person to do a thing. Respondent No. I of all the criminal petitions is a beneficiary of the illegal transaction and a prima facie allegation of abetment regarding manipulation of the tender for sale of the abandoned property has been disclosed against him from materials collected by the prosecution. Therefore, the prosecution should not be debarred from proving the allegations of abetment by evidence which may be oral, documentary and circumstantial in nature.
22. Whether respondent No. I of all the criminal petitions had any role in the illegal transaction or whether he abetted the principal accused in manipulation of the tender for sale of the abandoned property or whether respondent No. 1 is a bonafide purchaser for value are all disputed questions of fact which can be resolved on taking evidence at the trial. It is a settled principle of law that disputed questions of fact cannot be determined by the High Court Division by invoking its extraordinary jurisdiction under section 561A of the Code of Criminal Procedure. What’s more is whether the allegations of abetment in manipulating the tender for sale of disputed properties are true or false can only be resolved during the trial of the case. In addition, the admissibility, propriety or sufficiencies of materials collected by the prosecution are matters of evidence.
23. The allegations of abetment against respondent No. 1 of all the criminal petitions in manipulating the tender for sale of abandoned properties have been prima facie found to be true in the police report submitted by the investigation officer duly empowered by the Anti-Corruption Commission. Admittedly, respondent No. 1 of all the criminal petitions participated in the tender for sale of the properties in question and he is a beneficiary of the illegal transaction. Moreover, respondent No. I of all the criminal petitions was involved in the alleged illegal transaction for purchasing the case properties either in his own name or in favour of his organization or in the name of his designated person from the principal accused. The aforesaid elements certainly attract the ingredients of abetment in manipulating the tender for sale of the abandoned properties.
24. What is remarkable to note here is that abetment is such an offence which can be. inferred from the conduct of the accused and attending circumstances of the case. It may be proved either by oral, or documentary or circumstantial evidence.
25. In the light of the findings made before, there is no difficulty in holding that there is no ingredient of quashing the proceedings mentioned in these criminal petitions.
26. In view of the discussion made above, we are of the view that the High Court Division was not justified in quashing the proceedings against respondent No. 1 of all the criminal petitions.
27. As regards Civil Petition for Leave to Appeal No. 652 of 2013 arising out of Writ Petition No. 7242 of 2008, we are of the view that there is no scope for quashing a criminal proceeding under the writ-jurisdiction, unless the vires of the law involved is challenged. Having gone through the Rule issuing order, we find that the vires of the law involved in the present case has not been challenged. Therefore, there is no scope for aggrandizement of jurisdiction of the High Court Division in quashing a criminal proceeding. Consequently, the High Court Division was not justified in quashing 15 criminal..: cases (Special Case Nos. 12-26 of 2007) in exercise of its power under Article 102 of the Constitution.
28. Over and above respondent No. 1 herein, Md. Emdadul Islam, was named in the FIR and that he was a member of tender evaluation committee. It is also alleged that respondent No. 1 of this civil petition failed to properly evaluate the tender document and that he manipulated the tender process by abetment.
Accordingly, all the petitions are disposed of and the impugned judgments and orders delivered by High Court Division in all the criminal miscellaneous cases and the writ petition are set aside and the cases are remanded to the trial Court for trial in accordance with law.
