[V of 2004]
Schedule—Non-inclusion of Money Laundering Prevention Act, 2009 in the schedule to Anti-Corruption Commission Act, 2004 shall not render the proceeding invalid. Tarique Rahman vs Bangladesh 62 DLR 524.
Sections 3 and 5—The proceeding of special case against the appellants being on an invalid notice, the Judgment and Order of conviction is void. See 62 DLR (AD) 290. Barrister Nazmul Huda vs State 63 DLR 252.
Section 3(2)—ACC did never wanted to know it by affording the petitioner an opportunity of being heard or by calling for a written statement from him, which it had power to under Rule 8 and 11 of the ACC Rules, 2007 Such discretion is neither unfettered, nor it has been vested in the ACC to arm it with redundant power or to exercise its discretion with caprice, but be guided by the provisions of section 3(2) of the Act. Obaidul Kader vs State 63 DLR 425.
Section 3(2)—The ACC should not abstain from exercising its discretionary power arbitrarily or without recording any reason for such abstention, so that it can be judged if the ACC had acted in compliance with provisions of section 3(2) of the Act. Obaidul Kader (Md) vs State 63 DLR 425.
Section 3(2)—The word ‘স্বাধীন’ or independent cannot be read in isolation of the, expression “ও নিরপেক্ষ” i.e. “and neutral”, inasmuch as the word ‘স্বাধীন’ has been used in the company of the expression “ও নিরপেক্ষ” with intent to denote that the ACC should be an independent and neutral body in exercising its powers and discretion under the Act. Obaidul Kader (Md) vs State 63 DLR 425.
Sections 5 and 8—Section 5 of the Ain, 2004 “Commission” means all the three members of the Commission. The provision as laid down in section 18 has clearly empowered member of the Commission to perform the duty of the Commission. Admittedly one of the members of the Commission has been empowered to accord sanction on behalf of the Commission. Habibur Rahman Molla vs State 61 DLR 1.
Section 9—Act of 2009 though not included in the schedule to the ACC Act, 2004, yet Section 9 of the Ain of 2009 provides that the offences committed under the said Ain shall be deemed to be scheduled offences under the ACC Act, 2004. Tarique Rahman vs Governrnent of Bangladesh 63 DLR (AD) 18.
Section 17—Section 17 of the ACC Act, 2004 the ACC shall enquire into and conduct investigation of offences mentioned in the schedule and file cases on the basis of inquiry or investigation and conduct prosecution of the case before the Court of Special Judge. Tarique Rahman vs Government of Bangladesh 63 DLR (AD) 18.
Sections 18 & 26—Section 26 envisages that before issuance of the notice, the Commissioner(s) must be satisfied about the allegation. It is their satisfaction and of nobody elses. But by sub-section (2) of section 18, the Commissioners can only ratify the ‘satisfaction’ of the Secretary which is certainly not stipulated in section 26. Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.
Section 18(2)—lf any person acts beyond his authority, to the prejudice of any person, such acts cannot be ratified of validated by post facto legislation and, as such, his action remains void. Iqbal Hasan Mahrnood @ Iqbal Hasan Mahmood Tuku vs State 63 DLR 660.
Section 26—Satisfaction—Satisfaction must be of the Commission itself constituted of no other person than its Commissioners. The relevant order to submit assets may be issued by any of its authorised officials but the decision to issue such an order must be recorded by the Commissioner(s). Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.
Section 26—If any person acts beyond his authority, to the prejudice of any person, such acts cannot be ratified or validated by post facto legislation, his action remains void. Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.
Section 26—Notice—A notice must allow a reasonable time to check-up the details of the assets of a person, if necessary, on examination of his records and after consultation with his lawyers and other concerned persons. Section 26 certainly does not envisage a notice upon a person who is in detention and he is not expected to give any details of his assets within the time specified. The person concerned must be afforded a fair and reasonable opportunity to respond to the notice, otherwise, it is no notice in the eye of law. A notice issued under section 26 of the Act to a detenu, away from his hearth and home, cannot be said to be a fair and bonafide exercise of power. Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.
Sections 26 & 27—Whether the appellant has disproportionate wealth, he has concealed his known source of income, there is mis-joinder of charges and the trial of the appellant on facts allegedly committed prior to the promulgation of Durnity Daman Commission Ain, 2004 constitute offence under the Durnity Daman Commission Ain are disputed facts can only be decided on evidence at the trial. Habibur Rahman Mollah vs State 62 DLR (AD) 233.
Sections 26 & 27—Since the prosecution is almost over and the appellant put his defence by cross-examining the witnesses, in view of the consistent views of the superior courts of this sub-continent that the High Court Division which exercising its power under section 561A of the Code should not usurp the jurisdiction trial Court. Habibur Rahman Mollah vs State 62 DLR (AD) 233.
Section 26(1)—A well-established legal principle is that a person upon whom power is delegated cannot delegate the same to another person. In the instant case the legal provision in Rule 17(1) is such that the Commission itself could delegate the power to issue a notice for submission of wealth statement to anyone of its officers not below the rank of Deputy Director(DD). Akbar Khan vs Anti-Corruption Commision 62 DLR 20.
Section 26(1)—In any event, the Commission may itself issue the notice or delegate the authority to issue the notice or may empower any of its Commissioners to delegate the authority to issue the notice. The memo dated 9-11-2009 issued by the Director (Additional charge), ACC Divisional Office, Chittagong specifically directed the DD to issue the notice under his (the DD’s) signature and to serve the same. This chain of delegation is not contemplated by the law. A Director of the Divisional Office does not have the power of delegation. Akbar Khan vs Anti- Corruption Corn-mission 62 DLR 20.
Section 26(1)—The strict interpretation of the law, is that the power to delegate lies with the ACC or any Commissioner empowered by the ACC. There is nothing to prevent the ACC even now to authorise the DD of the Anti-Corruption Commission, Integrated District Office (সমন্বিত জেলা কার্যালয়) Rangamati to issue the notice upon the petitioner. The Commission may directly authorise any DD of the Commission. Equally, the ACC could empower any of its Commissioners and that Commissioner so empowered could delegate his authority upon anyone not below the rank of DD of Anti-Corruption Commission to issue the notice and there is no legal bar to do so even now by issuing a fresh authority in accordance with law. The delegatee, namely the DD, if so authorised by the proper authority, may issue a fresh notice. But from the facts and circumstances of the instant case, we do not find any authority given to the Director of the Divisional Office, Chittagong to delegate his authority to the DD to issue the impugned notice. It is a highly technical legal defect which can be cured. Akbar Khan vs Anti-Corruption Commission 62 DLR 20.
Section 26(2)—No legal impediment for the Commission to issue fresh notice under section 26 of the Act, if so advised, but not in those cases where the accused has already been acquitted on merit of the case as is in this case. Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.
Section 26(2)—The matter is at the very initial stage and no proceedings are yet drawn up against the petitioner. It may be legitimately argued that the petitioner did not suffer any prejudice since the notice was issued by a DD who under the law has the rank and status to be authorised to issue the notice. The point raised by the petitioner is highly technical and should not be allowed to obstruct the course of justice. Akbar Khan vs Anti-Corruption Commission 62 DLR 20.
Section 27—Section 109 of the Penal Code is included in paragraph ‘Gha’ of the schedule to the ACC Act, 2004 for abetment to any offence under the schedule is committed by any sort of involvement or complicity. Such offence could never be intended or could be a substantive offence. The High Court Division held that no such offence of abetment could be conceived of in respect of an offence under section 26(2) or 27(1) of the ACC Act, 2004. Accordingly, lodging of FIR, taking cognizance, initiation of criminal proceedings against the writ-petitioners are unwarranted, unauthorized and without jurisdiction. Anti-Corruption Commission vs Shamima Begum 62 DLR (AD) 277.
Section 27—In the absence of any statement of assets; there was no scope to submit any explanation for acquisition of assets there was no scope for him to submit any explanation for acquisition of the assets. No citizen could be arraigned for such a severe offence in the absence of service of any notice or order for explaining the source of income. Offence of abetment under section 109 equally could not be conceived of with regard to such an offence. Anti-Corruption Commission vs Nargis Begum 62 DLR (AD) 279.
Section 27(1)—Bail in a pending appeal— The matter of granting bail by the High Court Division, during the period of emergency, in a pending appeal filed by the convict who has been convicted and sentenced under the provision of Anti-Corruption Commission Act, 2004 in case of short sentence not exceeding 3 years, when the appeal could not be disposed of within 90 working days for no fault of the appellant and/or in the case of serious illness endangering life to be certified by duly constituted Medical Board, may consider the matter of granting bail in an appropriate case in an appeal. Government of Bangladesh vs Sabera Aman 62 DLR (AD) 246.
Section 27(2)-It transpires from the FIR and charge-sheet that there is independent allegation against the accused-petitioner Mrs. Rowshena Jahan that she was owning and possessing some properties which are alleged to be disproportionate to her known source of income. It is necessary to spell out as to how she acquired those properties. Therefore, the accused- petitioner is liable to rebut presumption in the Court during the trial as contemplated under section 27(2) of the Anti-Corruption Commission Act, 2004. Rowshena Jahan vs State 63 DLR 90.
Section 27(2)-Schedule of offences under section 17(a) of the Anti-Corruption Commission Act, 2004 shows that an offence of abetment under section 109 of the Penal Code can lawfully be applied in respect of schedule offences under the Anti-Corruption Commission Act, 2004 in appropriate cases. Rowshena Jahan vs State 63 DLR 90.
Section 28(2)—Respondent Nos. 5 and 6 committed the offence under section 409 of the Penal Code in their personal capacity and not in their official capacity as a police officer and, as such, the sanction in the present case was not at all necessary under section 6(5) of the Criminal Law Amendment Act. Salauddin Ahmed vs Princpal Secretary, Office of the Hon’ble Prime Minister 57 DLR 730.
Section 32—There is no scope to challenge the efficacy of the sanction which has been accorded in Form No. 3 under rule 15(7) of the ACC Rules, 2007 prescribed by the legislature. The recital of the sanction order clearly shows that sanctioning authority was satisfied, on scrutinizing the record, produced in respect of the allegation brought against the accused-petitioner accord sanction for prosecution. Habibur Rahman Molla vs State 61 DLR 1.
Section 32—The sanction in question has not been accorded as per prescribed Form-3, mandatorily required by rule 15(7), and that apparently the same has been given mechanically Hence the questioned sanction is not a sanction in the eye of law. Bayazid vs State 61 DLR 772.
Section 32—No sanction is required to file a complaint (অভিযোগ) and the unamended as well the amended section 32 requires only one sanction from the Commission. Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.
Section 32—Sanction from the Commission will be required when the charge-sheet is filed under sub section (2) and on receipt of the charge-sheet along with a copy of the letter of sanction the Court takes cognizance of the offence for trial, either under the original section 32 or the amended section 32. As a matter of fact, only one sanction will be required under section 32, unamended or amended. Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.
Section 32—After completion of the investigation, the Investigating Officer, under subsection (2) of section 32, on obtaining the sanction from the Commission, would submit the police report before the Court along with a copy of the letter of sanction. The Court, under sub-section (1), would take cognizance, only when there is such sanction from the Commission. Both the sub-section (1) and sub-section (2) of the section 32 envisages only one sanction, not two. Subsection (1) does not spell out or even envisage filing of any fresh sanction when the sanction to prosecute has already been filed along with the charge-sheet of the Investigating Officer, It only envisages that without such sanction from the Commission (কমিশনের অনুমোদন ব্যতিরেকে) as spelt out in sub-section (2), no Court shall take cognizance of the offence (কোন আদালত এই আইনের অধীন কোন অপরাধ বিচারার্থ আমলে গ্রহন করিবে না) under sub-section (1) of section 32. Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.
Section 32—Since the decision of apex Court clearly spelt out the provision of section 32 of the Anti-Corruption Commission Act in this context holding no sanction is required before filing a case under the Act and also on the point that a case cannot be quashed unless cognizance has been taken by the Court having jurisdiction we are of the view that both the points apply adversely in the instant writ petitions. Azam-e-Sadat vs Bangladesh 62 DLR 455.
Section 32—Confusion arises with the use of the words-“মামলা দায়েরের ক্ষেত্রে” as used in the provision. Obviously it does not mean lodgment of first information report. Subsequent expression in the next line has made it clear that such sanction is only necessary at the time of filing case to the Court and not to the police station. The words “মামলা দায়েরের ক্ষেত্রে” does not mean initiation of a criminal case by lodging first information report which is an absurd proposition. Habibur Rahman Mondal vs State 63 DLR 23.
Section 32—Sanction given before submission of charge-sheet which is absolutely a mechanical sanction and contrary to law, and, as such, the very initiation of the proceeding itself is barred by law. Sheikh Hasina vs State 63 DLR 40.
Section 32—In the four corners of this case there is not an iota of allegation that the petitioner received any gratification from anybody in connection with the awarding of the work to the concerned company or there is no ingredients of Section 5(1) of the aforesaid act being punishable under Section 5(2) of the Prevention of Corruption Act, 1947. The concerned Officer of the Anti-Corruption Commission most hurriedly and at the behest of the then Government lodged this FIR without any sanction from the Anti- Corruption Commission violating the mandatory provisions of Section 32 of the Anti-Corruption Commission Act, 2004. Sheikh Hasina vs State 63 DLR 162.
Section 32—A malice has worked behind the screen and the Anti-Corruption Commission as well as the learned Special Judge acted mechanically for jeoparding the political and personal carrier of the petitioner by connecting her in this case and the proceeding of the case having been initiated in such a manner which cannot be accepted as bonafide and valid proceeding. Since the fact as well as the law cut whole root of the case, the proceeding should be quashed at least in respect of the petitioner. Sheikh Hasina vs State 63 DLR 162.
Section 32—A valid sanction being a condition precedent to a valid prosecution, The impugned proceeding has been launched without a valid sanction and the same, based on such a sanction amounts to an abuse of the process of the Court. Obaidul Kader (Md) vs State 63 DLR 425.
Section 32(1)(2)—No sanction is required for lodging any FiR in contemplation with section 32(l)(2) of the Anti-Corruption Act 2004 unamended or amended. This view reached in its finality in a very recent decision of the Appellate Division in the case of Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir reported in 62 DLR (AD) 290. Azam-e-Sadat vs Bangladesh 62 DLR 455.
Section 32(1)(2)—The requirement of subsection (1) of section 32 was complied with when the charge-sheet was filed along with a copy of the sanction from the Commission. As such, there was no illegality in taking cognizance by the learned Judge of the Metropolitan Senior Special Judge. Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.