Rules 3 & 4—Words ‘মামলা দায়ের’ means institution of a case by submission of a charge-sheet by an officer of the Commission, before the concerned Court and certainly not an first information report as envisaged under section 154 the Code of Criminal Procedure or a complaint (অভিযোগ) as envisaged under Rule 3 and 4 of the Rules.
The irresistible conclusion is that no sanction will be required to file a complaint (অভিযোগ) either with the Commission or with the police. But sanction from the Commission shall be required both under the unamended and the amended 32, before institution of a case “মামলা দায়েরের ক্ষেত্রে” in the concerned Court. Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.
Rule 3 & 4—An officer of the Commission lodged a first information report on 6-3-2007 with the Tejgaon Police Station and a case started. This is not envisaged under rules 3and 4 of the Rules. Those Rules provide only for filing of the complaint involving the offences mentioned in the schedule to the Act. However, those provisions are merely directory and deviation from provisions in lodging an first information report instead of a complaint, would not vitiate the proceedings. Anti-Corruption vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.
Rules 3 & 4—Commissioners resigned from the Commission on 7-2-2007 and it was reconstituted on 24-2-2007, as such, although the Commission existed as an Institution on 18-2-2007, when the notice was issued, but there was no Commission within the meaning of section 3 read with section 5 of the Act on that date. Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.
Rules 4 and 16—Rule 16 of the Anti- Corruption Commission Rules, 2007 is applicable only in the case of any officer of the Anti-Corruption Commissioner, who lay the trap and conduct the trap operation only. This provision of law being a special law like Anti-Corruption Commission Rule, 2007 or Section 20 or 17 of the Anti- Corruption Commission Act, 2004 did not oust the jurisdiction of other law enforcing agencies. Occurrence took place on 23-1-2011 and FIR was lodged on 24-1-2011 and on the same day it was transmitted to the Anti-Corruption Commission for investigation following the procedure of Rule 4 of the Anti-Corruption Commission Rule, 2007. SM Sabbir Hasan vs State 63 DLR 368.
Rules 7(1)(2) & 17(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 ACC 62 DLR 20.
Rules 8 and 15—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 II 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 (Md) vs State 63 DLR 425.
Rule 10—In respect of submission of charge-sheet and its requirement for sanction the learned Counsel submits that sub-rule (1) of Rule 15 to 18 of the Anti-Corruption rules speaks about the sanction and filing of the case and charge- sheet thereto. The sanction as given by one of the Commissioner of the Commission to submit charge-sheet purported to have been signed by one of the Commissioner of the Commission is not at all valid sanction, as he did not apply his mind to the requirement of the law and the materials available on record. Even, he did not go through the 161 and 164 statements of the witnesses at all. Having been done so he ought to have refused to accord sanction. In short, it may be called that the alleged sanction is a mechanical sanction and it did not fulfill the requirement of the law rather it is contrary to decisions of the Apex Courts and, as such, taking of cognizance on such charge-sheet is illegal, malafide which amounts to a malice in law. Sheikh Hasina vs State 63 DLR 162.
Rule 10—The Court below has seen the CD and became sure about the transaction. The matter is still under investigation and if the mighty accused is granted bail the investigation of the case will be hampered as he holds very powerful position in the Anti-Corruption Commission. SM Sabbir Hasan vs State 63 DLR 368.
Rule 11—The act of the Commission in according the sanction, without affording the accused any hearing under Rule 11 of the ACC Rules, 2007, amounts to colorable exercise of power by the ACC and its failure to remain স্বাধীন ও নিরপেক্ষ which is the touch stone to judge the validity of its acts and deeds. Obaidul Kader vs State 63 DLR 425.
Rule 15—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 vs State 63 DLR 425.
Rules 15 & 16—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.
Rule 15(7)—Form 3—”Form 3” is the part of the statute and accordingly when a specified Form has been prescribed in the statute for particular purpose the sanctioning authority has no scope to assign any reason of its satisfaction beyond the said format given in the form. Habibur Rahman Molla vs State 61 DLR 1.
Rule 15(7)—Form 3—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 to accord sanction for prosecution. Habibur Rahman Molla vs State 61 DLR 1.
Rule 16(2)—Neither the seizure list witness PWs 4 and 5 nor the PWs 9, 10 and 11 who
accompanied with PW 1 did support the prosecution case in respect of recovery of marks notes from the possession of the appellants. Rather the defence case was that due to fail in the Dispute Case No. 129 of 2003 on 2-7-2003 out of the grudge PW 8 Abul Kalam Azad who proved himself as a ‘Mamlabaz’ subsequently created a false case against the accused-appellants with the help of PW 1 who without taking any effective permission as per Rule 16(2) of the Anti-Corruption Commission Rule brought the case is more probable. Jahangir Alam vs State 63 DLR 294.