Criminal Law
Amendment Act [XL of 1958]
Section 2(b)—Corporations other than the statutory Corporations are those
associations or bodies constituted of private individuals incorporated or
registered under provisions of the Companies Act or any other law.
Body
corporate includes both statutory Corporation and other corporation or company
private or public. But in the above provision of section 2(b) of the Criminal
Law Amendment Act “Body Corporate” has been used to mean corporation
other than “Statutory Corporation”. So Master Industries Limited is a
body corporate as mentioned in the aforesaid provision of section 2(b) of the
Criminal Law Amendment Act 1958. Therefore, we are of the view that the
petitioner as Managing Director of Master Industries Limited is a “public
servant“. Khorshed Alam vs Azizur Rahman
and another 48 DLR 36.
Section 4(1)—There are authorities which have found it improper for an enquiry
to be held against a person by a person belonging to the same department.
In the
present case it cannot be said that the Special Judge has acted with sound
discretion in asking the ASP to hold an enquiry when admittedly officers much
above him have been made accused in the case. The Additional Attorney-General
submitted that since the Deputy Commissioner and Superintendent of
Police were
already transferred there was no reason to apprehend that the ASP would not be
able to hold an influence-free enquiry. It is difficult to accept the
submission of the learned Additional Attorney-General, for, it is not necessary
to be personally present to influence an enquiry. Abdur Rahim @ (Md) Abdur Rahim vs State 49 DLR (AD) 51.
Sections 4(1) and 6(5)—Clear intention of the law is that sanction
will be required not for taking cognizance but for starting prosecution of the
accused. Abdur Gafur vs State 48 DLR 90.
Sections 5(1) and 6(5)—The case being exclusively triable by the
Special Judge, any evidence taken by the Metropolitan Magistrate has no value
in the eye of law. Such evidence should, therefore, be disregarded. Mohor Ranjan Pal and others vs State 50 DLR 163
Section 5(6)—The CID committed no error of law in holding further investigation
as per provision of section 173(3B) of the CrPC. Had further investigation been
done after the case record was transmitted to the Senior Special Judge after
taking cognizance of the offence or passing any order whatsoever then
permission of the Special Judge would have been necessary. The police had the
power to hold further investigation as per provision of section 173 (3B) of the
Code as the provision of this section is in no way derogatory to the provision
of sub-section 5(6) of the Criminal Law Amendment Act, 1958. Abdus Samad Khan and 3 others vs State 50
DLR 143.
Section 6(5)—The imperative language of the provision, “the Special Judge
shall, immediately on receipt of the complaint”, leaves no manner of doubt
that before any step is taken the Special Judge has to address the Government
in case of sanction not being accompanied with a petition of complaint.
It is true
that in a case under the Act a Special Judge may, where he deems if necessary,
order an investigation by any officer in whose jurisdiction the offence was
wholly or partly committed. This step also, however, cannot be taken without
complying being that the Government may not give any sanction to prosecute at
all. Abdur Rahim @ (Md) Abdur Rahim vs
State 49 DLR (AD) 51.
Section 6(5)—Special Judge is required to solicit required Government sanction
on the basis of the complaint petition before passing any order on the
complaint petition.
Order dated
17-2-92 and all the subsequent orders passed by the learned Senior Special Judge
and Sessions Judge Cox’s Bazar, in Special Case No. l of 1992 are quashed.
Learned Special Judge may solicit Government sanction as required under
sub-section 5 of section 6 of the Criminal Law Amendment Act, if he is
satisfied with the allegations made in the complaint petition. Tarani Mohan Gosh and 2 others vs State and
another 50 DLR 575.
Section 6(5)—Public Servant— Sanction for Prosecution— Every public servant who
committed an offence under the Criminal Law Amendment Act enjoys a protection
by way of sanction for prosecution. Since the Government in this case withheld
sanction the Senior Special Judge rightly passed order refusing to take
cognizance against the accused. Fakir
(Md) Tariqul Islam vs State and others 49 DLR 419.
Section 6(5)—No sanction for prosecution would be necessary when the accused
ceased to be a public servant. Saheb Ali
Miah vs State 46 DLR 238.
Section 6(5)—If sanction as required under section 6(5) Criminal Law Amendment
Act 1958 is not accorded by the government or is deemed not to have been so
accorded as per proviso to sub-section 5 of section 6 of the Criminal Law
Amendment Act 1958, the court shall have no jurisdiction to hold a trial
against a public servant. Niranjan Deb vs
State 47 DLR 458.
Section 6(5)—In the present case petitioner No. l has not been accused of any
offence committed in course of discharge of his duties as Government pleader
but in respect of an offence in a different capacity as managing trustee of a
public trust. So there is no question of obtaining sanction in respect of such
an offence. Santosh Bhusan Das and others
vs State 47 DLR 519.
Section 6(5)—The question whether the public servant concerned should be
prosecuted or not is entirely within the jurisdiction of the appropriate
Government. The Special Judge has no say in the matter. It is not for him to
decide whether a prima facie case has been made out against the public servant
or not.
For the
present we find no contrary opinion to the requirement of complying with the
proviso to section 6(5) if any petition of complaint is not accompanied by
sanction as required. The imperative language of the proviso, “the Special
Judge shall, immediately on receipt of the complaint” leaves no manner of
doubt that before any step is taken the Special Judge has to address the
Government in case of sanction not being accompanied with a petition of
complaint. Abdur Rahim @ Md Abdur Rahim
vs State 48 DLR (AD) 167.
Section 6(5)—It is not necessary to personally represent to influence an
enquiry by a subordinate Junior Officer. There are authorities which have found
it improper to hold an enquiry against a person by a person belonging to the
same department (29 CrLJ 1928, 1958). Abdur
Rahim @ Md Abdur Rahim vs State 48 DLR (AD) 167.
Section 9—In imposing fine of Taka 300.00 the Trying Court violated the
mandatory provision of section 9 of the Criminal Law Amendment Act, 1958 by
imposing a token fine which is much less than the amount misappropriated. Nizamuddin Dhali (Md) vs State 48 DLR 507.