Appellate Division Cases
(Criminal)
PARTIES
Government of Bangladesh represented by the Solicitor, (in Charge) Ministry of law,
Justice and Parliamentary Affairs……………….. Appellants (in all the appeals)
-vs-
Amjad Ali Mridha and othere ………………….Respondents (in Judgment Crl. A. Nos. 33-36 of 1999)
JUSTICE
Md. Ruhul Amin. J
M. M. Ruhul Amin . J –
Md. Tafazzal Islam. J
JUDGEMENT DATE: 30th March, 2004
There may be delay in disposal of a criminal case for various reasons and that if delay is allowed to be a ground for quashing the proceeding of a criminal cases that would surely cause failure of criminal justice and administration of criminal justice would not only be difficult, but the yield of the same would be disastrous and to bring the accused to book would be next to impossibility and the whole object and purpose of the penal code laws would be frustrated …………………..(21)
It is to be kept in mind investigation stage is generally speaking outside the preview of the court and involves employment of any Court process and as such it is difficult to include the actions of investigating agencies with in the scope of judicial process……………..… (14)
Criminal Appeal Nos. 33-37 of 1999 (From the judgment and order dated December 11, 1997 passed by the High Court Division in Criminal Revision No. 5-8 of 1996 and Criminal Miscellaneous Case No. 1032 of 1996).
A.Q. M. Abdur Rahim Mojumder and other…..Respondents (in cril. A. No. 37 of 1999) Abdur Razzaque Khan, Additional Attorney General, instructed by Mr. Md. Amir Hossain, Advocate-on-record ………………….For the Appellants (in all the appeals) Abdul Malek (A. K. M. shifiqul Alam, Advocate with him) instructed by A. K. M. Shahidul Huq, Advocate-on-record…………….. For the Respondents (in all the appeals)
JUDGMENT
1. Md Ruhul Amin J:- These appeals, by leave, have been filed against the common judgment dated December 11, 1997 of a Division Bench of the High Court Division in Criminal Revision Nos. 5-8 of 1996 and Criminal Miscellaneous Case No. 1032 of 1996 quashing the proceedings of Special Case Nos.3 of 1995 (Bogra), 23 of 1994 (Bogra), 22 of 1994 (Bogra) 25 of 1994 (Bogra) and 13 of 1995 (Bogra) of the Court of Divisional Special Judge, Rajshahi Division , Rajshahi.
2. Facts, in short, are that on 11-10-92 an Assistant Inspector of District Anit Corruption Bureau, Bogra lodged five first Information Reports with Adamighi Police Station, Bogra alleging misappropriation of different quantities of rice and different numbers of gunny bags between the period 14-9-1985 and 15-9-1991 by the accused respondents in the appeals and others as go down-n-charge, Block Supervisor etc. The said Assistant Inspector of District Anti-Corruption Bureau, Bogra investigated the cases and submitted charge sheets between 1210-1994 and 30-4-1995 against the accused Respondents and others under Sections 409/109 of the Penal code and Section 5(2) of Act II of 1947.
3. In due course the records were transmitted to the court of Divisional Special Judge, Rajshai Division, Rajshahi and thereupon aforementioned special cases were registered. The accused petitioners of the revisional cases and the petitioners of the Criminal Miscellaneous case while were placed on trial to answer the charges under section 409/109 of the Penal code and Section 5 (2) of Act II of 1947, The special Public prosecutor prayed for supplementary investigation on the ground that the allegation of misappropriation covering a period for more than twelve months and therefore only one case will not be maintainable under the law. The learned Special Judge by the order dated 16.7.1995 allowed the prayer of the learned Special Public Prosecutor. Thereupon the accused Respondents in the respective appeal moved the High Court Division seeking quashing of the proceedings of the Special Cases.
4. The High Court Division heard the revision cases and the criminal Miscellaneous case together and by a common judgment made the Rules absolute and quashed the roceedings of the special cases upon observing that First Information Reports were filed “against the petitioners and their co-accused on the same date on 11.10.1992 for the offence alleged to have been committed during the period from1985 to 1991 but the charge sheets were submitted about two years thereafter in 1994, yet the special cases remained pending from 1994 till 16.7.95 when it was found that the charge sheets were defective under the law, that the trials could not be proceeded with that prayers for supplementary investigations made by the Special P. P were allowed. Delay in terminating the criminal proceeding resulting the accused being indefinitely harassed is a good ground to invoke our inherent powers…True section 5A (Act II of 1947) allows a police officer having below the rank of the Inspector of police to file a charge sheet, but prior to that an order of the Magistrate, first Class, shall be necessary. In this case no such order was passed. There fore, it comes to this the learned Special Judge was not competent to take cognizance of the offence Affairs vs Amjad Ali Mridha alleged against the petitioners”.
5. Leave was granted to consider the submissions that there was no inordinate delay in prosecuting the accused persons and that there was no complaint of prejudice of any kind and as such High Court Division was in error in quaslrng the proceeding of the Special cases on the ground of delay in exercising misconceively its inherent power, that in view if the provision of section 3(2) of the Anticorruption Act, 1957 read with paragraph 59 of the Anti-corruption Manuel the High Court Division erred in law in holding that cognizance was taken illegally by the special Judge in the Special cases.
6. The learned Additional Attorney General submits that the learned Judges of the High Court division quashed the proceedings of the special cases on the two grounds . First there has been delay in terminating the proceedings of the special cases resulting accused being indefinitely harassed and second upon placing reliance on the provision of Section 5A of Act II of 1947 overlooking the provision of section 3(2) of the Anti-Corruption Act, 1957 read with paragraph 59 of the Anti-corruption Manual held that the charge sheets were submitted by the incompetent police officer, i. e. Assistant Inspector of District Anti-Corruption Bureau. 7. The learned Additional Attorney General upon referring to the decision in the case of Md. shamsuddin alias Lambu and others Vs. State & others reported in 40 DLR (AD) 69 submits while it has been held in the aforesaid case that delay in initiating Criminal case is no ground for quashing the same, similarly it would be logically sound as well as rational not to quash the Criminal case merely because of delay in the termination there of. The submission of the learned Additional Attorney General that delay in the termination of Criminal proceeding should not be the ground for quashing the same is of substance looking from the stand point of public policy but there may be case of exceptional nature where prosecution unnecessarily and without justification or in the absence of reasonable ground prolong the termination of the case and the same tantamount to abuse of the process of the court and consequent there upon harassing the accused.
8. There may be a situation when the prosecution after submission of charge sheet is not taking the case to the competent court for termination in either way or after taking the case to the competent court is not holding trial or that after starting of trial prolonging the proceeding for unreasonable period for no justified and plausible reason and if the same can reasonably be considered delay of unusual kind or nature or a case deliberately in an extraordinary manner delayed and thus may reasonably be considered abuse of the process of the court as well as harassment to the person indicted, then the person so indicted upon referring to the aforesaid situation may moved the court to consider the prayer for quashing of the proceedings and the Court may be persuaded to consider the prayer for quashing of the proceedings. It may be mentioned case of such nature is rare, like the one reported in 33 DLR 297 (1 BLD (HCD) 119).
9. The circumstances connected with the delay in terminating the proceeding will have to examined in each case to determine whether the delay constitutes abuse of the process of the Court or not. Decision in a particular case is to be considered as applying to its particular facts and circumstances. Assuming reasoning in the case is correct, it nevertheless cannot be accepted as laying down a rule of limitation, i. e. in the insinuation of the proceeding either in a strict or directory sense and must be held to apply only in the special facts of that case.
10. There may be a case where the prosecution upon exhausting all process to secure attendance of witness, is not in a position to say if any witness will be available at all and in the said situation unfathomed or extraordinary kind of uncertainty apparent in the commencement of trial and termination of the same. In the case of such extraordinary kind the question of delay in considering the prayer for quashing of the proceedings on the said ground may reasonably be weighed with the court since extraordinary delay in the termination of the proceeding is not because of the fault of accused.
11. But one thing is to be kept in mind that in case delay in concluding the trial is due to circumstances over which the prosecution has no control or factors which are outside the control of the prosecution or the delay that has occurred is not a deliberate act of delay on the part of the prosecution in that in that case delay •shall not be a ground for quashing of the proceeding.
12. In considering the matter of quashing of the proceedings merely on the ground of delay which is neither inordinate or extra-ordinary or the delay occurred because of the factor (s) over which prosecution has no control, then allowing of quashing will be either giving premium to the unscrupulousness of the prosecution or the accused.
13. It may be mentioned in the instant case FIRs were lodged on 11. 10.1992 and the charge sheets were submitted between 12. 10. 1994 and 30.4.1995 and the special cases were taken up for hearing on 16.7.1995.
14. It is to be kept in mind investigation stage is generally speaking outside the preview of the court and involves employment of any Court process and as such it is difficult to include the actions of investigating agencies with in the scope of judicial process.
15. The circumstances of each case, in which the inherent power is invoked, must be examined with care to determine whether the judicial proceeding is really intended to secure the ends of justice or is really an abuse of the process of the Court . Each case of such kind must rest on its own peculiar facts and circumstances.
16. Placing of reliance on the maxim ” Justice delayed is justice denied” as the ground for quashing criminal proceeding is not well founded view or in other words is contrary to general principle of non – quashing of criminal proceeding on the mere ground of delay, except in case of extraordinary nature. The concept of time, in either respect, is of the essence for competency of a criminal prosecution can not be said as of universal application, since limitation does not apply to criminal prosecution. If in fact an offence has been committed justice requires that it should be enquired into and tried.
17. In the case of Slaimuddin Ahmed Vs. State reported in 32 DLR (AD) 103 it has been observed so far quashing is concerned, it could not be said that the prolongation of the prosecution would be an abuse of the process of the court. Siminlarly in the case of Ghulam Muhammad Vs. State reported in 19 DLR (SC) 439 it has been held “the mere fact that a long period has expired since the initiation of proceedings is no ground for quashing the criminal proceeding.”
18. In the Case of M. S. Khawaja vs. State reported in 17 DLR (SC) 153 it has been held “Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest, as a duty of the State. It can only be in a very rare case that a superior court acting under its inherent power ” to prevent abuse of the process of any court or other wise to secure the ends of justice.” would deem it appropriate to act so as to place an alleged offence outside the operation of the criminal law, on incidental grounds such as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law to quash a judicial proceeding in order to “secure the ends of justice” would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice or in other words, would either operate or perpetuate an injustice. To find an ” abuse” it
should be necessary to see in the proceeding a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue, and similar perverse results.”
19. In the case reported in ( 1985) 5 BLD Affairs vs Amjad Ali Mridha (AD) 75 in the background of the facts and circumstances of the said case the accused moved the High Court Division seeking quashing of the proceeding on the ground of delay. The High Court Division rejected the prayer so made but gave direction to the trial court to dispose of the case with in three months on the basis of the record available. The accused moved the Appellate Division. The Appellate Division in the background of the facts and circumstances of the case directed the trial court to complete the trial with in the time specified by the Appellate Division, it not concluded with in the time so specified the proceeding “will stand quashed”.
20. It may be mentioned cased reported in 30 DLR 237, 35 DLR 72 and (1990) 10 BLD (HCD) 110 were not decided on correct principle of law since in those cases either delay in lodging the FIR or the period consumed in completing the investigation were taking nto consideration while considering the prayer for quashing of the proceedings on the ground of delay. Further delay in the said cases was not inordinate or extreme kind, nor of extraordinary nature and the delay in the termination of the proceedings was not deliberate act of the prosecution.
21. There may be delay in disposal of a criminal case for various reasons and that if delay is allowed to be a ground for quashing the proceeding of a criminal cases that would surely cause failure of criminal justice and administration of criminal justice would not only be difficult, but the yield of the same would be disastrous and to bring the accused to book would be next to impossibility and the whole object and purpose of the penal code laws would be frustrated.
22. We are of the view once quashing of proceedings of criminal case on the ground of delay is made general that shall certainly destroy whole concept of administration of criminal justice and finally will lead to anarchy. In this view of the matter we are of the view that High Court Division was in serious error in considering the delay as the ground for quashing of the proceedings of the criminal case.
23. The learned Additional Attorney General submits that the High Court Division was in error in taking the view that the charge sheets were submitted by an incompetent officer of the investigation agency or in other words by a place officer who was not competent to investigate the case against the accused Respondents and to submit charge sheets. It may be mentioned the High Court Division quashed the proceeding on the ground as mentioned hereinbefore as well as on the ground that cognizance against the accused Respondents in the respective appeal was taken by the learned Special Judge upon a police report which was submitted by a police officer who was below the rank of Police Inspector. The said decision was made placing reliance on the provision of Section 5A of the Anti-Corruption Act, 1947 but upon overlooking the provision of Section 3(2) of Anti-Corruption Act, 1957 read with paragraph 59 of the Anti-Corruption Manual.
24. Provision of Section 3(2) of Anti-corruption Act, 1957 read as :-Section 3(2) : “Subject to any orders which the government may make in this behalf, officers of the bureau shall have thought the Bangladesh in relation to the equity into, and investigation of, such offences all powers of seizure, search and arrest of persons concerned in such offences and all other powers, duties privileges and liabilities which the police officers of Bangladesh have in connection with the investigation of such offences.” Paragraph 59 of Anti-Corruption Manual reads as follows: Paragraph 59 (1): “Anti-corruption officers of the Headquarters station of the Bureau of Anti corruption shall be in charge of all enquiries and investigations made with in the Bangladesh by the Inspectors and Assistant Inspectors placed under them, Their position is similar to that of D. A. C so. in districts, and they are to exercise similar control over their staff,”
25. FIR against the accused Respondents in the respective appeal for commission of the offence of mis appropriation of the Government property as public servant was lodged by an Assistant Inspector of the District Anti-Corruption bureau and he on the conclusion of investigation submitted charge sheets against the accused Respondents and others and in due course the persons with others were placed on trial before the learned Special Judge, At one stage of the trial the Special Public prosecutor filed an application with the prayer for supplementary investigation of the case on the ground that the allegation of mis-appropriation covers period of more than twelve months and there fore only on case was not maintainable under the law.
26. The High Court Division has not quashed the proceedings of the special case on the ground of allowing the prayer of the special public prosecutor for supplementary investigation of the special cases. The learned Counsel for the appellant submits that investigation of a case by an Assistant Inspector of the Bureau of Anti-Corruption and submission of charge sheet by him and taking of cognizance by the learned Special Judge on the basis of said charge sheet is not illegal in view of the provision of Section 3(2) of the Anti Corruption Act, 1957 read with paragraph 59 of the Anti-corruption Manual and in support there of has referred to the case of Md. Abul Hossain Vs. State, reported in 19 BLD (AD) (1999) page 97 (same case has been reported in 4 BLC (AD) (1999) Page 122) where in it has been held “the investigation by an Assistant Inspector does not per se become without Jurisdiction and a proceeding cannot also be quashed merely because there is irregularity, if any, in the investigation”. On reading of the provision of section 3(2) of the Anti-Corruption Act, 1957 read with paragraph 59 of the Anti -Corruption Manual we are of the view that investigation held in the present cases by an Assistant Inspector of the bureau of Anti corruption was not illegal and without Jurisdiction,
Reading the provision of Section 5A of the provision of corruption Act, 1947 (Act II of 1947) and the provision of section 3(2) of the Anti-Corruption Act, 1957 read with paragraph 59 of the Anti- Corruption Manual it is seen that investigation of offences enumerated in Act II of 1947 and in the schedule of the Anti-Corruption Act, 1957 by an Assistant Inspector of the Bureau of Anti-Corruption is entire irregular nor illegal or without jurisdiction.
27. The learned counsel of the appellant at one stage of his submission has drawn our attention to the provision of Section 6 (IB) of the Criminal law Amendment Act, 1958 and also to the provision of Section 222 (2) of the Cr, P. C, relating to trial of the offence of mis appropriation and that trial of a person accused of more offence than one at one trial for all such offences is permissible in law. In the instant appeals trial of a person accused of more offence than one at one trial for al offence is not a subject matter for adjudication and as such we are not addressing ourselves to the submissions so made.
28. We are of the view the High Court Division in the manner by quashing the proceeding of the instant special cases has interrupted the course of justice and set up a wrong precedent by which the course of justice instead of being advanced has really been stifled. The ground upon which High Court Division has quashed the proceedings of the present special cases is not a correct exposition of law. The learned counsel representing the accused respondents in his usual candidness has submitted that in the facts and circumstances of thecae it is difficult on his part to support the grounds weighed with the learned Judges of the High Court Division in quashing the proceedings of the special cases. In the background of our discussions made hereinabove we find merit in all these appeals. Accordingly the appeals are allowed.
Ed
Source: I ADC (2004), 168