Appellate Division Cases
(Criminal)
PARTIES
Khurshid Alam (in Crl. Appeals Nos. 3-5 of 996 & Md. Shahjahan (in Crl. Appeal No. 17 of 1996 ) ……………………….Appellant
-vs-
Azizur Rahman and others …………………..Respondents (in all the appeals)
JUSTICE
Md. Ruhul Amin .J
M.M. Ruhul AminJ
Md. Tafazzul Islam. J
JUDGEMENT DATE: 1st March, 2004.
The Code of Criminal procedure. Section 561A of Sections 409, 477 A . Penal Code. 201, 21. The Criminal Law Amendment Act 1958. Section 2(b). Ordinance No.X of 1982,Section 2. The Criminal law (Amendment) Ordinance, ( Ordinance No. VI of 1978). Section 3 The Companies Act 1913, Section 282.
Managing Director or an employee of private Limited Company registered under the companies Act, 1913 is not a public servant within the meaning of Section 21 of the Penal code but the Managing Director or an employee of a private Limited Company registered under the companies Act, 1913 is a public servant with in the meaning of Section 2 (b) of the Criminal Law Amendment Act, 1958 ………………(6)
Criminal Appeal Nos. 03-05 & 17 of 1996 (From the judgment & order dated 13.08.1995
and 12.02.1996 passed by the High Court Division in Criminal Revision Nos. 88-90 of
1987 and 104 of 1992 respectively).
Rafique-ul Huq, Senior Advocate, instructed by Md. Nawab All, Advocate-on-
Record ……………….For the appellant (in Crl. Appeal Nos. 3-5 of 1996). Md Nawab Ali, Advocate-on-Record……………. For the Appellant (in Crl, Appeal No. 17 of 1996 )
B. Hossain, Advocate-on-Record ………………..For the Respondent Nos.2
(in Crl, Appeal Nos. 3-5 of 1996)
Not represented ……………………Respondents (in crl. Appeal Nos. 3-5 of 1996)
Not represented, …………………….Respondents (in Crl, Appeal Nos. 17 of 1996)
JUDGMENT
1. M. M. Ruhul Amin, J :- These appeals by leave are directed against the common judgment and order dated 13.08.1995 passed by a Division Bench of the High Court Division in Criminal Revision No. 90 of 1987 heard analogously with Criminal Revision Nos. 88 and’ 89 of 1987 and 104 of 1992 discharging the Rules and against the judgment and order dated 12.02.1996 making the Rule absolute in Criminal Revision No. 17 of 1987 . Petition for leave to appeal No. 233 of 1995 against the judgment and order passed in Criminal Revision No. 104 of 1992 was dismissed.
2. Short facts are that the above mentioned criminal revisions were preferred under section 561A of the Code of Criminal procedure for quashing of the proceedings out of which the above criminal revisions arose. Four Criminal Petitions of the complaint were filed before the Chief Metropolitan Magistrate, Dhaka variously under sections 409, 477 A and 201 of the Penal Code and under Section 282 of the Companies Act against the Accused petitioner alleging misappropriation of various sums of a company named M/S Master Industries Ltd. falsification of accounts thereof and filing of false return and creation of fraudulent accounts. The common case of the complainant respondent and the accused petitioner was that the petitioner is the managing Director and the complainant respondent is the Director of M/S Master Industries Ltd. And co accused Saidul Islam Khan (Tutul) is the Accountant of M/S . Rahim Metal Industries Ltd. an abandoned
property which was purchased by the said M/S . Master Industries Ltd. From the Government. The learned magistrate after taking cognizance in all the proceedings except the proceeding in Criminal Petition No. 233 of 1995, sent the three proceedings as aforesaid to the special Judge concerned for trial.
3. Leave was granted to consider the submissions that the accused petitioner being the
managing Director of a Private Limited Company in which the government has no share
is not a public servant and as such the special Judge has no jurisdiction to try the alleged of offences. Therefore the proceedings ought to be quashed. The High Court Division held that the accused petitioner is not a public servant with in the meaning of section 21 of the Penal Code, but he is a public servant with in the meaning of section 2(b) of the criminal Law Amendment Act. 1958 as amended by Section 3 of the Criminal law (Amendment) Ordinance, 1978 ( Ordinance No. VI of 1978) because M/S Master
Industries Ltd, is a body corporate constituted under a Law, namely, the Companies Act and the Accused petitioner is a Managing Director thereof and further that the High Court Division failed to appreciate that M/S Master Industries Ltd. was not constituted or established under any law but it had come into existence in accordance with the provisions of the companies Act, 1913 and as such it can not be said to be ‘body
corporate’ with in the meaning of Section 2(b) of the Criminal Law amendment Act, 1958 as amended in 1978 and that the High Court division wrongly maintained that the petitioner is a public servant and is liable to be tried by the Special Judge.
4. In Criminal Appeal No. 17 of 1996 leave was granted to consider the submission that in derogation of all principles of quashing the High Court Division has taken into account the defence case and ordered the quashing of the case inspite of an earlier order that the cases filed against the Mangaing Director and the said case shall be heard together and the further submission that the F.I.R. contains the time when it was lodged with the Motijheel P.S on 17.09.1984 which has been overlooked by the High Court division and further submission that the charge sheet itself discloses that the papers which were seized as alamats were recovered from the possession of respondent No. 1 and as such the High Court Division misread the charge sheet and the quashing of the proceeding has been done in violation of settled principles of law in this regard.
5. We have heard Mr. Rafique-ul Huq, learned Counsel for the appellants and Mr. B.
Hossain, learned Advocate on record for the respondent No.2 in all the appeals and perused the judgment of the High court Division and other connected papers.
6. It appears that the High Court Division held that a Managing Director or an employee
of private Limited Company registered under the companies Act, 1913 is not a public servant within the meaning of Section 21 of the Penal code but the Managing Director or an employee of a private Limited Company registered under the companies Act, 1913 is a public servant with in the meaning of Section 2 (b) of the Criminal Law Amendment Act, 1958.
7. The Pertinent question for consideration in this matter is whether the Managing Director or an employee of a private Limited Company registered under the companies Act, 1913 is a public Servant with in the meaning the Section 2(b) of the Criminal law Amendment Act, 1958.
8. Section 2(b) of the Said Act, as amended by Section 3 of the Criminal law (Amendment) Ordinance, 1978 (Ordinance No. VI of 1978) defines a ‘public Servant” as follows:”2(b) “public servant” means a public servant as defined in section 21 of the
Penal Code, and includes a Chairman, Director, Trustee, member, Commissioner, Officer or other employee of any local authority, statutory corporation or body corporate or of
any other body or organization constituted or established under any law”.
9. It is not disputed that the M/S . Master Industries Ltd. is a Private Limited company
established by its sponsors and it has been incorporated under the companies Act that is
registered under the companies Act, 1913 to start functioning. Section 21 of the Penal Code defines ‘public servant’. There are as many as 12 clauses in that section after amendment by section 2 of Ordinance No.X of 1982,. Twelfth clause of the said section 21 (After the said amendment) is as follows) “21 in the service or pay of the Government or remunerated by the government by fees or commission for the performance of any public duty. in the service or pay of a local authority or of a corporation, body or authority established by or under any law or of a firm or company in which any part of the interest or sharer capital is held by or vested in the Government.
10. It is no body’s case that any part of the interest or share capital of M/S . Master
Industries Ltd. is held by or vested in the Government Accordingly, the High Court
Division held that the Managing Director or an employee of Private Limtied Company is not public servant with in the meaning of Section 21 of the Penal Code.
11. It is to be mentioned here that a private Limited company is established by it’s sponsors and it is registered under the companies Act for its functioning . In the instant case, M/S Master Industries Ltd. was established by its sponsors and it was registered under the companies Act and it started functioning . It is no body’s case that the M/S Master Industries Ltd. is established by or under any law. By no stretch of imagination it can not be said that a Managing Director or an employee of a Private Limited Company registered under the Companies Act is a local authority or statutory corporation or a
body corporate. Therefore a managing Director or an employee of private Limited Company registered under the Companies Act, 1913 can not be said to be public servant with in meaning of Section 2(b) of the Criminal Amendment Act only because the firm was registered under the Companies Act to start functioning .
12. Accordingly we hold that the appellants of criminal Appeal Nos. 3-5 & 17 of 1996 are not public servants and as such the offence allegedly committed by them are not tribal by the Special Judge under the Criminal Law Amendment Act, 1958 and if any offence has at all been committed the same is tribal by the ordinary Criminal court. The High Court Division, therefore, committed error of law in holding that the managing Director or an employee of a private company is a public servant with in the meaning of section 2(b) of the Criminal Law Amendment Act, 1958 and accordingly the same requires interference by this court.
13. It appears that in the proceedings out of which criminal Appeal No. 17 of 1996 arose,
the High Court Division found that the instant case was filed to put pressure on the managing director and hence the further prolongation of the case will amount to an abuse of the process of the court.
14. In the Circumstances, we find that the High Court Division rightly made the Rule
absolute in Criminal Revision No.17 of 1987 and quashed the proceedings of G.R. Case No. 3997/84/132/86 corresponding to Motijhell P.S case No 84 (9) 84 so far present appellant is concerned.
15. Accordingly, Criminal Appeal No.17 of 1996 is dismissed, Criminal Appeal Nos. 03.05 of 1996 are allowed. The judgment and order passed by the High Court Division in Criminal Revision Nos. 88,89 & 90 of 1987 are hereby set aside.
Ed
Source: I ADC (2004), 277