Section- 5A

In the instant case the investigation was held by the Asstt. Inspector of Police without any order of Magistrate and submitted charge sheet which is without jurisdiction as contended by the petitioner's learned Advocate.

Held: It appears that the investigation off the present case having been done by a Sub-Inspector of Police is not a Police report within the meaning of Prevention of Corruption Act, 1947 and as such the cognizance taken on the basis of it by the Sessions Judge, ex officio Special Judge, and framing of charge by the Additional Sessions Judge (ex officio Special Judge) is] illegal and without Jurisdiction- The proceeding is quashed.

Md. Akhter Hossain Vs. The State 6 BLT (HCD)-234

Section-5(1)

Criminal Misconduct- It has been prove that the accused petitioner obtained from Nurun Nahar begum Tk. 3,093/- towards satisfaction of the loan taken by her husband. The accused petitioner after accepting the amount prepared a false re-order and gave a photocopy of that order to Nurun Nahar – Held: The accused petitioner's conduct is certainly a criminal misconduct because receipt of money fn Nurun Nahar and consequent making of a false recall order as a public servant have been proved.

Md. Azizul Hauqe Vs. The State 7 BLT (AD)-121.

Prevention of Corruption Act [II of 1947]

 

Sections 4(2) &
5(1)—

A private person cannot be tried under sections 4(2) and
5(1) of the Anti-Corruption Act, 1957. The alleged offence committed by the
present petitioner may be tried under normal law but not under the
Anti-Corruption Act. So the proceeding started against him under the
Anti-Corruption Act is liable to be quashed.

Abul Basher vs State 47 DLR 521.

Sections 5 & 5A—

Investigation of an offence by an Assistant Inspector of the
Bureau of Anti-Corruption, instead of by an Inspector and thereafter initiation
of a proceeding on the basis of the prosecution report and holding of trial of
the person against whom prosecution report was submitted is not an illegality.

“Presuming that the officer making the report was not
duly authorized by the order of a magistrate, his report could still be held to
fall within the purview of section 190(l)(b) of the Code or, in the
alternative, can be accepted as a complaint within sub-section (1) (a) of the
section.”

Bimal Chandra Adhikari vs State 51 DLR 282

Section 5A—

Investigation of the case having been done by a
Sub-Inspector of Police his report is not a police report within the meaning of
Prevention of Corruption Act and the cognizance taken on the basis of it and
framing of charge by the Additional Sessions Judge, 5th Court (ex officio
Special Judge) is illegal and without jurisdiction.

Akhter Hossain (Md) vs State 51 DLR 40

Section 5A—

When the investiga­tion is held by any officer of the Bureau
of Anti-Corruption, the provisions of section 5 A of Act II of 1947 shall not
be applicable but provisions of section 3 of the Anti-Corruption Act, 1957
shall apply.

Nazrul Islam and others vs State 51 DLR 368

Section 5(1)—

The accused-petitioner’s conduct is certainly a criminal
misconduct because receipt of money from Nurun Nahar and consequent making of a
fresh recall order as a public servant have been proved and so the Court ought
not to have acquitted him of that charge.

Azizul Hoque (Md) vs State 51 DLR (AD) 216

Section 5(2)—

Mens rea—Mere violation of rules and instructions cannot be
a ground for finding the guilt of the accused under this provision of law. The
prosecution failed to prove the mens rea which is a necessary element of the
offence punishable under section 5(2) of the Act.

Syed Ali Mandal alias Md Syed Ali and 4 others vs State 46 DLR 149.

Section 5(2) —

The charge of substantive offence of cheating against the
respondent having failed, the other respondents cannot be held guilty of the
offence of abetment.

State vs Md Iqbal Hossain and others 48 DLR (AD) 100.

Section 5(2)—

Public Servants shall mean and include only those persons
who are public servants at the time of commission of offence and remain so when
cognizance of the offence is taken. The petitioners not being public servant at
the time of alleged commission offence no sanction for prosecution the
Government is necessary.

Mo Ranjan Pal and others vs State 50 D 163

Section 5(2)—

The accused having withdrawn money of the account holder PW2
upon a previous understanding between them, the trial Court misdirected itself
in assessing evidence in the case in its true perspective and thereby wrongly
convicted him.

AKM Mohiuddin vs State 50 DLR 447

Section 5(2)—

The High Court Division was totally wrong in holding that
the accused petitioner cannot be tried under Act II of 1947 along with other
Penal Code offences.

Mahbubul Alam vs State 50 DLR (AD) 125.

 

 

Prevention of Corruption Act, 1947

 

Section 5(2)- Punishment for criminal misconduct-When the charges under section 5(2) of the Prevention of
Corruption Act, 1947 read with section 109 of the Penal Code, 1860 are
established section 9 of the Criminal Law (Amendment) Act, 1958 imposes a duty
upon the trial judge whether he imposes a sentence of imprisonment or not, he
shall impose a sentence of fine and pass an order confiscating the property of
the accused connected with the offence. The apex court held that the
confiscated property cannot be restored to the offender.

M.A. Sattar and others Vs. The State 14 MLR (2009) (AD) 168.