Prevention of Corruption Act, 1947

 

 

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, 1947


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

 

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.

 

PREVENTION OF CORRUPTION ACT, 1947

 

PREVENTION
OF CORRUPTION ACT (II OF 1947)


Section—5(1)

Criminal misconduct

The
accused-petitioners conduct is certainly a criminal misconduct because receipt
of fresh money from Nurun Nahar and consequent making of a fresh recall order
as a public servant have been proved.

It has been
proved that the accused-petitioner obtained from Nurun Nahar Begurn tk. 3,093/-
towards satisfaction of the agricultural loan taken by her husband. The
accused-petitioner did not deposit the said money in the proper head. In that
view of the matter it cannot be said that the accused- petitioner’s role was
that of a bonafide act performed without mens rea.

Md. Azizul Hoque Vs The
State, 19BLD (AD)2

 

Section—5(2)

Sanction for prosecution

Sanction to
prosecute a public servant is a pre-condition for initiation of a criminal
proceeding against him. Absence of sanction from the appropriate authority has
vitiated the entire proceeding, rendering the conviction untenable in law.

It is
well-settled that sanction to prosecute a public servant is a matter is a
precondition for initiating a proceeding against him. No sanction order was
produced by the prosecution. The Court did not obtain any sanction order or
moved the appropriate authority for according sanction. When there is no
sanction to prosecute the appellant, who is admittedly a public servant, the
entire proceeding stands vitiated and only on that ground the order of
conviction and sentence is liable to be set aside.

Md. Ali Hossain Vs. The
State, 14BLD (HCD)102.

 

Prevention of Corruption Act, 1947


Prevention of Corruption Act [II of 1947]


Section 5(2)—

The
High Court Division acted wrongly in setting aside the conviction and sentence
of the appellant under section 5(2) of Act II of 1947 when in fact the offence
was committed by a public servant and criminal misconduct is indeed attracted
in spite of a separate conviction and sentence under sections 409/109 of the
Penal Code that by itself cannot be ground to set aside the conviction under
section 5(2) of Act II of 1947 when the offence is committed by a public
servant.

Jalaluddin
Ahmed alias Jalaluddin Ahmed vs State 3 BLC (AD) 216.


Section 5(2)—

Section
110 of Banking Companies Act, 1991 also provides that a Manager, Officer and
other functionaries of the Banking Company are deemed to be public servants
under section 21 of the Penal Code and hence the appellant and the respondent
are public servants and the case has been rightly instituted in the Court of
Special Judge against the respondent. More so, section 5 of Act II of 1947
speaks of the offences as mentioned in the schedule of the Act to be tried by
Special Judges and in the schedule there are sections 403 and 477A of the Penal
Code with which the accused has been charged for committing misconduct as a
public servant.

International
Finance Investment and Commerce Bank Ltd vs Abdul Quayum and another 4 BLC (AD)

255.


Section 5(2)—

A
public servant by definition in the Penal Code will prospectively be deemed to
be a public servant under Act II of 1947 when he commits an offence as public
servant after the amendment of the Penal Code.

International
Finance Investment and Commerce Bank Ltd vs Abdul Quayum and another 4 BLC (AD)
255.


Section 5(2)—

Sentence—It
is a case of temporary defalcation which is a serious offence. The ends of
justice will be met in the facts and circumstances of the case if the sentence
of fine of each of the appellants is maintained and the substantive sentence is
reduced to the period already undergone as prayed for.

Sekander
Ali Howlader and others vs State 4 BLC (AD) 116


Section 5(2)—

It
was the duty of the Manager, Agrani Bank, Khatunganj, Chittagong to keep the
safe cash limit amounting to Taka 20 lac but he used to keep excess cash upto 1
crore or 2 crore in violation of the circular of the Bank but in the absence of
mens rea or criminal intent the Manager cannot be held guilty of the offence
under section 409/109 of the Penal Code read with section 5(2) of the
Prevention of Corruption Act but it is open to the Bank to prove the acts of
commission or omission, if any, committed by the Manager.

Fazlul
Karim (Md) vs State 1 BLC 300.


Section 5(2)—

As
per Service Rules of Agrani Bank the duty of a cashier, on receipt of a cheque,
is to see whether it is duly posted with marking by the ledger keeper and
cancelled with the initial of the cancellation officer and in case of a big
amount whether it was cancelled with the initials of two officers including the
Manager. In the instant case without following such Rules the absconding
officer-in-charge of cash and the second officer who had responsibility of
supervision of ledger posting and payment of cash and the cashier by corrupt
practice and by abusing their position as public servants obtained illegal
payment of Taka 4 crore for the drawer of the cheque through an unauthorised
and concealed overdraft and they were rightly convicted under sections 409/109
of the Penal Code read with section 5(2) of Prevention of Corruption Act.

Faziul
Karim (Md) vs State 1 BLC 300.


Section 5(2)—

Both
the trial Court as well as the High Court Division believed the evidence of PWs
4-5 that despite repeated reminders and despite the resolution taken by the
Upazila Parishad, the petitioner did not submit the completion report of the
project even during the trial and, as such, the case of the petitioner has been
ended on appreciation on evidence for which it merits no consideration.

GM
Nawsher Ali vs State 2 BLC (AD) 183


Sections 5(2) and 5A—

Section
3(2) of the Anti-Corruption Act, 1957 provides that subject to any order of the
Government, officers of the Bureau of Anti-Corruption shall have power to
enquire or hold investigation throughout Bangladesh and shall have such powers
which the police officers are empowered in connection with investigation and
further the paragraph 59 of the Anti-Corruption Manual expresses that the
investigation held by an Assistant Inspector was not without jurisdiction and
as such the proceeding cannot be quashed.

Abu
Sufian Mia vs State 4 BLC 193.