Appellate Division Cases
(Criminal)
PARTIES
Securities and Exchange Commission……………….Appellant (In all the Appeals)
-Vs-
Abu Tyeb & (11) Respondent (In Criminal Appeal No. 12/2000)
JUSTICE
Md. Ruhul Amin. J
K. M. Hasan. J
Md. Fazlul Haque. J
JUDGEMENT DATE: December, 17th 2002
Section 25 of the Securities and Exchange ordinance 1969 In a Matter relating to Criminal Revision under section 439 Cr.Pc as to hearing under Section 265B, 265C,265D and 265 E Cr.Pc when charge has already been framed under
We have gone through the order and it appears to us that the public prosecutor opened the case before the trial court and the Additional Metropolitan; Sessions Judge on consideration of submissions of both sides found a prima facie case and passed the impugned order. Therefore no question of not applying judicial mind by the trial court arises ……………………(9)
Sections 265B, 265C 265D and 265E from a composite session and steps to be taken under these sections are to be taken in the same session. No question arises of fixing another date for taking steps under section 265C or separate hearing under section 265c of the code,. When an accused is brought before the court in pursuance of section 205C of the Criminal Procedure code the prosecution opens the case and hearing takes place under section 265B and at the end of the hearing the court decides in the same session whether to discharge the accused under section 265C or to frame charge against the accused under section 265D or to record the plea of guilt by the accused under section 265E. But a separate session in the court’s proceeding starts from section 265F of the Criminal Procedure Code, Therefore, the High Court Division was wrong to direct that after the opening of the case under section
265B another date should be fixed for taking step under section 265C …………..(16)
Criminal Appeal Nos. 12.21 & 22 of 2000 (From the judgment and order dated 23.6.1999 passed by the High Court Division in Criminal Miscellaneous Case Nos. 2569. 2571 and 2570 of 1999)
WITH
Criminal Appeal Nos. 13.14. 15& 20 Of 2000 (From the judgment and order dated 23.6.1999 passed by the High Court Division in Criminal Revision Nos. 226, 227, 228 and 225 of 1999)
WITH
Criminal Appeal Nos. 16, 17, 18 & 19 Of 2000 (From the judgment and order dated 23.6.1999 passed by the High Court Division in Criminal Revision No. 293 Criminal Revision Case No. 359 and Criminal Misc. Case 1856 of 1999 and Criminal Misc. Caser no, 2001 of 1999)
Mr. Mahmudul Islam, Senior Advocate, (Mr, Probir Kumar Niogi, Advocate, with him)
instructed by Mrs, sufia Khatun, Advocate-on-Record For the Appellant. Mr. Mohsin Rashid, Advocate, instructed by Mr, A. K. M. Shahidul Huq, Advocate-on-Record For the Respondent (In Criminal Appeal No. 13-15, 19 & 20 of 2000) Mr. Rokonudding Mahmood, senior advocate, instructed by Mr. A. S. M. Khalequzzaman. Advocate-on-Record For the Respondent (In Criminal Appeal No. 16 of 2000)
Mr. Fakrul Islam, Advocate-on-Record ……………..For the For the Respondent
(In Criminal Appeal No. 18 of 2000)
Ex-parte Respondent (In Criminal Appeal Nos. 12, 17, 21 & 22 of 2000
JUDGMENT
1. K. M. Hasan, J :– These appeals are taken up together and disposed of by this judgment as the facts and law points involved are similar, except that no charge was framed against the accused respondents in Criminal Appeal Nos, 12 21 and 22 of 2000 preferred against the judgment and order delivered in Criminal Miscellaneous Nos. 2569, 2571 and 2570 of 1999 respectively under section 561 A of the code of Criminal Procedure. All these revisional applications were discharged, Criminal Appeal Nos. 13 14, 15 and 20 of 2000 have arisen out of the judgment and order delivered in criminal Revision Nos. 226, 227 , 228 and 225 of 1999 under section 43 of the code of criminal Procedure. Charges were framed against the accused respondents, who preferred these revisional applications.
2. Charges were also framed against the accused respondents is criminal Appeal Nos.
16, 17, 18 and 19 of 2000 which were preferred against the judgment and order delivered in Criminal Revision No 293 of 1999 Criminal Miscellaneous Case Nos. 359 and 1856 of 1999 and Criminal Revision No. 2001 of 1999 under section 561 A of the Code of Criminal procedure, In criminal Revision No. 293 of 1999 and Criminal Miscellaneous Case No. 359 of 1999 rules were made absolute whereas in Criminal Miscellaneous Case No, 1856 of 1999 and Criminal Revision No. 2001 of 1999 rules were discharged.
3. The facts, in short are that the appellant, Securities and exchange Commissions and others, filed Complaint Petition Case Nos. 1079, 1078, 1974, 1086, 1088 of 1997 against the accused respondents in the aforementioned appeals under section 25 of the Securities and exchange Ordinance, 1969 alleging that the accused respondents committed offence under section 17 of the Securities and Exchange Ordinance and prayed for punishment under section 24 of the said Ordinance. The allegation against the accused was that they were involved in fraudulent activities in the yare 1996 during the month of July to December within the mischief if section 17 of the Ordinance. The offence was detected by an enquiry committed formed by the Securities and Exchange Commission to enquire into the matter under section 21 of the Ordinance. The committed found in its enquiry report dated 27. 3.1997 that the accused have committed offence alleged against them and are liable for punishment under section 24 of the said Ordinance. The Securities and Exchange Commission then filed the above mentioned complaint petition cases against the accused respondents.
4. The learned Magistrate took cognizance of the offence alleged against the accused and
transferred the case for trial, The Additional Metropolitan Sessions Judge, 3 Court,
Dhaka after hearing the parties framed charge against the accused respondents on 22.4.1999, Against the judgment and order dated 22.4.1999 of the 3 r 8 Court the accused respondents filed the aforementioned Criminal Revisions and Criminal Miscellaneous Cases before High Court Division and the High Court Division by a single judgment dated 23.6.1999 disposed of all of them, discharging some and making absolute others with a direction upon the Additional Metropolitan Session Judge to take steps under section 265B of the Criminal Procedure Code for the prosecution to open the case by stating evidence and thereafter fix another date for hearing under section 265C of
the Criminal Procedure Code.
5. The appellant sought leave to appeal and the leave wash granted by order-dated 2.5.2000 on the terms that”Mr Mahmudul Islam, the learned Attorney General submits that the learned Additional Metropolitan Sessions Judge having framed the charge after hearing the Special Public prosecutor and the learned Advocate of the Accused and perusing the records and passed the order which leaves no doubt that the learned Judge adverted to the respective Cases of the parties and applied judicial mind, the High Court
Division was wrong in making the rule absolute and transferring the cases to the court of Metropolitan Session Judge holding that the impugned orders were passed mechanically without applying judicial mind and not in accordance with the terms of section 265C of the Code of Criminal Procedure and that it is not difficult to hold that the public
prosecutor did not open his case strictly in terms of section 265B of the said Code. He next contends that the High Court Division was wrong in holding that after hearing the public prosecutor under section 265B of the Code of Criminal Procedure a separate date
shall have to be fixed for hearing under section 265C of the said Code. The learned Attorney General is aggrieved by the direction in making some of the Rules absolute and discharging the rest as those are uncalled for within the scheme of the relevant sections”.
6. In sum, the grounds on which the leave is granted are that the High Court Division was
wrong in making the rule absolute or discharging the rule and transferring the case to the
Court of Metropolitan Sessions Judge holding that the impugned order was passes mechanically without applying judicial mind and not in accordance with terms of section 265C of the Code of Criminal Procedure.
7. The High Court Division erred in holding in the facts and circumstances of the case that the public prosecutor did not open his case strictly in terms of section 265B of the Criminal Procedure Code. And the High Court Division was wrong in giving direction in its judgment that after hearing the public prosecutor under section 265B of the Code of Criminal Procedure a separate date shall have to be fixed for steps to be taken under
section 265C of the Criminal Procedure Code.
8. Mr Mahmudul Islam, the learned Counsel submits that even thought the rules were discharged in Criminal Miscellaneous Case Nos. 2569 , 2571, 2570, of 1999 .out of
which Criminal Appeal Nos. 12 21 and 22 of 2000 respectively arose, leave to appeals have become necessary because of the direction given in the judgment by the High Court
Division on the learned trial court Judge to fix a date for hearing under section 265C of the Criminal Procedure code which is not appropriate and applicable order in the aforementioned three Criminal Miscellaneous Cases as no charges were framed against the accused persons in those cases. So he prays that this court may pass an order deleting or amending the direction given by the High Court Division in its judgment in so frr it relates to the accused persons in the aforementioned appeals. His submission seems to us to be based on valid ground
9. While arguing his case in criminal Appeal Nos. 13, 14, 15 and 20 of 2000 Mr,
Mahmudul Islam, the learned Counsel, appearing for the appellants, submits that the High Court Division was absolutely wrong in observing that the learned Additional Metropolitan Sessions Judge failed to apply his judicial mind while framing charge, In this connection he has referred to the trial court’s order No 16 dated 22.4.1999 in which the court has observed that it has heard the learned lawyers of both sides, we have gone through the order and it appears to us that the public prosecutor opened the case
before the trial court and the Additional Metropolitan, Sessions Judge on consideration
of submissions of both sides found a prima facie case and passed the impugned order.
Therefore no question of not applying judicial mind by the trial court arises.
10. He Further argues that the steps under sections 265B, 265C 265D and 265E are to be
taken in one composite session and not in separate sessions and the High Court Division was wrong in giving dietarian to fix a separate date for hearing under section 265C of the Criminal Procedure Code.
11. Mr. Md. Mohsin Rashid, the learned Advocate, appearing for the respondents in
Criminal Appeal Nos. 13 14, 15, and 20 of 2000 assailed this argument by submitting that there are reasons behind the High Court Division giving direction for fixing a separate date for taking steps under section 265C of the Criminal Procedure Code The reasons being in a normal FIR case documents are brought before the court on the basis of which the court forms its opinion and the accused is given an opportunity to say whether there is a case against him or not. He argues that under section 265B when an accused is brought before the Magistrate the prosecution opens its case by stating all the specific allegations against the accused and what evidence and documents it relies upon for proving the guilt of the accused. But in the instant case except the enquiry report there we nothing before the Additional Metropolitan Sessions Judge to form his opinion. Such failures to produce
documents have also made it difficult for the accused to decide whether a case lies
against him or not. Another reason, According to him, is that this is a case of special nature and does not fall within a normal FIR case as under section 25 A of the Securities and Exchange Ordinance, 1969 the burden of proof lies on the accused and not on the prosecution. Thus, the governing jurisprudence in this case is quite different from that of the ordinary criminal jurisprudence. Therefore, it was absolutely necessary for the
prosecution to place before the court all the relevant documents but this was not done. Under the circumstances it would have been proper for the trial court to direct the prosecution to produce the documents. By not doing so the Metropolitan Sessions Judge had contravened the provision of the ordinance, consequently the High Court Division had to give such a direction.
12. In reply Mr. Mahmudul Islam has referred us to the paras 9 and 10 of the revisional
applications filed before the High Court Division to show that the respondents themselves
have admitted that the materials were before the Additional Metropolitan Sessions
Judge to form his opinion He Further points out that a list of documents was filed before the Additional Metropolitan Sessions Judge but the High Court Division was misled as all the papers were not produced before it. He has also pointed out that no such ground
was taken before the High Court Division at any stage or in the concise statement filed
before this court. The respondents are taking the objection at this last stage when these
appeals are being heard and he submits that it should not be entertained by this court.
13. We have considered the submissions of the learned Advocate and gone through section 265B of the Criminal Procedure Code which is as follows: “265B, When the accused appears or is brought before the Court in pursuance of section 205C, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.”
14. From a scrutiny of this section it does not appear that the section requires the actual
production of documents before the court. What it requires is a statement of presumption of evidence i. e. a statement as to the evidence by which the prosecution proposes to prove its case, which in this cases can be found in the enquiry report based upon which the complaint petition was filed. Form the above we are of the view that the prosecution has made out a prima facie case and now the burden is on the accused to show that he is not guilty or the prosecution has acted in contravention of the provisions of the ordinance.
16. In view of the above we fail to agree with the learned advocate for the respondents
that in this particular complaint case there should be a separate date for opening the case
by prosecution under section 265B describing the charge brought against the accused and the evidence proposed to prove the guilt of the accused and another date under section 265C for the Court to decide whether there is sufficient ground to proceed against the accused. Sections 265B, 265C 265D and 265E from a composite session and steps to be taken under these sections are to be taken in the same session. No question arises of fixing another date for taking steps under section 265C or separate hearing under section 265c of the code,. When an accused is brought before the court in pursuance
of section 205C of the Criminal Procedure code the prosecution opens the case
and hearing takes place under section 265B and at the end of the hearing the court decides in the same session whether to discharge the accused under section 265C or to frame charge against the accused under section 265D or to record the plea of guilt by the accused under section 265E. But a separate session in the court’s proceeding starts from section 265F of the Criminal Procedure Code, Therefore, the High Court Division was wrong to direct that after the opening of the case under section 265B another date should be fixed for taking step under section 265C. Mr. Rokonuddin Mahmood, the learned
Counsel, appearing for the respondents in Criminal Appeal “Nos. 16 and 17 of 2000 submits that the accused respondents in these appeals are simply being harassed as there is no allegations against them in the complaint and prays that this court should disallow the appeal.
17. It appears that his clients, Mr. Ahmed Iqbat Hasan and Mr. Md, Nurun Nabi, the
respondents in Criminal Appeal Nos. 16 and 17 of 2000, obtained rule in Criminal Revision Nos. 293 and 359 of 1999 under section 439 of the Criminal Procedure Code from the High Court Division against framing charge under section 17 of the Securities and Exchange Ordinance by order dated 22.4.1999 and 25.3.1999 respectively and the rules were made absolute by the High Court Division with the same direction upon the learned trial Judge to fix a date for taking steps under section 265 of the Criminal Procedure Code and then to fix another date under section 265C of the Criminal
Procedure code. We have considered the submission of Mr. Rokonuddin Mohmood and gone through the judgment and are of the opinion that the points raised by the learned Counsel may be raised and decided at the trial.
18. In consideration of the above we are of the view that since no charge is framed against the accused respondents in Criminal Appeal Nos. 12 21 and 22 of 2000 the direction given by the High Court Division in its judgment: “Thereafter the trial Judge shall fix a date of hearing U/s 265C of the Criminal Procedure Code” appears to be not applicable and accordingly, it is deleted from the judgment in so far it applies to these cases.
19. In rest of the appeals the trial court of the Metropolitan Sessions Judge is directed to
proceed with the complaint case as per observation made above i. e. steps under sections 265B, 265C 265D and 265 E are to be taken by the Additional Metropolitan Sessions Judge in one session and not as directed by the High Court Division. All the appeals are allowed without any order as to costs.
Ed
Source: I ADC (2004), 173