The Anti Corruption Commission Vs. Md. Bazlur Rashid and another


APPELLATE DIVISION

(CRIMINAL)


Md. Muzammel Hossain,

C. J

Surendra Kumar Sinha, J

Md. Abdul Wahhab Miah, J

Syed Mahmud Hossain, J

Siddiqur Rahman Miah, J

AHM Shamsuddin Choudhury, J.

 

Judgment

29th May, 2013.

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The Anti Corruption Commission

….Petitioner

=Versus=

Md. Bazlur Rashid and another

…Respondents


Code of Criminal Procedure (V of 1898)

Section 561A

It appears that the High Court Division
quashed the proceeding when the case was under investigation. In such stage,
the proce-eding cannot be quashed. The process of sanction is an administrative
act and it is not subject to judicial scrutiny and thus High Court Division
committed serious illegality in quashing the proceeding. As the First
Information Report discloses a prima facie case and charge sheet is awaiting
submis-sion, in such stage quashment does not lie. …(10, 11 and 14)

 For the petitioner: Mr. Md. Khurshid
Alam Khan, Advocate, instructed by Mrs. Sufia Khatun, Advocate-on-Record.

For the Respondents: None represented.

Criminal  Petition  for 
Leave  to 
Appeal  No. 302
of  2012

(From the judgment and order
dated the 27th day of October, 2011 passed by the High Court
Division in Criminal Miscellaneous Case No. 23071 of 2009.)

(O R D E R )

 

Siddiqur Rahman Miah, J. This Criminal
Petition for Leave to appeal arises out of judgment and order dated 27.10.2011
passed by the Division Bench of the High Court Division in Criminal
Miscellaneous Case No. 23071 of 2009 in making the Rule absolute and quashing
the proceeding of GR Case No. 331/2008 arising out of Tahkurgaon PS Case No. 01
dated 03.06.2008 pending in the court of Chief Judicial Magistrate, Thakurgaon.

2. The respondent No. 1, Md. Bazlur
Rashid, Sub-Assistant Settlement Officer, filed an application under section
561A of the Code of Criminal Procedure before the High Court Division for
quashing the proceeding of GR No. 331 of 2008 arising out of Thakurgaon Police
Station Case No. 01 dated 03.06.2008 under section 5(2) of the Prevention of
Corruption Act, 1947 read with Rule 15 of the Jaruri Bidhimala, 2007 pending in
the court of Chief Judicial Magistrate, Thakurgaon.

3. The prosecution case, in brief, is that
one Md. Abdur Rahman, by arresting the respondent No. 1 and two others with the
help of the members of Bangladesh Army of Thakurgaon camp as informant lodged a
First Information Report with the Thakurgaon Police Station on 03.06.2008
alleging, inter alia, that the informant on 03.06.2008 at about 10.00 a.m. went
to the temporary settlement camp situated at Khaliashajuri Primary School for
correction of Parcha of land of the informant; that the Mutation Assistant
accused Azizul Islam after seeing the papers for correction of parcha demanded
Tk. 5000/- as bribe and the informant agreed to pay 2500/- and later on the
informant went to the Thakurgaon Camp and informed army personnel about the
aforesaid facts; that according to their advice the Army personnel wearing
civil dress asked the informant to hand over five notes of Tk. 500/- to them by
marking those notes; that according to their advice informant at 2.00 O’clock
handover those five hundred taka notes to mutation Assistant Azizul Islam in
his office room and Azizul Islam handed over the said money to office peon
Shamsul Huda who handed over the money to the accused-petitioner; that in the
meantime the Army personnel caught the accused persons red handed and recovered
2500/- from the pocket of co-accused Shamsul Huda and that in presence of the
witnesses, seizure list was prepared and thereafter Thakurgaon Police Station
Case No. 1 dated 03.06.2008 has been recorded against the respondent No. 1 and
two others.

4. During investigation the petitioner
filed Criminal Misc. Case No. 23071 of 2009 under section 561A of the Code of
Criminal Procedure before the High Court Division for quashing the proceeding
of G.R. No. 331 of 2008 arising out of Thakurgaon P. S. Case No. 01 dated
03.06.2008 and obtained Rule and stay.

5. The said rule was heard and disposed of
by the High Court Division on 27.10.2011. The High Court Division on 27.10.2011
made the Rule absolute and quashed the proceedings of GR case No. 331 of 2008
arising out of Thakurgaon PS Case No. 01 dated 03.06.2008.

6. Having been aggrieved by and
dissatisfied with judgment and order dated 27.10.2011 passed by the Division
Bench of the High Court Division in Criminal Miscellaneous Case No. 23071 of
2009 in making the Rule absolute and quashing the proceedings of GR Case No.
331/2008 arising out of Thakurgaon PS case No. 01 dated 03.06.2008, pending in
the court of Chief Judicial Magistrate, Thakurgaon, the petitioner preferred
the instant Criminal petition for Leave to Appeal.

7. Mr. Md. Khurshid Alam Khan, the learned
Advocate for the petitioner submits that the High Court Division committed
serious illegality in quashing the proceeding during investigation; that before
taking cognizance, an application under section 561A of the Code of Criminal
Procedure is not maintainable; that the process of sanction is an
administrative act and it is not subject to judicial scrutiny; that the
sanction relates to trap case and as such the High Court Division committed
serious illegality in quashing the proceeding relying upon the said sanction
with regard to trap case during investigation and moreover it is the subject
matter of trial and that the first information report discloses offences
against the respondent No. 1 under section 161 of the Penal Code read with
section 5(2) of the Prevention of Corruption Act, 1947 (II of 47) but the High
Court Division committed serious illegality in quashing the proceeding during
investigation.

8. None appears on behalf of respondent
No. 1 to defend his case.

9. We have perused the judgment and
petition for leave to appeal. Heard the learned Advocate for the petitioner.

10. On perusal of the record, it appears that
the learned High Court Division quashed the proceeding of Criminal
Miscellaneous case No. 23071 of 2009 when the case was under investigation. In
such stage, the said proceeding cannot be quashed.

11. The process of sanction is an administr-ative
act and it is not subject to judicial scrutiny and thus High Court Division
committed serious illegality in quashing the proceeding.

12. On perusal of the record, it further
transpires that the first information report discloses offences against the
respondent No. 1 under section 161 of the Penal Code read with section 5(2) of
the Prevention of Corruption Act, 1947 (II of 47) but the High Court Division
committed serious illegality in quashing the proceeding during investigation.

13. In this connection, we may refer to the
decision reported in the case of AHS Rahman vs. State, 58 DLR (AD) 63 wherein
their Lordships held, “Since the first information report discloses a prima
facie case against the petitioner and to that effect the charge sheet has been
submitted, there is no substance in the submission made on behalf of the
petitioner for quashing the proceeding.”

14. Here in this case, First Information
Report discloses a prima facie case and charge sheet is awaiting submission, in
such stage quashment does not lie.

15. The ground shown for condonation of delay
being satisfactory is accepted and the delay is accordingly condoned.

16. Preparation of the paper book is
dispensed with as prayed for.

17. For the above reasons, the petitioner for
Leave to appeal is allowed. The impugned judgment and order is set aside.

Let the appeal be heard along with
Criminal Appeal No. 01 of 2013.

End