The State Vs. Md. Moslemuddin

Appellate Division Cases

(Criminal)

PARTIES

The State ………………………….. Appellant.

-vs-

Md. Moslemuddin… ………………..Respondent

JUSTICE

Mohammad Fazlul Karim . J

Tafazzul Islam. J

JUDGEMENT DATE: 19th January 2004.

Section 5(2) of the Prevention of Corruption Act, 11 of 1947

The High Court Division held that the above Memo of the S.P. was not filed nor it is found with the lower court records and so it was not possible for the High Court Division to ascertain whether it was a permission to submit charge sheet or a sanction order for prosecution and that S.P. was not the proper authority to sanction. The High Court Division concluded as follows:

“From the lower court record it does not appear that the learned Special Judge took notice of such a patent fact and that any sanction letter was ever produced before the learned judge and that he ever wrote under section 6(5) of the Criminal Law (Amendment) Act to the proper authority for the sanction. It is now well settled that sanction confers jurisdiction upon the Special Judge for taking cognizance of an offence against a government servant. Mere statement in the charge sheet that some sort of sanction was received without producing the sanction order before the court and putting in the same to the evidence in order to show that the sanction order was valid and proper is not enough …………..(5)

Criminal Appeal Nos. 27 of 1997. (From the Judgment and order dated 28 June 1995 passed by the High Court Division in Criminal Appeal No. 2013 of 1992). Abdur Razzaque Khan, Additional Attorney General, instructed by Mvi. Md. ahidullah, Advocate-on-Record…… For the Appellant.

Not represented …………..Respondent.

JUDGMENT

1. Md. Tafazzul Islame, J:- This appeal by way of leave at the instance of the State is against the judgment and order dated 28.6.1995 passed by the High Court Division in Criminal Appeal No. 2013 of 1992 allowing the appeal arising out of Special Case No. 2 of 1991 under section 403 of the Penal code and section 5(2) of the Prevention of Corruption Act, 11 of 1947 by which the respondent was convicted by the Tribunal and was sentenced to suffer rigorous imprisonment for one year separately under both the sections and to pay a fine of Tk. 1000/on both counts, in default to suffer rigorous imprisonment for a period of one month and both the sentences were to be run oncurrently.

2. The prosecution case, in brief, is that informant, abdur Rouf, Assistant Commissioner (Land) Mirzapur, Tangail on surprise visits on different occasions found the respondent Tahailder to be absent from his Tahsil Office. On verification of the case book and pass book of the Tahasil Office it was also detected that the respondent Tahsilder had deposited in total Tk. 32,483/58 upto 8.3.90 whereas he had collected Tk. 53,621. 39 since 16.7.89 to 28.3.90 and thus the respondent Tahsilder misappropriated Tk. 21 137.81 . The defence case appears to be that there being no safe custody in his Tahsil Kachari the respondent Tahsildar, after keeping the money in the safe custody of Jamurki Tahsil Kachari, went home and subsequently he deposited the money in the Sonali Bank After his arrest. The trial court, after hearing, convicted the respondent and passed sentence as aforesaid, Against the aforesaid order of conviction and sentence the respondent preferred Criminal Appeal No. 2013 of 1992 and the same was allowed by a Single Judge of the High Court division thereby acquitting the accused respondent from the said order of conviction and sentence Leave was granted in the following terms :”Mr. B. Hossain, learned Deputy Attorney General appearing for the state submits that the order of acquittal was passed by learned Single judge only on the ground that in the present case sanction was not obtained from the government. He submits that through inadvertence the copy of the order of President’s Secretariat granting sanction has not been filed in the case, although the investigating officer in the charge sheet mentioned about the order of the Superintendent of Police, Tangail of his Memo No. 123 dated 16.2.91 . The learned Deputy Attorney General has placed the relevant order of sanction of the President’s Secretariat before us by a supplementary affidavit. Hence the matter needs reconsideration.”

3. Mr. Abdur Razzaque Khan, the learned Additional Attorney General appearing for the appellant submits that the order of acquittal was passed by the learned Single Judge only on the ground that in the present case sanction was obtained from the Government but through inadvertence the copy of the order of the President’s Secretariat granting sanction was not filed in the case although the investigating officer in the charge sheet mentioned about the order of the Superintendent of Police, Tangail of his Memo No. 1023 Dated 16.2.91.

4. As it appears on the question of sanction for the prosecution the High Court Division found that there is no evidence on record showing such sanction from proper authority though for prosecution of the accused, a government servant, such sanction was necessary. The High Court Division found that only reference to such sanction on record is in a statement made by the I. O. in the charge sheet which as quoted in the judgment of the High Court Division as follows :- (Bangla)

5. The High Court Division held that the CORRECTION above Memo of the S.P. was not filed nor it is found with the lower court records and so it was not possible for the High Court Division to ascertain whether it was a permission to submit charge sheet or a sanction order for prosecution and that S.P. was not the proper authority to sanction. The High Court Division concluded as follows. “From the lower court record it does not appear that the learned Special Judge took notice of such a patent fact and that any sanction letter was ever produced before the learned judge and that he ever wrote under section 6(5) of the Criminal Law (Amendment) Act to the proper authority for the sanction. It is now well settled that sanction confers jurisdiction upon the Special Judge for taking cognizance of an offence against a government servant. Mere statement

in the charge sheet that some sort of sanction was received without producing the sanction order before the court and putting in the same to the evidence in order to show that the sanction order was valid and proper is not enough. In my view the trial has been held without sanction from the proper authority and as such the trial held by the Special Judge is without jurisdiction and the impugned order of conviction and sentence is illegal”. n view of above position we fined no reason to interfere with the judgment and order passed by the High Court Division and accordingly the appeal is dismissed.

Ed

Source: I ADC (2004), 187

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