Abdullah Al Mamun & another Vs. The State, 3 LNJ (2014) 212

Case No: Criminal Misc. Case No. 52216 of 2013

Judge: Md. Rezaul Haque,

Court: High Court Division,,

Advocate: Mr. Md. Aminul Islam,,

Citation: 3 LNJ (2014) 212

Case Year: 2014

Appellant: Abdullah Al Mamun & another

Respondent: The State

Subject: Corruption,

Delivery Date: 2013-09-24


HIGH COURT DIVISION
(CRIMINAL MISCELLANEOUS JURISDICTION)
 
Md. Rezaul Haque, J.
And
Gobinda Chandra Tagore, J.

Judgment on
24.09.2013
  Abdullah Al Mamun and another
... Accused-Petitioner.
Vs.
The State
.. Respondents.
 
Money Laundering Protirodh Ain (V of 2012)
Sections 9(2), 11, 12(1) & 12 (2)
Anti-Corruption Commission Act (V of 2004)
Sections 28(1) read with section 2 (Tha), 28 (Ka), 32 (1) and 32 (2)
Considering the sections 9(2), 11, 12(1) and 12(2) of the Money Laundering Protirodh Ain, 2012 and sections 28(1) read with section 2(Tha),  28(Ka), 32(1) and 32(2) of the Anti Corruption Commission Act, 2004 it appears that the Special Judge appointed under section 3 of the Criminal Law Amendment Act, 1958 can take cognizance of any offence under the Money Laundering Protirodh Ain, 2012, Anti Corruption Commission Act, 2004 and any offence specified in the schedule of the Act only after submission of Investig-ation Report along with the sanction of the Commission. The Special Judge cannot legally take cognizance of the offences before that time and stage i.e. before submission of the Investigation Report along with the sanction of the Commission. Therefore, the police on their own accord cannot arrest any accused before or after submission of the Investigation Report in any case on the allegations of the offences under the Anti Corruption Commission Act, 2004, the offences specified in the schedule of the Act and under the Money Laundering Protirodh Ain, 2012. . . . (18, 19 and 37)

Anti-Corruption Commission Act (V of 2004)
Section 20(1)
Money Laundering Protirodh Ain (V of 2012)
Section 9(1)
Section 20(1) of the Anti Corruption Commission Act, 2004 envisages that the offences under the Act and the offences specified in the schedule of the Act shall be investigated into by the Commission only. So, the police has no role to play in any case on the allegations of the offences under the Anti Corruption Commission Act, 2004, the offences specified in the schedule of the Act and under the Money Laundering Protirodh Ain, 2012. However, the Special Judge may order or the Commission may call the police to arrest any accused-person in an appropriate case after the cognizance of the offence alleged therein has been taken.... (36)

Code of Criminal Procedure (V of 1898)
Section 498
No anticipatory bail is required to be sought during the investigation in the case of offences under the Anti Corruption Commission Act, 2004, the offences specified in the schedule of the Act and under the Money Laundering Protirodh Ain, 2012.
In such view of the matter, the Special Judge neither can take cognizance of the offences nor can he issue any process nor can the Commission arrest any accused-person during the investigation inasmuch as the police on their own accord also cannot arrest any accused-person, and as such, no accused-person legally requires any bail during investigation in any case on the allegations of the offences under the Anti Corruption Commission Act, 2004, the offences specified in the schedule of the Act and under the Money Laundering Protirodh Ain, 2012.. . . (38)
Therefore, there is no scope or necessity for any anticipatory bail in any case on the allegations of the offences under the Anti Corruption Commission Act, 2004, the offences specified in the schedule of the Act and under the Money Laundering Protirodh Ain, 2012. . . . (40)
 
Mr. S. M. Rezaul Karim
Mr. Aminul Islam, Advocate
. . . For the petitioners

Mr. A. S. M. Nazmul Haque, D. A. G.
. . .For the State

Criminal Misc. Case No. 52216 of 2013
 
ORDER
 
This is an application under section 498 of the Code of Criminal Procedure for anticipatory bail in Ramna Police Station Case No. 17 dated 01.01.2013 under section 406, 409, 420, 109 of the Penal Code read with section 5(2) of he Prevention of Corruption Act, 1947 and Section 4 of the Money Laundering Protirodh Ain, 2012, now pending in the Court of the Chief Metropolitan Magistrate, Dhaka.

’The accused-petitioners are present in this Court and they have been identified by Mr. S. M. Rezaul Karim along with Mr. Aminul Islam, learned Advocates.

Having placed the application, Mr. S. M. Rezaul Karim along with Mr. Aminul Islam, learned Advocate submits that though the case is still under investigation and pending before the Court of the learned Chief Metropolitan Magistrate, Dhaka, the police administration being illegally influenced by the business rivals of the accused-petitioners are desperate enough to harass them by placing them into custody inasmuch as the officials of the Anti-Corruption Commission are promptly active and they have ample power to influence the lower judiciary and hence, the accused-petitioners have reasonable apprehension that if they surrender before the concerned Court, they would not be dealt with in accordance with law and accordingly, this Court may be pleased to grant them anticipatory bail.

The application is opposed by Mr. A.S.M. Nazmul Haque, learned Deputy Attorney General along with Mr. Abdul Khaleque, learned Assistant Attorney General for the State.

We have perused the application and heard the learned Advocate for the accused-petitioners and the learned Deputy Attorney General along with the learned Assistant Attorney General.

The substance of the F.I.R. is that the accused-petitioners and 14 others in connivance with each other dishonesty, falsely, fraudulently and upon committing criminal breach of trust by misusing power and obtaining gain showed false and fabricated import and export between Paragon Printing and Packaging Limited, an account-holder in the Hotel Sheraton Branch, Sonali Bank Limited, and M/S Paragon Knit Composite Limited, both are under the same ownership, withdrew and misappropriated Taka-5,20,00,000.00 accumulated as the Inland Bill Purchase (IBP) value by concealing the source thereof upon suspicious transaction by transferring, converting and layering, and thus, the accused-persons committed offences under Section 406/409/420/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 and Section 4 of the Money Laundering Protirodh Ain, 2012.

Section 3 of the Money Laundering Protirodh Ain, 2012, provides that notwithstanding anything contained in any other law for the time being in force, the provisions of this Ain, subject to the provisions of section 9 thereof, shall be effective.

Subsection (1) of section 9 of the Ain provides that the offences under this Ain having been deemed to have been included in the schedule of the A.C.C Act, 2004 shall be investigated into by the Commission, an officer of the Commission authorized by it or an officer of any other investigating agency authorized by the Commission. Subsection (2) of section 9 provides that the offences under this Ain shall be triable by the Special Judge appointed under section 3 of the Criminal Law Amendment Act, 1958. Subsection (3) of section 9 provides that the Commission or an officer of any other investigating agency authorized by the Commission may apply the A.C.C. Act, 2004 and this Ain side by side to the inquiry into and identification of the property of the accused-person.

The offences under the A.C.C. Act, 2004, and the Prevention of Corruption Act, 1947 (Act II of 1947), the offences punishable under sections 161-169, 217, 218, 408, 409 and 477A of the Penal, abetments as specified in section 109 of the Penal Code in respect of the said offences and the other means of abetments, conspiracy specified in the Penal Code including the conspiracy under section 120B thereof, and the attempts to commit offences specified in section 511 of the Penal Code are included in the schedule of the A.C.C. Act, 2004, while, the offences under the Money Laundering Protirodh Ain, 2012, as per section 9(1) of the Ain, are deemed to have been included in the said schedule.

Section 28(1) read with section 2(Tha) of the A.C.C. Act, 2004 provides that the offences under the Act and the offences  specified in the schedule of the Act shall be triable by the Special Judge appointed under section 3 of the Criminal Law Amendment Act, 1958. Section 28(2) of the A.C.C. Act, 2004 specifically provides that the Criminal Law Amendment Act, 1958 shall be applicable to the trial of the offences under the Act and the offences included in the schedule of the Act and disposal of appeals under this Act.

Therefore, the provisions of both the Criminal Law Amendment Act, 1958 and A.C.C. Act, 2004 are applicable to the investigation into and trial of the offences under the Prevention of Corruption Act, 1947, A.C.C. Act, 2004, the other offences included in the schedule of the A.C.C. Act, 2004, and the offences included in the schedule of the A.C.C. Act, 2004, and the offences under the Money Laundering Protirodh Ain, 2012, which are deemed to have been included in the schedule of the A.C.C. Act, 2004.

However, section 28(3) of the A.C.C. Act, 2004 provides that if any provision of the Criminal Law Amendment Act, 1958 is inconsistent with any provision of A.C.C. Act, 2004, the provision of the A.C.C. Act, 2004 shall be effective.

Therefore, in case of any inconsistency the provisions of the A.C.C. Act, 2004 shall prevail over the provisions of the Criminal Law Amendment Act, 1958 in the investigation into and trial of the offences under the Prevention of Corruption Act, 1947, ACC Act, 2004, the other offences specified in the schedule of the ACC Act, 2004, and the Money Laundering Protirodh Ain, 2012.

Section 11 of the Money Laundering Protirodh Ain, 2012 provides that the offences under this Ain shall be cognizable, non-compoundable and non- bailable.

Similarly, section 28(Ka) of the ACC Act, 2004 provides that offences under this Act shall be cognizable and non-bailable.

But section 12(1) of the Money Laundering Protirodh Ain, 2012 provides that no Court shall take cognizance of the offences under this Ain without the sanction of the Commission; while, section 12(2) provides that the Investigating Officer shall obtain the sanction of the Commission after completing the investigation and before submitting the Investigation Report to the Court, and shall also submit a copy of the sanction with the Investigation Report to the Court.

Similarly, Section 32(1) of the A.C.C. Act, 2004 provides that notwithstanding anything contained in the Code of Criminal Procedure or any other law for the time being in force, no Court shall take cognizance of any offence under this Act without the sanction of the Commission; while section 32(2) of the Act provides that after completion of the investigation and before submission of the Investigation Report to the Court, the Investigating  Officer shall obtain the sanction of the Commission and a letter of the sanction shall have to be submitted to the Court along with the Investigation Report.

Therefore, from a thorough reading of sections 9(2), 11, 12(1) and 12(2) of the Money Laundering Protirodh Ain, 2012 and sections 28(1) read with section 2(Tha), 28(Ka), 32(1) and 32(2) of the A.C.C. Act, 2004 it appears that the Special Judge appointed under section 3 of the Criminal Law Amendment Act, 1958 can take cognizance of any offence under the Money laundering Protirodh Ain, 2012, A.C.C. Act, 2004 and any offence specified in the schedule of the Act only after submission of Investigation Report along with the sanction of the Commission.

Since the time and stage of taking cognizance of the offences specified above are fixed by the respective special laws, the Special Judge cannot legally take cognizance of the offences before that time and stage i.e. before submission of the Investigation Report along with the sanction of the Commission.

Therefore, the offences under the Money Laundering Protirodh Ain, 2012, A.C.C. Act, 2004 and the offences specified in the schedule of the Act become cognizable by the Special Judge only after and not before the submission of the Investigation Report along with the sanction of the Commission.

Thus, the provisions under section 12 of the Money Laundering Protirodh Ain, 2012 and those under section 32 of the A.C.C. Act, 2004 demonstrate the intentions of the legislatures to safeguard the concerned person against taking cognizance of the offence before submission of the Investigation Report i.e. during investigation into the allegations.

Section 6(3) of the Criminal Law Amendment Act, 1958 provides that the provisions of Chapter XX of the Code of Criminal Procedure, 1898 shall apply to trial of cases under this Act, as far as they are not inconsistent with the provisions of this Act. Chapter XX of the Code of Criminal Procedure deals with the trial of cases by the Magistrates.

Therefore, the Special Judge is to follow the procedure similar to that, which is followed by the Magistrate in the trial of cases in so far as it is not inconsistent with any provision of the Criminal Law Amendment Act, 1958.

But it is a settled principle of law that proceeding before a Court starts when the Magistrate takes cognizance of the offence either on a police report or on a complaint. In this regard, the case of Nasiruddin Mohmud Vs. Montazuddin Ahmed, 36 DLR (AD) 14 may be referred to.

Therefore, a case can be said to have been instituted in a Court only when it takes cognizance of the offence alleged therein.

Even, in the case of a cognizable offence, the Magistrate takes cognizance only when the police have completed the investigation and it comes to the Magistrate for the issue of process. In this regard the case of Kh. Ehtesham Uddin Ahmed Vs. State, 33 DLR (SC) 154 may be relied upon, wherein it was held as under-

“The order-sheet shows that on receiving charge-sheet the learned Sub-Divisional Magistrate passed an order on May 10, 1978 for issuing warrant of arrest against some of the accused and for production of some of the accused by the surety. With reference to this order of the Sub-Divisional Magistrate the learned Attorney General correctly submitted that this order sufficiently indicates that cognizance was taken by the learned Sub-Divisional Magistrate, and he was in seisin of the case.”  

And then, it was further held-

“The word ‘case’ has not been defined in the Code of Criminal Procedure but there is no doubt that when cognizable offence is lodged with the police, and the police sends a report of the same to a Magistrate empowered to take cognizance of offence on a police report, it becomes a case pending before a Criminal  Court.”

Apart from the law enunciated in the above mentioned case, it is a long established principle of law that taking cognizance is effected by issue of process either in the form of a summons or warrant of arrest. In the other words, no process can be issued without taking cognizance of the offence alleged in the case.

In the most relevant case under the A.C.C. Act, 2004 that is the case of Anti-Corruption Commission Vs. Dr Mohiuddin Khan Alamgir and others, 62 DLR (AD) 290, the Appellate Division held-

“From the above discussions, it will be clear that the words মামলা দায়ের means institution of a case by submission of a charge sheet by an officer of the Commission, before the concerned Court and certainly not an first information report as envisaged under section 154 of the Code of Criminal Procedure or a complaint অভিযোগ as envisaged under rule 3 and rule 4 of the Rules.”

It has already been found that after completion of the investigation and before submission of the Investigation Report to the Court, the Investigation Officer shall obtain the sanction of the Commission and submit a letter of the sanction with the Investigation Report to the Court.

Therefore, under the A.C.C. Act, 2004 no case is legally said to have been instituted before submission of Investigation Report along with the sanction of the Commission.

Unless a case is legally deemed to have been instituted against any person, no Court can either take cognizance of the offence or issue any process against such a person.

We have already found that the offences under the Money Laundering Protirodh Ain, 2012, A.C.C Act, 2004 and the offences specified in the schedule of the Act become cognizable by the Special Judge only after submission of the Investigation Report along with the sanction of the Commission.

For the same reason, though under subsection (3) of section 20 of the A.C.C. Act, 2004 the Investigating Officer enjoys the powers of an Officer-in-Charge of a Police Station in the matter of investigation, such powers do not include the power of arrest without warrant until the offences become cognizable by the Special Judge upon submission of the Investigation Report.

Therefore, the Commission cannot arrest any accused-person during the investigation into the allegations and before the cognizance of the offence is taken upon submission of the Investigation Report.

Section 20(1) of the A.C.C. Act, 2004 envisages that the offences under the Act and the offences specified in the schedule of the Act shall be investigated into by the Commission only. So, the police has no role to play in any case on the allegations of the offences under the A.C.C. Act, 2004 the offences specified in the schedule of the Act and under the Money Laundering Protirodh Ain, 2012. However, the Special Judge may order or the Commission may call the police to arrest any accused-person in an appropriate case after the cognizance of the offence alleged therein has been taken.

Therefore, the police on their own accord cannot arrest any accused before or after submission of the Investigation Report in any case on the allegations of the offences under the A.C.C. Act, 2004, the offences specified in the schedule of the Act and under the Money Laundering Protirodh Ain, 2012.

In such view of the matter, the Special Judge neither can take cognizance of the offences nor can he issue any process nor can the Commission arrest any accused-person during the investigation inasmuch as the police on their own accord also cannot arrest any accused-persons, and as such, no accused-person legally requires any bail during investigation in any case on the allegations of the offences under the A.C.C. Act, 2004, the offences specified in the schedule of the Act and under the Money Laundering Protirodh Ain, 2012.

It is a settled principle of law that after submission of the Investigation Report there remains no scope for anticipatory bail in any case.

Therefore, there is no scope or necessity for any anticipatory bail in any case on the allegations of the offences under the A.C.C. Act, 2004, the offences specified in the schedule of the Act and under the Money Laundering Protirodh Ain, 2012.

The above findings and observations made on the relevant laws may be summarised as below:
  1. The offences under the A.C.C. Act, 2004 and the offences specified in the schedule of the Act, and those under the Money Laundering Protirodh Ain, 2012, which are deemed to have been included in the schedule of the Act, become cognizable by the Special Judge only after the submission of the Investigation Report along with the sanction of the Commission.
  2. Under the A.C.C. Act, 2004 or on the allegations of the offences included or deemed to have been included in the schedule of the Act, no case is legally said to have been instituted before submission of Investigation Report along with the sanction of the Commission.
  3. Unless a case is legally deemed to have been instituted against any person, no Court can either take cognizance of the offence or issue any process against such a person.
  4. The provisions under section 12 of the Money Laundering Protirodh Ain, 2012 and those under section 32 of the ACC Act, 2004 demonstrate the intentions of the legislatures to safeguard the concerned person against taking cognizance of the offence before submission of the Investigation Report i.e. during investigation into the allegations.
  5. The powers of an Officer-in-Charge of a Police Station in investigation conferred to the Commission under subsection (3) of section 20 of the ACC Act, 2004 do not include the power of arrest without warrant until the offences become cognizance by the Special Judge.
  6. The Commission cannot arrest any accused-person during the investigation into the allegations and unless the offences become cognizable upon submission of the Investigation Report.
  7. Since the allegations are to be investigated into exclusively by the Commission, the police, on their own accord, cannot arrest any accused-person before or after submission of the Investigation Report in any such case.
  8. In view of the above, no accused-person legally requires any bail during investigation in any such case.
  9. In view of the above finding No. (8), there is no legal scope or necessity for any anticipatory bail in any case on the allegations of the offences under the ACC Act, 2004 and the offences included or deemed to have been included in the schedule of the Act.
Hence, there being no legal scope or necessity for any bail, let alone anticipatory bail, during investigation in such a case on the allegations of the offences under the A.C.C. Act, 2004 and the offences included or deemed to have been included in the schedule of the Act, the application preferred for that purpose is liable to be rejected.

The offences under section 406, 409, 420 109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 and Section 4 of the Money Laundering Protirodh Ain, 2012 alleged in the present case are either included or deemed to have been included in the schedule of the A.C.C. Act, 2004 and the case is still under investigation.

Therefore, the above findings and observations made on the relevant laws are squarely applicable to the case in hand.

Accordingly, there being no legal scope or necessity for any anticipatory bail in the present case the application preferred for that purpose is rejected.

Send a copy of this order to the Chairman of the Anti-Corruption Commission forthwith.

         Ed.