Anti-Corruption Commis­sion Vs. ATM Nazimullah Chowdhury and others, 62 DLR (AD) (2010) 225

Case No: Civil Petition for Leave to Appeal No.411 of 2009

Judge: Surendra Kumar Sinha,

Court: Appellate Division ,,

Advocate: Md. Khurshid Alam Khan,Mr. Rafique-ul-Huq,,

Citation: 62 DLR (AD) (2010) 225

Case Year: 2010

Appellant: Anti-Corruption Commis­sion

Respondent: ATM Nazimullah Chowdhury and others

Subject: Locus Standi,

Delivery Date: 2010-3-14

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Abdul Matin J
ABM Khairul Haque J
MM Hossain J
SK Sinha J
 
Anti-Corruption Commis­sion
.................Petitioner
Vs.
ATM Nazimullah Chowdhury and others
…............Respondents
 
Judgment
March 14, 2010.
 
Constitution of Bangladesh, 1972
Article 102(2)(a)(ii)
Penal Code (XLV of 1860)
Section 409
Prevention of Corruption Act (II of 1947)
Section 5(2)
Criminal Law Amendment Act (XL of 1958)
Section 4
Fugitive has no locus standi  to file any petition— The petitioner is a fugitive from justice when he moved the petition and obtained the Rule Nisi. This Court repeatedly argued that a fugitive from justice is not entitled to obtain a judicial order defying the process of the Court. When a person wants to seek remedy from a Court of law, he is required to submit to the due process of the  Court and unless he surrenders to the jurisdiction of the Court, the Court will not pass any order in his aid.
 
Case Referred To-
Anti-Corruption Commission vs Dr HBM Iqbal Alamgir, 15 BLC (AD) 44.
 
Lawyers Involved:
Md. Khurshid Alam Khan, Advocate, instructed by Sufia Khatun, Advocate-on-Record-For the Petitioner.
Rafique-ul-Huq, Senior Advocate, instructed by Mvi. Md Wahidullah, Advocate-on-Record—For the Respon­dents.
 
Civil Petition for Leave to Appeal No.411 of 2009.
(From the judgment and order dated 12-11-2008 passed by the High Court Division in Writ Petition No.8601 of 2008).
 
JUDGMENT
 
SK Sinha J.
 
This petition for leave to appeal is directed against an interim order dated 12th November, 2008, of the High Court Division in Writ Petition No.8601 of 2008 issuing Rule and making interim order staying all further proceedings of Special Case No.26 of 2008 pending before the Special Judge, Court No.9, Dhaka.
 
2. The respondent filed the aforesaid writ petition challenging the initiation and continuation of the proceedings in Special Case No.26 of 2008 corresponding to Metropolitan Special Case No. 139 of 2008 arising out of ACC GR Case No.71 of 2008 and Shahbagh PS Case No.27 dated 14th May, 2008, under section 409 of the Penal Code and section 5(2) of the Prevention of Corruption Act, 1947 pending before the Special Judge, Court No.9, Dhaka. Abdullah-al-Zahid, a Deputy Director of the said Commission i.e. the respondent No.3 lodged an Ejahar on 14th May, 2008, with the Shahbagh Police Station against the writ petitioner for offences pun­ishable under section 409 of the Penal Code and sec­tion 5(2) of the Prevention of Corruption Act, 1947 alleging, inter alia, that during his tenure as the Ambassador of Bangladesh to the United Arab Emirates in September, 2006, he rented a house in Abu Dhabi City by exercising undue influence and thereby caused the loss of total 72,000 Dirham from the public exchequer. The writ petitioner also misappropriated total sum of 34,150 Dirham, which was drawn from the Government of Bangladesh as the salary of two gardeners of the Embassy of Bangladesh namely Md. Jewel and Selim Parvez. The writ petitioner submitted false bill of Taka 50,149 for purchasing certain house-hold materials of Bangladesh Embassy, which were in fact pur­chased for use in his residence. The writ petitioner paid 5,000 Dirham every month as the bill of his res­idence from the official account of the Embassy of which he was supposed to pay from his own pocket,
 
3.  The Shahbagh police registered the FIR as Shahbagh Police Station Case No.27 dated 14-5-2008, corresponding to ACC GR Case No.71 of 2008. The said Commission vide Memo No. দুদক বিঃ অনুঃ তদন্ত ২ সি ০২/০৮ ১৪৬৫৬ dated 21st August, 2008, accorded sanction for submitting charge sheet against the writ petitioner in the said case. Thereafter,  the  investigating officer submitted Charge Sheet No.336 dated 28th August, 2008, against the writ petitioner under sections 409/418 of the Penal Code and section 5(2) of the Prevention of Corruption Act, 1947 which was accepted by the Court of Chief Metropolitan Magistrate, Dhaka.
 
4. Thereafter, the Court of Chief Metropolitan Magistrate, Dhaka transferred the said case to the Metropolitan Special Judge, Dhaka. The Metropolitan Special Judge, Dhaka vide order No.1 dated 3rd September, 2008 took cognizance of the offences under section 409 of the Penal Code and section 5(2) of the Prevention of Corruption Act, 1947 against the writ petitioner. The said case was renumbered as Metropolitan Special Case No. 139 of 2008. Thereafter the learned Metropolitan Senior Special Judge, Dhaka transferred the case to the Court of Special Judge, Court No.9, Dhaka wherein the said case was registered as Special Case No.26 of 2008. The Special Judge, Court No.9, Dhaka vide order dated 15th January, 2008, framed charge against the writ petitioner and examined 6(six) pros­ecution witnesses and the next date of the case was fixed on 9th November, 2008, for examination of the rest the prosecution witnesses.
 
5. At this stage the writ petitioner moved the High Court Division and obtained the Rule with an interim order of stay.
 
6. Mr Md Khurshid Alam Khan, the learned Counsel for the petitioner submitted that the High Court Division erred in law in entertaining the writ petition and staying all further proceedings of the case in failing to consider that the writ petition­er was fugitive from justice when he moved the peti­tion and thus he was not entitled to any relief. In this connection the learned Counsel has referred the case of Anti-Corruption Commission vs Dr HBM Iqbal Alamgir, 15 BLC (AD) 44.
 
7. Mr. Rafique-ul-Huq, on the other hand, contends that since the Government has recom­mended for withdrawal of the case from the prose­cution against the writ petitioner, no fruitful purpose will be served if the order of the High Court Division is interfered with.
 
8. In the writ petition the petitioner stated that he is "presently being in abroad is not in a posi­tion to swear the Affidavit of the instant writ peti­tion. The petitioner through a Power of Attorney dated 11-9-2008 authorized his son namely Samir Chowdhury to file this Writ Petition before this Hon'ble Court and for taking all necessary step in connection herewith". The petitioner is a fugitive from justice when he moved the petition and obtained the Rule Nisi. This Court repeatedly argued that a fugitive from justice is not entitled to obtain a judicial order defying the process of the Court. When a person wants to seek remedy from a Court of law, he is required to submit to the due process of the Court and unless he surrenders to the jurisdiction of the Court, the Court will not pass any order in his aid. In view of the above, the learned Judges of the High Court Division illegally enter­tained the writ petition and stayed further proceed­ings of the case. The order of stay passed by the learned chamber Judge will continue till the dispos­al of the rule. The writ petitioner is directed to sur­render before the Special Judge, Court No.9, Dhaka within 6(six) weeks from date failing which, the learned Special Judge shall take proper steps for tin apprehension of the writ petitioner.
 
This petition is disposed of with the above observations and direction. Let a copy of the order be communicated to the learned Judges of the High Court Division and the leaned Special Judge, Court No.9, Dhaka.
 
Ed.