Anti-Corruption Commission Vs. Barrister Mohammad Shahjahan Omar and another, VII ADC (2010) 349

Case No: Criminal Petition for Leave to Appeal No. 160 of 2009

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: Mr. Rafique-ul-Huq,Mr. M.A. Aziz Khan,,

Citation: VII ADC (2010) 349

Case Year: 2010

Appellant: Anti-Corruption Commission

Respondent: Barrister Mohammad Shahjahan Omar

Subject: Inherent Power of the Court, Criminal Trail,

Delivery Date: 2009-4-23

 
Supreme Court
Appellate Division
(Criminal)
 
Present:
MM RuhuIAmin CJ
Md. Tafazzul Islam J
Md. Abdul Matin J
Md. Abdul Aziz J
 
Anti Corruption Commission rep­resented by its Chairman1, Segunbagicha, Dhaka
…………..…Petitioner
Vs.
Barrister Mohammad Shahjahan Omar and another
……….........Respondents
 
Order
April 23, 2009.
 
Code of Criminal Procedure, 1898
Section 426, 561A
Criminal Law Amendment Act, 1958
Section 10
High Court Division erred in law by entertaining the application under Section 561A of the Code of Criminal Procedure from a fugitive who has not yet showed respect to trial court’s order by surrendering to the court for serving the sentence, and issuing ad-interim order of stay of the non-existent proceeding inasmuch as the High Court Division does not possess any inherent power to pass such order. The petitioner’s remedy lies in filing of appeal under section 10 of Criminal Law Amendment Act, 1958 and an application under Section 426 of Code of Criminal Procedure. …… (13)
Since the respondent has already been convicted the provisions of Sections 496 to 498 of the Code of Criminal Procedure are not applicable in his case and since no appeal has been preferred again the conviction the provision of Section 426 is also not applicable for granting bail to the respondent and therefore the order of the High Court Division granting bail to a fugitive is not tenable in law.                    ….. (15)
 
Lawyers Involved:
M.A. Aziz Khan, Advocate (Khurshed Alam Khan with him) instructed by Mrs. Sufia Khatun, Advocate-on-Record-For the Petitioner.
Rafique-Ul Huq, Senior Advocate (Ahsanul Karim, Advocate with him) instructed by Md. Nawab Ali, Advocate-on-Record-For Respondent No.1.
Not represented-Respondent No.2.
 
Criminal Petition for Leave to Appeal No. 160 of 2009.
(From order dated 14.01.2009 passed by the High Court Division in Criminal Miscellaneous Case No. 1950 of 2008.)
 
ORDER
 
Md. Abdul Matin J.
 
This petition for leave to appeal is directed against order dated 14.01.2009 passed by the High Court Division in Criminal Miscellaneous Case No.1950 of 2008 issuing Rule with stay and subsequent extension dated 08.04.2009.
 
2. The facts, in short, are that the respon­dent No.1 filed an application for quash­ing the judgment and order of conviction and sentence dated 14.05.2008 passed by the learned Special Judge, Court No.9, Dhaka in Special Case No.10 of 2008, arising out of Gulshan Police Station Case No.77(9)07 dated 27.09.2007 convicting the respondent No.1 under Sections 26(2) and 27(1) of the Anti-Corruption Commission Act, 2004 read with section 109 of the Penal Code to suffer rigorous imprisonment for 13 years and to pay a fine of Tk.10,00,000/- (Taka ten lacs) and in default to suffer rigorous imprisonment for one year more and also confiscating the properties of the respondent No.1 and his dependants in favour of the State.
 
3. The Court of Special Judge, Special No.9, Dhaka took cognizance of the said case against the respondent No.1 under the said section.
 
4. On 13.06.2007 the Deputy Director (inquiry-2) the Anti-Corruption Commission,1, Segunbagicha, Dhaka addressed the impugned Memo No. Dudok/10-2007 (anu-2)/3703 under Section 26(1) of the Anti-Corruption Commission Act, 2004 to Mr. Md. Shajahan Omar, former State Minister of Law, Justice and Parliamentary Affairs of the immediate past Government demand­ing submission of the statements of all immovable and movable properties owned and possessed in his name and in the name of his wife or in the names of any other persons and the source of acquiring/own­ing such property.
 
5. On 20.06.2007 the respondent No.1 filed wealth statement.
 
6. On 27.09.2007 one Mr. Sheikh Mejbah Uddin, Assistant Director, Anti-Corruption Commission lodged an FIR against the respondent Nos.1 and 2 other accused with the Gulshan Police Station under Sections 26 and 27 of the Anti-Corruption Commission Act, 2004, Section 159 gha 5 read with section 109 of the Penal Code.
 
7. On 14.02.2008 one Md. Habibur Rahman, the commissioner (Investigation) of the Anti-Corruption Commission, head Office, issued a sanc­tion in favour of one Mr. Md. Aftab, Deputy Assistant Director, Anti-Corruption Commission,  Head Office, Dhaka for submitting the charge sheet against the respondent in the said case.
 
8. Thereafter on 14.02.2008 a charge sheet was submitted against the respondent and also against his wife Mrs. Mehzabin Farzana Omar and his son Md. Adnan Omar under Sections 26 and 27 of the Anti-Corruption Commission Act, 2004, Rule 15(Gha) (5) of the Emergency Power Rules) read with Section 109 of the Penal code alleging that the respondent and his wife concealed their assets in the Wealth Statement and got those assets by illegal means, The ACC case was transferred to the Special Judge Court No.9, Dhaka as Special Case No. 10 of 2008.
 
9. After completion of the trial on 14.05.2008 the Special Judge Court No.9, Dhaka convicted the respondent in the Special Case No. 10 of 2008 arising out of Gulshan P.S. Case No.77 (9)07 dated 27.09.2007 which was filed by the Anti-Corruption Commission against the respondent No.1 and also against his wife son under sections 26 and 27 of the Anti-Corruption Commission Act, 2004, Rule 15 (Gah) (5) of the Emergency Power Rules, read with Section 109 of the Penal Code alleging that the respondent and wife and members concealed their assets in the wealth statement and obtained those assets by illegal means.
 
10. Being aggrieved by and dissatisfied with the proceeding and judgment and order of conviction and sentence dated 14.05.2008 passed by the learned Special Judge, Special  Court No.9, Dhaka in Special Case No.10 of 2008. The petition­er filed Criminal Miscellaneous Case No.1950 of 2009 before the High Court Division and the High Court Division issued the impugned order.
 
11. Being aggrieved by the impugned order the State has come before us for leave to appeal.
 
12. Heard Mr. M. A. Aziz  Khan, the learned Counsel appearing  with Mr. Khurshed Alam Khan for the petitioner and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.
 
13. The learned Counsel submits that the High Court Division erred in law by enter­taining the application under Section 561A of the Code of Criminal Procedure from a fugitive who has not yet showed respect to trial court's order by surrender­ing to the court for serving the sentence, and issuing ad interim order of stay of the non-existent proceeding inasmuch as the High Court Division does not possess any inherent power to pass such order. The petitioner's remedy lies in filing of appeal under section 10 of Criminal Law Amendment Act, 1958 and an application under Section 426 of Code of Criminal Procedure.
 
14.The learned Counsel submits that the High Court Division committed error of law by granting bail to the fugitive-con­vict, even when he is not in custody and failed to appreciate  that the inherent power under Section 561A of Code of Criminal Procedure does not provide the Court with any additional power beyond what it possess under the law inasmuch as in the law under our criminal justice sys­tem no inherent power is available to admit any accused or convict to bail when the bail matter for accused is dealt with under chapter XXXIX and for the convict under Section 426 of the Code of Criminal Procedure.
 
15. The learned counsel lastly submits that since the respondent has already been con­victed the provisions of Sections 496 to 498 of the Code of Criminal Procedure are not applicable in his case and since no appeal has been preferred again the con­viction the provision of Section 426 is also not applicable for granting bail to the respondent and therefore the order of the High Court Division granting bail to a fugitive is not tenable in law.
 
16. The above submissions made on behalf of the petitioner merits considera­tion.
 
17. Leave is granted to consider the same upon condo nation of delay.
 
18. Preparation of paper book is dispensed with as prayed for.
 
The impugned order of the High Court Division dated 14th January, 2009 passed in Criminal Miscellaneous Case No.1950 of 2009 is stayed with direction to the respondent No.1 to surrender before the concerned Court within 2 (two) weeks.
 
Ed.