Case No: Criminal Petition for Leave to Appeal No. 326 of 2009
Judge: S. K. Sinha,
Court: Appellate Division ,,
Advocate: Md. Khurshid Alam Khan,Mr. Munsurul Haque Chowdhury,,
Citation: 3 LNJ (2014) 11
Case Year: 2014
Appellant: Anti-Corruption Commission
Respondent: Mohammad Bayazid and others
Subject: Interpretation of Statute, Quashment of Proceedings,
Delivery Date: 2013-01-03
|Md. Muzammel Hossain, C. J.
Surendra Kumar Sinha, J
Md. Abdul Wahhab Miah, J
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J
Muhammad Imman Ali, J
3rd January, 2013
|Anti Corruption Commission
Mohammad Bayazid and others
In case of conflict between the parent law and the Rule, the law will prevail over the rules which are framed under a power conferred by a section of an Act should be read as part of that section and not an additional section of that Act. It is now settled that the Rules shall be given the same effect as if they were contained in the Act. If the Authority in making the rules transcends its powers, the rule will be invalid. . . .(8 and 9)
Code of Criminal Procedure (V of 1898)
Anti-Corruption Commission Act (V of 2004)
Under the amended provision no prior sanction of the Commission for filing a case is necessary in accordance with Form-3. The High Court Division was confused by the use of the words “sanction for filing case’ which were deleted by Ordinance No. VII of 2007 and by overlooking this aspect of the matter quashed the proceeding illegally. . . .(10)
For Respondents: Mr. Munsurul Haque Chowdhury, Senior Advocate instructed by Mr. Mr. Mvi. Wahidulla, Advocate-on-Record.
Criminal Petition for Leave to Appeal No. 326 of 2009
In this petition the petitioner Anti-corruption Commission calls in question the property of the judgment of the High Court Division in quashing the proceedings in Special Case No. 3 of 2009 pending before the Special Judge, Mymensingh on technical grounds that no sanction has been given by it in conformity with Form-3 appended to the ACC Rules, 2007.
Short facts leading to the initiation of the proceedings are that pursuant to an FIR lodged with the Kotwali police, Mymenshingh, for alleged commission of offences punishable under section 161 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947, G.R. Case No. 451 of 2007 was started against the respondent Mohammad Bayazid, the Superintendent Engineer, Roads and Highways. The investigating agency eventually submitted a police report recomm-ending for prosecution of the respondent on 13th January, 2009. The case record was eventually sent to the Senior Special Judge, Mymenshing for trial. The Special Judge who got the case for trial subsequently on rejecting the respondent’s petition made under section 265C of the Code of Criminal Procedure, framed charge against him under section 5(2) of the Prevention of Corruption Act, 1947 on 26th January, 2009. Thereafter, the respondent moved the High Court Division.
Though the High Court Division noticed that the police report was submitted with prior sanction of the Commission, it was observed that such sanction was not in conformity with Form-3 of the Anti-Corruption Commission Rules. The High Court Division was of the view that the sanction letter under memo dated 7th October, 2009 was a mechanical one without application of mind and accordingly quashed the proceeding.
Mr. Khurshid Alam Khan, learned counsel appearing for the petitioner submits that the High Court Division erred in law in quashing the proceedings on technical ground despite the fact that the Anti-Corruption Commission has accorded sanction for submission of police report in accordance with law. In this connection the learned counsel has drawn our attention to the sanction letter under memo dated 7th October, 2009 of the Anti-Corruption Commission which has been reproduced in the body of the judgment.
We have perused the impugned judgment and other materials on record. We have heard the learned counsel of both sides. In the sanction letter it has clearly been stated that ‘‘দুর্নীতি দমন কমিশন আইন, ২০০৪ এর ৩২ ধারা এবং দুর্নীতি দমন কমিশন আইন, ২০০৭ এর বিধি ১৫ উপ-বিধি (১) প্রদত্ত ক্ষমতাবলে নিমেণাক্ত ব্যক্তিদের বিরম্নদ্ধে নিমেণাক্ত ধারায় চার্জশীট দাখিলের অনুমোদন (sanction) জ্ঞাপন করা হইল।’’. Section 32 of the Anti-Corruption Commission Act prescribes for the sanction of the Commission which is a mandatory requirement of law for taking cognizance of offences punishable under the Act and the investigating officer is required to obtain prior sanction of the Commission after completion of the investigation and submit the same together with the copy of the sanction letter given by the Commission. Sub-section (1) of Section 32 was amended by Ordinance No. VII of 2007 which came into effect on 18th April, 2007. Before amendment of section 32(1) by the Anti-Corruption Commission (amendment Ordinance, 2007) prior sanction for filing of case under the Anti-Corruption Act was a precondition. Sub-section (1) of Section 32 as stood prior to amendment is as under:
After amendment, sub-section (1) of section 32 stands thus:
Under the amended provision the words ‘for filing case’ have been deleted and sanction is necessary only for the purpose of taking cognizance of the offence. The prior sanction as was required for filing a case under the Act is not necessary. Sub-section (2) of section 32 has not been amended which requires the investigating officer to obtain prior sanction of the Commission before submitting police report. In accordance with sub-section (2) of section 32 prior sanction for submission of the charge sheet was duly taken. The question is whether sanction for filing the case as noticed by the High Court Division is necessary or not. In Form-3 appended to the Anti-Corruption Rules in the subject matter as well as the contents to be included in the order of sanction letter, it was mentioned ‘sanction for fling case/submission of charge sheet’ was necessary. Form-3 appended to the Rules, 2007 was printed in accordance with unamended provision of sub-section (1) of section 32 under which provision for filing a case under the Act prior sanction of the Commission was required to be taken. Though Rule 15(7) prescribes for prior sanction for filing a case as well, this Rule has been framed in accordance with the unamended provision of section 32 of the Act and no corresponding amendment to the said Rule has been made after amendment of section 32(1). Though it was mentioned in Form-3 that it was drawn up in exercise of power under section 32 of the Act, there was nothing to infer that it was in accordance with the amended provision.
When there is conflict between the parent law and this Rule, the law will prevail over the rules. Rules made under a statue must be treated for all purposes of construction or obligations exactly as if they were in the Act and are to be of same effect as if contained in the Act and are to be judicially noticed for all purposes of construction and obligation. The exercise of power of making rules is referable to a power which confers validity upon it. The rules framed under a power conferred by a section of an Act should be read as part of that section and not as an additional section to that Act. In construing ‘rules’ it is now settled that they shall be given the same effect as if they were contained in the Act. It means that they cannot be given any other construction that that they shall for all purposes of construction or obligation or otherwise, be treated exactly as if they were in the Act. In other words, if validity made the rules are to be given the effect as the provisions of the Act.
More so, the question of validity of subordinate legislation depends on the vires of the rules made by the rule-making authority under powers conferred by the enabling statue. If the authority in making the rules transcends its powers, the rule will be invalid for, statutory rules made in exercise of the delegated ay are valid and binding only if made within the limits of the authority conferred.
Therefore, under the amended provision no prior sanction of the Commission for filing a case is necessary in accordance with Form-3. The High Court Division was confused by the use of the words “sanction for filing case’ which were deleted by Ordinance No. VII of 2007 and by overlooking this aspect of the matter quashed the proceeding.
The copy of the sanction letter as quoted in the judgment clearly shows that the Anti-Corruption Commission has accorded sanction for submission of police report. Therefore, there is no illegality or impropriety on the part of the learned Special Judge in taking cognizance of the offences and also in framing charge against the respondent. The High Court Division without application of its judicial mind quashed the proceedings. Since charge had already been framed in the case against the respondent as back as on 26th January, 2009 and about 4(four) years had elapsed in the meantime, we find it not necessary to examine the question by granting leave which would unnecessarily delay the disposal of the case. The reason upon which the High Court Division quashed the proceeding is apparently contrary to law. The impugned judgment of the High Court Division is not tenable in law and accordingly, it is liable to be interfered with. The judgment of the High Court Division is accordingly set aside. We direct the learned Special Judge to proceed with the case in accordance with law.
This petition is disposed of with the above observations.