Case No: Criminal Appeal No. 5 of 2009
Judge: Surendra Kumar Sinha,
Court: Appellate Division ,,
Advocate: Md. Khurshid Alam Khan,Mr. Rafique-ul-Huq,Mr. Zahirul Islam,,
Citation: 62 DLR (AD) (2010) 233
Case Year: 2010
Appellant: Habibur Rahman Mollah
Respondent: The State and another
Subject: Corruption, Inherent Power of the Court,
Delivery Date: 2010-4-4
Md. Fazlul Karim CJ
MA Matin J
ABM Khairul Haque J
SK Sinha J
Habibur Rahman Mollah (Ex-Member of Parliament, Dhaka 4)
State and another
April 4, 2010.
Anti-Corruption Commission Act (V of 2004)
Section 26 & 27
Whether the appellant has disproportionate wealth, he has concealed his known source of income, there is mis-joinder of charges and the trial of the appellant on facts allegedly committed prior to the promulgation of Durnity Daman Commission Ain, 2004 constitute an offence under the Durnity Daman Commission Ain are disputed facts can only be decided on evidence at the trial. ….. (15)
Code of Criminal Procedure (V of 1898)
Inherent power of the High Court Division is generally exercised where no other remedy is available for obtaining justice in the cause- it should not be invoked where another remedy is available. This power has not been vested upon the High Court Division where another remedy is available. This is an extraordinary power and is exercised in extraordinary circumstances in the interest of justice. … (8)
Cases Referred To-
MS Khawaja vs State, PLD 1965 SC 287=17 DLR SC 153; Md. Shamsuddin @ Lambu vs State, 40 DLR (AD) 69; Jairam Das vs Emperor, AIR 1945 PC 94; Emperor vs Nazir Ahmed, AIR 1945 PC 18; Abdul Quader Chowdhury vs State, 28 DLR (AD) 38; Akhtar Hossain Khan vs State, 29 DLR (SC) 101; Mofazzal Hossain Mollah vs State, 45 DLR (AD) 175; TS Baliah vs TS Rangachari, AIR 1969 (SC) 701; Md Nizamuddiii vs State, 30 DLR 49(FB); Abul Kalam Khan vs Riza Morshed, 5 BLC 2000; State of Delhi vs Cyan Devi, AIR 2001 SC 40; Amar Chand Agarwala vs Shanti Bose AIR 1973 SC 799 and RP Kapur vs State of Punjab, AIR 1960; 61 DLR 1.
Raflque-ul-Huq, Senior Advocate (with Azmalul Hossain, QC (Senior Advocate), instructed by AKM Shahidul Huq, Advocate-on-Record—For the Appellant.
Md Zahirul Islam, Advocate-on-Record—For the Respondent No.1.
Md. Khurshid Alam Khan, Advocate (with MA Aziz Khan, Advocate) instructed by Zahirul Islam, Advocate-on-Record—For the Added Respondent No. 2.
Criminal Appeal No. 5 of 2009.
(From the judgment and order dated 20-11-2008 passed by the High Court Division in Criminal Miscellaneous Case No. 11212 of 2008).
SK Sinha J.
The appellant Habibur Rahman Mollah, ex-member of Parliament, submitted his statement of wealth including the members of his family to the Durnity Daman Commission in pursuance of its letter under memo dated 29th May, 2007 directing him to submit as such. The Commission upon scrutiny for his wealth statement having suspected the statement as not true, made a thorough enquiry and it was said that he had concealed his wealth and submitted a falls return and that he had acquired property worth Taka 2 crore and odd by corrupt means. Accordingly an officer of the Commission lodged an first information report with the Ramna Police Station on 3rd October, 2007 against him for alleged commission of offences punishable under sections 26(2) and 27(1) of the Durnity Daman Commission Ain, 2004 read with Rule 15Gha (5) of the Emergency Powers Rules, 2007. The Commission investigated into the matter and having allegedly found disproportionate to the appellant's known source of income was of the opinion that he had committed offence punishable under the said provisions of law and accordingly submitted a police report re-commending for prosecution of the appellant under the aforesaid provision on 20th April, 2008.
2. The case record was eventually sent to the Metropolitan Senior Special Judge, Dhaka for putting the appellant on trial where Special Case No. 10 of 2008 was registered. Learned Special Judge after taking cognizance of the offences framed charge against the appellant under sections 26(2) and 27(1) of the Durnity Daman Commission Ain on 14th May, 2008. The appellant pleaded not guilty and claimed to be tried. The prosecution examined 17 witnesses out of 25 witnesses cited in the police report and the appellant thoroughly cross-examined them. It is at this stage the appellant came up with an application for quashing of the proceedings of the case before the High Court Division. The learned Judges of the High Court Division by judgment and order dated 20th November, 2008 discharged the rule. Thereafter the appellant moved this Division a leave petition. This Division granted leave to consider the following points:
"the Anti-Corruption Commission Act, 2004 came into effect on and from 9-5-2004 and unless any complaint, investigation, enquiry, filing of case or sanction were commenced or were pending under the Anti-Corruption Act, 1957 or the Anti-Corruption (Tribunal) Ordinance, 1960, the complaint, investigation, enquiry, filing of case or sanction cannot be tried under the Anti-Corruption Commission Act, 2004 as they do not come within the transitional provisions contained in section 38 thereof inasmuch as the provision of section 27(1) has been wrongly applied in the facts and circumstances of the case and the High Court Division committed an error of law contrary to Article 35(1) of the Constitution in failing to consider that some of the alleged acts relied upon in the first information report charge sheet and the charge frame order of the trial Court, were committed between 1971 and 9-5-2004 i.e. before enactment of the Anti-Corruption Commission Act, 2004."
3. Mr. Rafique-ul-Huq and Mr. Azmalul Hossain extensively argued on behalf of the appellant on the point of jurisdiction of the Special Judge to hold trial of the offence punishable under section 26(2) and 27(1) of the Durnity Daman Commission Ain, 2004 over an occurrence alleged to have been committed from 1971 to June 2007. Their main contention is that the Anti-Corruption Ain came into force on 9th May, 2004 but the alleged occurrence took place long before coming into force of the said Ain and institution of the case for alleged offences committed prior to coining of the aforesaid Ain with retrospective effect is totally illegal and without jurisdiction. In this connection learned Counsel have referred certain provisions of the Anti-Corruption Act, 1957, the Durnity Daman Commission Ain 2004, relevant rules of Durnity Daman Commission Rules, 2007, section 6 of the General Clauses Act and Articles 31 & 35(1) of the Constitution.
4. Before the High Court Division it was argued on behalf of the appellant that the enquiry into the matter having been made ignoring sub-rules (1), (2) & (5) of the Durnity Daman Commission Rules, 2007 the case was instituted in violation of Rules. It was further urged that no proper sanction was obtained in accordance with section 32(1) of the Durnity Daman Commission Ain, 2004 read with Rule 15(7) of the Durnity Daman Commission Rules and since the sanction was given in a mechanical way; it was not a sanction in the eye of law. It was further urged that there was mis joinder of charges, inasmuch as, the offences alleged to have committed from 1971 to June 2007 and thus, there is violation of section 234 of the Code of Criminal Procedure. The last point was raised is that the trial having not been concluded within the prescribed period of limitation the continuation of the proceeding is a sheer abuse of the process of the Court.
5. The learned Judge of the High Court Division having found no substance to points canvassed discharged the rule on the reasoning that the period of limitation for enquiry or investigation as provided in the Durnity Daman Commission Ain and the Rules framed thereunder were directory in nature, that the time limit provided in Rule 10 of the Durnity Daman Commission Rules for conclusion of investigation and section 6A of the Criminal Law Amendment Act, 1958 for conclusion of trial are directory in nature, that there was no violation of law that the sanction for prosecution of the appellant was given in accordance with law and that there was no mis joinder of charges.
6. The learned Judges of the High Court Division considered the points agitated meticulously and disposed of all the points on assigning proper reasons. The learned Judge thereupon concluded by observing the case is now at that stage where good number of witnesses have been examined, and cross-examined, as such we do not find any urged to invoke our inherent jurisdiction to quash the proceeding of this count" and discharged the rule on the reasoning that quashment of the proceeding at this belated stage cannot be entertained. The learned Judge of the High Court Division have considered the pros and cons of the matter and found that it is not a fit case for invoking its jurisdiction under section 561A of the Code of Criminal Procedure. The High Court Division gave convincing reasons while discharging the rule.
7. Before framing charge the appellant moved an application under section 241A of the Code of Criminal Procedure for the discharge. The learned Special Judge by his order dated 14th May, 2008 rejected the application and framed charge. The appellant did not take any exception against the said order of framing charge by rejecting his application under section 241A and surrendered to the jurisdiction of the Special Judge. He could have moved the High Court Division a revision petition against that order if he was at all aggrieved against the order of framing charge. Admittedly the appellant moved the High Court Division after examination of 17 prosecution witnesses. As noticed, the learned Counsel appearing for the appellant had totally given a go-bye to the points agitated before the High Court Division and tried to make out a third case in this Division.
8. The word 'process' is a general word meaning in effect anything done by a Court. "Abuse of the process of the Court" is generally applied to a case or proceeding which is wanting in bona fides and is frivolous or vexatious. Inherent power of the High Court Division is generally exercised where no other remedy is available for obtaining justice in the cause-it should not be invoked where another remedy is available. This power has not been vested upon the High Court Division where another remedy is available. This is an extraordinary power and is exercised in extraordinary circumstances in the interest of justice. This power is controlled by the principles and precedents as are its express statutory powers. The provisions of the Code provide that the administration of criminal justice should be allowed to proceed in the usual manner without interruption. If the High Court Division interferes with the case in the midst of the trial it will have to set up a wrong precedent by which instead of the cause of justice being advanced had really been stifled.
9. The Superior Courts of this sub-continent have settled the scope and power of the High Court Division to quash a proceeding by invoking its inherent power under section 561A of the Code of Criminal Procedure. Inherent jurisdiction of the High Court Division can be exercised in a proper case to quash proceedings 'to secure the ends of justice'. Ordinarily criminal proceedings instituted against an accused should have been tried under the provisions of the Code of Criminal Procedure and the High Court Division is always reluctant in interfering with the said proceedings at an interlocutory stage by invoking its power. In this connection I would like to reiterate the arguments made by the Supreme Court of Pakistan in MS Khawaja vs State, PLD 1965 SC 287 = 17 DLR SC 153 as under:
"Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interests, as a duty of the State. It can only be in a very rare case that a superior Court acting under its inherent power 'to prevent abuse of the process of any Court or otherwise to secure the ends of justice, would deem it appropriate to act so as to place an alleged offence outside the operation of the criminal law, on incidental grounds, such as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law............ To quash a judicial proceeding in order to secure the ends of justice' would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an 'abuse' it would be necessary to see in the proceeding' a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue, and similar perverse results."
10. In Md Shamsuddin @ Lambu vs State, 40 DLR (AD) 69, it has been argued by Shahabuddin Ahmed, J that this power "may be exercised only in those cases which are not covered by any specific provision of the Court. The inherent power of the Court is undefined and indefinite and, as such, it must be exercised very sparingly and with great caution". Similar views have been expressed in the State of Uttar Pradesh vs Mohammad Nairn, PLD 1964 SC 703 as under:
"It is now well settled that the section confers no new powers on the High Court. It merely safeguards all existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice. The section provides that those powers which the Court inherently possesses shall be preserved lest it be considered that the only powers possessed by the Court are those expressly conferred by the Code and that no inherent powers had survived the passing of the Code (see Jairam Das vs Emperor, AIR 1945 PC 94 and Emperor vs. Nazir Ahmed, AIR 1945 PC 18)."
11. In Amar Chand Agarwala vs Shanti Bose AIR 1973 SC 799, the charges were framed by the Chief Presidency Magistrate in presence of the accused. Several prosecution witnesses had been examined and at that stage one of the accused person moved a petition for quashing the proceedings. The Calcutta (Kolkata) High Court quashed the proceeding. The Supreme Court interfered with the judgment of the High Court on the arguments that the accused did not move the Court at the earliest stage when the Magistrate had issued process. Nor had the accused approached the High Court when the charges were framed. On consideration of the materials the Magistrate framed charged against all the accused. It was observed that if the case of the accused was that the allegations in the complaint do not constitute the offence complained of or that the complaint has to be quashed for any ground available in law, they should have approached the High Court, at any rate, immediately after the charges were framed. PB Gajendragadkar, J, argued for the Supreme Court then observed as under:
"It has been emphasised that the inherent jurisdiction could be exercised to quash proceedings in a proper case, either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. This Court has also indicated some of the categories of cases where the inherent jurisdiction could and should be exercised to quash proceedings. However the exercise of the power by the High Court in the case before us does not come within the ambit of the principles laid down by this Court in the above decision. For instance the second contention taken before the High Court by the accused related to the maintainability of the second complaint when the first complaint had been withdrawn and the accused had been discharged. If the High Court had accepted the contention of the accused in that regard it may be that the High Court was justified in quashing the proceedings though at a very late stage. But on that point, the High Court's decision is in favour of the complainant. The other points taken into account by the High Court do not justify the exercise of its power under section 561A and that too at a very late stage of the proceedings."
12. These views have been argued following the dictum in RP Kapur vs State of Punjab, AIR 1960 SC 866. The arguments made by PB Gajendragadkar, J, in the said case have been endorsed in verbation by Ahsanuddin Chowdhury J, in Abdul Quader Chowdhury vs State, 28 DLR (AD) 38. In this case it has been reiterated that the inherent jurisdiction should not be invoked where some other remedy is available. The jurisdiction given by section 561A is not an alternative or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code. This power cannot be utilized as to interrupt or divert the Ordinary Course of Criminal Procedure.
13. In State of Delhi Vs. Cyan Devi, AIR 2001 SC 40, the accused persons stood charged under sections 302/34 of the Penal Code and thereafter five witnesses were examined on behalf of the prosecution and at that stage, the prosecution filed an application intimating the Court that it had no other medical evidence to be adduced in the case other than that was proved by Dr VV Gupta (P.W. 3). Under such circumstances the accused persons filed an application for their discharge. The prayer was rejected by the trial Court. A Single Judge of the Delhi High Court quashed the order of framing charge against the accused person found on sifting the evidence of P.W.s 1-4 in the light of the autopsy report. Question arose before the Supreme Court was whether the learned Judge of the High Court was justified in invoking inherent power at this late stage of the proceeding. The Supreme Court in the facts of the given case interfered with the order of the High Court on the reasoning that the High Court exceeded its jurisdiction and observed as under:
"The High Court has erred in its approach to the case as if it was evaluating the medical evidence for the purpose of determining the question whether the charge under sections 304/34, IPC framed against the accused respondents 1 and 2 was likely to succeed or not. This question was to be considered by the trial Judge after recording the entire evidence in the case. It was not for the High Court to pre-judge the case at the stage when only a few witnesses (doctors) had been examined by the prosecution and that too under the direction of the High Court in the revision petition filed by the accused. The High Court has not observed that the prosecution had closed the evidence from its side. There is also no discussion or observation in the impugned order that the facts and circumstances of the case make it an exceptional case in which immediate interference of the High Court by invoking its inherent jurisdiction under section 482, Cr.P.C. is warranted in the interest of Justice. On consideration of the matter we have no hesitation to hold that the order under challenge is vitiated on account of erroneous approach of the High Court and it is clearly unsustainable."
14. Since the prosecution case is almost over and the appellant put his defense by cross-examining the witnesses, in view of the consistent views of the superior Courts of this sub-continent that the High Court Division which exercising its power under section 561A of the Code of Criminal Procedure should not usurp the jurisdiction of the trial Court, the learned Judges have acted in accordance with law. The powers under this provision have been vested in the High Court Division to quash a proceeding to prevent the abuse of the process of the Court but that power cannot be exercised to hold a parallel trial only on the basis of the allegations made in the first information report, the police report and the documents collected during the enquiry or investigation of the case for the purpose of expressing an opinion whether the accused is likely to be punished if the trial is allowed to proceed. It will be for the trial Court to examine whether on the evidence to be adduced by the prosecution it is established that the accused has disproportionate to his known source of income or that he has committed an offence by concealment of and/or suppression of wealth as per provisions of Durnity Daman Commission Ain. The Court is required to look into the allegations made in the first information report that whether the same discloses any offence or not. If the allegations do not disclose an offence the High Court Division is perfectly justified in invoking its inherent power on the reasoning that the continuation of the proceeding is a sheet-abuse of the process of the Court.
15. Whether the appellant has disproportionate wealth, whether he has concealed his known source of income, whether there is mis joinder of charges and whether the trial of the appellant on facts allegedly committed prior to the promulgation of Durnity Daman Commission Ain, 2004 constitute an offence under the Durnity Daman Commission Ain are disputed facts can only be decided on evidence at the trial. This is not a case that the allegations as disclosed in the first information report and the police report do not disclose any offence. If accepting the allegations made and charges levelled on their face value, the Court had come to the conclusion that no offence was disclosed, the matter would have been different. In view of the above, I am of the view that there is no legal impediment to proceed with the trial of the case.
16. As regards the decisions cited by the learned Counsel in Akhtar Hossain Khan Vs State. 29 DLR (SC) 101, Mofazzal Hossain Mollah vs. State, 45 DLR (AD) 175 and TS Baliah vs TS Rangachari, AIR 1969 (SC) 701, Md Nizamuddin vs State 30 DLR 49(FB), Abul Kalam Khan vs Riza Morshed, 5 BLC 2000, I am persuaded not to make any observation as to the applicability of these decisions at this stage of the proceedings. The appellant would be entitled to raise the statements of law argued in those cases in the trial Court.
17. The learned Judges of the High Court Division, in the premises, are perfectly justified in refusing to exercise their inherent power in the facts and circumstances of the case. The submissions of the learned Counsel merit no consideration.
The appeal is dismissed.