Mafruza Sultana Vs. The State and another [4 LNJ AD (2015) 190]

Case No: Criminal Appeal No. 186 of 2014

Judge: Syed Mahmud Hossain,

Court: Appellate Division ,,

Advocate: Mahbubey Alam,Mr. T. H. Khan,Mr. Khurshid Alam Khan,,

Citation: 4 LNJ AD (2015) 190

Case Year: 2015

Appellant: Mafruza Sultana

Respondent: The State and another

Delivery Date: 2015-04-12

Mafruza Sultana Vs. The State and another
4 LNJ AD (2015) 190
APPELLATE DIVISION
(CRIMINAL)
 
Surendra Kumar Sinha, CJ,
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J
Hasan Foez Siddique, J


Judgment on
12.04.2015
  Mafruza Sultana
. . . Petitioner
Versus
The State and another
. . .Respondents
 
 
Money Laundering Protirodh Ain, 2002 (VII of 2002)
Sections 2 (ঠ) (অ) (আ) and 13
Money Laundering Protirodh Ain, 2009 (Act No. VIII of 2009)
Section 4(2)
Even after receipt of the judgment and order of the High Court Division, the Assistant Direction, Anti-Corruption Commission issued a memo dated 11.09.2014 stating that if Julfikar Ali had been made an accused, there would be no witness to produce and prove any document in Court. Since there was no other option, Julfikar Ali was made a witness. Such views expressed in the memo are objectionable and derogatory to the observation and direction made by the High Court Division. It is no comprehensible of how the Anti-Corruption Commission took such a stand in respect of Julfikar Ali. Having considered all aspects of the case, we direct the Special Judge to treat Julfikar Ali and his wife Rahima Ali as accused in the case and to take cognizance against them under the relevant provisions of law and thereafter to proceed with the case in accordance with law. . . . (15, 16 and 17)

For the Petitioner: Mr. T. H. Khan, Senior Advocate, (Mr. A. M. Mahbub Uddin, Advocate, appeared with him), instructed by Mr. Md. Taufique Hossain, Advocate-On-Record.
For the Respondent No. 1: Mr. Mahbubeyt Alam, Attorney General, instructed by Mrs. Mahmuda Begum, Advocate-on-Record.
For the Respondent No. 2: Mr. Khurshid Alam Khan, Advocate, instructed by Mrs. Mahmuda Begum, Advocate-on-Record.
 
JUDGMENT
Syed Mahmud Hossain, J: 

This criminal petition for leave to appeal is directed against the judgment and order dated 20.02.2014 passed by a Division Bench of the High Court Division in Criminal Revision No.357 of 2013 summarily rejecting the application by the majority views of the learned Judges.
 
The accused-petitioner, Mafruza Sultana, filed Criminal Revision No.357 of 2013 before the High Court Division under section 10(1A) of the Criminal Law Amendment Act,1958 challenging the order dated 04.09.2013 passed by the learned Metropolitan Senior Special Judge, Dhaka in Metro Special Case No.138 of 2012 arising out of G.R. No.88 of 2011 correspondence to Gulshan Police Station Case No.45 dated 16.08.2011 taking cognizance against the accused-petitioner under section 13 of the Money Laundering Protirodh Ain,2002.   
 
The facts, leading to the filing of this criminal petition for leave to appeal, in a nutshell, are:
      The prosecution case, in brief, is that accused Md. Hafiz Ibrahim was an influential parliament member elected from Bhola-2 constituency in 8th National Parliament. He was  also a member of the Parliamentary Standing Committee of Ministry of Planning and Ministry of Information. Accused Md. Hafiz Ibrahim and his wife, the present accused-petitioners on 19.12.2005 in their joint names had opened a bank account in Standard Chartered Bank’s Battery Road Branch, Singapore being USD Account No.01-07-416270. On an enquiry, the Anti-Corruption Commission found that U.D.$ 1,75,000/- was transferred between 19.12.2005 to 16.01.2008 in their joint bank account in Singapore from the joint account of Julfikar Ali, who was then a consultant of Siemins Bangladesh Ltd. and his wife Rahima Ali. It was also revealed from the documents that the aforesaid U.S.$ was transferred to the account of the accused as a bribe to Hafiz Ibrahim for conduction of lobbing and helping Siemins to get a tender invited by the BTCL. Siemins admitted the said fact of giving money to many persons in Bangladesh in a criminal case, conducted in the District Court of Columbia, U.S.A. Accused Hafiz Ibrahim did not disclose anything about the said money in his wealth statement submitted before the Commission. Therefore, the accused persons committed an offence of Money Laundering.

On the basis of the FIR, Gulshan Police Station Case No.45 dated 16.08.2011 under sections 2 (ট) (আ) and 4(2) of the Money Laundering Protirodh Ordinance,2008 read with Money Laundering Protirodh Ain,2009 was started. 
The investigation officer after completing investigation and obtaining sanction from the Commission, submitted charge sheet under section 13 of the Money Laundering Protirodh Ain, 2002 read with section 4(2) of the Money Laundering Ain, 2009 against the accused-petitioner along with her husband.

After that, the case record was transferred to the Court of Metropolitan Senior Special Judge, Dhaka, and registered as Metropolitan Special Case No.138 of 2012. On 04.09.2012, the accused-petitioner filed an application for not taking cognizance against her. The learned Metropolitan Special Judge, Dhaka after hearing the respective parties by the order dated 04.09.2012 rejected the said application and had taken cognizance against the accused-petitioner and another under section 13 of the Money Laundering Protirodh Ain, 2002.

Being aggrieved by the said order of taking cognizance in the case, the accused-petitioner preferred a revisional application being Criminal Revision No.357 of 2013 before the High Court Division. Earlier, the matter was heard by a Division Bench of the High Court Division. But because of conflicting views of the learned Judges on the point of law with regard to issuance of the Rule, the matter was placed before the learned Chief Justice of Bangladesh for necessary order. The learned Chief Justice was pleased to send the matter before a Third Judge, namely, Mr. Justice Enayatur Rahim for hearing, who upon hearing this application by the order dated 20.02.2014 summarily rejected the application. 

Feeling aggrieved by and dissatisfied with the judgment and order passed by the High Court Division, the leave petitioner has preferred this criminal petition for leave to appeal before this Division.
Mr. T. H. Khan, learned Senior Advocate (Mr. A. M. Mahbub Uddin, Advocate appearing with him), appearing on behalf of the leave petitioner, submits that the learned Third Judge in his judgment observed that on perusal of the FIR and the charge sheet, it appeared that the money was transferred from the joint account of Julfikar Ali and his wife Rahima Ali to the account of present petitioner and her husband accused Hafiz Ibrahim in Singapore for illegal purpose but the said Julfikar Ali and his wife were not made accused in the present case that even after the observation of the High Court Division, the Anti-Corruption Commissioner did not make them accused in the case and as such, for violation of the observation of this Court, the entire proceeding should be quashed. He further submits that the High Court Division failed to appreciate that on the self-same offence, the continuation of one proceeding against the certain accused keeping in abeyance another part of the proceeding against other accused for investigation is violation of section 239 of the Code of Criminal Procedure and as such, the impugned judgment should be set aside.

Mr. Mahbubey Alam, learned Attorney General, appearing on behalf of respondent No.1, also supports the impugned judgment delivered by the High Court Division.

Mr. Khorshid Alam Khan, learned Advocate, appearing on behalf of respondent No.2, on the other hand, supports the impugned judgment delivered by the High Court Division. 

We have considered the submissions of the Senior Advocate for the leave-petitioner and the learned Attorney General for respondent No.1 and Mr. Khorshid Alam Khan, learned Advocate for respondent No.2, perused the impugned judgment and the materials on record.

Having considered a few reported and unreported cases of this Division, the High Court Division found that there was no scope to hold that sanction of the Government was mandatory to make inquiry of the offence of the present case as per provision of section 188 of the Code of Criminal Procedure. On consideration of the relevant provision of law, the High Court Division came to a finding that section 188 of the Code of Criminal Procedure was not applicable to this particular case and rather it was inconsistent with the provision of sections 20(1) and 32 of the Anti-Corruption Act, 2004 and section 4(4) and 6(1) of the Criminal Law Amendment Act,1958.

While rejecting the application under section 10(1)(A) of Criminal Law Amendment Act,1958, the High Court Division made the following observation and direction:
 
“However, on perusal of the First Information Report and the charge sheet, it appears that the alleged money was transferred from the joint account of Mr. Julfikar Ali and his wife Rahima Ali to the account of the present accused petitioner and her husband, accused Md. Hafiz Ibrahim in Singapore for illegal purchase but said Mr. Julfikar Ali and his wife were not made accused in the case, though Julfiker Ali has been cited as a witness in the charge sheet.
It is surprising to me that why said Julfikar Ali and his wife were not made accused in the case.
From the materials on record, prima facie it seems to me that they also committed offence of money laundering as defined in section 2(W) (A) (B) of the Money Laundering Portirodh Ain, 2002.
Thus, I am inclined to direct the Anti-Corruption Commission to look into the matter and to take appropriate steps in accordance with the law.”

The learned Special Judge, Special Court No.3, by order No.40 dated 30.04.2014 communicated the judgment and order of the High Court Division to the trial Court as well the Anti-Corruption Commission. Even after receipt of the judgment and order of the High Court Division, the Assistant Director, Anti-Corruption Commission issued a memo dated 11.09.2014. According to that memo if Julfikar Ali had been made an accused, there would be no witness to produce and prove any document in Court. Since there was no other option, Julfikar Ali was made a witness.

The aforesaid views expressed in the memo are objectionable and derogatory to the observation and direction made by the High Court Division. It is not comprehensible of how the Anti-Corruption Commission took such a stand in respect of Julfikar Ali.

Having considered all aspects of the case, we direct the Special Judge to treat Julfikar Ali and his  wife Rahima Ali as accused in the case and to take cognizance against them under the relevant provisions of law and thereafter to proceed with the case in accordance with law.

We, however, do not find any illegality in the impugned judgment delivered by the High Court Division. Therefore, this criminal petition for leave to appeal is disposed of with the direction made in the body of the judgment.

Ed.