Md. Nazrul Islam Vs. The State 2016 (2) LNJ 140

Case No: Criminal Miscellaneous Case No. 1128 of 2004

Judge: Zubayer Rahman Chowdhury,

Court: High Court Division,,

Advocate: Mr. Md. Fazlur Rahman Khan,Dr. Chowdhury Israk Ahmed Siddiky,Mr. Md. Yousuf Mahmud Morshed,,

Citation: 2016 (2) LNJ 140

Case Year: 2016

Appellant: Md. Nazrul Islam

Respondent: The State

Subject: Criminal Law,

Delivery Date: 2013-08-01

Md. Nazrul Islam Vs. The State 2016 (2) LNJ 140
 
HIGH COURT DIVISION
(CRIMINAL MISCELLANEOUS JURISDICTION)
Zubayer Rahman Chowdhury, J.
And
Md. Abu Zafor Siddique, J
Judgment on
01.08.2013
}
}
}
}
Md. Nazrul Islam
.. Accused-Petitioner
-Versus-
The State
... Opposite party

Code of Criminal Procedure (V of 1898)
Section 561A
When the Enquiry Committee failed to establish the charges against the petitioner, initiation of a criminal proceeding, and that too on the same set of charges, would tantamount to an abuse of the process of the Court, more particularly when the standard of proof required in a criminal case is much higher than those required in a departmental proceeding.                . . . (21)

Code of Criminal Procedure (V of 1898)
Section 561A
It is, therefore, evident that the case against the petitioner was considered twice – once by the Departmental Enquiry Committee and subsequently, by this Court. On both occasions, he stood exonerated. Therefore, in our view, the continuation of the impugned proceeding against the petitioner in Special Case No. 11 of 2001, pending before the Court of Divisional Special Judge, Mymensingh, would certainly tantamount to an abuse of the process of the Court.                                     . . . (30)

Srikisson Beriwala and another Vs. Emperor, 37 Cr. L J 187; Muhammad Akbar Vs. The State and another, PLD 1968 Supreme Court 281; M. Rahela Khatun Vs. M.A. Hassan and others, 5 BLT (AD) 1997, 22 and  P.S. Rajya Vs. State of Bihar, (1996) 9 Supreme Court Cases 1 ref.

Criminal Miscellaneous Case No. 1128 of 2004


Dr. Chowdhury Israk Ahmed Siddiky, Advocate
. . . For the petitioner
Mr. Md. Fazlur Rahman Khan, DAG with
Mr. Md. Yousuf Mahmud Morshed, A.A.G
. . . For the State.
 
JUDGMENT

Zubayer Rahman Chowdhury, J:
By this application under section 561A of the Code of Criminal Procedure, the petitioner seeks to quash the proceedings of Special Case No. 11 of 2001, arising out of Kotwali Police Station Case No. 12(7)95, corresponding to G.R. No. 356(2)95, under sections 409, 419, 420, 467, 468, 471 and 109 of the Penal Code together with section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 47) now pending in the Court of Special Divisional Judge, Mymensingh.
  1. At the time of issuance of the Rule on 23.03.2004, all further proceeding of the aforesaid case was stayed for a period of four months. Subsequently, by order dated 19.07.2004, the order of stay was extended till disposal of the Rule. 
  2. Dr. Chowdhury Ishraq Ahmed Siddiky, the learned Advocate appears on behalf of the petitioner in support of the Rule, while Mr. Md. Fazlur Rahman Khan, the learned Deputy Attorney General (briefly, the DAG) appears in opposition to the Rule.
  3. Relevant facts necessary for disposal of the Rule are that on 20.12.1994, an FIR was lodged by the Executive Engineer, Sales and Supply Division 1, Mymensingh stating, inter alia, that the Resident Engineer, Purbadhala Electric Sales and Supply Section, Power Development Board (briefly, PDB) sent a letter dated 20.11.1994 to him (i.e., the informant) asking for some electric goods and machineries, which was forwarded to the concerned authority for taking necessary action. The said goods and machineries were sent to the informant, who, in turn, handed them over to the accused petitioner through the lineman of his office on 21.09.1995.
  4. Subsequently, when the Resident Engineer of Pubadhala Electric Supply, PDB went to the office of the informant in connection with some official work, the informant asked him about the goods and machineries, who replied that the goods and machineries were kept at the petitioner’s house as it was not possible to take them to the assigned godown at that time. The informant directed the accused petitioner to deposit the goods and machineries in the Divisional Godown.
  5. The informant sent a letter to the accused petitioner seeking information about the goods and machineries. In reply, the Resident Engineer replied that he had no knowledge about it. Subsequently, one Azizur Rahman was called to the office of the informant, who admitted that the goods and machineries were in his custody. Thereafter, Azizur Rahman and Nazrul Islam went to the informant’s office and admitted their guilt and wanted to return the goods and machineries. However, as they failed to do so, the informant lodged the case.
  6. The police took up investigation and, upon conclusion of the same, submitted charge sheet against three accused persons including the petitioner.
  7. The case was then sent for trial to the Court of Special Divisional Judge, Mymensingh and charge was framed against the accused petitioner and two others on 19.05.2002. However, after the framing of charge, the Public Prosecutor obtained adjournment on several dates as none of the witnesses appeared to depose in the case.
  8. In the meantime, a Departmental proceeding was initiated by PDB by constituting a four member Enquiry Committee, headed by the Superintendent Engineer.  Although the petitioner and two others were charged under 6 (six) separate heads, the Committee found that 5 of the charges could not be established against the petitioner. However, with respect to the other charge, the Committee only “suspected” the petitioner’s involvement with the same.
  9. Despite the findings as aforesaid, PDB issued Memo No. 184-¢hE­h¡- (Ax nª)3/H-21/95 dated 16.06.1999 imposing a penalty of Tk. 53,149.70, directing the petitioner to pay the same through monthly installment of Tk. 1,000/- each. The petitioner’s increment was also stopped for 1(one) year.
  10. Challenging the same, the petitioner filed Writ Petition No. 2703 of 1999, which was contested by PDB by filing an affidavit-in-opposition. Upon hearing both sides, a Division Bench of this Court, by judgment and order dated 26.07.2006, made the Rule absolute, declaring the aforesaid Memo dated 16.09.1999 to have been issued without lawful authority.
  11. However, subsequent to filing of the Writ Petition, but prior to pronouncement of judgment, the concerned authority filed the criminal case against the petitioner on 30.08.2000 in respect of the self same allegation and charge.
  12. Being aggrieved thereby, the petitioner moved this Court and obtained the instant Rule.
  13. Dr. Chowdhury Israk Ahmed Siddiky, the learned Advocate appearing for the petitioner submits that the Enquiry Committee, constituted by the Power Development Board, conducted a thorough investigation into the matter, but failed to establish the charges against the petitioner.
  14. Referring to the judgment dated 26.07.2006 passed in Writ Petition No. 2703 of 1999, Dr. Siddiky submits that since a competent Court of law declared the imposition of penalty and stoppage of increment of the petitioner by PDB to be illegal and without lawful authority, the entire matter came to an end there. Dr. Siddiky further submits that since the petitioner had been exonerated from all the charges by a competent Court of law, he cannot now be put on trial in respect of the same set of charges in a criminal forum, being barred under Article 111 of the Constitution. Furthermore, according to Dr. Siddiky, a criminal Court is not competent to deal with any matter that has already been dealt with by a civil Court in another proceeding. Therefore, the proceeding of the said criminal case filed against the petitioner case is liable to be quashed.                                                                                                                                                                                                                                                                                                                                                                                                                  
  15. Mr. Md. Fazlur Rahman Khan, the learned Deputy General appearing for the State submits that the Departmental Enquiry Committee found the petitioner guilty. Mr. Khan contends that although the imposition of penalty and stoppage of one year’s increment was set aside by this Court in Writ Petition No. 2703 of 1999, the Board filed a criminal case against the petitioner, which is still pending in the Court below. According to Mr. Khan, since a prima-facie case appears to have been disclosed against the petitioner, the question of quashment of the proceeding does not arise at this stage and therefore, the Rule is liable to be discharged.
  16. We have perused the instant application together with the connected documents, more particularly, the judgment dated 26.07.2006 passed in Writ Petition No. 2703 of 1999. We have also considered the submission advanced by the learned Advocates of the contending sides.
  17. In the instant case, the petitioner was initially charged under six heads by PDB. The Enquiry Committee, after a thorough investigation, found that five heads of charge could not be established against the petitioner. However, the Committee “suspected” that the petitioner had “complicity” with one charge. Accordingly, vide Memo dated 16.06.1999, he was penalized by imposition of fine and stoppage of one year’s increment, which was, however, challenged through Writ Petition No. 2703 of 1999, wherein the Rule was made absolute on contest by judgment dated 26.07.2003.
  18. Let us now refer to the report of the Enquiry Committee, wherein the finding of the Committee reads as under :
অভি­যাগ নং ১ঃ
ক) অভি­যা­গর সংক্ষিপ্ত বিবরনঃ . . . . . . . . . . . . . . . . . . .
খ) অভিযু­ও্রর সংক্ষিপ্ত জবাবঃ . . . . . . . . . . . . . . . . . . .
গ) তদ¿¹ কমিটির বও্রব্যঃ . . . . . . . . . . . . . . . . . . .
ঘ) তদ¿¹ কমিটির সিদ্ধা¿¹ঃ অভি­যাগ স­ন্দহাতীতভা­ব প্রতিষ্ঠিত নয়z
অভি­যাগ নং ২ (অনু­চ্ছদ-২)ঃ
ক) অভি­যা­গর সংক্ষিপ্ত বিবরনঃ . . . . . . . . . . . . . . . . . . .
খ) অভিযু­ও্রর সংক্ষিপ্ত জবাবঃ . . . . . . . . . . . . . . . . . . .
গ) তদ¿¹ কমিটির বও্রব্যঃ . . . . . . . . . . . . . . . . . . .
ঘ) তদ¿¹ কমিটির সিদ্ধা¿¹ঃ অভি­যাগ প্রতিষ্ঠিত নয়z
অভি­যাগ নং ৩ (অনু­চ্ছদ-৩)ঃ
ক) অভি­যা­গর সংক্ষিপ্ত বিবরনঃ . . . . . . . . . . . . . . . . . . .
খ) অভিযু­ও্রর সংক্ষিপ্ত জবাবঃ . . . . . . . . . . . . . . . . . . .
গ) তদ¿¹ কমিটির বও্রব্যঃ . . . . . . . . . . . . . . . . . . .
ঘ) তদ¿¹ কমিটির সিদ্ধা¿¹ঃ অভি­যাগ সরাসরি প্রতিষ্ঠিত হয় নাইz ত­ব মিটার কারচুপি­ত সংশ্লিষ্টতা রহিয়া­ছ বলিয়া ম­ন হয়z
অভি­যাগ নং ৪ (অনু­চ্ছদ- ৪)ঃ
ক) অভি­যা­গর সংক্ষিপ্ত বিবরনঃ . . . . . . . . . . . . . . . . . . .
খ) অভিযু­ও্রর সংক্ষিপ্ত জবাবঃ . . . . . . . . . . . . . . . . . . .
গ) তদ¿¹ কমিটির বও্রব্যঃ . . . . . . . . . . . . . . . . . . .
ঘ) তদ¿¹ কমিটির সিদ্ধা¿¹ঃ অভি­যাগ প্রতিষ্ঠিত নয়z
অভি­যাগ নং ৫ (অনু­চ্ছদ-৫)ঃ
ক) অভি­যা­গর সংক্ষিপ্ত বিবরনঃ . . . . . . . . . . . . . . . . . . .
খ) অভিযু­ও্রর সংক্ষিপ্ত জবাবঃ . . . . . . . . . . . . . . . . . . .
গ) তদ¿¹ কমিটির বও্রব্যঃ . . . . . . . . . . . . . . . . . . .
ঘ) তদ¿¹ কমিটির সিদ্ধা¿¹ঃ অভি­যাগ প্রতিষ্ঠিত নয়z
অভি­যাগ নং ৬ (অনু­চ্ছদ- ৬)ঃ
ক) অভি­যা­গর সংক্ষিপ্ত বিবরনঃ . . . . . . . . . . . . . . . . . . .
খ) অভিযু­ও্রর সংক্ষিপ্ত জবাবঃ . . . . . . . . . . . . . . . . . . .
গ) তদ¿¹ কমিটির মতামতঃ . . . . . . . . . . . . . . . . . . .
ঘ) কমিটির সিদ্ধা¿¹ঃ অভি­যাগ প্রতিষ্ঠিত নয়z
  1. Admittedly, out of the six charges brought against the petitioner, the Committee found that five charges could not be established, let alone be proved, against the petitioner. With regard to the remaining one charge, the Committee found as under :
ঘ) তদ¿¹ কমিটির সিদ্ধা¿¹ঃ অভি­যাগ সরাসরি প্রতিষ্ঠিত হয় নাইz ত­ব মিটার কারচুপি­ত সংশ্লিষ্টতা রহিয়া­ছ বলিয়া ম­ন হয়z
  1. Therefore, when the Enquiry Committee failed to establish the charges against the petitioner, initiation of a criminal proceeding, and that too on the same set of charges, would tantamount to an abuse of the process of the Court, more particularly when the standard of proof required in a criminal case is much higher than those required in a departmental proceeding.
  2. Let us now refer to some decisions which has been cited by Dr. Siddiky.
  3. In the case of Srikisson Beriwala and another v. Emperor, reported in 37 Cr. L J 187, the Court held :
“Where the issues in a criminal case are likely to be included in the issues in Civil Court which is ripe for hearing and there is a risk of a conflict of jurisdiction, it is better that the criminal proceeding are stayed.”
  1. In the case of Muhammad Akbar v. The State and another, reported in PLD 1968 Supreme Court 281, the Supreme Court of Pakistan held :
“There is now consensus of opinion that there is no invariable rule that a criminal proceeding should be stayed pending the decision of the Civil suit but the matter is one of discretion entirely. In exercising this discretion the guiding principle should be to see to whether the accused is likely to be prejudiced if the criminal proceeding is not stayed.”
  1. In our own jurisdiction, in the case of Abdul Quader vs. State, reported in 28 DLR (AD) 1978, 38, the Court held :
“In the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceedings the High Court would be justified in quashing the proceedings on that ground.”
  1. On the other hand, Mr. Khan has referred to a decision reported in 5 BLT (AD) 1997, 22 (M. Rahela Khatun vs. M.A. Hassan and others), where the Apex Court held that a criminal proceeding could not be quashed on the basis of defence materials which were still not part of the materials for the prosecution. However, the case is quite distinguishable from the one before us.
  2. In this contest, I may profitably refer to the case of P.S. Rajya v. State of Bihar, reported in (1996) 9 Supreme Court Cases 1, where the facts were very similar to the present case before us.
  3. In that case, the moot question was whether the respondent was justified in pursuing the prosecution against the appellant, who had been exonerated in the departmental proceeding, under section 5(2) read with section 5(1)(e) of the Prevention of Corruption  Act, 1947. As the charges in the criminal proceeding was the same as in the departmental proceeding, the Supreme Court of India answered in the negative and allowed the appeal.
  4. In the instant case, the petitioner stands on a much better footing. The initial Departmental enquiry conducted by a 4 (four) member Committee, found that five out of six charges could not be established against the petitioner. However, as the Committee “suspected” the petitioner’s complicity with one head of charge, a fine of Taka 53,000/= and odd was imposed and his increment for 1 year was stopped, which was challenged through Writ Petition No. 2703 of 1999. Upon hearing the parties and more particularly, having considered the Enquiry Report, the Court held that since the charges could not be proved against the petitioner, the imposition of fine and stoppage of 1(one) year’s increment by PDB was illegal and accordingly, made the Rule absolute by judgment dated 26.07.2003.
  5. It is, therefore, evident that the case against the petitioner was considered twice – once by the Departmental Enquiry Committee and subsequently, by this Court. On both occasions, he stood exonerated. Therefore, in our view, the continuation of the impugned proceeding against the petitioner in Special Case No. 11 of 2001, pending before the Court of Divisional Special Judge, Mymensingh, would certainly tantamount to an abuse of the process of the Court.
  6. Be that as it may, having regard to the facts and circumstances of the case and in due deference to the decisions referred to above, we are inclined to hold that the instant Rule merits positive consideration.
  7. In the result, the Rule is made absolute.
  8. The proceedings of Special Case No. 11 of 2001 arising out of Kotwali Police Station Case No. 12(7)95, corresponding to G.R. No. 356(2)95 under sections 409, 419, 420, 467, 468, 471,109 of the Penal Code and section 5(2) of the Prevention of Corruption Act, 1947 (Act II/47) now pending in the Court of Special Divisional Judge, Mymensingh, so far as it relates to the petitioner, is hereby quashed.
         The office is directed to communicate the order at once.
         Ed.