Mohiuddin Ahmed Vs. The State 3, LNJ (2014) 606

Case No: Criminal Miscellaneous Case No. 2268 of 2012

Judge: Salma Masud Chowdhury,

Court: High Court Division,,

Advocate: Mr. Khandaker Diliruzzaman,Mr. S.M. Rezaul Karim ,Mr. Md. Sultan Mahmud Afrad,Mr. M. Masud Alam Chowdhury,Mr. Abdur Rakib,Mr. Md. Abdul Halim ,,

Citation: 3 LNJ (2014) 606

Case Year: 2014

Appellant: Mohiuddin Ahmed

Respondent: The State

Subject: Quashment of Proceedings,

Delivery Date: 2013-06-18


HIGH COURT DIVISION
(CRIMINAL MISCELLANEOUS jURISDICTION)
 
Salma Masud Chowdhury, J,
And
Md. Jahangir Hossain, J.

Judgment on
18.06.2013
  Mohiuddin Ahmed
. . . Petitioners
-Versus-
The State
 .. . Opposite Party
 

Code of Criminal Procedure (V of 1898)
Section 561A
Customs Act (IV of 1969)
Sections 202 and 218
The informant lodged a first information report with the local police station alleging that the accused person had forged a bond license and submitted the same with Chittagong Port Authority and thereby sold 189222 MT of raw materials in open market which was imported under the said bond license and thus he misappropriated Government’s revenue to the tune of Tk. 15,52,56,998.65 by evading payment of the same and one Md. Kahlilur Rahman, Assistant Inspector, Task Force-91, Durnity Damon Bureau lodged the first information report after inquiring into the matter but the accused petitioner was not named in the said first information report and subsequently he was implicated in the charge sheet.  Section 218 of the Customs Act, 1969 gave protection to the officers who act bonafide from criminal litigation and from the charge sheet it appears that the principal accused prepared documents and accused petitioner by putting his signature, approved the same and it is a settled principle that in such situation if the officer put his signature as routine work when the other things relating to preparation of documents are done by other employees, no criminal intention is disclosed and as such initiation of proceedings against the petitioner is an abuse of the process of the Court and is liable to be quashed. . . . (10 and 11)
 
Mr. S. M. Rezaul Karim with
Mr. Md. Sultan Mahmud Afrad
. . . For petitioner

Mr. Khandaker Diliruzzaman, D.A.G. with
Mr. M. Masud Alam Chowdhury, A.A.G. and
Mr. Abdur Rakib, A.A.G.
. . . For the State.

Mr. Md. Abdul Halim
. . . For opposite party No. 2.

Criminal Miscellaneous Case No. 2268 of 2012
 
JUDGMENT
Salma Masud Chowdhury, J.
 
This Rule arising out of an application under section 561A of the Code of Criminal Procedure at the instance of the accused petitioner was issued calling upon the opposite party to show cause as to why the proceedings of Special Case No. 16 of 2012 under section 420/409/467/468/471/ 406/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947, now pending in the Court of Metropolitan Senior Special Judge, Chittagong should not be quashed and/or pass such other or further order or orders as to this Court may seem fit and proper.

The prosecution case in short is that the informant lodged a first information report with the local police station alleging that the accused person had a forged bond license and submitted the same with the Chittagong Port Authority and thereby sold 189222 MT of raw materials in open market which was imported under the said bond license and thus he misappropriated Government’s revenue to the tune of Tk. 15,52,56,998.65 by evading payment of the same and hence the present case.

The police investigated the case and submitted charge sheet against the accused persons under sections 420/409/ 467/468/ 471/ 406/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947.

The petitioner obtained bail from the trial Court.

Being aggrieved by the proceedings of the case, the petitioner filed an application under section 561A of the Code of Criminal Procedure before this Court and obtained the present Rule.

Mr. Md. Sultan Mahmud Afrad, the learned Advocate appearing on behalf of the petitioner submits that on perusal of the first information report and the charge sheet, it appears that lodging of the fist information report and submission of charge sheet by the same enquiry officer and institution of criminal proceedings is illegal and as such continuation of the proceedings against the petitioner is an abuse of the process of the Court and is liable to be quashed. He also submits that the instant proceedings against the petitioner is barred under section 218 of the Customs Act wherein it has been stated that no proceeding in a Court other than a suit shall be concerned against any officer of customs or any other persons exercising any powers conferred or discharging any duties imposed by or under this Act for anything purporting to be done in pursuance of the provisions of this act or the rules without giving to such officer or persons a month’s previous notice in writing of the intended proceedings and of the cause thereof, or after the expiration of one year from the accrual of such cause and in view of the provisions the initiation of the proceedings against the petitioner is an abuse of the process of the Court and is liable to be quashed. The learned counsel then submits that the allegation raised against the accused petitioner in the charge sheet that কোনরূপ যাচাই না করেই ----- পন্য ছাড়ের জন্য বন্ডারের আবেদন সহ রিকি বন্ড অনুমোদন করেন and from the facts disclosed in the charge sheet it is prima facie clear that the involvement of the accused petitioner is so little that if the accused petitioner be put on trial, in that case, the prosecutions will not bring home the charge against the accused petitioner as it appears that the accused petitioner only put his signature on the office file prepared by the office assistant in good faith and if this proceeding be allowed to continue against the accused petitioner that will perpetuate an injustice and as such initiation of proceedings against the petitioner is an abuse of the process of the Court and is liable to be quashed for ends of justice.

Mr. Khandaker Diliruzzaman, the learned Deputy Attorney General appearing on behalf of the State opposes the Rule.

Mr. Md Abdul Halim, the learned advocate appearing on behalf of opposite party No. 2 (Anti-Corruption Commission) opposes the Rule and submits that the allegation against he petitioner can only be proved, on adducing evidence during trial and there are not sufficient materials before this Court at present for quashing the proceedings.

We have perused the application under section 561A of the Code of Criminal Procedure along with other materials on record and heard the learned Advocate appearing on behalf of the petitioner and opposite party No. 2 (Anti-Corruption Commission) and also the learned Deputy Attorney General representing the State.

It appears that the informant lodged a first information report with the local police station alleging that the accused person had forged a bond license and submitted the same with Chittagong Port Authority and thereby sold 189222 MT of raw materials in open market which was imported under the said bond license and thus he misappropriated Government’s revenue to the tune of Tk. 15,52,56,998.65 by evading payment of the same and one Md. Kahlilur Rahman, Assistant Inspector, Task Force-91, Durnity Damon Bureau lodged the first information report after inquiring into the matter but the accused petitioner was not named in the said first information report and subsequently he was implicated in the charge sheet.

From the charge sheet it appears that the petitioner put his signature only in the office file, a mere routine work, prepared by the office assistant. Section 202 of the Customs Act, 1969 gave ample power for recovery of the amount from the persons who were wrongly paid money on 21.6.2011. The Customs authority filed a Certificate Case and the case being registered on 21.6.2011 being C.C. No. 94/Customs/11 for recovery of its demanded money under the provisions of Public Demand Recovery Act which is pending for disposal. No where either in the first information report or in the charge sheet, any allegation has been brought against the petitioner that he was a beneficiary or was benefited from the misappropriated sum of money Section 218 of the Customs Act, 1969 gave protection to the officers who act bonafide from criminal litigation and from the charge sheet it appears that the principal accused prepared documents and accused petitioner by putting his signature, approved the same and it is a settled principle that in such situation if the officer put his signature as routine work when the other things relating to preparation of documents are done by other employees, no criminal intention is disclosed and as such initiation of proceedings against the petitioner is an abuse of the process of the Court and is liable to be quashed.
From the discussion above, we find that the further proceedings against the petitioner in the present case would be nothing but sheer abuse of the process of the Court and is liable to be quashed for ends of justice.

In the result, the Rule is made absolute. The proceedings of Special Case No. 16 of 2012, now pending in the Court of Metropolitan Senior Special Judge, Chittagong are hereby quashed so far as it relates to the petitioner.

The order of stay granted earlier by this Court stands vacated.

Communicate a copy of the judgment and order to the Court concerned.

Ed.