Ms. Ishratunessa Vs. The State, 3 LNJ (2014) 23

Case No: Criminal Misc. Case No. 1952 of 2009

Judge: Md. Rezaul Haque,

Court: High Court Division,,

Citation: 3 LNJ (2014) 23

Case Year: 2015

Appellant: Ms. Ishratunessa

Respondent: The State

Subject: Corruption, Quashment of Proceedings, Notice,

Delivery Date: 2011-11-17


HIGH COURT DIVISION
(CRIMINAL MISCELLANEOUS JURISDICTION)
 
Md. Rezaul Haque, J.
And
Md. Abu Zafor Siddique, J.


 
Judgment
17th November, 2011
  Ms. Ishratunessa
... Petitioner.
Vs.
The State
.. Respondents.
 
Code of Criminal Procedure (V of 1898)
Section 561A
Anti-Corruption Commission Act (V of 2004)
Section 26
Since no notice was issued and served upon the petitioner by the Anti Corruption Commission under section 26 of the Anti Corruption Commission Act, 2004, the very initiation of the proceeding is illegal. Moreso, the instant proceeding was started on the notice served upon the husband of the petitioner was found to have been issued in violation of section 26 of the Anti-Corruption Commission Act. The impugned proceeding was quashed. . . .(12 and 13)
          
Anti-Corruption Commission Vs. Nargis Begum and others, 62 DLR (AD) 279 and Anti-Corruption Commission Vs. Mohiuddin Khan Alamgir, 62 DLR (AD) 290 ref.

Mrs. Selina Akther Chowdhury
...For the petitoner.

Mr. Syed Mizanur Rahman
...For the A.C.C.
 
Criminal Misc. Case No. 1952 of 2009
 
JUDGMENT
Md. Rezaul Haque, J:

On an application under section 561-A of the Code of Criminal Procedure rule was issued calling upon the opposite party to show cause as to why the proceedings of Special Case No. 13 of 2008, corresponding to A.C.C. G.R. No. 131 of 2007, arising out of Ramna Model police station Case No. 109 dated 30.10.2007 under sections 26(2) and 27(1) of the Anti Corruption Commission Act, 2004 and Rule 15(Gha)(5) of the Emergency Powers Rules, 2007 read with section 109 of the Penal Code, now pending in the Court of Special Judge, Court No. 9, Dhaka 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, at the trial, in short, is that the accused husband (Obaidul Kader) himself and in the name of his wife, sons and daughters were found to be in possession of properties disproportionate of their known source of income and accordingly notice was issued upon the petitioner on 29.5.2007 requiring the accused petitioner to furnish statements of his properties including the properties in the names of his wife, sons and daughters and accordingly the accused petitioner submitted wealth statement through his wife and thereafter on holding preliminary inquiry it was found that the accused petitioner acquired properties in his name and as well as in the names of his wife and children which is disproportionate to his known source of income and hence the present case.On the basis of the said First Information Report Ramna Model police station registered the case under section 26 and 27 of the Anti Corruption Commission Act, 2004 read with Rule 15 Gha (5) of the Emergency Power Rules, 2007.

Thereafter the case was investigated by the Anti Corruption Commission and having found prima-facie case submitted charge sheet against the petitioner, her husband Obaidul Kader under section 26(2) and 27(1) of the Anti Corruption Commission Act, 2004 and section 5(2) of prevention of Corruption Act, 1947 read with Rule 15(Gha)(5) of the Emergency Power Rules, 2007 and 109 of the Penal Code.

Thereafter the case was transferred to the trial court and charge was so framed against this petitioner under section  26(2) and 27(1) of the Anti Corruption commission Act, 2004 read with Rule 15 Gha(5) of Emergency Power Rules, 2007 and section 109 of the Penal Code.

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

Mrs. Salina Akthar Chowdhury, the learned Advocate appearing on behalf of the petitioner has submitted that the main allegation was brought against the husband of this petitioner namely Obaidul Kader. Learned Advocate has further submitted that in different cases the Apex Court has already decided unless the notice is served upon the person concerned he or she should not be convicted for the same. It is further submitted that the notice was served by the Secretary of the Commission who has no jurisdiction to serve any notice as per provision of law as such the whole proceeding has become infructuous so, the proceedings is liable to the quashed.

On the other hand Mr. Md. Abdul Khaleque, the learned Assistant Attorney General appearing on behalf of the State submits that he cannot dispute the proposition of law laid down by the Appellate Division in the case of Anti-Corruption Commission-Vs-Mohiuddin Khan Alamgir. He further submits that this appeal should be disposed of only on law point without going into the detailed facts of the case so that the Anti-Corruption Commission may issue notice on fresh cause of action.

We have considered the submissions of both sides, perused the application and other connected papers.

In the instant case the petitioner has been affected on the basis of notice which was served upon her husband, notice was ever or never served upon her though she has individual TIN and income tax file.
In the case of Ani-Corruption Commission -Vs- Nargis Begum & others reported in 62 DLR(AD)-279 it is held:

“In the absence of any statement of asset; there was no scope to submit any explanation for acquisition of assets there was no scope for him to submit any explanation for acquisition of the assets. No citizen could be arraigned for such a severe offence in the absence of service of any notice or order for explaining the source of income. Offence of abetment under section 109 equally could not be conceived of with regard to such an offence.”

From the plain reading of the facts and circumstances of the case on hand it appears to us that notice was not served upon this petitioner who is also an individual tax payee and it is also decided earlier in other decisions that the notice has been served by the Secretary of the Commission is no notice in the eye of law. In this connection we are eager to refer the pertinent portion of case of Anti Corruption Commission-Vs-Mohiuddin Khan Alamgir, reported in 62 DLR(AD)-290, wherein it is held:
 
“In the present case, the notice dated 18-2-2007, under section 26 of the Act, was issued by the Secretary of the Commission but he does not represent the Commission, he is only one of its employees, to carry out the decision of the Commission. But at the relevant time there were no commissioners, as such apparently, the Secretary issued the notice on 18-2-2007, on his own, without any satisfaction and decision from the Commission, in violation of section 26 of the Act. The concerned authorities on realizing this error, tried to cover it up by inserting sub-section (2) in section 18 on 19-4-2004, by Ordinance No. VII of 2007. Sub-section (2) provides for ex post facto ratification of the acts done by the officers of the Commission during the period from 7-2-2007 to 24-2-2007, without any authorization from the commission, but the question of jurisdiction goes to the root of the matter. If any person acts beyond his authority, to the prejudice of any person, such acts cannot be ratified or validated by post facto legislation, his action remains void.”Since Anti Corruption Commission has not issued any notice against the petitioner and served upon her under Section 26 of the Anti corruption Act 2004, the very initiation of the proceeding is illegal and further more, the instant proceeding was initiated on the notice served upon the husband of the petitioner was found to be issued in violation of Section 26 of the Anti Corruption Act, 2004.   

Moreover, the proceeding against the husband of the petitioner (the principal accused) has already been quashed by this Division in connection with another miscellaneous case. So, we are of the view that the proceedings against  petitioner has been initiated in violation of law and as such, the same is liable to be quashed.

In the result, the rule is made absolute and the proceedings of Special Case No. 13 of 2008, corresponding to A.C.C. G.R. No. 131 of 2007, arising out of Ramna Model police station Case No. 109 dated 30.10.2007, is hereby quashed.

Ed.