Case No: Writ Petition No. 7966 of 2005
Judge: A. H. M. Shamsuddin Choudhury,
Court: High Court Division,,
Advocate: Mr. Anisul Huq,Mr. Rafique-ul-Huq,Mr. A.K.M. Fazlul Hoque,,
Citation: 2 LNJ (2013) 440
Case Year: 2013
Appellant: Sheikh Hasina
Respondent: Government of Bangladesh and others
Subject: Corruption, Quashment of Proceedings,
Delivery Date: 2010-03-04
(SPECIAL ORIGINAL JURISDICTION)
|A. H. M. Shamsuddin Choudhury, J.
Sheikh Hasina, Former Prime Minister and Chairman, ECNEC, Government of Bangladesh.
Bangladesh, represented by the Secretary for Ministry, Cabinet Division and others.
Constitution of Bangladesh, 1972
Code of Criminal Procedure (V of 1898)
When fundamental right is invoked, question of alternative remedy becomes a matter of discretion only because unlike Article 102(2), Article 102(1) does not speak of efficacious alternative remedy. Our Appellate Division in a case declined to endorse the contention that a criminal matter cannot be agitated through writ jurisdiction because of the existence of alternative remedy under Section 561A of the Code of Criminal Procedure. As the instant case is wholly founded on the allegation of malice and the Chair’s ultra vires action and expouses the necessity of interpreting some statutory provisions invocation of Article 102 cannot be brushed of. ... (28, 30 and 33)
Anti Corruption Commission Act (V of 2004)
The decision was ultra vires the Ain as it was taken by a person who, was not , in exclusion of his peers, empowered to do so and also because the respondents no 5 and 6, who were instrumental to carry on the Chair’s desire, could not be treated as the functionaries of the Commission. The impugned decision was, therefore, completely without lawful authority since the impugned decision was without lawful authority, all actions that stemmed therefrom, was ipso facto, unlawful, nonetheless, and is destined to meet the same fate….(33)
Code of Criminal Procedure (V of 1898)
Penal Code (XLV of 1860)
Sections 409, 418, 217 and 218
The FIR stories can not , with any stretch of imagination, be drawn anywhere near any of the ingredients of Sections 409, 418, 217 and 218 of the Penal Code or any other penal provision of the land.... (34)
Prevention of Corruption Act (II of 1947)
So far Section 5(2) of the 1947 Act is concerned, there is no allegation that the Petitioner had done anything catalogued in Section 5(1) of the said Act, and hence ingredients of Section 5(2) can also not be dragged to be relied on. ... (34)
Constitution of Bangladesh, 1972
Code of Criminal Procedure (V of 1998)
The FIR Stories, as laid down in the cases before us cannot encompass any ingredient of any of offence traceable in our law books, and that a moribund FIR is incapable of yielding any harvest. Having been satisfied that the allegation of malafide has also been established along with the aspersion that the FIR discloses no offence. When foundation has been created, we can travel beyond the strictly specified terms of the Rule, if the interest of justice so warrant, without which justice shall cry in wilderness. There can no doubt that by demonstrating that the FIR disclosed no offence, and that the respondents resorted to malafide exercise of power, the Petitioner has certainly laid down, not only a foundation, but an inviolable one.
It is not our desire to deliver a judgment of futility, a barren one, and that it is very much within our competence to set the subject criminal proceeding aside, without which move no real purpose would be served. We would, therefore, not confine ourselves to the specified term of the Rule, but would exercise our discretion and grant ‘such other or further relief as we deem fit and proper’, and thereby set the whole proceeding aside, bearing in mind that keeping the still born babe unburied, will only spread stink.... (36, 37, 40, 42, and 44)
State of Kerala Vs. TP Roshana, AIR 1979 (SC) 765, Maico Jute and Bag Corporation Vs. Bangladesh Jute Mills Corporations and others, 55 DLR(AD) 23, Groenvelt Vs. Burwell, (1700 1 Ld. Rayn 454), R Vs. Herefordshire Magistrate Court ex p Rowlands (1998 QB 110), R Vs. Wandsworth JJ ex parte (1942 1QB 281), Leech Vs. Deputy Governor of Parkhurst Prison (1988 AC 533), R Vs. Reading Crown Court ex p Hutchinson (1988 QB 384), R Vs. Devizes Justices ex p Lee, DPP Vs. Head (1959 AC 83), R Vs. Smith (1984 Cr. L. R. 630); R Vs. Oxford Crown Court ex p Smith (1989 2 Admin Law Report), R Vs. Chief Constable of Merseyside ex p Calveley 1986 Q.B. 424; State of Hariana Vs. Bhajan Lal, (AIR 1992 SC 604), Government of the peoples Republic of Bangladesh and others Vs. Iqbal Hasan Mahmood Tuku, 60DLR (AD) 147; M.A. Hai Vs. TCB (40 DLR AD 206), Bangladesh Vs. Haque, 16 DLR (AD) 147, Jaha Howlader Vs. C.M.M. Court, Dhaka (58 DLR 106), Shrei International Finance Ltd Vs. M G Narayana (1998 Cr. L J 2220), State of UP Vs. OP Sharma (AIR 1996 SC 2983), State of HP Vs. Pirthichand (AIR 1996SC 977) and the State of West Bengal Vs. Swapan Kumar (AIR 1982 SC949), Rajesh Kumar Bansal Vs. State (1992 Crimes 1, 7,9, Del), Dr. Dattatraya Vs. State of Maharashtra (1982 Cr L J 1025), State of Karnatikat Vs. L. Muniswami (AIR 1977 SC1489), Kali Charan Gupta Vs. Ashok Kumar Jain 1984 1 Crimes ALL), Arnaraz Vs. Alcox Metals Ltd, (2005 Cr. L J 610), Kali Charan Gupta Vs. Ashoke Kumar Jain (1984 1 Crimes 221 ALL), Sh Nayck , Br. Mgr. Bombay Mercantile Co-Operative Bank Ltd Vs. Rahul Kunubhai Aashar (1995 4 Crimes 614 Guj), Yashuwant Verilal Sanghvi Vs. Sahed Sinh Dilubbhaj, (2004 4 Crimes 20 Guj), M Narayana Vs. State of Karnataka 2003 11 SCC 251), State of Andhra Pradesh Vs. Golaconda Linga Swami (2004 6 SCC 522) Mangal, Chowhan Vs. State (1983 Cr. LJ 279- Cal -DB), Vinod Kumar Sethi Vs. State of Punjab AIR 1982 P&H 372), Subhash Chandra Vs. State of Punjab (1988 2 Crimes 21 P&H), Abdul Quader Chowdhury Vs. The State (28 DLR AD 39), Nasiruddin Mahmud and others Vs. Momtazuddin Ahmed (36 DLR AD 14), Syed Mohammad Hashem Vs. State (48 DLR AD 87), Motaleb Hussain Vs. The State (6MLR SC 168), Shokrana (Md) Vs. State (6MLR SC 180), Radhaballav Sarkar Vs. Pijush Kanti Chakravarty (7 BLD AD 32), Ali Akbar Vs. Enayet Hussain (2MLR AD 166), State of Haryana Vs. Bhajan Lal (AIR 1992 SC 604), Humayun Kabir Vs. State, (28 DLR 259), Serajul Islam Vs. DG Food 43 DLR 237, Dr. Nurul Isalm Vs. Bangladesh ( 33 DLR AD 201), (1981 BLD 12), Express News Papers Ltd. Vs. India (AIR 1986 SC 2257), Prapat Singh Vs. Punjab (AIR 10964 SC72), West Minster Corporation Vs. London and the North Western Railway Co (1904 1 Ch 759), Shearer Vs. Shield (1914 AC 808), Lazarus Estate Vs. Beaseley (1956 1 QB 702), Bangladesh Italian Marble Works Ltd Vs. Government of Bangladesh and others (Special Issue, 2006 BLT, Khandakar 50 Delwar Hussain and others Vs. Bangladesh Italian Marble Works Ltd. 18 BLT AD 2010, page 329), State of Kerala Vs. TP Roshan (AIR 1979 SC 765) ref.
Mr. Anisul Haque
Mr. Abdul Matin Khasru,
Mr. Yousuf Hossain Humayun,
Mr. Nurul Islam (Sujan)
Mr. Sheikh Fazle Noor Taposh,
Mr. Mohammad Mehedi Hasan Chowdhury, Advocates
Mr. A.K.M. Fazlul Haque, Advocate
By engaging Article 102 of the Constitution of the People’s Republic of Bangladesh, the Petitioner before us impugned a purported decision arrived at by the respondent nos. 2 and 3, which stands figured in Annexure-A to the Writ Petition. The text of the impugned decision is reproduced below verbatim;
র্দূনীতি দমন কমিশন
স্বারক নং- দুদক/কমিঃ(তদন্ত)/২০০৫-২৫০(২) তারিখঃ ২৪/৮/০৫ খ্রিষ্টাব্দ
বিষয়ঃ- তেজগাও থানা মামলা নং- ৯৬, তাং ২৭/৩/২০০২ এর তদন্ত কার্য সম্পন্ন করণ প্রসংগে।
উর্পযুক্ত বিষয়ে জানানো যাচ্ছে যে, বিষয়ে বর্ণিত মামলাটি গুরুত্ব পূর্ণ বিবেচনায় মামলাটির মূল তদন্ত কারী কর্মকর্তা অর্থাৎ আপনাকে দিয়ে তদন্তকার্য সম্পন্ন করাই শ্রেয় মর্মে মাননীয় চেয়ারম্যান ‘‘খ’’ পূর্ব মহোদয় সদয় সিদ্বান্ত দিয়েছেন। এমতাবষহায়, মামলাটি সংক্রান্তে সর্বশেষ যাচিত তথ্যাদি উল্লেক মামলার তদন্ত সম্পন্ন করে জরুরী ভিওিতে সাক্ষ্য-স্বারক দাখিল করার জন্য নির্দেশ ক্রমে অনুরোধ করা হলো।
(সৈয়দ ইকবাল হোসেন)
দূনীতি দমন কর্মকর্তা
র্দুনীতি দমন কর্মকর্তা
র্দুনীতি দমন কমিশন
অনুলিপিঃ সদয় অবগতির জন্য উপ-পরিচালক (টাষ্ক ফোর্স-৩) র্দুনীতি দমন কমিশন।
The above reproduced purported order was based on a First Information Report (FIR), dated 27th March 2002,invoking Sections 409, 418, 217, 218, 109 of the Penal Code, and Section 5(2) of the Prevention of Corruption Act 1947,which set the criminal proceeding concerned, rolling. The verbatim text of the FIR is reproduced below; ......
Although the Rule in response to instant petition was issued to require the respondents to show cause as to why the impugned decision reproduced above, should not be declared to have been taken without lawful authority, when the Rule was taken up for disposal, the learned Advocates for the Petitioner came up to argue the case with a much broader spectrum, challe-nging the very continuation of the criminal proceeding, contending that the same should be set aside, as the FIR stories disclose no offence as the evidence of malafide action is quite conspicuous.
In impugning the direction concerned, the Petitioner has alleged that the direction contained in the impugned notification, dated 24.08.2005, was totally bereft of jurisdiction in that (1) no officer( the respondent no 5 in the instant case) can dictate the investigating officer (the respondent no 6 herein) on the progression of investigation process (2) the Chairman of the Anti Corruption Commission, henceforth, the Commission, by himself had no power whatsoever to take any decision like the one that prompted the respondent no5 to issue the impugned order, (3) induction of the respondents No. 5 (the author of the impugned decision) and 6 (upon whom the impugned decision was conveyed for action), into the Commission were without lawful authority , and was, as such non est in the eye of law.
The petition is structured on the allegations that the text in the subject notification were devoid of lawful authority and jurisdiction, that the same was gestated with a diabolic and malafide motive and that malicious consider-ation is what the Commission was propelled by, in embarking upon the impugned move, the impugned decision was embryogenesised with a depraved fertilisation process that took place in the thoughts of the Commission.
The petitioner’s case is that the government in power at the relevant period, with malice afore-thought and ulterior motives, in order to malign the stature and the world wide acclamation of the Petitioner, and humiliate her to the whole world, who is none other than a former Prime Minister of the Republic, the primordial figure in the country’s oldest political party and one of the two progenies of the Founding Father of the Nation, who were lucky enough to miraculously survive the diabolic holocaust of 15th August 1975, and to tarnish her image to the right thinking people world wide, initiated the said criminal case, the legality of which has been questioned by this petition. It has been asserted that since a decision arrived at with a malafide intent can not be reckoned to be a decision in the eye of law, the whole proceeding, from top to the toe, is bound to founder. It has been contended that as per Section 3 of the Durnity Daman Commission Ain, 2007, hereinafter cited as the Ain, read with Section 4( 1), the Commission, is a composite body, consisting of it’s Chairman, henceforth cited as the Chair, and as many other Commissioners as are there. Since the Commission means the whole body, as stated above, no decision arrived at by an individual Commissioner or even by the Chair, is a decision as contemplated by the Ain. It has been further averred in the petition that under Section 35(2), read with Sections 2(f), 2(j), 16(4) and 34 of the Ain, the appointment of the respondent nos.5 and 6 to the Commission was illegal, without jurisdiction and null and void abinitio, which follows that the order dated 24.98.2005, purportedly passed by the respon-dent no.5, is liable to be declared to have been passed without lawful authority and is of no legal effect as the same has purportedly been passed by someone who is a stranger in the eye of law. It is stated that Section 35 of the Ain, does not empower the respondent no.3 to induct the officers and employees of the defunct Bangladesh Bureau of Anti Corruption, into the present Commission, and hence, the respondent no 5 and 6, can not be recognised as the functionaries of the Commission, which necessarily follows that the purported decision, as pretentiously taken by respondent no. 6, is no decision at all through the legal spectacles.
Although the Rule was issued as early as on 27.10.2005, none of the respondents came up with any affidavit-in-opposition to dispel the contentions and the claims scripted in the Writ Petition.
When the Rule matured for disposal, Mr. Rafiq-ul-Huq, leading a high profile team of specialized and skilled learned advocates, inc-lusive of Mr. Abdul Matin Khasru, Mr.Yusuf Hossain Humayun, Mr. A.F.M. Mesbahuddin, Mr. S.M. Rezaul Karim, Mr. Nurul Islam Sujan, Mr. Sheikh Fazle Noor Taposh, Mehedi Hasan Chowdhury, and Mr. Md. Selim Jahangir made comprehensive submission in support of the Writ Petition.
In his opening speech, Mr. Sheikh Fazlee Noor Taposh had it to say that in the light of the attending facts, we should, instead of confining ourselves to the narrow specified terms of the Rule, for the interest of justice, look at a broader horizon, touching upon the question of very legality of the criminal proceeding as a whole. He proffered that the FIR at page 26, read with the impugned memo at page 24, reveals that it was at the instance of the respondent no. 3, the Chair of the Commission, that the respondent no.5 conveyed the impugned direction to the respondent no 6, the pretentious officer, who was assigned with the duty to conduct the investigation into the case, adding that such a decision on the part of the Chair was completely without jurisdiction as that decision could only be taken by the Com-mission as a conglomerate, as contemplated by the Ain. Mr. Taposh went on to submit that everything that emanated from the said direction, is void equally well, because a void entity can not bread any valid offspring. Mr Taposh concluded his profferment saying that as a malafide action destroys all traces, that itself would justify our move to set aside the whole criminal prosecution.
By referring to that part of the FIR, where the informant stated that the meeting of the Execution Committee of the National Econo-mic Council (ECNEC) was not attended by sufficient number of members, Mr. Abdul Matin Khashru submitted that the said passage in the FIR divulges an inexonerable flaw and falacy. He went on to state that Article 35 of the Constitution of the Republic contemplates trial without undue delay, whereas in the inst-ant case no step was taken until 2005, while the FIR was filed in the year 2002. He continued to submit that inordinate delay by itself is a ground for quashment. He went ahead arguing that the same is also reflective of malicious intent. Mr. Khashru further submitted that nob-ody, the Supreme Court inclusive, can ask an investigation officer to concluded investiga-tion, whereas in the instant case, the Chair of his own ventured to do so. Submitting that the ECNEC is a very high profile body, which is composed of the people with the highest auth-ority and stature in the Republic, is attended by the top people in the country, Mr. Khashru castigated the author of the FIR, stating that it was an unwarranted and audacious exercise on the part of the informant to pass such a silly and derogatory comment on the composition as well as on the attendance of the ECNEC meetings, adding that the informant, by doing so, demonstrated his lamentable incognisance. Reminiscing his maiden experience as a member of the cabinet, Mr. Khashru submitted that the ECNEC meetings are never attended by all the Ministers, but by the concerned Ministers only.
Illustrating the role of the ECNEC and it’s meetings, Mr. Yousuf Hussain Humayun, submitted that the subject decision was taken by the members present at the relevant meeting, which was conspicuously attended by the sufficient number of members to form the quorum. He continued to submit that no impropriety or illegality whatsoever appears from the record, either at the inception or during the progression of the meeting in question. He continued to submit that the whole case was geared to assail the credibility and the integrity of the Petitioner, with a visibly vindictive intention.
Mr. A.F.M. Mesbahuddin submitted that the document at page 24 of the writ petition is a clear reflection of malafide exercise of power. He concluded his submission saying that the FIR reveals that the informant really acted under the dictation of his superior, rather than of his own volition.
Mr. Nurul Islam Sujan submitted that Article 7 of the Constitution has conferred all powers on the people, which are exercised by their elected representatives. In the case under consideration, submitted Mr. Sujan, the decision citing which the respondents to lodged the FIR concerned against the Petitioner, was taken by the representative of the people at the highest level. He submitted that Article 55 of the Constitution has vested the executive power of the Republic on the Cabinet headed by the Hon’ble Prime Minister, and it is only natural that in exercising the said power, the executive organ of the Republic is indispensably required to rely on certain degree of discretion. Unless it is evident that discretion was exercised with improper motive or illegally, they can not be impeached in any forum other than the Parliament.
Mr. S.M. Reza-ul-Karim, submitted that the facts as described in the FIR disclose no offence under any law of the country, and, hence we should travel beyond the narrower terms of the Rule in order to set the whole proceeding aside.
Mr. Rafiq-ul-Huq, the learned senior advocate and the leader of the petitioner’s team, with his characteristic eloquence, submitted that apart from the fact that the Chair acted beyond vires, the whole proceeding is also inflicted by multifarious other maladies and illegalities. Mr. Huq went on to submit that the Commission means the Chair together with all the other Commissioners appointed by the Hon’ble President. He further submitted that no action can be taken by any individual Commissioner, not even by the Chair and that if any action or decision is so taken in isolation, such an action would be unlawful. Since it was the Chair who acted alone in arriving at the subject decision to set the respondent no5 in motion to issue the impugned direction, the same is bound to be capsized by the doctrine coram non-judice.
On the question of the High Court Division’s power to grant relief beyond the strict terms of the Rule, Mr. Huq by referring to the book titled the Constitutional law of Bangladesh , authored by Mr. Mahmudul Islam, submitted that jurisdiction under Article 102 of the Constitution is similar to that which was exercised by the Chancellor in the Court of Equity, which connotes that the Court can travel beyond the strict terms of the Rule, where such a move is necessitated by the principle of equity fairness and justice. In support of his submission Mr. Huq cited the case of State of Kerala –v- TP Roshana, reported in AIR 1979 (SC) 765. He also took us through the decision in the case of Maico Jute and Bag Corporation –v- Bangladesh Jute Mills Corporations and others, reported in 55 DLR (AD) 23, to vindicate his argument on this point.
Mr. Huq also raised a very pertinent question as to the attractability of those Sections of the penal code which have been cited in the FIR. In elaborating his submission, Mr. Huq said that the facts as stated in the FIR can not net any of the ingredients of Section 409, 418, 217, 201 or 218 and as such, even if, for argument’s sake it is assumed that the FIR stories are established, there can be no conv-iction on those stories. He further submitted that the ingredients of Section 5 (2) of the Prevention of Corruption Act, 1947, are also not attracted in the backdrop of the FIR stories, and as such the instant case must founder on this count as well. Mr. Huq continued his submission stating that it is crystal clear from the FIR that the case was initiated only to malign and derogate the standing of the Petitioner. In his concluding submission , Mr. Haque put it on board that as many as 3 FIRs were filed relying on one in single event, which is not permissible by Article 35 of our Constitution, as it breaches the doctrine against double jeopardy.
Mr. A.K.M. Fazlul Haque, appearing for the Commission, at the very inception impeached the maintainability of the Writ Petition, submitting that a criminal matter can not be reviewed under the umbrella of Article 102 of the Constitution, the correct device being an application invoking Section 561 A of the Code of Criminal Procedure. He further submitted that this Court has no power to pass any order beyond the terms of the Rule and as such, any order to be passed by this Division must remain confined within the four walls of the Rule. He also argued that there is no evidence of malice in the FIR. According to him the decision was in fact taken by the entire Commission, not by any individual Comm-issioner or the Chair and hence, no illegality is projected. He further submitted that an ancillary relief can be granted only if a foundation is established for such a relief and that in the instant case no such foundation has been established by the Petitioner. By referring to Section 537 of the Code of Criminal Procedure, Mr. Huq submitted that irregula-rities can be rectified by having recourse to the said Section and as such, if any illegality have been Commissioned, the same can be rectified by virtue of the said Section. The Chair can obviously direct the Investigation Officer to expedite the investigation as well as to submit the memo of evidence. He also submitted that asking an Investigation Officer to submit a memo of evidence, and asking him to submit a charge sheet, is not proscribed by law. In support of this submission, Fazlul Mr Huq said that Article 102 of the Constitution mandates that a writ petition will be entertained only if the Court is satisfied that no other efficacious remedy is provided by the law, but here equally efficacious remedies are available to the petitioner. Mr. Haque also submitted that although ingredients of Sections 418, 201, 217 can not be attracted in the back drop of the stories laid down in the FIR, those of Section 409 are, nevertheless, attracted, although he was unable to pinpoint out as to how ingredients of Section 409 can be engaged. Mr. Fazlul Haque concluded his submission stating that in any event Section 5(2) on its own can be invoked without relying on any other penal law because Section 5(2) can stand on it’s own legs.
Having heard the learned advocates of both the sides and having considered the documents in the file, it is our view that we are to address the following questions in the process of disposing the Rule of. The First one centres round the question of maintainability of this writ petition: is writ jurisdiction available in an essentially criminal matter: is it available when alternative statutory remedy is available? The second question is whether the Chair of the Commission acted beyond jurisdiction in issuing the direction as he had done, coupled with the question as to whether the respondents no 5 and 6 can be treated as officials of the Commission. The third question is whether the stories as figured in the FIR, attract the ingredients of the offences cited in the said document, or any ingredient of any other offence, recognised as such in our jurisdiction. The fourth question is what consequences ensue when the FIR discloses no offence. The fifth question is whether the allegation of malafide has been substantiated, and the last, but not the least, question is whether it is open to us to overstep the strict, specific terms of the Rules.
In addressing the question whether this petition is maintainable or not as it is essentially a criminal matter and, as alternative remedy in the form of an application under Section 561A is available to the Petitioner, we do immediately remind ourselves that the proposition that writ jurisdiction is not available in a criminal matter, is a myth, which must be dispelled.
In so saying we wish to emphasise that the doctrine of judicial review was first gestated in the womb of the criminal jurisprudence in it’s natal home. Even before advent of the Tudor period, from the year 1280 to be nearly precise the issuance of the writ of certiorari first saw the light of the day when the King’s Bench began the practice of asking for the records of the proceedings in the Courts of the Justices of Peace (JPs), with a view to quash such proceedings. During those days the Kings Bench embarked upon the procedure of issuing ‘Certiorari’ , meaning ‘certificate’, to the JPs to quash their judgments or orders(Henderson: Foundation of English Administrative Law: de Smith, Wolf and Jowel,: Judicial Review of Administrative Action, 4th Edition 584: Caenegem: Royal Writs in England from the Conquest to Glanville: R -v- Lowle 1759).
De Smith, Woolf (Former Master of the Roll) & Jowell in their book, ‘Principles of Judicial Review’ states, ‘Certiorari was historically linked with the King’s person as well as with the King’s Bench; it was of high importance for the control of the inferior tribunals , particularly with respect to the administration of criminal justice’ (Page 532). The same authors went on to write; ‘The Court of King’s Bench, which had always been associated with the work of government and had retained jurisdiction over the work of the justices in the sessions and of other local bodies during the hay day of the Council and the Star Chamber, was manifestly the proper superintending authority. But it could not exercise it’s authority by menas of writ of error , for although error lay to impeach the record of a judgment given on indictment it would not lie to quash convictions and orders made in summary proceedings.... After a period of doubt and vacillation the Court ultimately committed itself to the proposition that the appropriate remedy in all cases where an inferior statutory tribunal had exceeded it’s jurisdiction or drawn up a conviction or order that was bad on it’s face was a writ of certiorari to quash the conviction or order. The process by which this proposition came to be established is still not free from obscurity; but by 1700 it was possible for Holt CJ., in the famous case of Groenvelt -v- Burwell (1700 1 Ld. Raym 454) to proclaim the grand generalisation that: “It is a consequence of all jurisdiction to have their proceedings returned here by certiorari to be examined here ........... Where any Court is erected by a statute, a certiorari lies to it .........” (Page 534-5).
That trend, however, did not remain confined to those olden ages, but continued to flourish unabated, which process is in prog-ression even today, as would be seen from the following decisions. So, in R -v- Herefordshire Magistrate Court ex p Rowlands (1998 QB 110), the Queen’s Bench Division quashed an irregular conviction after judicially reviewing the same notwithstanding the existence of right of appeal to the Crown Court.
Similarly in R -v- Wandsworth JJ ex parte Read (1942 1KB 281) thy Chief Justice Lord (Viscount) Caldecott had no hesitation to refute the contention that judicial review was not lie as the petitioner had a right of appeal as well as a right to take recourse to the device known as ‘case stated’, which is similar to our proceeding for quashment under Section 561A of the Code of Criminal Procedure. Lord Caldecott expressed; ‘It remains to consider the argument that the remedy of certiorary is not open to the appellant because others were available. It would be ludicrous in such a case, as the present, for the convicted person to ask for a case to be stated. It would mean asking the court to consider as a question of law whether the justices were right in convicting a man without hearing his evidence. This is so extravagant an argument as not to merit a moment’s consideration.’
The House of Lord’s decision in Leech –v- Deputy Governor of Parkhurst Prison (1988 AC 533), also lends heavy weight support to this contention.
In R-v- Reading Crown Court ex p Hutchinson (1988 QB 384) , R-v-Devizes Justices ex p Lee, DPP-v- Head (1959 AC 83), R-v- Smith (1984 Cr. L. R. 630) and in R-v- Oxford Crown Court ex p Smith (1989 2 Admin Law Report) the various English Courts , inclusive of the House of Lords judicially reviewed Magistrate and Crown Courts’ decision to ignore the plea raised by the accused persons that the criminal courts concerned were obliged to examine the validity of the by-laws, they were charged with, validity and the applicability of the orders they were indicted.
In Boddington –v- British Transport Police, the House of Lords judicially reviewed a Magistrate Court’s decision to refuse to examine the vires of a by-law, though, at the end held that the by-law was valid. In of R Vs. Chief Constable of Merseyside ex p Calveley 1986 Q.B. 424, it was held that the existence of alternative remedy notwithstanding, judicial review may be justified where there has been abuse of statutory power by the authority. In Leach -Vs- Deputy Governor of Parkhurst Prison (1988 AC 533), the House Lords held that the existence of alternative remedy does not deprive the Administrative Court of jurisdiction, it simply requires the court to exercise it’s discretion: whether leave for judicial review to proceed is granted will depend on whether the statutory remedy is satisfactory and effective.
True it is that unlike ours, in Britain there is no written constitution to dictate that the High Court Division may interfere, “if satisfied that no other equally efficacious remedy is provided by law”. But it is equally true that the area of the common Law principle, upon which the English doctrine of judicial review is founded, is no way different from our written Constitutional mandate. It is also very much an English Common Law requirement that judicial review may not normally be available where alternative, effective, statutory remedies are in hands, as depicted above. In any event, when fundamental right is invoked, question of alternative remedy becomes a matter of discretion only because unlike Article 102(2), Article 102 (1) does not speak of efficacious alternative remedy.
The Indian Supreme Court in State of Hariana -v- Bhajan Lal, (AIR1992 SC 604), inflexibly discarding the idea that writ jurisdiction can not be invoked in a criminal matter, expostulated seven types of situation, not exhaustive though, where the High Courts may review a criminal matter under writ jurisdiction.
Even our Appellate Division did not find any reason to jettison the above disclosed principles. So, in Government of the peoples Republic of Bangladesh and others –vs.- Iqbal Hasan Mahmood Tuku, 60DLR AD 147), the Appellate Division declined to endorse the contention that a criminal matter cannot be agitated through writ jurisdiction because of the existence of alternative remedy under Section 561A of the Cr. P.C.
The Appellate Division in M.A. Hai –vs- TCB (40 DLR AD 206) arrived at similar conclusion.
In Bangladesh Vs. Haque, reported in 16 DLR (AD) 147, the Appellate Division discussed the contention that the writ petition concerned was not maintainable because of the availability of a remedy under Section 561 A of the Code of Criminal Procedure and then categorically expressed that when a case raises question of law and requires provisions of a statute to be interoperated, remedy under article 102 of the Constitution is more apposite. In Jaha Howlader Vs. C.M.M. Court, Dhaka (58 DLR 106) this Division entertained a writ petition and made the same absolute availability of relief under Section 561A notwithstanding.
As the instant case is wholly founded on the allegation of malice and the Chair’s ultra vires action, and espouses the necessity of interpreting some statutory provisions, invocation of Article 102, in our view, can not be brushed of in the instant case. We are, therefore, inclined to resolve the first issue in favour of maintainability. That takes ask to consider the second question, ie, whether the impugned decision can pass the test of legality or not. It is beyond doubt that the Ain requires a decision like the one under challenge, to be taken by the Commission. Obviously the Ain defines the Commission as a composite body consisting of the Chair and all other Commissioners. In the instant case, the document annexed as Annexure-A divulges without distortion that the decision to ask the respondent no 5 to direct the respondent no 6 to issue the impugned order, was in reality taken by the Chair on his own, in exclusion of his peers. Furthermore the documents on record reveal that the purported induction of the respondents no 5and6, who were formerly functionaries of the defunct Anti Corruption Bureau, into the Commission, was not done in concord with the provisions laid down in Section 35 (2) the Ain, as the same was occasioned exclusively by the Chair, instead of being done by the whole Commission as a composite entity, as contemplated by the said Section. So, we find unimpeachable substance in the profferment Mr. Haque and his colleagues advanced, claiming that the decision was ultravires the Ain as it was taken by a persons who, was not, in exclusion of his peers, empowered to do so and also because the respondents no 5and 6 , who were instrumental to carry on the Chair’s desire, could not be treated as the functionaries of the Commission. The impugned decision was, therefore, completely without lawful authority. We are also in wholesome agreement with the learned advocates’ submission that since the impugned decision was without lawful authority, all actions that stemmed therefrom, was ipso facto, unlawful, nonetheless, and is destined to meet the same fate. The second question being so resolved against the respondents, we must, now move to address the third one.
It has been assiduously argued that the FIR stories are incapable of angling any ingredient of any of the Penal Code provisions that have been cited therein or of any other penal law of the land. To locate the correct answer we have thoroughly analysed the ingredients of Sections 409, 418, 217, and 218 of the penal Code, as well as those of Section 5(2) of the Prevention of Corruption Act 1947, having read them extensively and intensively in juxtaposition with the stories as figured in the FIR, the whole text of which stands reproduced above verbitame. Our considered and irresistible view is that the FIR stories can not , with any stretch of imagination, be drawn anywhere near any of the ingredients of those Sections or any other penal provision of the land. The prime ingredient of Section 409 is criminal breach of trust. Under Section 405 PC, a Criminal Breach of Trust is occasioned only when the postulant dishonestly misappropriates or converts to his own use the subject property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied , which he has made touching the discharge of such trust, or wilfully suffers any other person to do so. There is no allegation that the Petitioner harboured any of the deeds listed in Section 405 PC, as cited above. Section 418 presupposes ‘cheating’. Now, Section 415 , in defining ‘cheating’ stipulates that cheating takes place when the postulant, by deceiving any person , fraudulently or dishonestly induces the person so deceived to deliver any property to any person , or to consent that any person shall retain that property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body , mind , reputation or property. Again, there is no allegation that the Petitioner induced any person to deliver any property to any person, or to consent that any person shall retain any property, or induced any person to do or omit to do something he would not have done if not deceived. Since there is no allegation of causing disappearance of evidence, section 201 has no application. So, Section 418 is also out of context. As there is no allegation that the Petitioner disobeyed any direction of law as to the way she is to conduct herself , intending thereby to save or knowing it to be likely that she will thereby save any person from legal punishment, or subject him to a lesser punishment than that to which he is liable with intent to save , or knowing that she is likely thereby to save any property from forfeiture or any charge to which it is liable by law, Section 217 is absolutely out of context . Similarly as there is no indictment that the Petitioner was charged with the preparation of any record or other writing , framed that record or writing in a manner which she knew to be incorrect, Section 218 PC has no threshold in the instant case. Section 109 needs no discussion as it contains provisions as to inchoate offences only. So far Section 5(2) of the 1947 Act is concerned, again there is no allegation that the Petitioner had done anything catalogued in Section 5(1) of the said Act, and hence ingredients of Section 5(2) can also not be dragged to be relied on. We are therefore, in all four with Mr. Haque’s submission to the effect that the FIR stories do not, in the instant case, depict any offence.
What consequences would such a vacuous FIR entail? To trace an accurate reply, we are to dissect the ratio as have been expounded in the following cases,. The decision that deserves primordial consideration is the age old one, a genesis of the 1940s decade, that emanated from the Privy Council in the case of Emperor-v-Nazir Ahmed (AIR 1945 PC 18). In that case the Council’s advice to the Crown did not remain confined to the proposition that a case commenced with a frail FIR is incapable of reproductivity, but also that in such an event the Court need not wait to see the completion of investigation process because such a case can be brought to mortuary at the very moment of it’s birth for the reason that the police would, in a case like that, have no authority to investigate. That theory was followed in the countries of the sub-continent unabated. So, in a plentitude of cases, including the one catalogued below, the Indian superior courts held that an FIR or a complaint petition can be quashed at a very early stage, at the threshold if no offence is disclosed by the said instruments. In the cases of Shrei International Finance Ltd-v- M G Narayana (1998 Cr. L J 2220), State of UP –v- OP Sharma ((AIR 1996 SC 2983), State of HP -v- Pirthichand (AIR 1996SC 977), State of West Bengal –v-Swapan Kumar (AIR 1982 SC 949), the Supreme Court of India held that if the FIR taken at it’s face value and accepted at it’s entirety, does not prima facie constitutes any offence, or does not make out a case against the accused, it will be the duty of the Court to quash the criminal proceeding at the preliminary stage and that the Court need not wait till the magistrate takes cognisance of the offence or issues process. In Rajesh Kumar Bansal –v-State (1992 Crimes 1 7, 9, Del) it was held that a case may be quashed at the initial stage if it is apparent from the FIR or the complaint petition that the chances of conviction is bleak. In Dr. Dattatraya –v- State of Maharashtra (1982 Cr L J 1025) and State of Karnatikat -v- L. Muniswami (AIR 1977 SC 1489), it was held that an order of charge framing may be quashed where the witnesses do not make out prima facie case.
The following are some of the cases, among many others, to stand as astute authority for the proposition that if EIR or Complaint Petition disclose no offence, the proceeding can be quashed; (1) Kali Charan Gupta -v-Ashok Kumar Jain 1984 1 Crimes ALL) (1) Arnaraz –v- Alcox Metals Ltd, ((2005 Cr. L J 610), (2) Kali Charan Gupta-v- Ashoke Kumar Jain (1984 1 Crimes 221 ALL), (3) Sh Nayck, Br. Mgr. Bombay Mercantile Co-Operative Bank Ltd-v-Rahul Kunubhai Aashar (1995 4 Crimes 614 Guj), (4) Yashuwant Verilal Sanghvi –v- Sahed Sinh Dilubbhaj,(2004 4 Crimes 20 Guj) (5) M Narayana –v- State of Karnataka 2003 11 SCC 251) , (6) State of Andhra Pradesh –v- Golaconda Linga Swami (2004 6 SCC 522) Mangal Chowhan –v- State ( 1983 Cr. LJ 279- Cal -DB), (7) Vinod Kumar Sethi –v- State of Punjab AIR 1982 P&H 372), (8) Subhash Chandra –v- State of Punjab (1988 2 Crimes 21 P&H) . The wave of the same notion hit our jurisdiction as well simultan-eously. So, in Abdul Quader Chowdhury –v- The State (28 DLR AD 39) it was observed ; ‘Interference even at an initial stage may be justified where facts are so preposterous that even on the admitted facts no case can stand against the accused and that further prolongation of the prosecution would amount to harassment to an innocent party band abuse of the process of the Court. The Appellate Division in Nasiruddin Mahmud and others –v- Momtazuddin Ahmed (36 DLR AD 14) reiterated the above stated version expressed in the case of Abdul Quader Chowdhury with approval(per Badrul Haider Chowdhury J). In Syed Mohammad Hashem –v- State (48 DLR AD 87) the Appellant Division observed that if the FIR discloses no offence, the Police would have no authority to investigate, and the case may stand liable to be quashed even at the threshold. Similarly in Motaleb Hussain –v- The State (6MLR SC 168) the Supreme Court stated that if the complaint petition discloses no offence, the case can be quashed. In Shokrana (Md) –v-State (6MLR SC 180) the Supreme Court stated that the FIR and the charge sheet having disclosed no offence under Section 409, read with Section 5(2) of the Prevention of Corruption Act 19947, the case can be quashed. In Radhaballav Sarkar -vs- Pijush Kanti Chakravarty (7 BLD AD 32) the Appellate Division expressed that since no offence has been depicted by the FIR, the case can be quashed. In Ali Akbar-v-Enayet Hussain (2MLR AD 166), the Appellate Division expressed in favour of quashment as the allegation did not constitute any offence. All the above cases were decided under Section 561A of the Code of Criminal Procedure, So, a question naturally arises as to whether the same can happen when an application is filed engaging Article 102 of the Constitution. The answer has , however , been undistortedly given by a very high profile decision of the Indian Supreme Court in the case of State of Haryana –v- Bhajan Lal ( AIR 1992 SC 604). In that celebrated case the Indian Supreme Court portrayed a list of seven situations, not making them exhaustive, sating that in the event of the presence of any of those situations, it would be open to the High Court to quash a case either under the inherent power as retained by Section 482,( which corresponds to our Section 561 A) or under the extra-ordinary jurisdiction conferred by the Constitution through Article 226, ( which is similar to our Article 102). The situations cited by the Indian Supreme Court included the one where a criminal proceeding is manifestly attended with malafide and/ or where proceeding is maliciously instituted with ulterior motive for wrecking vengeance on the accused, and the one where the FIR discloses no offence, or where such absurd or inherently improbable stories have been resorted to, which can lead no prudent person to reach a conclusion that there is a case. Now that we are swamped with to the irreversible conclusion that the FIR stories, as laid down in the cases before us can not encompass any ingredient of any of offence traceable in our law books, and that a mori-bund FIR is incapable of yielding any harvest, we would proceed to examine whether the allegation of mala fide, as tabled by the Petitioner, stand substantiated and what do the authorities say on the consequences of mala fide decisions, before stepping upon the ladder to explore the final question, which is, whether we can travel beyond the specific term of the Rule, which question , in our reckoning, is of utmost importance. The learned Advocates for the Petitioners argued that the factum that as many as three FIRs, virtually in the same terms, containing same facts and allegations, were filed against the Petitioner over the same fact, does , by itself constitute irrefutable evidence of malafide. We can not brush aside this contention. Such a move is obviously not permissible by Article 35 of the Constitution. It can not be assumed that the respondents were not aware of this Constitutional mandate, which is a matter of a very elementary, very basic knowledge. Why did they, then permeate into such a tinted arena ? We can not help but to infer that they were simply instigated by their inner perceived vendetta to trail this depraved path. The fact that a truly extra-ordinary, and thoroughly out of the way move was undertaken by none other than the person at the helm of the Commission’s affairs, for a quick conclusion of the investigation in order to pave way for hurriedly commencing the trial, also bestows a significant degree of weight to the assertion of malice. The unpalatable and obnoxious fact that the informants did not even maintain minimum respect in writing the name of the Founding Father of the Nation, because of whom they do now live in independent Bangladesh and enjoy the fruits of freedom, also leaves a lot to be desired vis–a-vis the allegation of malice. In recording the name of the Petitioner’s universally revered Progenitor, who is none other than the Founding Father of this Nation, in the FIR, the informants demonstrated highest and inexpiable audacity and disparagement, reflective of vicious reprehensibility, haughtiness, scornfulness, contempt and reprobation, leading us to infer that they were prompted by ill nurtured malice aforethought. In Humayun Kabir -v- State, (28 DLR 259) and of Serajul Islam –v- DG Food 43 DLR 237, it has been distinctively stated that malice in law is to be inferred when an order is made contrary to the object and the purpose of the Act and when the deciding authority permits himself to be influenced by conditions which he ought not to permit. Following this ratio, we reckon, we can in the instant case draw inference of malafide consideration. In Dr. Nurul Isalm –v- Bangladesh (33 DLR AD 201) the Appellate Division held that plunging the petitioner to compulsory retirement with a view to circumvent earlier High Court Division order(1981 BLD 12) , was vitiated by malice in law. The Indian Supreme Court in Express News Papers Ltd. -v- India (AIR 1986 SC 2257) set aside the government’s decision to forfeit the lease of land held by a news paper on the ground of mala fide exercise of power , prompted by the news paper’s critical stance against the imposition of emergency. In Prapat Singh –v- Punjab(AIR 10964 SC 72), the Supreme Court set aside a decision on mala fide ground, holding that the allegation placed by the petitioner that he was a victim of the Chief Minister’s acrimony, has been proved. The Court considered evidence the petitioner adduced and took account of the fact that no affidavit in rebuttal had been filed. In the classic case of West Minster Corporation –v- London and the North Western Railway Co(1904 1 Ch 759) Vaughan William LJ, observed that a person acts mala fide when he seeks to do something for a purpose not authorised by law. Viscount Haldane, the Lord High Chancellor in Shearer-v- Shield ( 1914 AC 808 ), observed ; ‘ Malice of fact is quite a different thing; it means an actual malicious intention on the part of the person who has done the wrongful act....’ Consequence of a mala fide decision is obvious. As Lord Justice Denning as he then was, observed in Lazarus Estate –v- Beaseley (1956 1 QB 702); ‘Fraud unravels everything. So, it is –the instant criminal proceeding is also destined to face the same fate.
Having been satisfied that the allegation of malafide has also been established along with the aspersion that the FIR discloses no offence, we would now proceed to the final question.
As we have already arrived at the synthesis that the respondents no 3 5 and 6 acted ultra vires, we can quite comfortably set aside the order that has actually been impugned by the Petitioner. But will that meet the ends of justice? According to Mr. Rafiqul Huq and his team, it will let the matter orbit in wilderness and hence nothing short of setting the whole case aside would be conducive to the notion of justice. The core question, however, is whether we can set our feet on such an odyssey in the backdrop of the fact the Rule in question does not specifically stipulate this relief. Mr. Rafiqul Haque with his aura of advocacy, submitted quite assiduously that if we are satisfied that the FIR stories divulge no offence, that the allegation of malice stands vindicated, it will be totally incongruous to allow the criminal proceeding to continue, and that it is quite open to us to set aside the proceeding, absence of this relief in specific term in the Rule notwithstanding. Relying on the Appellate Division’s decision in the case of Maico Jute and Bag Corporation, supra, Mr. Haque argued that the relief under Article 102 is equitable which is comparable with those the Chancellor used to grant from the Court of Chancery, denoting that the principle of fairness and equity must reign supreme in adjudicating cases under the writ jurisdiction. He went on to say that in setting aside the whole case , we will not really be acting in excess of the terms of the Rule, we will only unlock the compartment of discretion to secure entry into expanded part of the Rule, which part reads;‘ and any other or further order or orders as to this court may seem proper and fit,’ adding that the said appended part of the Rule is actually meant to allow a court sufficient maneuv-erability where it is deemed that the circum-stances call for relief beyond what have specifically been stated in the Rule, and that this practice has been there to cater for a situation where the court feels that such other unspecified relief is indispensable for the interest of justice and fairness. He also argued that if we set aside the impugned decision only, allowing the criminal proceeding to continue, the case shall simply hang on a limbo as a stale one, plunging the whole thing to a state of nihility like a debased asteroid.
We could not agree more on the contention that keeping the case alive would result in absurdity. This is a case where we have irreversibly concluded that the FIR disclose no offence. We have also projected decisions of impeccable authority to portray that a case commenced with an invertebrate FIR is normal ‘quod casseture’. Additionally we are swayed that the whole exercise was undertaken with a view to malign the Petitioner, to wreck vengeance on her.
Hence, we find no reason to jettison what Mr. Haque proffered on this question. Having examined the authorities Mr. Huq cited, we remain more than satisfied that they lend inundating support to the view that when foundation has been created , we can travel beyond the strictly specified terms of the Rule, if the interest of justice so warrant, without which justice shall cry in wilderness. In addition to the cases Mr. Haque submitted, we can also look at the case of the Bangladesh Italian Marble Works Ltd –v- Government of Bangladesh and others (Special Issue, 2006 BLT, High Court Division, affirmed by the Appellate Division in the case Khandakar Delwar Hussain and others –v- Bangladesh Italian Marble Works Ltd. 18 BLT AD 2010, page 329) popularly known as the 5th Amendment Case, to be guided by, in this respect. In that case the directions were passed beyond the specified terms of the Rule. The Indian Supreme Court’s decision in the State of Kerala -v- TP Roshan (AIR 1979 SC 765) also provides exquisite guideline in this respect, where K. Iyer J, in delivering the judgment for the Indian Supreme Court, stated at paragraph 14 of the judgment at page 770; ‘In the end, writ petitioner won the battle but lost the war, for she got an abstract declaration that her exclusion was invalid but was denied the concrete direction to be admitted into the college.’ In that case the Kerala High Court, whose decision was modified by the Supreme Court, as just stated, observed (reproduced at paragraph 13 of the Supreme Court’s judgment at page 770); ‘We grant a declaration to the writ petitioner to that effect. We deny effective relief to the writ petitioner on account of non- joinder of the selected candidates...’
To cure the frustration that the High Court’s limited relief caused to the writ petitioner, and indeed to enable them to win the war as well, not only the battle, the Supreme Court made a very elaborate and compreh-ensive direction upon the respondents, as can be seen from paragraphs 33, 34,35,36, 37,38,39, 40 41 and 42 of the decision at pages 775,and 776, asking the latter to create new vacancies to accommodate 30 students , so that the petitioners can obtain admission without disturbing or prejudicing the interest of those students who had already been admitted into the college, who were not made parties in the writ petition.. In channeling this rather extra-ordinary direction, the Supreme Court, obviously travelled far beyond the terms of the Rule. As a matter of concealed truth, should we decide to set the subject criminal proceeding aside, we will not really be departing from the terms of the Rule, we will simply permeate into the extended zone of the Rule, we will do something to supplement the Rule, to put required strength to the Rule so that it can fulfill the purpose for which it was animated. There can no doubt that by demonstrating that the FIR disclosed no offence, and that the respondents resorted to malafide exercise of power, the Petitioner has certainly laid down, not only a foundation, but an inviolable one.
If we part with this judgment by simply setting aside the impugned direction, that will lead to an irretrievable stalemate. In Justice K. Iyer’s language, the Petitioner will win the battle, only to lose the war.
We do not, therefore, have any hesitation to say that it is not our desire to deliver a judgment of futility, a barren one, and that it is very much within our competence to set the subject criminal proceeding aside, without which move no real purpose would be served. We would, therefore, not confine ourselves to the specified term of the Rule ,but would exercise our discretion and grant ‘such other or further relief as we deem fit and proper’, and thereby set the whole proceeding aside, bearing in mind that keeping the still born babe unburied, will only spread stinks.
The Rule is, therefore, entitled to be braced with triumph, not only to the extent of seeing the impugned order at rest, but also to the extent of watching the burial of the still born.
A fortiori, the Rule is made absolute as stated above, and the proceeding of the Tejgaon Police Station Case no 97, dated 27th March 2002, under Sections 409, 418, 201, 217, 218, 109 of the Penal Code, and Section 5(2) of the Prevention of Corruption Act 1947l, is set aside, so far as the same relates to the instant Petitioner only.
There is no order on cost.