The Anti Corruption Commission Vs. Md. Bazlur Rashid and another, 3 LNJ (2014) 9

Case No: Criminal Petition for Leave to Appeal No. 302 of 2012

Court: Appellate Division ,,

Advocate: Md. Khurshid Alam Khan,,

Citation: 3 LNJ (2014) 9

Case Year: 2014

Appellant: The Anti-Corruption Commission

Respondent: Md. Bazlur Rashid and another

Subject: Quashment of Proceedings,

Delivery Date: 2013-05-29


APPELLATE DIVISION
(CRIMINAL)
 
Md. Muzammel Hossain, C. J
Surendra Kumar Sinha, J
Md. Abdul Wahhab Miah, J
Syed Mahmud Hossain, J
Siddiqur Rahman Miah, J
AHM Shamsuddin Choudhury, J.

Judgment
29th May, 2013.
  The Anti Corruption Commission
....Petitioner
=Versus=
Md. Bazlur Rashid and another
...Respondents
 
Code of Criminal Procedure (V of 1898)
Section 561A
It appears that the High Court Division quashed the proceeding when the case was under investigation. In such stage, the proceeding cannot be quashed. The process of sanction is an administrative act and it is not subject to judicial scrutiny and thus High Court Division committed serious illegality in quashing the proceeding. As the First Information Report discloses a prima facie case and charge sheet is awaiting submission, in such stage quashment does not lie. ...(10, 11 and 14)

For the petitioner: Mr. Md. Khurshid Alam Khan, Advocate, instructed by Mrs. Sufia Khatun, Advocate-on-Record.
For the Respondents: None represented.

Criminal  Petition  for  Leave  to  Appeal  No. 302 of  2012


(O R D E R )
Siddiqur Rahman Miah, J.
 
This Criminal Petition for Leave to appeal arises out of judgment and order dated 27.10.2011 passed by the Division Bench of the High Court Division in Criminal Miscellaneous Case No. 23071 of 2009 in making the Rule absolute and quashing the proceeding of GR Case No. 331/2008 arising out of Tahkurgaon PS Case No. 01 dated 03.06.2008 pending in the court of Chief Judicial Magistrate, Thakurgaon.

The respondent No. 1, Md. Bazlur Rashid, Sub-Assistant Settlement Officer, filed an application under section 561A of the Code of Criminal Procedure before the High Court Division for quashing the proceeding of GR No. 331 of 2008 arising out of Thakurgaon Police Station Case No. 01 dated 03.06.2008 under section 5(2) of the Prevention of Corruption Act, 1947 read with Rule 15 of the Jaruri Bidhimala, 2007 pending in the court of Chief Judicial Magistrate, Thakurgaon.

The prosecution case, in brief, is that one Md. Abdur Rahman, by arresting the respondent No. 1 and two others with the help of the members of Bangladesh Army of Thakurgaon camp as informant lodged a First Information Report with the Thakurgaon Police Station on 03.06.2008 alleging, inter alia, that the informant on 03.06.2008 at about 10.00 a.m. went to the temporary settlement camp situated at Khaliashajuri Primary School for correction of Parcha of land of the informant; that the Mutation Assistant accused Azizul Islam after seeing the papers for correction of parcha demanded Tk. 5000/- as bribe and the informant agreed to pay 2500/- and later on the informant went to the Thakurgaon Camp and informed army personnel about the aforesaid facts; that according to their advice the Army personnel wearing civil dress asked the informant to hand over five notes of Tk. 500/- to them by marking those notes; that according to their advice informant at 2.00 O’clock handover those five hundred taka notes to mutation Assistant Azizul Islam in his office room and Azizul Islam handed over the said money to office peon Shamsul Huda who handed over the money to the accused-petitioner; that in the meantime the Army personnel caught the accused persons red handed and recovered 2500/- from the pocket of co-accused Shamsul Huda and that in presence of the witnesses, seizure list was prepared and thereafter Thakurgaon Police Station Case No. 1 dated 03.06.2008 has been recorded against the respondent No. 1 and two others.

During investigation the petitioner filed Criminal Misc. Case No. 23071 of 2009 under section 561A of the Code of Criminal Procedure before the High Court Division for quashing the proceeding of G.R. No. 331 of 2008 arising out of Thakurgaon P. S. Case No. 01 dated 03.06.2008 and obtained Rule and stay.

The said rule was heard and disposed of by the High Court Division on 27.10.2011. The High Court Division on 27.10.2011 made the Rule absolute and quashed the proceedings of GR case No. 331 of 2008 arising out of Thakurgaon PS Case No. 01 dated 03.06.2008.

Having been aggrieved by and dissatisfied with judgment and order dated 27.10.2011 passed by the Division Bench of the High Court Division in Criminal Miscellaneous Case No. 23071 of 2009 in making the Rule absolute and quashing the proceedings of GR Case No. 331/2008 arising out of Thakurgaon PS case No. 01 dated 03.06.2008, pending in the court of Chief Judicial Magistrate, Thakurgaon, the petitioner preferred the instant Criminal petition for Leave to Appeal.

Mr. Md. Khurshid Alam Khan, the learned Advocate for the petitioner submits that the High Court Division committed serious illegality in quashing the proceeding during investigation; that before taking cognizance, an application under section 561A of the Code of Criminal Procedure is not maintainable; that the process of sanction is an administrative act and it is not subject to judicial scrutiny; that the sanction relates to trap case and as such the High Court Division committed serious illegality in quashing the proceeding relying upon the said sanction with regard to trap case during investigation and moreover it is the subject matter of trial and that the first information report discloses offences against the respondent No. 1 under section 161 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 (II of 47) but the High Court Division committed serious illegality in quashing the proceeding during investigation.

None appears on behalf of respondent No. 1 to defend his case.

We have perused the judgment and petition for leave to appeal. Heard the learned Advocate for the petitioner.

On perusal of the record, it appears that the learned High Court Division quashed the proceeding of Criminal Miscellaneous case No. 23071 of 2009 when the case was under investigation. In such stage, the said proceeding cannot be quashed.

The process of sanction is an administr-ative act and it is not subject to judicial scrutiny and thus High Court Division committed serious illegality in quashing the proceeding.

On perusal of the record, it further transpires that the first information report discloses offences against the respondent No. 1 under section 161 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 (II of 47) but the High Court Division committed serious illegality in quashing the proceeding during investigation.

In this connection, we may refer to the decision reported in the case of AHS Rahman vs. State, 58 DLR (AD) 63 wherein their Lordships held, “Since the first information report discloses a prima facie case against the petitioner and to that effect the charge sheet has been submitted, there is no substance in the submission made on behalf of the petitioner for quashing the proceeding.”

Here in this case, First Information Report discloses a prima facie case and charge sheet is awaiting submission, in such stage quashment does not lie.

The ground shown for condonation of delay being satisfactory is accepted and the delay is accordingly condoned.

Preparation of the paper book is dispensed with as prayed for.

For the above reasons, the petitioner for Leave to appeal is allowed. The impugned judgment and order is set aside.

        Let the appeal be heard along with Criminal Appeal No. 01 of 2013.

End.