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Court jurisdiction under Sec 561A can't be exercised too frequently

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High Court Division :
(Criminal Miscellaneous Jurisdiction)
Zinat Ara J
AKM Zahirul Hoque J
Judgment
April 10th, 2016
Kamruzzaman Shah………
………..
vs
State represented by the Deputy Commissioner,
and one anothers ……….
Opposite-Parries
Code of Criminal Procedure (V of 1898)
Section 561A
Ordinarily criminal proceeding instituted against an accused persons must be tried in accordance with law and the proceeding should not be interfered with at an interlocutory stage in exercise of inherent , jurisdiction under section 561A of the Code save and except an exceptional circumstances.
The consensus of judicial opinion is that the exercise of jurisdiction depends upon the facts and circumstances of each case. .. .... (22)
Shakir Hussain vs State, 9 DLR (SC) 14; 5hamsu1 Haque Chowdhury vs State, 39 DLR (1987) 393; Syed Ali Mir vs Syed Omar Ali, 42 DLR (AD) 240; MA Sukkur vs Md Zahirul Haque, 23 BLT (AD) 76: Md Borhan Uddin Vs. The Secretary, Ministry of Law,
Justice and Parliamentary Affairs, 7 BLT (AD) (1999) 227; Dewan Obaidur Rahman vs State, 4 BLC (AD) 167; Sujit Kumar Rudra vs State, 8 BLT 407; Nasiruddin vs Momtazuddin, 4 BLD (AD) 97 = 36 DLR (AD) 14; Md Islam Ali Mia alias Md Islam vs Amal Chandra Mondal, 13 BLD (AD) 28 = 45 DLR (AD) 27 and Ali Akkas vs Enayet Hossain, 17 BLD (AD) 44 = 2 BLC (AD) 16 ref
Omar Sadat, with Md Jahangir Zamaddar, Advocates-For the accused-Petitioner .
Swarup Kanti Deb ; AAG-For the Opposite-Party No.1
Shah Md Zahurul Haque, Advocate-for Opposite-
Party No.2 (Anti-Corruption Commission).
Judgment
AKM Zahirul Hoque J : This Rule was issued calling upon the opposite party to show cause as to why the proceeding of Special Case No.1 of 2012 arising out of Abhoynagar Police Station Case No. 17 dated 29-9-2003 corresponding to DAB GR Case No. 12 of 2003 under sections 409/420/109 of the Penal Code read with section 5(2) of the Act II of the Anti-Corruption Act, 1947, now pending before the learned Special Judge (Sessions Judge), Jessore should not be quashed and/or pass such other or further order or orders as to this Court may seem fit: and proper.
2. Facts relevant for the purpose . of disposal of the Rule, in short is that one Asraful Islam, Inspector, Durniti Daman Bureau, Dhaka as informant lodged the FIR being Abhoynagar PS Case No. 17 dated 29-9-2003 under sections 409/420/109 of the Penal Code read with section 5(2) of the Act-II of the Anti-Corruption Act, 1947 against the petitioner and 3 (three) others stating inter alia that the petitioner is a fertilizer businessman who took loan in several occasions from the Agrani Bank, Bazar Branch, Nawapara, Jessore. That the petitioner opened current account No. 103 of the said Bank and accordingly CC pledge loan was sanctioned in favour of the petitioner which amount of Taka 300 lac under sanction letter No. Mobas/Khu:Sa/Rin/Josse/09 dated 28-4-1999 by the Agrani Bank, Khulna Circle Branch. And as per condition of CC pledge loan all chemical fertilizer would be remained in the godown under the Bank pledge and validity of the said CC Pledge loan was upto 28-2-2000. Accordingly, the petitioner after purchased the chemical fertilizer deposited the same in the said godown. As per record dated 31-1-2000 the petitioner has deposited fertilizer in the said godown being quantity thereof as; 39,936 bags SSP fertilizer amount of Taka 79,87,200, 18650 bags Mop fertilizer amount of Taka 74,24,000 and 25060 bags TSP fertilizer amount of Taka 1,41,33,000 in valued at total Taka 2,95,44,200. But subsequently an enquiry team led by the General Manager and other Managers of the said Bank inquired the said pledge godown on 7-2-2000 and found 5,793 bags SSP fertilizer which amount of Taka 14; 05,870, 1886 bags MOP fertilizer amount of Taka 7,07,250 and 2250 bags TSP amount of Taka 12,18,500 and additional 247 dags) Urea fertilizer amount of Taka 69,160 in which total valued of the fertilizer amount of Taka .34,00,780. Accordingly, the enquiry team it was found less fertilizer which amount of Taka 2,61,43,42.0. It was further stated that the accused-petitioner without deposited the money to the CC ledger delivered the goods from the pledge godown.
Thereafter 4 (four) members audit team of the said Bank formed on 22-3-2000 and did audit the said pledge godown wherein they also found less fertilizer which valued at Taka 37,950 and also found that no money was deposited to the CC pledge after 31-1-2000. It was also stated that after 22-3-2000 the said Bank recovered only 46.94 lac and remained outstanding dues amount of Taka 309.99 lac. It was alleged and, as such, the accused-petitioner in collusion with other accused persons committed an offence jointly with the public servant by way of breach of trust and misappropriated the said amount of money. Thereafter police started the police station case No. 17 dated 29-9-2003 under sections 409/ 420/109 of the Penal Code read with section 5(2) of Act II of the Anti-Corruption Act, 1947 against the petitioner and other FIR named accused persons.
3. Thereafter, on 6-10-2003 the petitioner voluntarily surrendered before the learned Magistrate and obtained ad-interim bail
4. That the police after investigation submitted police report along with sanction letter against the accused-petitioner and 3 (three) others being charge sheet No. 206 dated 31-10-2010 under sections 409/420/109 of the Penal Code read with section 5(2) of Act-l1 of the Anti-Corruption Act, 1947. ,
5. Thereafter, the case record was transferred to the learned Senior Special Judge and Sessions Judge, Jessore for trial and wherein it was renumbered as Special Case No. 6 of 2011. The learned Special Judge took cognizance against the accused-petitioner and others. Thereafter, the accused-petitioner on 7-3-2011 appeared before the trial Court and obtained ad interim bail.
6. Being aggrieved by and dissatisfied with the impugned proceeding of Special Case No. 1 of 2012, arising out of Abhoynagar PS Case No. 17 dated 29-9-2003, corresponding to DAB GR Case No. 12 of 2003 under sections 409/420/109 of the Penal Code read with section 5(2) of Act-II of the Anti-Corruption Act, 1947 now pending in the Court of the learned Special Judge (Sessions Judge), Jessore, the petitioner moved this application under section 561A of the Code of Criminal Procedure and obtained the present Rule.
7. Mr Omar Sadat, the learned Advocate appearing on behalf of the petitioner who after drawing our attention into the contents of FIR and police report (charge sheet), order of framing of charge along with other materials on-record vis-a-vis the provision, of sections 409/420/109 of the Penal Code read with section 5(2) of the Act II of the Anti-Corruption Act, 1947 and submits that the facts and circumstances as contained· in the FIR neither disclosed any case of corruption nor any allegation of misappropriation of alleged fertilizer as pledge under the control of the Bank as such the proceeding against the petitioner is the abuse of the process of the Court and which is liable to be quashed. He further submits that admittedly the petitioner is not a government servant therefore his act cannot be attracted within the meaning of section 5(2) of the Anti-Corruption Act, 1947 and, as such, the instant proceeding against the petitioner is the abuse of the process of the Court therefore the same is liable to be quashed. He also submits that the accused-petitioner since neither a government servant nor a staff of Agrani Bank within the meaning of section 21,of the Penal Code, therefore, the proceeding against the accused-petitioner is also barred under section 5(2) of the Anti-Corruption Act, 1947 and, as such, the impugned proceeding is liable to be quashed for ends of justice.
 (To be continued)
8. In support of his submissions the learned Advocate for the accused-petitioner has referred some decisions which are as under:-
9. In the case of Shakir Hussain vs State, reported in 9 DLR (SC) 14; in the case of Shamsul Haque Chowdhury vs State, reported in 39 DLR 393, in the case of Syed Ali Mir vs Syed Omar Ali, reported in 42 DLR (AD) 240, in the case of MA Sukkur vs Md Zahirul Haque, reported in'23BLT (AD) 76, in the case of Md Borhan Uddin vs The Secretary, Ministry of Law, Justice and Parliamentary Affairs, reported in 7BLT (AD) (1999) 227 in the case of Dewan Obaidur Rahman vs State, reported in 4 BLC (AD) 167, in the case of Sujit Kumar Rudra Vs, State, reported in 8 BLT 407, in the case of Nasiruddin vs Momtazuddin, reported in 4 BLD (AD) 97 = 36 DLR (AD) 14, and in the case of Md Islam Ali Mia alias Md Islam vs Amal Chandra Mandal, reported in 13 BLD (AD) 28 = 45 DLR (AD) 27.
10. Mr Shah Md Zahurul Haque, the learned Advocate appearing on behalf of the; opposite party No.2. The Anti-Corruption Commission who after drawing our attention into the contention of FIR along with provision of sections 409/420/109 of the Penal Code read with section 5(2) of the Act-II of the Anti-Corruption Act, 1947 including the provision of section 107 of the Penal Code submits that the informant being an officer of Anti- Corruption Bureau lodged the FIR in pursuance of an enquiry report being found preliminary prima facie allegations against the accused-petitioner and others on the allegations that the petitioner got loan I nun the Bank against in his current account being No. 103 by which after purchased the chemical fertilizer kept in the godown and from where the petitioner and some of the Bank staffs with connivance with each other have been taken and sold· out the said fertilizer without deposited the requisite money in the Bank account and; as such, causing loss of huge amount of public money as mentioned in the FIR and for which Taka 2,61,43,420 has been misappropriated by the petitioner and with other accused persons. As such, the allegations in the FIR well disclosed the criminal offence against the petitioner as alleged by the prosecution and those allegations also attracted with the said provisions. He further submits that the investigating officer after holding investigation being found prima facie case against the petitioner and others and submitted charge sheet along, with its sanction letter for the said allegation in accordance with law which disclosed in the report in details. Therefore, there are no reasons to quash the instant proceeding as such the present Rule is liable to be discharged. He also after drawing our attention into the provision of section 5(1)(c)(d) of the Prevention of Corruption Act, 1947 and read with sections 409/420/109 of the Penal Code and submits that the allegations as brought against the petitioner are very much connected and applicable against the accused petitioner under the facts and circumstances of the present case. He further after drawing our attention into the charge sheet as well as the order of framing of charge by the trial Court, submits that the trial Court being found the prima facie case as alleged by the prosecution against the petitioner for Commission of such offence jointly with other accused persons who are the staffs of the said government schedule Bank framed the charge under the said provisions of law. He further submits that the joint acts of the accused persons including the petitioner well constituted the criminal offences as alleged by the prosecution and the same can be tried by the Special Judge being the allegation which has attracted under the provision of section 5(2) of the Prevention of Corruption Act, 1947 read with sections 409/ 420/109 of the Penal Code. Thereby the proceeding against the accused-petitioner neither abuse of the process of Court nor it is barred by any Provision of law even the same is not preposterous in any manner. As such he prays that the instant Rule is liable to be discharged.
11. In support of his contention the learned Advocate for the opposite party No.2 has referred a decision in the case of Ali Akkas vs Enayet Hossain, reported in 17 BLD (AD) 44 = 2 BLC (AD) 16.
12. Mr Swarup Kanti Deb, the learned Assistant Attorney-General appearing on behalf of the opposite party No.1 opposed the Rule and adopted the submission of the learned Advocate for the opposite party No.2.
13. Heard the. learned Advocate for both the sides also the learned Assistant Attorney-General appearing on behalf of the opposite party No.1, perused the application under section 561A of the Code of Criminal Procedure, FIR, charge sheet, order of framing of charge and other materials on record.
14. It appears from the column of the FIR which shows that the FIR has lodged on 20-9-2003 by showing the date of occurrence from 28-4-1999 to 28-4-2000 and wherein the names and particulars of the accused persons including the petitioner have been mentioned.
We have gone through the contents of the FIR wherein the informant categorically stated that after getting allegation the authority of the Anti-Corruption Commission directed to held enquiry within the meaning of Rules 2(Ka) read with the provision of Rules 6 to 9 of Chapter III of Anti Corruption Commission Rules on such allegations against the petitioner and others by the inquiry officer to determine the preliminary prima facie of the allegations against the petitioner. Accordingly the Inquiry Officer after holding, inquiry submitted its report with his opinion to his authority who on perusal the same found preliminary prima facie case against the petitioner and other accused persons. Thereby as per direction of his authority the informant in pursuance of the said enquiry report lodged the FIR with the Avoynagar Police Station stalling inter alia that the petitioner being the proprietor of Mis Chishti Traders having financial transaction with Agrani Bank, Khulna Circle Branch and by a sanction letter dated 28-4-1999 he got Taka 300 lac as of financial benefit from the said Bank with the terms that all the chemical fertilizer should be remained in CC pledge in the godown of the Bank and from where the petitioner have to take those fertilizer after being deposited the respective money accordingly with the Bank account within the period dated 28-2-2000. In pursuance of the said terms the petitioner purchased the different types of chemical fertilizers and put those fertilizers in his Chishti Godwon under the supervision and control of the Bank. It was further stated that on 31-1-2000 according to the terms there were different kinds of chemical fertilizer in the said godown which valued amount to Taka 2,95,44,1,200. But subsequently, four members enquiry team headed by Assistant Managing Director held enquiry and on physical examination of such godown of M/s Chishti Traders and found that there were fertilizers which worth of Taka 34,00,780 only and rest of the fertilizers which worth of Taka 2,61,43,420 were missing. And subsequently an audit team held enquiry on 22-3-2000 and found the same result of missing of fertilizer from the godown. The said audit team also found that there was no money deposited against the said fertilizer in the Bank account and there are other allegation found by the enquiry committee mentioned in the FIR. The informant categorically alleged against the petitioner and others Bank employees who with connivance with each other jointly by way of cheating and abating without depositing the money as per term in the Bank account they took away the same from the godown thereby misappropriation the fertilizer which worth of Taka 2,61,43,420 by committing breach of trust and the said act also committed by way of corruption by abuse of the powers within the meaning of section 5(1) of the Prevention of Corruption Act, 1947. These material allegations has been categorically mentioned against the petitioner and other with the particulars as to the specific time and place including, the manner of participation in commissions of such offence for the benefit of the accused-petitioner and others and for which a huge amount of public money has been lost as alleged in the FIR. We have gone- through the charge sheet wherein the name of the accused-petitioner has been forwarded with other accused persons along with sanction letter to the concern Court being found prima facie case against the petitioner in accordance with law by Investigating Officer wherein it is further stated that under what circumstances the accused petitioner has been implicated in this case has been mentioned in the chargesheet also and who also found that a prima facie case of joint acts of corruption as well as misappropriation and allegation of abetment including the cheating against the accused-petitioner and others are available. These materials facts were elaborately discussed alongwith the allegation in pursuance of the First Information Report, the statements of the witnesses as recorded by him the sketch map which was prepared by him after visited the place of occurrence, perused the related documents and seized the relevant paper and articles and prepared the seizure list in accordance with law and thereby after perusal the same the Investigating Officer being found the prima facie case against the petitioner and others who are also connected with the schedule offence as mentioned in the Act, 1947. Thereafter, police submitted charge sheet against the accused-petitioner and 3 others under sections 409/420/109 of the Penal Code read with, section 5(2) of the Act-11 of the Anti-Corruption Act, 1947 and the charge sheet has been filed on 31-10-2010. Though, the learned Advocate for the petitioner tried to convince us that there is no material allegation against the petitioner but he failed to show that the allegation as brought by the prosecution in the FIR as well as charge sheet are mechanical preposterous or not otherwise barred by any law. It further appears that the case transferred to the Court of the learned Special Judge, Jessore for holding trial and who after hearing the parties, perused the records therewith has framed charge against the accused-petitioner and 3 others under sections 409/420/109 of the Penal Code read with section 5(2) of the Act II of the Anti-Corruption Act, 1947 and read over the said charge upon the petitioner and other accused persons who pleaded not guilty and prayed for fair trial. However, the trial Court fixed the matter for evidence on 6-6-2013.
15. These are the scenario, the facts and circumstances of the case of the petitioner which even on the face value of the FIR as well as chargesheet well disclosed the criminal offences against the petitioner as alleged by the prosecution.
16. However, the petitioner raised a ground that the petitioner is not a public servant and, as such, the trial of this case along with other accused persons who are public servants is barred under section 5(2) of the Prevention of Corruption Act, 1947. In this regard we would like to refer the provision of section 5(1)(c) and (d) of the Anti-Corruption Act, 1947 which are as under:
"(c) if he dishonestly or fraudulently misappropriate or otherwise converts for his own use any property entrusted to him or under his control as public servant or allows any other person so to do, or
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains or attempts to obtain for himself or for any other person any valuable thing or pecuniary advantage."
17. It appears that the above provisions of law have been defined the offences by any public officer.
18. And the conviction has been awarded for commission of such offence has been mentioned in section 5(2) of the said Act, 1947 which is as under:
"Any public servant who commits or attempts to commit criminal misconduct shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both and the pecuniary resources or property to which the criminal misconduct relates may also be confiscated to the State. "
19. So, section 5(2) of the Prevention of Corruption Act, 1947 are attracted when a criminal offence like breach of trust is committed by a public servant under sections 409/420 of the Penal Code read with section 109 of the Penal Code are being in the schedule offence punishable under the Prevention of Corruption Act, 1947. It must be Committed by the public servant but the Article 'Gha' of the schedule of the said Anti-Corruption Commission Act, 2004 provides as a schedule offence for abating in commission of such schedule offence by any person jointly with Public servant he is also liable to be tried jointly with the public servants. It is admitted that the section 110 of the Bank Company Act, 1991 also provides that a Manager, Officer and other staffs of the Bank of the banking Company Act are deemed to be public servant within the meaning of section 21 of the Penal Code save and except the petitioner. But the allegations against the petitioner as alleged by the prosecution along with other accused who are public servant attracted the provision of section 109 of the Penal Code. According to allegation against the said public servants and petitioner who are accuseds in the case did not do their respective duties as per terms and condition rather by their joint acts caused damage a huge amount of the public money as appears from the FIR and chargesheet. It appears that there is the allegation of joint criminal acts of all the accused persons including the petitioner for misappropriation the fertilizer by way of breach of trust which worth of Taka 2,61,43,420 which caused the public injury. It also appears that considering the FIR, chargesheet and the materials on record therewith and after hearing the parties as required under section 265(C) of the Code of Criminal Procedure the learned Special Judge being found prima facie case against the petitioner and framed the charge against the accused-petitioner and 3 others under sections 409/420/109 read with section 5(2) of the Prevention of Corruption Act, 1947 on 2-5-2013 and the case was fixed for trial.
20. We also find that the initiation and thereby proceeding of the case is not barred by any law.
21. In this regards, we can referred the decisions in the case of Ali Akkas vs Enayet Hossain, reported in 17 BLD (AD) 44, wherein their lordship's got the finding to the effect that:
"1. Interference even at an initial stage may be justified where the facts are so preposterous that even on admitted facts no case stands against the accused.
2. Where the institution or continuance of criminal proceedings against an accused person may amount to an abuse of the process of the impugned proceedings would secure the ends of justice.
3. Where there is a legal bar against the initiation or continuance of a criminal case against an accused person.
4. In a case where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged and in such cases no question of weighing and appreciating evidence arises.
5. The allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge."
22. Ordinarily criminal proceeding instituted against an accused persons must be tried in accordance with law and the said proceeding should not be interfered with at an interlocutory stage in exercise of inherent jurisdiction under section 561A of the Code of Criminal Procedure save and except an exceptional circumstances. The consensus of judicial opinion is that the exercise of jurisdiction depends upon the facts and circumstances of each case.
23. In such view of the matter and discussion made above we hold that the petitioner's case does not fall in any of the exceptions as mentioned above in the said decision which reported in 17 BLD (AD) 44.
24. The decisions as referred above by the learned Advocate for the petitioner are not applicable under the facts and circumstances of the present case.
 25. In such view of the matter, we do not find any merit in the Rule.
26. In the result, the Rule is discharged.
27. The order of stay granted at the time of issuance of the Rule is hereby vacated.
28. The trial Court is directed to proceed with the case in accordance with law.
Communicate the judgment and order to the concerned Court at once.  
 

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