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Question of facts to be decided on evidence during trial

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07th-Jan-2017       
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Md. Moinul Islam Chowdhury and J.B.M. Hassan, JJ :
Abani Bushon Thakur
v.
The state and others
Whether the petitioner had followed the law in performing his function as a Government Forest Officer or not is the question of facts which should he decided on evidence during trial and as such the proceedings are not liable to be quashed.
In an inherent power of this court under Section 561 A of the Code of Criminal Procedure is a power which should be exercised sparingly or in a rare case where it would be appropriate for application. In his regard our apex court laid down the principle in the case of Ali Akkas Vs. Enayet Hossain and others reported in 17 BLD (AD) 44 wherein their Lordships held that:-
"The settled principle of law is that to bring a case within the purview of Section 561A for the purpose of quashing a proceeding one of the following conditions must be fulfilled.
(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  and continuation of the proceeding amounts to an abuse of the process of the Court;
(3) Where there is a legal bar against the initiation or continuation of the proceeding;
(4) In a case where the allegations in the F.I.R. or the petition of complaint, even if taken at their face value and accepted in their entirety, do not constitute the offence alleged and
The allegations against the accused although 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." (Para-16)
Mr. Abdul Baset Majumder with Mr.
Rabshan Albi, Advocates, For the Petitioner.
Mr. Shah Md. Zahurul Haque, Advocate, For the Opposite Party No.2. (Durnity Daman Commission).
Judgment delivered on 06 May, 2015.
Judgment
Md. Moinul Islam Chowdhury, J: At the instance of the accused-petitioner, Abani Bashon Thakur, this Rule has been issued calling upon the opposite parties to show cause as to why the proceedings of D.A.B G.R. 03 of 2011 (Sadar South) arising out of Sadar South Model Police Station Case No. 43 dated 23.02.2011 corresponding to G.R. No. 3 of 2011 under Section 5(2) of the Prevention of Corruption Act, now pending in the Court of Chief Judicial Magistrate, Comilla should not be quashed.
2. The relevant facts for disposal of the Rule are that Mohammad Morshed Alam, Deputy Director, Anti-Corruption Commission Joint District Office, Comilla lodged a First Information report with the Sadar South Model Police Station, Comilla on 23.02.2011 under Section 5(2) of the Prevention of Corruption Act, 1947 against the accused-petitioner Abani Bashon Thakur, Divisional Forest Officer, Comilla who obtained a secret information on 22.03.1998 about a truck full of wood on the road near Mia Bazar. The said petitioner brought the truck to his office wherein he found 645.69 cft wood out of the 246.00 cft as legal wood and remaining 381.69 illegal. Regarding the illegal wood he filed a C.O.R. Case No. 74(Ka) of 1997-98 within his office. The said quantity of wood was allowed to release by the petitioner on receiving Tk. 88,338/-. The First Information Report also contains the allegations that through a letter issued by the Bangladesh Forest and Environment Ministry under Memo No. ceg (kv-3)49/92/635 dated 13.11.1995 containing that at the time of disposal of the C.O.R. Case, the seized forest goods cannot be released or returned without following the auction procedure. Therefore the petitioner by violating the said order of the Ministry disposed the case and permitted to take the forest goods to the person as owner by taking away said goods measuring 381.69 cft on receiving Tk. 88,338/- with dishonest intention thereby committed criminal breach of trust by using his official capacity, as such, he has committed offence under the above mentioned law.
3. Subsequently, a chargesheet was submitted being chargesheet No. 20 dated 18.01.2012 along with sanction letter for the investigation officer in the court where in the investigation found the First Information Report facts are true.
 (To be continued)
The investigation report alleged that the truck was seized containing the total measurement of wood 645.69 cft but some goods (woods) were legal in the truck but 381.69 cft. were found illegal which was released by the petitioner on receiving an amounting of Tk. 76.338/- on account of revenue, as compensation Tk. 2000/- and for releasing truck Tk.10,000/-in total Tk. 88.338/- and thereby disposed of the C.O.R. Case. The chargesheet also contains that the accused-petitioner was aware of the letter issued by the Ministry of Forest and Environment in the year of 1995, wherein he was obliged to undertake auction of the illegal wood, thereby he has committed criminal breach of trust which is in contravention of Section 5(2) of the said Prevention of Corruption Act, 1947.
4. On the basis of the aforementioned case being D.A.B. G.R. Case No. 03 of 2011 (Sadar Dakhin) was lodged in the Court of Senior Judicial Magistrate, Comilla. Then on  receiving the First Information Report on 24.02.2011 passed the order for submitting chargesheet and the chargesheet was subsequently submitted. Challenging the proceeding of the aforementioned case the petitioner filed this application under Section 561 A of the Code of Criminal Procedure and obtained the present Rule.
5. Mr. Abdul Baset Majumder, the learned Advocate appearing along with the learned Advocate Mr. Rabshan Albi, for the petitioner submits that in view of the facts that the  allegation against the petitioner is not sustainable in the eye of law as alleged and the allegations cannot be established against the petitioner because of the fact that the office order has no force of law and the investigation officer has committed error in law by not appreciating this vital accept of the case.
6. The learned Advocate further submits that Section 68 of the Forest Act, 1927 as amended in the year of 2000 contains a power for comprising any offence by empowering Forest Officer for any goods seized from a suspect which is liable to be confiscated to release on receiving payment of value thereof by initiating a C.O.R. Case by such officer and verified by any officer not below to the Divisional Forest Officer, as such, the accused-petitioner had ample power to compromise the case after filing the C.O.R. departmental case, as such, the petitioner has not committed any offence as alleged in the F.I.R. or chargesheet, therefore, the Rule should made absolute.
7. The learned Advocate also submits that the requirement of selling any seized goods on auction as per the circular dated 13.11.1995 does not have any force of law as this requirement is only a directory provision not a mandatory one as the Forest Act 1927 is the only relevant law in this case because the date of occurrence is between the fiscal year of 1998. Therefore, this amendment of the Act is not applicable in the present case, as such, he prays to make the Rule absolute.
8. The Rule has been opposed by the complainant opposite party No.2, the Durnity Domon Commission, contending, inter alia, that in the F.I.R, the inquiry officer made allegations against the present accused petitioner for violating the available provision of law including the provision in the Act, 1927 and its amendment in the year of 2000 and the Forest (amendment) Ordinance No. 11 of 1989 and also the Forest (amendment) Act, 1990 (Act No. VIII of 1990) abolishing the ordinance mentioned above containing a saving clause for the purpose of the ordinance. The most important contention on behalf of the Durnity Daman Commission is that the petitioner was under an obligation to follow the existing provision of law as provided under the aforementioned enactment as well as the order passed by the Ministry by way of circular being circular No. ceg (kv-3)49/92/635 dated 13.11.1995 providing that under Section 68 read with Section 26(1A) and Sections 33(1A), 62 and 63 of the Act, 1927 imposing upon a Forest Officer to compound of any offence or compromise these about for disposal of the C.O.R. Case through a departmental proceeding. The said circular also contains a direction not to return the seized forest goods without undertaking the auction procedure but the accused-petitioner seized total 645.69 cft. wood in an abandoned truck on 22.03.1998 out of which 381.69 cft was illegal goods but the petitioner was allowed to take the seized goods to the offender by receiving Tk. 88,338/- which is a violation of the provision of prevention of corruption Act, 1947 by the petitioner as a public servant.
9. Mr. Shah Md. Zahurul Haque, the learned Advocate appearing  for the opposite party No.2, submits that the F.I.R. dated 03.02.2011 and the chargesheet dated 18.01.2012 have disclosed the offence against the accused-petitioner as he himself seized the  illegal forest wood and allowed the offender to take the woods on payment of Tk. 88,338/without undertaking any auction procedure which was available before him as the procedure of disposal of the seized good, despite the provision under Section 68 to compromise the offence for disposing of a C.O.R. case, but the petitioner by violating the directive of the Ministry of Forest and Environment, as such, the petitioner has committed the offence under Section 5(2) of the Prevention of Corruption Act, 1947.
10. The learned Advocate also submits that the petitioner come before this court challenging the proceeding of the D.A.B. G .R. No. 03 of 2011 pending in the court of Senior Judicial Magistrate, Comilla wherein only First Information Report and charge sheet was filed by the prosecution against the present accused-petitioner but no cognizance was taken but this Rule was issued, against the proceeding whereas there was no proceeding as per the provision of law pending in the court below, therefore, the Rule is a premature one, as such, the Rule should be discharged. The learned Advocate also submits that the petitioner was authorized as a forest officer to look after the interest of the state in dealing with the wood of the Forest transparently and the petitioner was obliged to dispose of the seized forest wood without following the said auction procedure, as such, he has committed offence as alleged.
11. Considering the above submissions made by the learned Advocates appearing for the respective parties and also considering the application under Section 561A of the Code of Criminal Procedure along with its Annexures therein and considering the Supplementary Affidavit on behalf of the petitioner, it appears to us that the petitioner being an officer of the forest while performing his functions received an information as to an abandoned truck on the highway at Mia Bazar containing wood materials measuring 645.69 cft. wood. He thereafter brought the truck in his office and after making physical inquiry of the wood the petitioner could found in total 645.69 cft, out of which 264 cft were legal but the remaining wood measuring 381.69 were illegal, as such, he filed C.O.R. Case No. 74(Ka) of 97-98. Thereafter the petitioner allowed the said quantity of wood to release in the name of one Z.A. Diddar Hossain son of Sher Ali Chowdhury and he settled the C.O.R. case as mentioned above. After making a proper examination and assessment the value of the goods the petitioner released all the wood on receiving total Tk.88,338/- as the revenue, compensation and also releasing the truck of seized woods.
12. From the above given facts we have to now decide whether the petitioner as a public servant has committed any offence of breach of trust under Section 5(2) of the Act, 1947. The admitted position in this case is that the prevailing law on the date of occurrence was Section 68 of the Forest Act, 1927 which reads as follows:-
"68. Power to compound offences.- (1) The [Government] may by notification in the [Official Gazette, empower a Forest officer [ not inferior to that of a ranger]-
(a) to accept from any person against whom reasonable suspicion exists that he has committed any forest-offence, other than an offence [ specified in ] [Section 26(1A) or Section 33(1 A) or ] Section 62 or Section 63, a sum of money by way of compensation for the offence which such person is suspected to have committed, and
(b) when any property has been seized as liable confiscation, to release the same on payment of the value thereof as estimated by such officer [ and verified by another officer or not below to the rank of a Divisional Forest Officer.]
(2) On the payment of such sum of money, or such value, or both, as the case may be, to such officer, the suspected person, if in custody, shall be discharged,
the property, if any, seized shall be released, and no further proceedings shall be taken against such person or property.
13. From the above provision of law a Forest Officer, not inferior to that of a Ranger, have authority to use the aforementioned capacity for comprising a case filed as a C.O.R. case after seizing illegal wood from any person. In the instant case, the petitioner was an officer above the rank of Ranger at that time.
14. However, the disputed fact is that there was a circular issued by the Ministry of Forest and Environment, Government of Bangladesh under Memo No. ceg kv-3)49/92/635 dated 13.11.1995 which was available to the petitioner at the time of taking the aforementioned step as to the disposal of the C.O.R. case. The above circular contain provision for selling any wood seized by any Forest Officer and dispose of the case after filing the C.O.R. case with the department, provided, the seized goods to be sold after following an auction procedure. In the present case the accused-petitioner had in hand for example Section 68 of the Act, 1927 as well as the circular dated 13.11.1995 for dealing with sized woods.
15. Now we have to decide whether the petitioner has violated the statutory provision or any other proceeding or code of conduct which he was obliged to follow for filing and disposal of the case which had been initiated by himself along without taking permission from of any other person like a Forest Office. The allegation has been made in the FIR that by releasing the seized illegal woods without following provision of law and circular. The procedure, as it appears from the circular dated 30.11.1995, could have been followed by the petitioner because it was available to him at the relevant period of time. From the above discussion it is clear that the petitioner violated the statutory provisions of law as well as the direction of the concern Ministry by way of circular operative but the same time. A circular issued by the Government shall have a legal effect as has been settled by our apex court on several occasions that it should also be considered as a law, even though, the Act of Parliament should get priority over subordinate law. In this case the petitioner has violated the statutory provision by ignoring the circular issued by the Ministry of Forest and Environment which required to sell the goods or release the goods after following an auction procedure. We are doubtful as to the treatment on the part of the petitioner in dealing with the seized goods under the above provision of law.
16. In an inherent power of this court under Section 561 A of the Code of Criminal Procedure is a power which should be exercised sparingly or in a rare case where it would be appropriate for application. In this regard our apex court laid down the principle in the case of Ali Akkas Vs. Enayet Hossain and others reported in 17 BLD (AD) 44 wherein their Lordships held that-
"The settled principle of law is that to bring a case within the purview of Section 561 A for the purpose of quashing a proceeding one of the following conditions must be fulfilled.
(5) 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;
(6) Where the institution and continuation of the proceeding amounts to an abuse of the process of the Court ;
(7) Where there is a legal bar against the initiation or continuation     of the proceeding;
(8) In a case where the allegations in the F.I.R. or the petition of complaint, even if taken at their face value and accepted in their entirety, do not constitute the offence alleged and
The allegations against the accused although 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 Is to prove the charge."
17. From the above given facts of the case we consider that certain allegations have been disclosed against the petitioner both in the F.I.R. and the chargesheet filed on behalf of the prosecution in the trial court. The vital issues in this case are that whether the petitioner had followed the law in performing his functions as a Government Forest Officer or not are question of fact which should be decided on evidence at trial. He should have been more than transparent not only by following the statutory provision of law but also by falling the directives of the Ministry which make his conduct more reasonable. In the instant case the petitioner failed to follow options available and relevant procedure in dealing with the seized wood, therefore, we are not inclined to interfere into the proceeding of the case continuing in the trial court.
18. Accordingly, we do not find any merit in the Rule.
19. In the result, the Rule is discharged.
20. The interim order of stay granted at the time of issuance of the Rule and subsequently extended from time to time are hereby recalled and vacated.
21. The office is directed to communicate the judgment and order to the court concerned immediately.
SMZH.

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