Friday, April 20, 2018 03:35:13 AM
Sonali Jute Mills Limited and another-Petitioners
Anti-Corruption Commission, represented by its Chairman, Dhaka and others..........Respondents
May 29th, 2016
Anti-Corruption Commission Act (V of 2004
Sub-sections (1) and (2) of Section 19 have given wide jurisdiction to the Commission to enquire into and investigate any allegations whatsoever as covered in its schedule and in doing so may direct any authority, public or private to produce relevant documents. The person concerned shall be bound to comply with the said direction. The power contained in Section 19 of the Ain can be exercised both at inquiry as well as investigation stage.
Bankers' Books Evidence Act (XVIII of 1891) Sections 2(4), 5 and 6
Anti-Corruption Commission Rules, 2007 Rule 2(Ka)
The word "inquiry" (AbymÜvb) as envisaged under Rule 2 (ka) of the Rules, 2007 is with regard to fact finding inquiry for ÒD³ Awf‡hv‡Mi mZ¨Zv D`NvU‡bi j‡ÿ¨Ó, which will go to assist the Commission either to proceed further by lodging an FIR or to keep it with the record, if found no basis to the allegation. The word "inquiry" as used in Section 2(4) of the Act of 1891 has no manner of application for enquiry by the Commission since at the stage of enquiry by the Commission question of giving evidence does not arise at all. ..... (18)
Code of Criminal Procedure (V of 1898)
Bankers' Books Evidence Act (XVIII of 1891)
Sections 5 and 6
During course of inquiry by the Commission, Section 94 of the Code and Sections 5 and 6 of the Banker's Book Evidence Act, 1891 have no manner of application. . ..... (19)
Code of Criminal Procedure (V of 1898)
The jurisdiction of Sessions Judge to give permission is limited to "investigate of offences" under Sections 403, 406, 408 and 409 and Sections 421, 422 both inclusive and Sections 465 and 477A both inclusive of the Penal Code. The jurisdiction of the High Court Division rests with other offences .... (16)
Mizan Sayed, Advocate instructed by Md Taufique Hossain, Advocnte-on-Record-For the Petitioners.
AKM Fazlul Haque, Advocate, instructed by Sufia Khatun, Advocate-on-Record-For the Respondents.
Syed Mahmud Hossain J : This civil petition for leave to appeal is directed against the impugned judgment and order dated 3-6-2012 passed the High Court Division in Writ Petition No.8243 of 2010 discharging the Rule.
2. The facts giving rise to this civil petition for leave to appeal, in a nutshell, are:
Writ-petitioner No.1, a public limited company incorporated under the Companies Act, 1994, having its registered office situated at BCIC Bhaban (14th floor), 30-31, Dilkusha Commercial Area, Dhaka-1000 had established a factory situated at Khulna. Writ-petitioner No.1, one of the leading Jute Mills in Bangladesh, has filed the instant writ petition along with writ-petitioner No.2, the Chairman of the writ-petitioner No.1-company. Its case, in short, is that the Anti-Corruption Commission (in short, the ACC) under the signature of writ-respondent No.2 had issued the impugned Memo No. `y`K/wetAbyt I Z`šÍ-1/25-2010 (gvwb jÛvwis)/ 16018 dated 18-8-2010 directing Writ-respondent No.3, the Bank concerned to supply the attested photo copy of various bank documents and loan information of the writ-petitioners, which were kept under the custody of writ-respondent No.3. In response thereof, writ-respondent No.3, vide office letter No. cÖtKvt/K…cÖAwe/‡mvbvjx RyU dated 30-9-2010 duly supplied the required documents to writ-respondent No.2 with copy to writ-petitioner No.2 (Annexure-A). In this regard, it has been stated that writ-respondent No.2, vide an administrative order bearing Memo No. `y`K/cÖkvt/ 63/07/9835 dated 22-6-2006 the categorically contended, inter-alia that without having specific order of the Court concerned as provided under Section 94(1) of the Code of Criminal Procedure (in short, the Code) and Sections 5 and 6(1) of the Bankers' Book Evidence Act,1891 (in short, the Act) no information as to banking documents and accounts of the incumbent concerned can be supplied to other authority concerned. The said contention of the Commission has further been reiterated in Memo No. `y`K/cÖkvt/63/07/12037(2) dated 4-8-2009. In response thereof, proforma respondent No. 4, the Bangladesh Bank had also circulated, the said office order to all nationalized/ commercial bank of Bangladesh vide office letter bearing Memo No. weAviwcwW/ bxwZ-4/770918/2009-2954 dated 24-8-2009. It has been contended that in view of Section 19(1) in particular clause (Gha) of the Anti-Corruption Commission Act, 2004 in short, the Act) writ-respondent No.1 is empowered to ask for producing/collecting the "public record or copy thereof". Since bank account information/loan documents of an account-holder cannot be treated as "public documents" in view of Section 74 of the Evidence Act, 1872 by no stretch of imagination the accounts information and loan documents of the writ-petitioner, which were kept under the custody of writ-respondent No.3, can be treated as "public documents". However, writ-respondent bank being the custodian of account information and documents and information as required by writ-respondent No.2 cannot be supplied without prior permission from the competent court of law. The respondent-bank in this regard had utterly failed to maintain the secrecy and confidentiality of the account information and the related affairs of the writ-petitioners.
3. In the stated circumstances, the writ-petitioners served Notice Demanding Justice on 15-10-2010 by special messenger and courier service upon the writ-respondents with request to return all the documents so supplied by the respondent-bank and to confirm m writing that those documents would not be used to the detriment of the writ-petitioners in any proceeding in future but to no avail.
4. Writ-petitioners, Sonali Jute Mills Ltd. and another filed the above writ petition before the High Court Division challenging the memo dated 18-8-2010 and obtained Rule Nisi in Writ Petition No.8243 of 2012.
5.Writ-respondent No.1 entered appearance by filing affidavit-in-opposition controverting the material statements made in the writ petition. His case, in short, is that writ-respondent No.2 had not caused violation of any law whatsoever by asking the bank loan information of the writ-petitioners for the purpose off inquiry of the offences as prescribed under the schedule of the Anti-Corruption Commission Act, 2004. Moreso, it has been contended that Section 5 of the Banker's Book Evidence Act, 1891 and Section 94 of the Code of Criminal procedure have no manner of application for holding inquiry under the provisions of the Act, 2004.
6. The learned Judges of the High Court Division upon hearing the Rule by the judgment and order dated 3-6-2012 discharged the Rule.
7. Feeling aggrieved by the judgment and order passed by the High Court Division, the writ-petitioners as the leave-petitioners have filed this civil petition for leave to appeal before this Division.
8. Mr Mizan Sayed, learned Advocate, appearing on behalf of the leave petitioners, submits that the Anti-Corruption Commission without seeking any permission from the competent Court of law beyond the provisions of Sections 5 and 6(1) of the Banker's Book Evidence Act, 1891 and Section 94 of the Code of Criminal Procedure directed the bank to supply the banking documents, as such issuance of such letter and supply of documents are both without lawful authority and violation of law and, as such, the impugned judgment passed by the High Court Division in discharging the Rule should be interfered with.
9. Mr AKM Fazlul Hague, learned Advocate, appearing on behalf of the respondent, on the other hand, supports the impugned judgment delivered by the High Court Division.
10. We have considered the submissions of the learned Advocates of both the sides, perused the impugned judgment and the materials on record.
11. The question to be resolved here is whether the documents which are related to the bank account of the petitioners lying in the custody of the respondent-bank could be directed to be produced before the officer of the Commission at the stage of inquiry without due permission of the Sessions Judge/High Court Division as the case may be.
12. In this connection, it is pertinent to quote the relevant provisions of Section 19 of the Anti-Corruption Commission Ain, 2004 which is quoted below:
19| AbymÜvb ev Z`šÍKv‡h© Kwgk‡bi we‡kl ÿgZv| --(1) `ybx©wZ m¤úwK©Z †Kvb Awf‡hv‡Mi AbymÜvb ev Z`‡šÍi †ÿ‡Î, Kwgk‡bi wbgœiƒc ÿgZv _vwK‡e, h_vt-
(K) mvÿxi mgb Rvwi I Dcw¯'wZ wbwðZKiY Ges kc‡_i gva¨‡g mvÿx‡K wRÁvmvev` Kiv ;
(L) †Kvb `wjj D`NvUb Ges Dc¯'vcb Kiv ;
(M) kc‡_i gva¨‡g mvÿ¨ MÖnY ;
(N) †Kvb Av`vjZ ev Awdm nB‡Z cvewjK †iKW© ev Dnvi Abywjwc Zje Kiv ;
(O) mvÿxi wRÁvmvev` Ges `wjj cixÿv Kivi Rb¨ c‡ivqvbv Rvwi Kiv ;
(P) GB AvB‡bi D‡Ïk¨ c~iYK‡í, wba©vwiZ Ab¨ †h †Kvb welq|
(2) Kwgkb, †h †Kvb e¨w³‡K AbymÜvb ev Z`šÍ mswkøó wel‡q †Kvb Z_¨ mieivn Kwievi Rb¨ wb‡`©k w`‡Z cvwi‡e Ges Abyiƒcfv‡e wb‡`©wkZ e¨w³ Zvnvi †ndvR‡Z iwÿZ D³ Z_¨ mieivn Kwi‡Z eva¨ _vwK‡eb|
13. Having gone through the provisions of the above section, we find that Sub-sections (1) and (2) of Section 19 have given wide jurisdiction to the Commission to enquire into and investigate any allegations whatsoever as covered in its schedule and in doing so may direct any authority, public or private to produce relevant documents. The person concerned shall be bound to comply with the said direction.
14. The power contained in Section 19 of the Act can exercised both at inquiry as well as investigation stage. It is of course true that the Act of 2004 or the wewagvjv framed thereunder did not prescribe the procedures to be adopted by the officers of the Commission for procuring those documents.
15. It is contended that since Section 19 of the Act of 2004 has no overriding effect over Section 94 of the Code of Criminal Procedure as well as Sections 5 and 6 of Act of 1981 without taking due permission from the Sessions Judge or the High Court Division, the Commission cannot be given direction upon the respondent bank to supply the required documents.
16. The jurisdiction of Sessions Judge to give permission is limited to "investigate of offences" under Sections 403, 406, 408 and 409 and Sections 421, 422 both inclusive and sections 465 and 477A both inclusive of the Penal Code. The jurisdiction of the High Court Division rests with other offences.
17. Section 94 of the Code of Criminal Procedure provides for taking prior permissions from the Sessions Judge and the High Court Division with regard to investigation of offences as stated therein and, as such, is not applicable for inquiry.
18. The word "inquiry" (AbymÜvb) as envisaged under Rule 2 (ka) of the Rules, 2007 is with regard to fact finding inquiry for ÒD³ Awf‡hv‡Mi mZ¨Zv D`NvU‡bi j‡ÿ¨Ó which will go to assist the Commission either to proceed further by lodging an FIR or to keep it with the record, if found no basis to the allegation. As such, the word "inquiry" as used in Section 2(4) of the Act of 1981 has no manner of application for enquiry by the Commission since at the stage of enquiry by the Commission question of giving evidence does not arise at all.
19. During course of inquiry by the Commission, Section 94 of the Code of Criminal Procedure and Sections 5 and 6 of the Banker's Book Evidence Act, 1891 have no manner of application.
20. Over and above, the provisions of Act of 2004 being special in nature shall prevail over other laws notwithstanding the fact that the provisions of other laws were not excluded by any non-obstante clause."
In the light of the findings made before, we do not find any substance in this civil petition. Accordingly, this civil petition is dismissed.
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