High Court Division
(Special Original Jurisdiction)
Zinat Ara J
KM Kamrul Kader J
Anti-Corruption Commission others
Constitution of Bangladesh, 1972
Code of Criminal Procedure (V of 1898)
The petitioner has challenged the proceeding of a criminal case without challenging the virrs of the low involved. If the proceeding of criminal case is declared to be unlawful and be of no legal effect, in such case, it would tantamount to quashing of a criminal proceeding in writ jurisdiction. The High Court Division, in appropriate' case, has the jurisdiction to quash a criminal proceeding by invoking its inherent power under Section 561A of the Code. . ..... (9 & 10)
Anti-Corruption Commission vs Mehedi Hasan, 67 DLR (AD) 137 ref.
Rokanuddin Mahmud, Advocate-For the Petitioner.
Md Khurshid Alam Khan, Advocate-For Respondent No.1.
Zinat Ara J : On an application made by the petitioner under Article 102 of the Constitution, a Rule Nisi was issued in the following terms:-
Let a Rule Nisi be issued calling upon the respondents to show cause as to why the continuation of proceeding of ACC GR Case No. 172 of 2007 Corresponding to Ramna PS Case No. 73 dated 19-12-2007 under Section 26(2) and 27(1) of the Anti-Corruption Commission Act, 2004 and Rule 15(N) (5) of the Emergency Power Rules, 2007 and section 109 of the Penal Code (Annexure-A) now pending before the Chief Metropolitan Judicial Magistrate, Dhaka (formerly Chief Metropolitan Magistrate, Dhaka) shall not be declared to be without lawful authority and is of no legal effect and/ or such the or further order or orders passed as to this Court may seem fit and proper.
2. The facts necessary for disposal of this Rule are as under:-
Respondent No.3, an Assistant Director of the Anti-Corruption Commission (hereinafter referred to as the Commission) on 19-12-2007 lodged a first information report with Ramna Police Station against the petitioner and his wife. Accordingly, Ramna Police Station Case No. 73 dated 19-12-2007 was registered against the petitioner and his wife under Sections 26(1) and 27(1) of the Anti-Corruption Commission Ain, 2004 (hereinafter referred to as the Ain, 2004) read with rule 25(gha)(5) of the Emergency Power Rules, 2007 and Section 109 of the Penal Code. Subsequently, the aforesaid police station case was registered as ACC GR No. 172 of 2007, pursuant to an order dated 26-7-2007, alleging, inter-alia, that the petitioner and his wife collusively gave false statements of assets and thus, committed offence under Sections 26(2) and 27(1) of the Act, 2004. The petitioner received notice from the Commission to submit his wealth statements, while he was in jail custody. Inspite of that, the petitioner submitted his statements of assets from Dhaka Central Jail without proper verification thereof. But the petitioner has been burdened with false allegation of concealing his source of income and properties without giving him any opportunity to examine the relevant documents of his income and assets. Therefore, the criminal proceeding against him is unlawful and liable to be declared as such.
3. Respondent No.l, the Commission has appeared through its engaged learned Advocate/ but has not filed any affidavit-in-opposition controverting or denying the statements made in the writ petition.
4. Mr Rokanuddin Mahmud, the learned Advocate for the petitioner, takes us through the writ petition, the supplementary affidavit thereto and the reply of the petitioner to the Commission (Annexure-B to the writ pelition) and submits that admittedly, the petitioner was in custody, but, inspite of that, he submitted his wealth statements by clearly stating that he was taken to jail custody by the Government, his employees of different business establishments resigned from their services and therefore, there might be some mistakes in his wealth statements, as it was not possible for him to verify the related documents from jail custody. Mr Mahmud submits that the Commission without considering the above facts unlawfully filed a case against him. He finally submits that, in the facts and circumstances of the case, the Rule is liable to be made absolute.
5. In reply, Mr Md Khurshid Alam Khan, the learned Advocate for the Commission, places before us the decision in the case of Anti-Corruption Commission vs Mehedi Hasan reported in 67 DLR (AD) 137 and contends that it has already been decided by the Appellate Division that a writ petition for quashment of criminal proceeding is not maintainable, unless the vires of any law is challenged in such writ petition. He next contends that in the instant writ petition, the petitioner has simply challenged the proceeding of ACC GR No. 172 of 2007 and if the Rule is made absolute, it will result in quashment of the criminal proceeding and therefore, according to the decision of the Apex Court, the Rule is liable to be discharged on the ground of maintainability.
6. We have examined the writ petition, the supplementary affidavit and the connected materials on record. We have also studied the decision as reported in 67 DLR (AD) 137.
7. It is admitted that the petitioner had received the notice from the Commission for submitting his income and wealth statements, while he was in jail custody. It also transpires from the reply of the petitioner that he gave reply with his statement of assets mentioning as under:-
বিষয় : - ঢাকা কেন্দ্রীয় কারা কর্তৃপক্ষের মাধ্যমে সম্পদ বিবরণী প্রেরণ প্রসংগে।
সূত্র ঃ (১) দুদক এর স্মারক নং ১৯২-২০০৭ (অনুঃ২) ৫৭৫৪ তারিখ ২৬-৭-২০০৭
(২) স্মারক নং দুদক নং দুদক/১৯২/২০০৭
(অনুঃ-২) ৬৪০২ তারিখ ঃ ৭-৮-২০০৭
সূত্রে বর্ণিত পত্রসমূহের বরাতে ঢাকা কেন্দ্রীয় কারা কর্ত"পক্ষের মাধ্যমে আমি আপনার নিকট ২২ পাত বিশিষ্ট সম্পদ হিসাব বিবরণী প্রেরণ করছি। গত ২৬-৬-২০০৭ তাং সরকার আমাকে আটক করার পর আমার সকল ব্যবসা প্রতিষ্ঠানের সংশ্লিষ্ট
Underlined by vs)
8. Be that as it may, in the decision reported in 67 DLR (AD) 137, it has been decided by their lordships of the Appellate Division as under.-
"As regards Civil Petition for Leave to Appeal No. 652 of 2013 arising out of Writ Petition No. 7242 of 2008, we are of the view that there is no scope for quashing a criminal proceeding under the writ-jurisdiction unless the vires of the law involved is challenged. Having gone through the Rule issuing order, we find that the vires of the law involved in the present ease has not been challenged. Therefore, there is no scope for aggrandizement of jurisdiction of the High Court Division in quashing a criminal proceeding. Consequently, the High Court Division was not justified in quashing 15 criminal cases (Special Case Nos. 12-26 of 2007) in exercise of its power under Article 102 of the Constitution."
(Bold, emphasis supplied)
9. In the instant writ petition, the petitioner has challenged the proceeding of a criminal case without challenging the vires of the law involved. If the proceeding of criminal case is declared to be unlawful and be of no legal effect, in such case, it would tantamount to quashing of a criminal proceeding in writ jurisdiction. Therefore, in view of the decision referred to by Mr Khan, the instant writ petition is not maintainable.
10. However, the High Court Division has inherent power to pass such order, as may be necessary, under the Code of Criminal Procedure, 1898 to prevent abuse of the process of any court in-otherwise to secure the ends of justice. Therefore, the High Court Division, in appropriate case, has the jurisdiction to quash criminal a proceeding by invoking its inherent power under Section 561A of the Code, of Criminal Procedure, 1898.
11. In view of the above, we find no merit in the submissions of Mr Mahmud and we find merit and force in the submissions of Mr Khan.
12. Considering the facts and circumstances as discussed hereinbefore, vis-a-vis the law, we find no merit in the Rule.
13. Accordingly, the Rule is discharged without any order as to costs.
14. However, the petitioner is at liberty to ventilate his grievance in the appropriate forum, if so advised.
. Communicate the judgment to respondents No.1 and 3 at once.