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Wednesday, December 19, 2018 04:45:21 PM
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Appointment of Special Judge

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01st-Jul-2017       
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(From previous issue) :
This is based on a wrong notion. Question of pendency of any proceedings does not arise at this preliminary stage. Because no case can be filed by the Commission against any person unless and until the investigation officer collects prima-jacie materials from which it can be inferred that the suspected offender has violated the law The -matter is at the preliminary stage. The Commission has been given the p0wer to holding inquiry as had been given to the defunct Anti-Corruption Bureau to hold an inquiry against any person before initiation of a proceeding.
11. The reason behind it is that un less and until the then Bureau, now the Commission, is satisfied that there is prima-facie materials against a public servant, who has allegedly Committed an offence under the Ain, the Commission normally does not disturb such public servant in the manner the police officer can arrest an ordinary offender on the basis of information regarding the commission of cognizable offence. Under the Ain of 2004, the horizon has been expanded and besides a public servant, the Commission has power to hold inquiry in respect of schedule offences against any person who has allegedly committed any offences.
12. Naturally, whenever the Commission gets information regarding the commission of an offence by any person which requires production and/or instruction of in document which is in custody of a bank or banker as defined in the Bankers' Books Evidence Act and relates to disclosing of any information of bank account of any person, prior permission to the Sessions Judge is necessary.
The session Judge in such eases passes an order in his administrative capacity because no proceeding has yet commenced. Under such Circumstances, on perusal or the report of the investigation officer in which he has disclosed the purpose for seizure of the documents in question, if the learned Sessions Judge is satisfied that the seizure of document or the inspection of the tank documents relating to handling of the account is necessary for the purpose of ascertaining the truth or falsehood to the in formation, he accords the permission.
13. If the views taken by the High Court Division are accepted, then it will not be possible on the part of the Commission to collect incriminating documentary evidence against any suspected offenders. Because there is only an information before the Commission that the writ petitioners have been indulging in money laundering through different bank accounts. If the accounts are not checked/freezed how the investigation officer can collect evidence or materials to instantiate the charge, if any, against the offenders? It is only on inspection of the banking documents and the ledger book etc. maintained with the banks, the investigation officer can ascertain whether or not the transactions made by the writ petitioners are so suspicious that the accounts might have been used for the purpose of money laundering.
14. The initiation of a proceedings under the law arises after collecting such materials on inspection of the banking transactions but if the suspected offender removes all the money from the bank, or destroys the documents relating to the Accounts with the help of bank officials, it will be difficult on the part of the investigation officer to collect evidence against them of the suspected offenders get scent of the movement of the Commission, they may withdraw the entire amount and leave the country. Under such eventuality, the suspected offender cannot be prosecuted. This is not the purpose for which the law has been promulgated.
15. After the preliminary inquiry if the investigation officer finds sufficient materials to initiate a case, he will then institute a case with prior permission of the Commission but before that stage is reached, the suspected offenders will be able to destroy all the documents in connivance  with the bank. Therefore, the High Court Division was totally unmindful in declaring the order of the learned Sessions Judge without lawful authority.
16. The High Court Division held that under the Money Laundering Protirodh Ain, the Special Judge is empowered to pass such order and that the learned Sessions Judge has no power to make such order.
It failed to notice that the learned Metropolitan Sessions Judge is ex-officio Senior Special Judge and under the Ain, it is the Metropolitan Sessions Judge who is authorized to pass such order. It has over looked section 3(2) of the Criminal Law Amendment Act which provides that "No person shall be appointed a Special Judge unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge. A Sessions Judge, an Additional Sessions Judge and an Assistant Sessions Judge are the officers to compose of a Sessions Division. A Sessions Judge in a Sessions Division is appointed under Section 9 of the Code of Criminal Procedure and he being the senior most judicial officers of the Sessions Division transfers the cases to Additional Sessions Judges or any other Judges for holding trial of cases as Special Judges of the Sessions Division. Again if we look at sub-section (2) of Section 4, it will be more clear that the Sessions Judge is the ex-officio Senior Special Judge of a Sessions Division. It provides:
"4(2) where two or more Special Judges have jurisdiction, wholly or partly in the same territorial limits, the Government shall, b) notification in the official gazette declare one of them to be the Senior Special Judge for that area and notwithstanding anything contained in subsection (1), such Senior Special Judge shall have exclusive jurisdiction to take cognizance of all offences triable under this Ast committed or deemed to have been committed within that area.
17. These provisions are self explanatory and in this, regard no further explanation is necessary. The Sessions Judge in a Sessions Division is ex-officio Senior Special Judge and therefore, he has all the powers of a Special Judge within the meaning of the Criminal Law Amendment Act and the Durnity Daman Commission Ain. As observed above, the offences punishable under the Money Laundering Protirodh Ain are schedule offences of the Durnity Daman Commission Ain of 2004 clearly provides, that the offences punishable under the said Ain shall exclusively be triable by the Special Judge which includes the Senior Special Judge. Therefore, the High Court Division was totally unmindful in arriving at such conclusion. The decisions referred by the High Court Division in Nurul Huda vs Bahar Uddin, 41 DLR 395 and Zaved Khan vs A CC, 63 DLR 221 are also to the same extent based on misconception of law.
The judgment of the High Court Division is set aside. This petition is disposed of with the above findings and observation.
(Concluded)

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