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Framing charge(s) without sanction is illegal

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03rd-Feb-2018       
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High Court Division :
(Criminal Miscellaneous Jurisdiction)
M Enayetur Rahim J
JBM Hassan J
Rabiul Islam alias Robi (Md) .............Petitioner
Vs
State ... Opposite Party
Judgment
December 11th, 2016
Code of Criminal Procedure (V of 1898)
Section 561A
Continuation of the proceeding will be nothing but a sheer abuse of the process of the Court and order of framing charge without sanction is illegal and without jurisdiction and, as such, the proceeding is liable to be quashed. .. .... (18)
Code of Criminal Procedure (V of 1898)
Section 561A
Santrash Birodhi Ordinance, 2008
Sections 7, 8 and 9
If the trial starts from the stage of taking cognizance afresh as the Government has given sanction for prosecution of the accused persons and the accused petitioners are found guilty under the provisions of law in that case they may have to be sentenced for imprisonment for 6 (six) months under Section 7, 7 (seven years) under Section 8, and 021/2 (two and a half years) under, section But fact remains that the accused petitioners have already suffered in jail in excess to the period of proposed highest sentence. The accused petitioners have been languishing in jail without trial for no fault of them and that for the negligence and laches of the prosecution as well as the Government they can not be suffered.. ..... (15, 16 &.17)
Iftekharul Karim vs State, 65 DLR 211 ref.
Syeda Ashifa Ashrafi Papia, Advocate - For the Petitioner (In both the Rule)
AKM Zahirul Haq, DAG with Md Shahidul Islam Khan, AAG and Mia Sirajul Islam, AAG - For the State.

Judgment
M . Enayetur Rahim J : Both the Rules having been arisen but of the same proceedings and order, we have heard those analogously and are being disposed of by this single judgment.
2. These Rules were issued calling upon the opposite party to show case as to why the impugned order date 2-4-2012 passed by the Additional Sessions Judge, Chapainawabgonj in Session Case No. 138 of 2010, corresponding to GR Case N9.44 of 2009. (Bhola) arising out of Bholahat Police Station Case No. 05 dated 17-6-2009 framing charge under Sections 8/9/10 of the Sartrash Birodhi Odhadesh, 2008, should not bequashed so far as it realtes to the petitioners and/or pass such other or further order or orders as to this Court may seem fit and proper.
3. On 17-6-2009 SI Md Mizanur Rahman of Bholahat Police Station, Chapainawabgonj lodged a First Information Report with Bholahat Police Station alleging, inter-alia, that Abdul Mobin who was arrested in connection with Shibgonj Police Station case No.27(6)9 under Section 19A of the Arms Act disclosed to the police that JMB senior leaders Salim and Shahadat alias Rahim assigned Sumon, Ismail, Rabiul-1, Ramjan, Rabiul-2 and Mamun for colleting arms and to keep the same with them. On the basis of the said discloser the police on' 17-6-2009 arrested accused Md. Rabiul Islam from his house and recovered one shooter gun, 3 (three) cartridges of 303 Rifle and some 'Jehadi' books from the house of Ramjan.
The accused are the members of outlaw JMB. On the basis of the said FIR Bholarhat Police Station Case No.5 dated 17-6-2009 under Section 19A of the Arms Act read with Sections 8/9/10 of the Santras Birodhi Odhadesh, 2008 was started.
4. After investigation police submitted 2 (two) separate chargesheets, one is under the Arms Act and the other chargesheet gave rise the present case being number 56(Ka) dated 14-8-2009, under Sections 8/9/10 of the Santras Birodhi Odhadesh, 2008.
5. On being ready for trial the case record was transmitted to the Sessions Judge, Chapainawabgonj for trial and the learned Sessions Judge having received the case record on 13-7-2010 registered the same as Session Case No.138 of 2010 and fixed date on 6-10-2010 for framing charge. Thereafter, the case record was again transferred to the court of Additional Sessions Judge, Chapainawabgonj.
6. The learned Additional Sessions Judge by its order dated 2-4-2012 framed charge against the present accused petitioners along with 6(six) others under Sections 8/9/10 of the Santrash Birodhi Odhadesh, 2008. However, on 30-4-2013 the learned Sessions Judge, Chapainawabgonj wrote to the Government for according sanction as per provision of Section 40(2) of the Santrash Birodhi Odhadesh, 2008. But the concerned authority of the Government was slient with regard to the issue of sanction for prosecuting the accused persons.
7. In the above premises the present accused petitioners by filing two separate applications under Section 561A of the Code of Criminal Procedure have challenged the order of  the learned Additional Sessions Judge framing charge against them.
8. Heard the learned Advocate for the accused petitioners as well as the learned Deputy Attorney General appearing for the State.
9. It is admitted fact that the learned trial Judge took cognizance of the offences against the accused-petitioner without obtaining sanction as required under Section 40(2) of the Oddhadesh, 2008.
10. The learned Deputy Attorney General by filing an affidavit has informed the Court that the Ministry of Home Affairs by its Memo being number 44.00.0000.057.02.012.2014-213 dated 3-4-2016 gave sanction to proceed with the case as required under Section 40(2) of the Santrash Birodi Ain, 2009.
11. Section 40(2) of the Santrash Birodi Odhadesh, 2008 clearly has made provision that the concerned Court shall take sanction from the Government before taking cognizance of the offences against the accused persons. No doubt, it is the mandatory provision of law. In the instant case it reveals from the record that the trial Court took cognizance of the offences and framed charge against the accused persons having no sanction as required under Section 4(2) of the Santrash Birodhi Oddhadesh, 2008. And thus, we have no hesitation to, hold that the order of taking cognizance and framing charge under the Santrash Birodhi dhadesh, 2008 against the accused petitioners is illegal, without jurisdiction and unwarranted in law.
12. In a similar situation a Division Bench of this Court, where one of us was a party, in the Case of Iftekharul Karim vs State, reported in 65 DLR 211, has held that;
"15. In view of the above provision of law and the various judicial pronouncement of our Supreme Court passed on the point of previous/prior sanction (c~e©v‡bv‡gv`b) we have no hesitation to hold that when the particular law provides for prior sanction of the Government or any other competent authority before taking  cognizance of the offence; in that case sanction for prosecution or taking cognizance of the offence is mandatory and in absence of such previous/prior sanction the Court has no authority and jurisdiction to take cognizance of the offence and to proceed with the trial, If the Court proceeds with the trial having no legal and valid sanction for taking cognizance of the case the subsequent proceeding of the case must be  vitiated.
16. But, in the instant case it appears from the Gazette notification annexure-I, to the counter affidavit filed by the state opposite party that when the Rule is pending the necessary sanction for taking cognizance of the case has been given by the Government.
………
 (To be continued)
36. In this particular case the learned Metropolitan Sessions Judge, Dhaka having no prior sanction from the Government took cognizance of the case and eventually framed charge against the accused petitioner. Thus the learned Metropolitan Sessions Judge, Dhaka had acted illegally in taking cognizance of the Case without the prior sanction of the Government, as per provision of Section 40(2) of the Santrash Birodhi Ain, 2009 and, as such, the order of taking cognizance is illegal and it has vitiated the subsequent proceedings of the case. But we are of the opinion that the learned Metropolitan Sessions Judge, Dhaka is not de-barred from taking fresh cognizance of the case against the accused if he gets or obtains a valid and legal sanction from the Government for taking cognizance of the case and finds prima facie case.
37. In this connection it is, pertinent to be reiterated that a criminal offence never abates or destroyed."
13. In the instant case after taking evidence of three witnesses the trial Judge wrote to the Government on 3-4-2013 for sanction and during pendency of the Rule on 30-4-2016 Government gave sanction to proceed with the case.  However, the accused petitioners by filing an affidavit annexing the latest order of the Court intimated the Court that said order has not been communicated to, the concerned Court as yet.
১৪. ওহ ঃযব রহংঃধহঃ পধংব পযধৎমব যধং নববহ ভৎধসব ধমধরহংঃ ঃযব ধপপঁংবফ ঢ়বঃরঃরড়হবৎং ঁহফবৎ ঝবপঃরড়হং. ৮/৯/১০ ড়ভ ঃযব ঝধহঃৎধংয ইরৎড়ফযর ঙফযধফবংয, ২০০৮ ঝবপঃরড়হং ৮, ৯ ধহফ ১০ ড়ভ ঃযব  ঝধহঃৎধংয ইরৎড়পরযর ঙফযধফবংয ২০০৮ ৎঁহ ধং ভড়ষষড়ংি:
“৮ । নিষিদ্ধ সংগঠনের সদস্যপদ। Ñযদি কোন ব্যক্তি ধারা ১৮ এর অধীন কোন নিষিদ্ধ সংগঠনের সদস্য হন বা সদস্য বলিয়া দাবি করেন, তাহা হইলে তিনি অপরাধ সংঘটন করিবেন এবং উক্তরূপ আপরাধ সংঘটনের জন্য তিনি অনধিক ছয়  মাস পর্যন্ত যে কোন মেয়াদের কারাদন্ড, অথবা অর্থদ-, অথবা উভয় দ-ে দ-িত হইবেন।
৯। নিষিদ্ধ সংগঠন সমর্থনÑ(১) যদি কোন ব্যক্তি ধারা ১৮ এর অধীন কোন নিষিদ্ধ সংগঠনকে সমর্থন করিবার উদ্দেশ্যে কাহাকেও অনুরোধ বা আহবান করেন, অথবা নিষিদ্ধ সংগঠনকে সমর্থন বা উহার কর্মকান্ডকে গতিশীল ও উৎসাহিত করিবার উদ্দেশ্যে কোন সভা আয়োজন, পরিচালনা বা পরিচালনায় সহায়তা করেন, অথবা বক্তৃতা প্রদান করেন, তাহা হইলে তিনি অপরাধ সংঘটন করিবেন।
(২) যদি কোন ব্যক্তি কোন নিষিদ্ধ সংগঠনের জন্য সমর্থন চাহিয়া অথবা উহার কর্মকা-কে সক্রিয় করিবার  উদ্দেশ্যে কোন সভায় বক্তৃতা করেন অথবা রেডিও, টেলিভিশন অথবা  মুদ্রণ বা ইলেকট্রনিক মাধ্যমে কোন তথ্য সম্প্রচার করেন, তাহা হইলে তিনি অপরাধ সংঘঠন করিবেন।
(৩) যদি কোন ব্যক্তি উপ-ধারা (১) অথবা (২) এর অধীন কোন অপরাধে দোষী সাব্যস্ত হন, তাহা হইলে তিনি অনধিক সাত বৎসর ও অন্যূন দুই বৎসর পর্যন্ত যে কোন মেয়াদের কারাদন্ডে দন্ডিত হইবেন এবং ইহার অতিরিক্ত অর্থদ- ও আরোপ করা যাইবে।
১০। আপরাধ সংঘটনে ষড়যন্ত্র (পৎরসরহধষ পড়হংঢ়রৎধপু) শাস্তি। যদি কোন ব্যক্তি এই আইনের অধীন অপরাধ সংঘটনের ষড়যন্ত্র করেন, তাহা হইলে তিনি উক্ত অপরাধের জন্য নির্ধারিত সর্বোচ্চ শাস্তির দুই তৃতীয়াংশ মেয়াদের যে কোন কারাদন্ডে, অথবা অর্থদন্ডে, অথবা উভয় দ-ে দ-িত হইবেন; এবং যদি উক্ত অপরাধের জন্য নির্ধারিত শাস্তি মৃত্যুদন্ড হয়, তাহা হইলে অপরাধের শাস্তি যাবজ্জীবন কারাদন্ড অথবা অনূর্ধ্ব চোদ্দ বৎসরের কারাদন্ড হইবে কিন্ত উহা পাঁচ বৎসরের কম হইবে না।”
15. On a careful scrutiny of the FIR and the chargesheet it is very difficult to hold that sufficient ingridents of sections 8 and 9 of the Odhadesh, 2008 are present to bring charge against the accused-petitioners.
16. However, if the trial starts from the stage of taking cognizance afresh as the Government has given Sanction for prosecution of the accused persons in view of the above reported case and the accused petitioners are found guilty under the above provisions of law in that case they may have to be sentenced for imprisonment for 6 (six) months under Section 7, 7 (seven years) under Section 8, and S-2/2-1 (two and a half years) under Section 9 of the Odhadesh, 2008. But fact remains that the accused petitioners have been langushing in jail since 17-6-2009, that is they have already suffered in jail in excess to the period of proposed highest sentence.
17. The accused petitioners have been languishing in jail without trial for no fault of them and that for the negligence and laches of the prosecution as well as the Government they can not be suffered.
18. Having considered the above facts and circumstances, we are of the view that the continuation of the present proceeding will be nothing but a sheer abuse of the process of the Court and order of framing charge without sanction is illegal and without jurisdiction and, as such, the impugned proceeding is liable to be quashed.
19. Thus, we find merit in both the Rules and the Rules are made absolute.
20. Accordingly, the impugned order No. 18 dated 2-4-2012 passed by the learned Additional Sessions Judge: Chapainawabgonj in Sessions Case No.138 of 2010 corresponding to GR Case No. 44 of 2009 (Bhola) arising out of Bholahat Police Station Case No.05, dated 17-62009 framing charge under Sections 8, 9, 10 of the Santrash Berodhi Odhadesh, 2008 against the accused petitioners without any sanction from the Government and therefore the present proceedings so far as it relates to the present accused petitioner is hereby quashed. The accused petitioner be released from jail hajat immediately, if not wanted in any other case.
21. In the instant case we find gross negligence on the part of the Government in giving decision on sanction matter to prosecute the accused persons. The trial Judge on 30-4-2013 wrote to the Government for the sanction and the Government ultimatly gave sanction on 30-4-2016 though till date the same has not been communicated to the Court concerned.
22. In view of the above facts, we direct the Secretary, Cabinet Division, Government of Bangladesh to make (In inquiry as to the reasons for delay in giving sanction for prosecution of the accused persons and to take action against the concerned persons who was/ were responsible for such delay and negligence and intimate the compliance thereof to this Court-Communicate a copy of this judgment and order at once to the Court concerned as well as 1. Secretary, Cabinet Division and 2. Secretary Ministary of Home Affiers, Government of Bangladesh for necessary compliance.

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