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ACC Act V of 2004

Steps in case failure of an investigating officer

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14th-Mar-2020       
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Appellate Division :
(Criminal)
Syed Mahmud Hossain CJ
Hasan Foez Siddique J
Zinat Ara J
Md Nuruzzaman J
Anti-Corruption Commission (Duduk), represented by its Chairman, Dhaka ..............Petitioner
vs
Md Shafiul Alam and another ............Respondents

Judgment
May 12th, 2019

Anti-Corruption Commission Act (V of 2004)
Section 20Ka(1)
If the investigating officer fails to complete investigation within the time stipulated or within extended time, the Commission shall appoint another investigating officer for holding investigation within 90 working days and departmental action would be taken against first investigating officer in accordance with law. The only provision is that if the investigation officer fails to complete the investigation within time, the Commission shall appoint another investigating officer and shall take step against the investigating officer.
...... ... the High Court Division committed an error of law in quashing the proceeding holding that since the mandatory provision had not been complied with, the proceeding was liable to be quashed. The conclusion arrived at by the High Court Division is erroneous.
...... (10 & II)
MA Aziz Khan, Advocate, instructed by Mahmuda Begum, Advocate-on-Record-For the Petitioner.
Probir Neogi, Senior Advocate, instructed by Md Zahirul Islam, Advocate-on-Record-For the Respondents.
Judgment
Hasan Foez Siddique J : This petition for leave to appeal is directed against the judgment and order dated 15-2-2018 passed by the High Court Division in Criminal Miscellaneous Case No.35856 of 2017 quashing the proceeding of Special Case No.21 of 2017 arising out of GR No.168 of 2015 corresponding to Ukhiya Police Station Case No.16 dated 12-5-2015 under Sections 409/420/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 pending in the Court of Divisional Special Judge, Chittagong.
2. The relevant facts necessary for the disposal of this petition are that Mohammed Saftullah, Deputy Assistant Director, Durnity Daman Commission, lodged a First Information Report against the respondent and others on 12-5-2015 with Ukhiya Police Station bringing allegation of commission of offence under Sections 409/420/119/109 of the Penal Code read with Section 5(2) of the Act II of 1947.
3. After     holding     investigation,     the Investigating Officer submitted charge sheet on 30-12-2016 against the respondent and others for commission of offence under Sections 409/420/ 119/109 of the Penal Code read with Section 5(2) of the Act II of 1947. The case record was ultimately transmitted in the Court of Senior Special Judge, Cox's Bazar who took cognizance of the offence by his order No.4 dated 19-4-2017. Thereafter, the Senior Special Judge, Cox's Bazar transferred the case before the Divisional Special Judge, Chittagong for holding trial. The case was registered as Special Case No.21 of 2017 .
4. The respondent initially obtained bail from the Senior Special Judge, Cox's Bazar and, thereafter, from the Divisional Special Judge, Chittagong.
5. Thereafter, the respondent filed an application under Section 561 A of the Code of Criminal Procedure in the High Court Division for quashing the proceeding and obtained Rule. The High Court Division, by the impugned judgment and order, quashed the proceeding.
6. Thus, the Durnity Daman Commission preferred this criminal petition for leave to Appeal.
7. Mr MA Aziz Khan, learned Counsel appearing for the Durnity Damon Commission, submits that the High Court Division has committed a serious error of law in quashing the proceeding holding that the provision of time limitation to complete investigation as stipulated in Section 20Ka of the Durnity Daman Commission Ain is mandatory in nature. He submits that there is no such provision in Section 20Ka of the Ain that in case of failure to conclude investigation within the time stipulated the proceeding shall be stopped or dropped.
8. Mr Probir Neogi, learned Senior Counsel appearing for the respondent No.1, submits that the High Court Division upon proper interpretation of the provisions of Section 20Ka of the Ain rightly held that the time stipulated for holding investigation is mandatory in nature and, thus, it quashed the entire proceeding accordingly.
9. In this case, the First Information Report was lodged on 12-5-2015 and the Investigating Officer, holding investigation, submitted its report on 30-12-2016. The Senior Special Judge, Cox's Bazar took cognizance of the offence against the respondent and others on 19-4-2017 under sections 409/420/109 of the Penal Code read with section 5(2) of the Act II of 1947.
10. Section 20Ka(1) of the Durnity Daman Commission Ain (as amended by Act XVI of 2013) provides that the Investigating Officer shall complete investigation within 120 working days from the date of receipt of the order of holding investigation. Sub-section(2) of Section 20Ka of the Ain provides that the Commission may extend time of holding investigation for a period of 60 working days if the investigation is not completed within the time as stipulated in Section 20Ka(1) of the Ain. If the Investigating Officer fails to complete investigation within the time stipulated or within extended time, the Commission shall appoint another Investigating Officer for holding investigation within 90 working days and departmental action would be taken against first Investigating Officer in accordance with law. We do not find any such default clause in Section 20Ka that if the Investigating Officer fails to complete the investigation within stipulated time or extended time the proceeding shall stand stopped or to be dropped. The only provision is that if the Investigation Officer fails to complete the investigation within time, the Commission shall appoint another Investigating Officer and shall take step against the Investigating Officer.
11. In view of the aforesaid provision of law, the High Court Division committed an error of law in quashing the proceeding holding that since the mandatory provision had not been complied with, the proceeding was liable to be quashed. The conclusion arrived at by the High Court Division is erroneous. So, the same is liable to be interfered with.
12. Since both the parties are present through their learned Advocates, we are not inclined to grant leave which will delay the disposal of the matter.
13. Accordingly, we find substance in this petition. Thus, the petition is disposed of. The judgment and order of the High Court Division is set aside. The Divisional Special Judge, Chittagong is directed to proceed with the case in accordance with law. 

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