acc muhiuddin alamgir ad

8/3/2019 ACC Muhiuddin Alamgir AD

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IN THE SUPREME COURT OF BANGLADESH

(APPELLATE DIVISION)

PRESENT:

Mr. Justice Mohammad Fazlul Karim.

-Chief Justice.

Mr. Justice Md. Abdul Matin.

Mr. Justice Shah Abu Nayeem Mominur Rahman.

Mr. Justice A.B.M. Khairul Haque.

Mr. Justice Md. Muzammel Hossain.

Mr. Justice Surendra Kumar Sinha.

CRIMINAL PETITION FOR LEAVE TO APPEAL NO. 398 OF 2009.

(From the Judgment and order dated 13.07.2009 passed by the High Court Division in Criminal

Appeal No.4393 of 2007)

The Anti-Corruption Commission, represented by its Chairman, 1, Segunbagicha,Dhaka. . .......... Petitioner.

-Versus-

Dr. Muhiuddin Khan Alamgir and others. .......... Respondents.

For the Petitioner. :Mr. M. A. Aziz Khan, Advocate, (Mr. Khurshid AlamKhan, Advocate with him), instructed by Mrs. Sufia

Khatun, Advocate-on-Record.

For the Respondent. No.1. : Mr. Rafique-ul-Haque, Senior Advocate (Mr.

Ahsanul Karim, Advocate with him) instructed by Mr.

Md. Nawab Ali, Advocate-on-Record.

Respondent No.2. : Not represented.

Date of hearing : The 4th July, 2010.

JUDGMENT

A. B. M. Khairul Haque, J : This is a petition for leave to appeal,

filed on behalf of the Anticorruption Commission, against the Judgment

and Order dated 13.07.2009, passed by the High Court Division in

Criminal Appeal No. 4393 of 2007, allowing the appeal and setting aside


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the Judgment and Order passed by the Special Judge, Court No. 3,

Dhaka, in Special Case No. 1 of 2007, in convicting and sentencing the

respondent no. 1, Dr. Mohiuddin Khan Alamgir.

The facts leading to the filing of this petition are that the Secretary

of the Anticorruption Commission (in short the Commission) issued a

notice on 18.02.2007 under section 26(1) of`ybxwZ `gb Kwgkb AvBb,2004

(V of 2004) (the Act) upon the respondent no.1, while he was under

detention, asking him to submit a statement of his assets and liabilities.

On receipt of the said notice, he filed his statement on 20.02.2007, and

subsequently, he filed another supplementary statement on 24.04.2007.

On 06.03.2007, a first information report was lodged against the

respondent no. 1, narrating various allegations of acquiring movable and

immovable properties by abuse of power, and a case was recorded under

sections 26 and 27 of the Act, section 409 of the Penal Code, Section 5(2)

of Act II of 1947 and rules 15, 15Ka, 15Kha, 15Gha(5) of the Emergency

Powers Rules, 2007. After investigation, charge-sheet no. 189 was

submitted on 29.04.2007 before the Metropolitan Senior Special Judge,

Dhaka, with due sanction from the Commission. The learned Senior

Special Judge, Dhaka, took cognizance of the offence and sent the case

to the Third Court of Special Judge, for trial. A supplementary charge-

sheet was also submitted on 21.05.2007 against the respondent no.1,

bringing the allegation of concealment of total Tk.3,27,88,465/-which he

allegedly acquired beyond his known legal source of income and the

learned Special Judge framed Charge under sections 26(2) and 27(1) of

the Act read with rule 15 Gha(5) of the Emergency Powers Rules, 2007.

The learned Special Judge, on examination of witnesses and other

evidence on record, found the respondent no. 1 guilty of the charges of


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concealing various amounts and possessing those beyond his known

source of income and on those findings, by his Judgment and Order

dated 26.07.2007, convicted and sentenced him to suffer simple

imprisonment for 3 years under Section 26(2) of the Act read with rule

5Gha(5) of the Emergency Powers Rules, 2007 and rigorous

imprisonment for 10(ten) years under Section 27(1) of the Act and to pay

a fine of Tk. 10,00,000/- (Taka ten lac), in default, to suffer 1(one) year

imprisonment more and also forfeited his properties.

On appeal, the High Court Division, allowed the appeal, both on

merit as well as on points of law and set aside the Order of conviction

and sentence passed by the Special Judge.

Regarding the allegation of concealment of valuation of the house of

the respondent no. 1 at Banani, the learned Special Judge, on the basis

of the depositions of the PWD officials and Ext. 16, held that he

concealed the excess cost for construction of the said house. But the

High Court Division did not consider them either independent or expert

witnesses, rather, found their valuation unreliable. The High Court

Division, on the other hand, relied on the depositions given by the

officials of the Tax Department and Ext. 12 which were completely

ignored by the learned Special Judge and set aside its findings in this

respect, holding that the learned Special Judge committed illegality in

treating the PWD officials as neutral.

Regarding the house at Comilla, the learned Special Judge

disbelieved the contention raised on behalf of the respondent no. 1 that

the said house was constructed with the advance obtained from the

Agrani bank, on the basis of the depositions adduced by the officials of

the PWD and found the allegations of concealment proved against him.


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But the High Court Division found on re-appreciation of evidence that

the findings of the learned Special Judge is contrary to the evidence on

record.

It appears from the Judgment of the High Court Division that the

learned Additional Attorney General conceded that the learned Special

Judge was wrong in holding that the respondent no. 1 concealed any

amount in respect of his Comilla house. It also appears that the learned

Advocate appearing on behalf of the Commission did not make any

submission in respect of the house of the respondent no. 1 at Comilla.

Regarding the ground floor of the house known as Sultana Bhaban,

the High Court Division on the basis of the depositions of PWs. 1, 30, 33

and 37 disagreed with the findings of the learned Special Judge that the

respondent no. 1 concealed any amount in his statement in respect of

the said house.

Regarding the filling station, the High Court Division, on the basis

of the depositions of PWs. 30 and 33, found that the learned Special

Judge acted illegally in not considering the deposition of PW. 33 that the

filling station is not owned by the respondent no. 1 and held that there is

no evidence that he procured any of the assets beyond his known source

of income through illegal means.

Regarding the lands at Kachua, the High Court Division, found that

the learned Special Judge without giving any reasoning held that the

respondent no. 1 concealed an amount in respect of the said lands at

Kachua, rather, on appreciation of evidence, the High Court Division,

held that there is no concealment of assets in his statement.

The learned Special Judge held further that although the

respondent no. 1 had huge amount of balance in his accounts kept in


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different banks, he disclosed only Tk. 90,000/= in his statement of

assets but the High Court Division on the contrary found on evidence

that the appellant does not have any balance in the accounts which

contradict the amounts mentioned in his statement of assets or the

income tax returns furnished by him.

So far the finding of the learned Special Judge that the respondent

no. 1 concealed the FDRs worth Tk. 1.17 Crore is concerned, the High

Court Division, on evidence, found that the appellant furnished various

sources for his FDRs, which was not controverted by the prosecution, as

such, held that the findings of the learned Special Judge in this respect

is not correct.

We have considered the Judgments and Orders passed by the

learned Special Judge as well as that of the High Court Division. We have

also heard the learned Advocates for both the sides.

It appears that in respect of the valuation of various immovable

properties, FDRs and cash in hand or in bank accounts, as furnished by

the respondent no. 1, in response to the notice under Section 26(2) of the

Act, the High Court Division, in disagreeing with the findings of the

learned Special Judge, held that there is no evidence that the appellant

procured any of those assets, movable or immovable, beyond his known

source of income through illegal means.

We do not find any reason to disagree with those findings of fact

arrived at by the High Court Division, in allowing the appeal and setting

aside the Order of conviction and sentence passed by the Special Judge,

Court No. 3, Dhaka.

The High Court Division, however, misinterpreted Section 32 of the

Act, the original as well as the amended one, in holding that a sanction


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by the Commission is required before lodging an FIR. The High Court

Division, further misconceived the amended Section 32 and wrongly held

that a further sanction is required to take cognizance of the offence by

the Court in spite of the sanction given earlier under Sub-section(2) of

Section 32 of the Act. But as a matter of fact, no sanction is required to

file a complaint (AwfhvM) and the unamended as well as the amended

section 32 requires only one sanction from the Commission. Now let us

consider Section 32 along with the connected Rules.

Section 32 (unamended) reads as follows:

32| gvgjv `vqi Kwgkbi Abygv`bi AcwinvhZv |(1) dR`vwi

KvhwewaZ ev AvcvZZ ejer Ab Kvb AvBb hvnv wKQyB _vKzK bv Kb, GB

AvBbi Aaxb gvgjv `vqii Kwgkbi c~evbygv`b MnYi cqvRb nBe

Ges GB AvBbi Aaxb gvgjv `vqii G Kwgkb KZK c Abygv`bci GKwU Kwc gvgjv `vqii mgq Av`vjZ `vwLj KwiZ nBe|

(2) Abygv`b c`vb cwZ wewa viv wbavwiZ nBe|

(Underlinings are mine)

The confusion is in respect of the words gvgjv `vqii

appearing in two places in the above section. It may be argued that the

above words mean lodging of the FIR. It is not so. It means atleast so far

this Act is concerned, the formal initiation of the prosecution on

submission of the charge sheet before the Court.

Section 34 of the Act provides for framing of the Rules in order to

fulfill the purpose of the Act. Accordingly, the Rules were framed on

29.03.2007.

Let us first examine the scheme of the Rules.

The first chapter gives the definition of various words. The second

chapter deals with the lodging of the complaint and its scrutiny. The


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heading of the chapter is AwfhvM `vqi. The word AwfhvM is defined in

Section 2(Kha). It is as follows:

AwfhvM A_ AvBb Gi Zdwmjf~ Acivai welq Kwgkb ev Ab

Kvb AvBb cqvMKvix msv KZK gwLK ev wjwLZ AvKvi wKsev Ab

Kvbfve cv AwfhvM;

The complaint (AwfhvM) which is synonymous to lodging of a first

information report with the police, can be filed with the offices of

Commission under rule 3 but the complaints (AwfhvM) can also be filed

with the concerned police station under Rule 4, but after registering

(iwRvif~) the same there, it will be forwarded to the Commission.

The investigation of the allegations mentioned in the schedule will

be conducted, under Section 20 of the Act, by an officer of the

Commission, assigned for that purpose.

Chapter V of the Rules deals with the submission of the charge-

sheet. The heading of the chapter is as follows:

gvgjv `vqi Kwgkbi Abygv`b, dvu` gvgjv BZvvw`

The heading of rule 13 is as follows:

13| Av`vjZ AwfhvMbvgv(charge sheet)`vqi Kwgkbi Abygv`b|

Rule 13 envisages that after conclusion of investigation (Z`) on

obtaining sanction from the Commission, a case can be instituted (gvgjv

`vqi).

Rule 14 envisages that for filing of a complaint with the offices of

the Commission or for lodging the same with the police, no sanction will

be required.

Sub-rule(4) of rule 15 stipulates that only in case of submission of

charge sheet (AwfhvMbvgv `vqii B Kej), prior sanction from the

Commission will required.


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From the above discussions, it will be clear that the words gvgjv

`vqi means institution of a case by submission of a charge sheet by an

officer of the Commission, before the concerned Court and certainly not

an FIR as envisaged under Section 154 of the Code of Criminal Procedure

or a complaint (AwfhvM) as envisaged under rule 3 and rule 4 of the

Rules.

Under the circumstances, the irresistible conclusion is that no

sanction will be required to file a complaint (AwfhvM) either with the

Commission or with the police. But sanction from the Commission shall

be required both under the unamended and the amended section 32,

before institution of a case (gvgjv `vqii ) in the concerned Court.

The High Court Division, however, misconceived the amended

Section 32 also in holding that sanction from the Commission will be

required under Sub-section (1) of Section 32. This is not so. There is no

provision for according the sanction twice-over. Sanction from the

Commission will be required when the charge sheet is filed under sub-

section(2) and on receipt of the charge sheet along with a copy of the

letter of sanction the Court takes cognizance of the offence for trial,

either under the original section 32 or the amended section 32. As a

matter of fact, only one sanction will be required under section 32,

unamended or amended.

Section 32 (amended) reads as follows:

32| Kwgkbi Abygv`bi AcwinvhZv|(1) dR`vwi Kvhvwewa ev

AvcvZZt ejer Ab Kvb AvBb hvnv wKQyB _vKzK bv Kb, Kwgkbi Abygv`b

(sanction) evwZiK Kvb Av`vjZ GB AvBbi Aaxb Kvb Aciva wePviv_

Avgj MnY(cognizance)Kwie bv|


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(2) GB AvBbi Aaxb Kvb Acivai Z` cwimgv nBevi ci

Z`Kvix KgKZv Av`vjZ cwZe`b `vwLj Kwievi c~e Kwgkbi c~evbygv`b MnY Kwie Ges Kwgkb KZK c` Abygv`bci GKwU Kwc cwZe`bi

mwnZ Av`vjZ `vwLj Kwie|


Under the above amended section, after completion of the

investigation, the investigating officer, under sub-section (2) of section

32, on obtaining the sanction from the Commission, would submit the

police report before the Court along with a copy of the letter of sanction.

The Court, under sub-section (1), would take cognizance, only when

there is such sanction from the Commission. Both the sub-section (1)

and sub-section (2) of the section 32 envisages only one sanction, not

two. Sub-section (1) does not spell out or even envisage filing of any fresh

sanction when the sanction to prosecute has already been filed along

with the charge sheet of the investigating officer. It only envisages that

without such sanction from the Commission (Kwgkbi Abygv`b ewZiK)

as spelt out in sub-section (2), no Court shall take cognizance of the

offence ( Kvb Av`vjZ GB AvBbi Aaxb Kvb Aciva wePviv_ Avgj MnY

Kwie bv) under sub-section (1) of section 32.

The High Court Division, however, on consideration sub-rule(7) of

rule 15 of the`ybxwZ `gb wewagjv,2007 (the Rules) held that sanction is

required to be filed at the time of institution of the case (gvgjv `vqii

) on the erroneous understanding that sanction shall also be

required at the time of lodging an FIR. But as a matter of fact, the Act as

well as the Rules do not envisage lodging of any FIR but only a complaint


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(AwfhvM) either under rule 3 or rule 4 of the Rules and no sanction is

required to file any complaint.

In the instant case, an officer of the Commission lodged a first

information report on 06.03.2007 with the Tejgaon Police Station and a

case was started. This is not envisaged under rules 3 and 4 of the Rules.

Those rules provide only for filing of the complaint involving the offences

mentioned in the Schedule to the Act. However, those provisions are

merely directory and deviation from those provisions in lodging an FIR

instead of a complaint, would not vitiate the proceedings.

It appears that an officer of the Commission conducted an

investigation into the allegations lodged against the respondent no. 1 and

after obtaining sanction from the Commission, submitted the charge

sheet on 29.04.2007 and a supplementary Charge sheet on 21.05.2007.

This is in due compliance of sub-section(2) of section 32 read with sub

rule(1) of rule 13, sub-rule (4) and sub-rule(7) of rule 15 of the Rules.

In due Course, the Judge of the Metropolitan Senior Special Judge,

Dhaka, took cognizance of the offences against the respondent no. 1 on

06.05.2007, as envisaged under sub-section(1) of section 32. Thereafter,

the case was transferred to the Court of Special Judge, Court No. 3, for

trial. On 27.05.2007, charge was framed against the respondent no. 1

after rejection of his petition for discharge of the charges under section

241A of the Code.

On the basis of the discussions made above, we are unable to agree

with the learned Judges of the High Court Division that the Special

Judge committed any illegality in taking cognizance of the offence

without sanction from the Commission purportedly under section 32(1)

of the Act. As a matter of fact the requirement of sub-section (1) of


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section 32 was complied with when the charge sheet was filed along with

a copy of the sanction from the Commission. As such, there was no

illegality in taking cognizance by the learned Judge of the Metropolitan

Senior Special Judge.

However, the case was a nullity from the very beginning. This legal

position ought to have considered by the learned Special Judge while

disposing of the petition filed under Section 241A of the Code.

It may be recalled that after Proclamation of Emergency in the

country on 11.01.2007, the respondent no. 1 was arrested by the joint

forces on 03.02.2007, under the provisions of rule 16 of the Emergency

Powers Rules, 2007, and while he was in such custody, he was put

under detention under the provisions of the Special Powers Act. While in

such detention, the Secretary of the Commission, issued a notice dated

18.02.2007 under the provisions of sections 18 and 26 of the Act. This

notice was served upon the respondent no. 1 on 20.02.2007. It directed

him to submit his statement of assets within 72 hours.

It appears that all the Commissioners resigned from the

Commission on 07.02.2007 and it was reconstituted on 24.02.2007, as

such, although the Commission existed as an Institution on 18.02.2007,

when the notice was issued, but there was no Commission within the

meaning of section 3 read with section 5 of the Act on that date.

The Commission, under section 18 of the Act, exercises its various

powers subject to and under the Act through its Commissioners or

through its officers, as duly empowered in this behalf.

Section 26 provides for declaration of assets. Sub-section(1) reads

as follows:


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26| mnvq mwIi NvlYv|(1)Kwgkb Kvb Z_i wfwIZ Ges Dnvi

weePbvq cqvRbxq Z` cwiPvjbvi ci hw` GB gg m nq h, Kvb evw, ev Zvnvi c AbKvb evw, ea Drmi mwnZ AmwZc~Y mw `Lj

iwnqvQb ev gvwjKvbv ARb KwiqvQb, Zvnv nBj Kwgkb, wjwLZ Av`k viv,

D evwK Kwgkb KZK wbavwiZ cwZZ `vq`vwqZi weeib `vwLjmn D

Av`k wbavwiZ Ab h Kvb Z_ `vwLji wb`k w`Z cvwie|

(2)


The section provides that if the Commission is satisfied (my nq)

that a person has in his possession assets beyond his known source of

income through illegal means then the Commission by an order in

writing (Zvnv nBj Kwgkb, wjwLZ Av`k viv ------) direct the said person

to submit the description of all his assets and liabilities.

This section unmistakably provides that before issuance of any

such notice the Commission must be satisfied that the concerned

person owns or is in possession of the properties beyond his known

source of income through illegal means. This satisfaction must be of the

Commission itself constituted of no other person than its

Commissioners. The relevant order to submit assets may be issued by

any of its authorised officials but the decision to issue such an order

must be recorded by the Commissioner(s).

In the present case, the notice dated 18.02.2007, under Section 26

of the Act, was issued by the Secretary of the Commission but he does

not represent the Commission, he is only one of its employees, to carry

out the decision of the Commission. But at the relevant time there were

no Commissioners, as such, apparently, the Secretary issued the notice

on 18.02.2007, on his own, without any satisfaction and decision from


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the Commission, in violation of Section 26 of the Act. The concerned

authorities on realizing this error, tried to cover it up by inserting sub-

section(2) in Section 18 on 18.04.2007, by Ordinance No. VII of 2007.

Sub-section(2) provides for ex post facto ratification of the acts done by

the officers of the Commission during the period from 07.02.2007 to

24.02.2007, without any authorization from the Commission, but the

question of jurisdiction goes to the root of the matter. If any person acts

beyond his authority, to the prejudice of any person, such acts cannot be

ratified or validated by post facto legislation, his action remains void.

Besides, section 26 envisages that before issuance of the notice, the

Commissioner(s) must be satisfied about the allegation. It is their

satisfaction and of nobody elses. But by sub-section(2) of section 18, the

Commissioners can only ratify the satisfaction of the Secretary which is

certainly not stipulated in section 26.

As such, the notice dated 18.02.2007, issued by the Secretary in

favour of the respondent no. 1, was not issued on behalf of the

Commission as envisaged under section 26, and is without jurisdiction

and void abinitio.

Besides the notice dated 18.02.2007 was not a notice required by

law, the notice directed the respondent no. 1, a detenu, to submit return

of his assets within a period of 72 hours, is itself a worst example of

arbitrary action on the part of the concerned authority. A notice must

allow a reasonable time to check-up the details of the assets of a person,

if necessary, on examination of his records and after consultation with

his lawyers and other concerned persons. Section 26 certainly does not

envisage a notice upon a person who is in detention and he is not

expected to give any details of his assets within the time specified. The


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person concerned must be afforded a fair and reasonable opportunity to

respond to the notice, otherwise, it is no notice in the eye of law. A notice

issued under section 26 of the Act to a detenu, away from his hearth and

home, cannot be said to be a fair and bonafide exercise of power.

Under the circumstances, we are of the opinion that the notice

dated 18.02.2007, issued by Secretary to the Commission, was without

any lawful authority, as such, void and any proceeding based on the said

void notice is a nullity in the eye of law.

There is, however, no legal impediment for the Commission to issue

fresh notice under section 26 of the Act, if so advised, but not in those

cases where the accused has already been acquitted on merit of the case

as is in this case.

With these observations, this petition is dismissed.

CJ.

J.

J.

J.

J.

J.

The 4th July,2010./Rezaul/

acc muhiuddin alamgir ad

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