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. -VersusDr. Muhiuddin Khan Alamgir and others. .......... Respondents.

For the Petitioner.

:Mr. M. A. Aziz Khan, Advocate, (Mr. Khurshid Alam Khan, Advocate with him), instructed by Mrs. Sufia Khatun, Advocate-on-Record. : Mr. Rafique-ul-Haque, Senior Advocate (Mr. Ahsanul Karim, Advocate with him) instructed by Mr. Md. Nawab Ali, Advocate-on-Record. : Not represented.

For the Respondent. No.1.

Respondent No.2.

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

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 chargesheet 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`b ci 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 chargesheet. 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 subsection(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| (Underlinings are mine) 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) (Underlinings are mine) 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 subsection(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/

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