Monday, July 24, 2017 | ePaper

Appointment of Special Judge

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Appellate Division :
(Civil)
Surendra Kumar Sinha CJ
Syed Mahmud Hossain J
Hasan Foez Siddique J
Mirza Hussain Haider J
Md Bazlur Rahman J
Anti-Corruption Commission, Dhaka and others...........Petitioners
vs
Abdul Azim and
...............others
........ Respondents
Judgment
February 14th, 2016
Code of Criminal Procedure (V of 1898)
Section 9
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 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
Anti-Corruption Commission Act (V of 2004)
Sections 17,19 and 20
Power of Commission-Unless 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. . ..... (11)
Code of Criminal Procedure (V or 1898)
Section 94
Before the seizure and search of documents and other things in respect of certain offences, prior permission of the Sessions Judge is necessary and in some cases, the permission of the High Court Division is necessary. By reason of this prohibition, the investigation officer can not ask any financial institution within the meaning of Bank Companies Ad to show particulars of bank accounts being maintained by its customers for the purpose of inquiry or investigation in respect of offences under the Money Laundaring Protirod Ain and other specified offences. It is only with the permission of the Sessions Judge, this can be done. . ... (9)
Code of Criminal Procedure (V or 1898)
 Section 94
Naturally, whenever the Commission gets information regarding the commission of an offence by any person which requires production and/or inspection of a document which is in custody of a bank or banker as defined in the Bankers' Books Evidel1ce 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 of the report of the investigation officer in which he has disclosed the purpose for seizure of the documents in question, if the Sessions Judge is satisfied that the seizure of document or the inspection of the bank documents relating to handling of the account necessary for the purpose or ascertaining the truth or falsehood to the in formation, he accords the permission. . .... (12)

Nurul Huda vs Bahar Uddin, 41 DLR 395 and Zaved Khan vs ACC, 63 DLR 221 ref.
AKM Kamal, with Fazlul Haque, Advocate, instructed by Shahanara Begum, Advocate-on-Record-For the petitioners.
Fida M Kamal, Senior Advocate, (with Mahbub Ali, Senior Advocate, and ASM Abdul Mobin, Advocate) instructed by Zahirul Islam, Advocate-on-Record-For the Respondents.
 
Judgment
Surendra Kumar Sinha CJ : This petition at the instance of Durniti Daman Commission is directed from a judgment of the High Court Division by which it made the rule nisi absolute declaring a letter under memo dated 23rd March, 2011 issued by  the Metropolitan Sessions judge, Dhaka according permission to freeze the bank accounts of the writ petitioners to be without lawful authority.  
2. Short facts relevant for the disposal of this petition are that the writ respondents opened several bank accounts (in several branches) with different banks in their names. They claimed that they were doing their business by paying tax and VAT regularly. The writ-respondent No.2 without informing them issued an official letter on 1st March, 2011, with regard to their bank accounts directing the writ respondent Nos. 11 to 22 to freeze those accounts for a period of 30 (thirty) days. They, however, came to learn from the banks concerned that as per the said direction their accounts had been freezed. Subsequently, the office of the writ-respondent No.2 by Memo dated 3rd March, 2011, furnished a list of bank accounts of the writ petitioners requesting the Commission to take initiative against those accounts. Pursuant thereto, the Commission by its memo dated 21st March, 2011 appointed the writ-respondent No.8 to inquire into the matter, who filed an application before the learned Special Judge and Metropolitan Sessions Judge, Dhaka on 23rd March, 2011, mentioning all the bank accounts and prayed for freezing those accounts in order to protect the interest of the customers from practicing fraud and for holding a proper inquiry into the matter. Accordingly, the Metropolitan Sessions Judge,   Dhaka, without- issuing any show cause notice issued an administrative order under Memo dated 23rd March 2011 allowing the writ respondent No.8 to freeze all the bank accounts and sent copies of the order to all concerned branches of the banks.
3. The High Court Division made the rule absolute mainly relying upon two unreported decisions of the High Court Division on the assumption that the learned Metropolitan Sessions Judge acted excess of jurisdiction in according permission to the C0mmission to freeze the accounts of the writ petitioners. In course of the hearing of the matter, it has been contended on behalf of the writ petitioners that the learned Metropolitan Sessions Judge has made the administrative order of freezing the accounts violating, the provisions of law, inasmuch as, he cannot make such order prior to the initiation or any proceedings against the writ petitioners.
4. The High Court Division was totally misconceived in entertaining the writ petition and also interfering with the inquiry process or the Commission. The Commission has all the powers to lake such step if it is of the opinion that it has got information that the writ petitioners have been involved in the business of money racketeering and with that end in view, they have opened bank accounts in different banks and indulged in the business through those accounts. Under the Prevention of Corruption Act (Act II of 1947) offences punishable under Sections 161, 162, 163, 164, 165, 165A of the Penal Code and the offences of 'criminal misconduct' defined in Section 5 of the Act were being prosecuted against a public servant. An Inspector of Police has been given power to investigate into those offences without the permission of a Magistrate. Under the said Act the procedure for commission of 'criminal misconduct' by a public servant was different. If any public servant commits or attempts to  commit any 'criminal misconduct such act is taken to be an offence punishable with imprisonment.
5, Then there is another legislation to cover the field which is the Anti-Corruption Act, 1957 Under this Act, a Bureau of Anti-Corruption has been created to investigate in respect of offences of 'criminal misconduct' by a public servant and accumulation of wealth or resources or property disproportionate to his known sources of income and the inquiry and investigation of these offences have been given to the Bureau which has its own investigation agency. Under the said provisions, after making an inquiry if it is satisfied that a public servant is found to have accumulated property beyond his known sources of income, it can prosecute such officer. Under the said Act, the Bureau has been given the power to hold inquiry before institution of a case against a public servant. It call issue notice upon any public servant if the Bureau finds thai such public  servant or his dependents has accumulated resources beyond his known sources of income. The procedure for trial of those offences has been provided under the Criminal Law Amendment Act, 1958 by a Special Judge.
6. Thereafter, the Durnity Daman Commission Ain, 2004 has been promulgated. The powers of the Commission have been given in Section 17 of the said Ain. Clause (Ka) of Section 17, it is stated that the Commission can hold inquiry and investigation in respect of offences mentioned in the schedule such as:
(ক) এই আইনের অধীন অপরাধসমূহ;
 (খ)  ঃযব চৎবাবহঃরড়হ ড়ভ ঈড়ৎৎঁঢ়ঃরড়হ অপঃ. ১৯৪৭ (অপঃ ওও ড়ভ ১৯৪৭) এর অধীন শাস্তিযোগ্য অপরাধসমূহ;
 (গ) ঃযব চবহধষ ঈড়ফব, ১৮৬০ (অপঃ ঢখঠ ড়ভ ১৮৬০) এর ঝবপঃরড়হং ১৬১,১৬২, ১৬৩, ১৬৪, ১৬৫, ১৬৬, ১৬৭, ১৬৮, ১৬৯, ২১৭, ২১৮, ৪০৮, ৪০৯, ৪২০, ৪২৬অ, ৪৬২ই, ৪৬৬, ৪৬৭, ৪৬৮, ৪৬৯, ৪৭১ ধহফ ৪৭৭  এর অধীন শাস্তিযোগ্য অপরাধসমূহ;
 (ঘ)  মানিলন্ডারিং প্রতিরোধ আইন, ২০০২ (২০০২ সালের ৭নং আইন)।
 (ঙ) অনুচ্ছেদ (ক) হইতে (ঘ) তে বর্ণিত অপরাধসমূহের সহিত সংশ্লিষ্ট বা সম্পৃক্ত  ঃযব চবহধষ ঈড়ফব, ১৮৬০ (অপঃ ঢখঠ ড়ভ ১৮৬০) এর ঝবপঃরড়হ ১০৯ এ বর্ণিত সহায়তাসহ অন্যান্য সহায়তা এ বর্ণিত ষড়যন্ত্র এবং  ঝবপঃরড়হ ১২০ই এ বর্ণিত ষড়যন্ত্র এর ঝবপঃরড়হ ৫১১ এ বর্ণিত প্রচেষ্টায় অপরাধসমূহ।
7. A look into the schedule will show that the offences punishable under the prevention of Corruption Act and Money Laundering Ain, 2002 along with other offences have been included in the schedule to the Ain. Under the Ain, the Commission has its own investigation agency to hold inquiry and investigation into the offences mentioned in the Ain and the provisions of the Code of Criminal Procedure are made applicable for the purpose of investigation and trial of cases subject to the condition that the provisions which are inconsistent with the Ain shall not be applicable, meaning thereby that the provisions of the Code of Criminal Procedure shall be applicable as far as practicable. The only difference is that under the Code, in respect of cognizable offences no prior permission of the Magistrate is necessary for the investigation and arrest of the accused person by the investigation officer but under the Ain prior sanction for taking cognizance of the offence is necessary and before the submission of police report, the permission of the Commission will be necessary.
8. The writ petitioners challenged an order issued by the Metropolitan Sessions Judge in according permission to freeze the accounts mentioned in the said letter in exercise or powers under Section 94(1) (3) of the Code of Criminal Procedure read with Section 10(1) and 14 of the Money Laundering Protirodh Ain, 2002. Chapter VII of the Code of Criminal Procedure under the heading of processes to Compel the Production of Documents and other movable property and for the discovery of persons wrongfully confined' wherein Sections 94 to 105 are included. Under this Chapter, the police officer has been given the power to seize documents and other things and the procedure for search and seizure of those documents and things have been specifically provided in sections 101-103. In respect any document or other thing, which is in the custody of a bank or banker as defined in the Bankers' Books evidence Act, 1891, and it relates disclosure of any information of any bank account, prior permission of the Sessions Judge is necessary.
9. Before the seizure and search of documents and other Things in respect of certain offences, prior permission of the Sessions Judge is necessary and in some cases, the permission of the High Court Division is necessary. By reason of this prohibition, the investigation officer cannot ask any financial institution within the meaning of Bank Companies Act to show particulars of bank accounts being maintained by its customers for the purpose of inquiry or investigation ill respect of offences under the Money Laundaring Protirod Ain and other specified offences. It is only with the permission of the Sessions Judge, this can be done. This is, an established practice being followed since 1898 and we fail to understand how 'the High Court Division has overlooked this provision.
10. In course of hearing, the learned Counsel appearing for the respondent has drawn our attention to the heading of the order by which the Sessions Judge has accorded permission, wherein it has been mentioned MYcÖRvZš¿x evsjv‡`k miKvi, gnvbMi `vqiv R‡Ri Kvh©vjq" According, to the learned Counsel, this heading presupposes that this order has been made in administrative capacity and no proceedings is pending before the learned Metropolitan Sessions Judge, and therefore, the Sessions Judge cannot pass such order.
Learned Counsel made similar submission before the High Court Division and the High Court Division was convinced with the argument and it was of the view that, in the absence of any proceedings, the learned Sessions Judge cannot make such order.
 (To be continued)
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.

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