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Code of Criminal Procedure

No scope to discharge accused while prosecution version of hearing at prima facie

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High Court Division  :
(Criminal Revisional  Jurisdiction)
Md Nazrul Islam Talukder J
KM Hafizul Alam J     
Habibur Rahman (Md)...
Complaint-Petitioner
                              vs
 Md Showkat Ali and  
Others…Opposite-Parties

Judgment
January 27th, 2019
Code of Criminal Procedure (V of 1898)
 Section 241A
There is no scope to discharge the accused  at the time of charge hearing accepting the prosecution version when prima-facie case is disclosed. The disputed question of facts, the defense version of the accused, defense materials and prima-facie case only be proved/disproved/discarded at the time of trial by taking evidences……………………(29)
Code of Criminal Procedure (V of 1898)
 Section 241A
It is very important to decide  whether the Judge had any scope to consider the plea  of the accused and thereby to discharge them at the time of framing of charge when prima-facie case is disclosed…………….. (26)  
Criminal Law Amendment Act (XL of 1958)
Section 6 (5)
The Judge before taking cognizance of offence wrote a letter to the Prime Minister's Office for sanction against the accused-persons to proceed against them as per Section 6(5) of the Act. The Prime Minister's Office receipt the memo of the Senior Special Judge, on 4-10-2004 and cognizance was taken, long after expiry of 60 (sixty) days from the date of receipt of the memo. There was no illegality in taking cognizance of the offence as in the meantime sanction was deemed to have been accorded by operation of the proviso to Section 6(5) of the Act .………………..(22)
Code of Criminal Procedure (V of 1898)
Section 241A
Whether the allegation  against the accused  falls within the purview of Section  5(2) of the Prevention of Corruption Act, and  Section 409 of the Penal Code, can only be decided by taking evidence. Without going for trial the Judge has committed error of law discharging them from the case………………(22)
Code of Criminal Procedure (V of 1898)
Section 241A
At the time of charge hearing the Judge is to see whether the allegations in the petition of complaint constitutes prima-facie offence  as alleged but the court below without giving the petitioner any opportunity to adduce any evidence to prove the allegations has discharged the accuseds ………………….. (22)
Haji Azizur Rahman Vs Syeedul Hoq Chowdhury, 38 DLR 4, Syed Ahmed Chowdhury Vs Abdur Rashid Mridha, 23 BLD 420=54 DLR 498, State Vs Md Shafiqul Islam, 40 DLR 310; Gazi Mozibul Huq vs Abid Hossian Babu, 5 MLR (AD) 63; Mahbuba Akater vs Mozernmel Hoque, 15 BLD 339=47 DLR 404 and Abid Hossain Babu vs Gazi Mojibul Haq 20 BLD 72 ref.
None appears-For the Petitioner.
Abdus Salam Mamun, Advocate-For the Opposite-Party Nos. 2-4.
Md Khurshid Alam Khan Advocate-For the Acc.
AKM Amin Uddin DAG with Helena Begum, AAG-For the State.
Judgment
KM Hafizul Alam J :  This Rule, at the instance of the petitioner, was issued under Section 436 of the Code of Criminal Procedure, 1898 (in short the Code) calling upon the District Magistrate, Chattogram to show cause as to why the impugned  order No. 16 dated 27-4-2006 passed by the Divisional Special Judge, Chattogram in Special Case No. 15 of 2005 discharging all the accused should not be set aside and/or such other or further order or orders as to this Court may seem fit and proper.
2. Short facts, relevant for the purpose of disposal of this Rule, are that on 25-2-2004, the petitioner lodged a petition of complaint before the Court of Metropolitan Sessions Judge and Senior Special Judge Chattogram against opposite-party Nos. 1-5 alleging, inter-alia, that the complainant-petitioner (hereinafter called "the petitioner") is a, former Assistant Post Master and he is the ex-president of Bangladesh of Postal Department Employees Union. His only son Mohammad Shahidur Rahman is an operator of money order Section of GPO, Chattogram. On 20-1-2004 at about 8.00 pm accused  No. 1 sent one Pekar Habib and Saleh Ahammad to call him from home. The accused No, 1 told the petitioner that one Nazim Uddin had told him that Shahidur was involved in money defalcation and if the complainant did not pay Taka 2,00,000 immediately, his. son Shahidur would lose his job and he would be subjected to police torture where his son might die. Accused  No. 1 in collusion with the political rivals of him and his son with the help of Nazim Uddin implicated his son, although his son was not  in any way involved in any money defalcation that allegedly took place in GPO, Chattogram. Under such tremendous pressure, he was compelled to hand over two savings certificates in the name of his wife and daughter for an amount of Taka 2,00,000 to the accused No. 1 and got his son released from their illegal custody on 20-1-2004. His son on 21.1.2004 lodged a with the Court of CMM, Chattogram stating about the illegal activities by accused  No. 1 and other accused, In fact, accused No.1 in  collusion with other accused for illegal gains compelled the son of the petitioner, to admit a crime for the purpose of covering up real defalcation of Taka 3,00,000 committed by accused Nos, 3 and 4 with the help and patronization of other accused. Although the said Savings Certificates were  taken custody as security but accused No.1 other accused enchased the said savings certificates  only to cover-up the real crime committed by them in collusion with each other for illegal gains and, as such, they have committed criminal misconduct and other offences punishable under Sections 342/ 384/387/409/420/109 of the Penal Code, 1860 read with Section 5(2), of the Prevention of Corruption Act, 1947.
3. The learned Senior Special Judge, Chattogram upon receipt of the complaint by order dated 25-2-2004 registered the same as Special Case No.14 of 2004 and directed District Anti-Corruption Officer, Chattogram to investigate into the allegations and submit report by or on 31-3-2004.
4. Accordingly, an Assistant Inspector of the then District Anti-Corruption Bureau, Chattogram investigated the allegations and submitted a report on 30-3-2004 before the learned Senior Special Judge, Chattogram stating that the allegations in the petition of complaint were not found to be true.
5. The petitioner being aggrieved by and dissatisfied with the said report filed a Naraji Petition on 19-4-2004 before the learned Court of Senior Special Judge, Chattogram Subsequently on 13-9-2004 the learned Special Judge examined the petitioner under Section 200 of the Code and recorded the statement of the petitioner on oath. The learned Judge after examining the said report and the Naraji petition vide order dated 15-9-2004 accepted the said naraji petition and thereby rejected the report filed by the Assistant Inspector of the District Anti-Corruption Bureau, Chattogram dated 30-3-2004.
6. Thereafter the learned Senior Special  Judge before taking cognizance of the offence sought sanction from the Hon'ble Prime Minister's office vide memo dated 27-2-2004 as all the accused in the case are government servants. The Hon'ble Prime Minister's office then vide letter dated 5-10-2004 informed the learned court that the office received the said Memo of the learned court seeking sanction on 4-10-2004.
7. Subsequently, after expiry of more than 60(sixty) days from the date of receipt of the Court's letter by the Hon'ble Prime Minister's office, the learned Senior Special Judge, Chattogram vide order dated 25-7-2005 took cognizance of the offence under Sections 409/420/109 of the Penal Code, 1860 read with Section 5(2) of the Prevention of Corruption Act, 1947. Thereafter the lerned Judge transmitted the said case record to the court of Divisional Special Judge. Chattagram for trial wherein it was re-numbered as Special Case No. 15 of 2005.
8. The learned Divisional Special Judge, Chattogram on receipt of the records/fixed on 2-1-2006 for the charge hearing. On the same day the accused Nos. 1-4 filed an application under Section 241A of the Code for discharging them from the case. The learned court fixed on 2-2-2006 for hearing the said application.
9. The learned Divisional Special Judge upon hearing the parties and considering the siad application filed by the accused Nos. 1-4 vide impugned order dated 27-4-2006 discharged all the accused-opposite-parties and released their sureties from the bail bound.
10. Being aggrieved by and dissatisfied with the impugned order of discharge dated 27-4-2006 passed by the learned Visional Special Judge, Chattogram, the petitioner approached this Court with an application under Section 436 of the Code and obtained this Rule on 29-8-2006.
11. At the time of Rule hearing no one appears on behalf of the petitioner to press the Rule as well as on behalf of the opposite-party No. 1 and 5 to oppose the Rule. However on perusal of the petition it appears that the petitioner has challenged the impugned order of discharge stating that there is specific allegation against the accused-opposite-parties in the petition of complaint and naraji petition as well as prime facie case has been disclosed against them in the said prosecution materials. After submission of the naraji petition under Section 200 of the Code on 13-9-2004. So far sanction is concerned it is submitted that the Hon'ble Prime Minister's Office accepted the Memo of the learned Senior Special Judge. Chattogram on 4-10-2004 and cognizance was taken on 25-7-2005, long after expiry of 60 (sixty) days because as per the proviso of Section 6(5) of the Criminal Law Amendment Act, 1958 the sanction was deemed to have been accorded. It is also submitted that although the court below struck out Section 420 of the Penal Code holding that the same had been deleted from the schedule of Criminal Law Amendment Act, 1958 by Act No XXII of 2004 the same Judge subsequently framed charge against the son of the petitioner in Special Case No. 14 of 2005 under Section 420 of the Penal Code, 1860 along with other sections.
12. Per contra, Mr Abdus Salam Mamun, learned advocate, appearing on behalf of the opposite-party   Nos.2-4,   submits   that   the learned Divisional Special Judge after hearing the parties  and  considering  the  application dated 2-1-2006 under Section 241A of the Code vide order dated 27-4-2006 discharged the accused-opposite-parties from the case holding that there is no allegation of the overt act against Tridip Kumar Sen, Nina Paul and Nina Gopal and Nazim uddin as well as no ingredients of offence under Section 409 and 5(2) of the Prevention of Corruption Act   were found against them.
13.    Mr Mamun further submits that the investigation officer after investigation submitted a Investigation Report to the learned Senior Special Judge, Chattogram on  31-3-2004 stating that he has not found any prima-facie case against the accused-opposite parties and thus he submitted a final report.
14. Mr Mamun next submits that the complainant-petitioner preferred this application under Section 436 before Hon'ble Court impugning said order dated 27-4-2006 but on perusal of the revisional application it is apparent that the petitioner failed to show that the impugned order suffers from any illegality or infirmity which may call for interference by this court.
15. Mr Mamun points out that the application has been filed under inapplicable law and in wrong forum. The petitioner ought to have invoked Section 10 of the Criminal Law Amendment Act, 1958 as such, the Rule is liable to be discharged.
16. Mr Mamun lastly submits that under Section 241A of the Code the learned Court is competent to discharge the accused when the  court considers the charge is groundless. Mr
Mamun in support of his argument refers the case of Haji Azizur Rahman vs Syed Hoq Chowdhury, reported in 58 DLR 4 and the case of Swd Ahmed Chowdhury vs Abdur Rashid Mridha, reported in 23 BID 420 = 54 DLR 420,
17.    On the other hand, Mr Khurshid Alam Khan, learned Advocate, appearing on behalf of
the ACC, submits that prima-facte case has been disclosed against the accused-opposite-parties in the prosecution materials, as such, the impugned order is not sustainable in law and the same is liable to be set aside.
18.    We have gone through the application under Section 436 of the Code including the FIR
and other prosecution materials annexed therewith.
19.    We have also considered the sub missions advanced by the learned Advocate for
the accused-opposite-party Nos. 2-4 and Mr Khurshid Alam Khan, learned Advocate for the
ACC as well as the relevant laws and decisions referred by the parties.
20. On perusal of the records, it appears that the complainant-petitioner in his petition of complaint categorically mentioned that the accused-opposite party No.1 took away the petitioner from the residence by his staffs. Thereafter,   the   accused-opposite   parties compelled him through intimidation to handover savings certificates in the names of his wife and daughter for an amount of Taka 2,00,000 and he got his son released from their custody. Subsequently they illegally enchased the said savings certificates. After investigation, the investigation officer submitted a final report but the petitioner filed naraji petition. The learned Senior Special Judge having found prima facie case took cognizance of offence against the accused-opposite parties. On perusal of the impugned order it appears that the learned Court below discharged the accused-opposite-parties on the following reasons-
1. The complainant was not examined under Section 200 of the Code.
2. The procedure as to sanction as per Section 6(5) of the Criminal Law Amendment Act 1958 has not been followed.
3. There is no overt act against the accused opposite-parties namely Tridib Kumar Sen, Nina Pal and Noni Gopal.
4. The allegations in the petition of complaint do not attract the offence punishable under Section 5(2) of the Prevention of Corruption Act, 1947 as well as Section 409 of the Penal Code, 1860.
5. Mir Showkat Ali did not commit any illegality in directing the petitioner's son to deposit the defalcated money.
6. The petitioner has filed Special Case No. 14 of  2005 put indirect pressure upon the accused.
7. Section 420 of the Penal Code, 1860 has been deleted from the schedule of the Criminal Law Amendment Act, 1958 by the Anti-Corruption Commission Act, 2004 from the date of enforcement of the said Act on 21-11-2004.
21. From the above findings/observations of the Court below it appears that the learned Judge accepting the proecution version/defence plea and ignoring the prima-facie case discharged the accused-opposite-parties.
22. Now let us examine whether the above findings are sustainable in law. On perusal of the prosecution materials it appears that the complainant was examined under Section 200 of the Code on 13-9-2004 (Annexure C-l) long before taking cognizance as such, the findings of the court below that the complaint was not examined under Section 200 of the Code is not correct. Moreover, from the records it appears that the learned Judge before taking cognizance of offence on 27-2-2004 wrote a letter to the Honorable Prime Minister's Office for sanction against the accused-persons to proceed against them as per Section 6(5) of the Criminal Law Amendment Act, 1958. The Hon'ble Prime Minister's Office receipt the said memo of the learned Senior Special Judge, Chattogram on 4-10-2004 and cognizance was taken on 25-7-2005, i.e., long after expiry of 60 (sixty) days from the date of receipt of the said memo. Therefore, there was no illegality in taking cognizance of the offence on 25-7-2005 as in the meantime said sanction was deemed to have been accorded by operation of the proviso to section 6(5) of the Criminal Law Amendment Act, 1958. The finding so far absence of overt act against the accused-persons is not correct because there is specific allegation in the petition of complaint and naraji petition that the accused-persons in collusion with each other compelled the son of the petitioner to admit a crime to cover-up the real crime apparently committed by accused Nos. 3 and 4 and  forcefully obtained  savings certificates which were subsequently enchased by them. Whether the alleged allegation against the accused-opposite-parties falls within the purview of Section 5(2) of the Prevention of Corruption Act, 1047 and Section 405 of the renal Code, 1800 can only be decided by taking evidence therefore the findings with regard to this issues is not correct findings. The accused Nos. 3 and 4 having apparently had the dominion over the defalcated money and other accused allegedly helped/abetted them for illegal gains, therefore, without going for trial the learned Judge has committed error of law discharging them from the case. Moreover, the allegations against the son of the petitioner are subject-matter of a different trial in Special Case. No. 14 of  pending before the same court, the  learned court below prejudged the case by holding that in order to put indirect pressure upon the accused opposite-parties, the instant case has been filed against them. So far applicability of the Section 420 of the penal Code, 1860 it appears that although the court below struck out Section 420 of the Penal Code, 1860  holding that the same had been deleted from the schedule of  Criminal Law Amendment Act, 1958 by Act No. XXII of 2004 but the same Judge subsequently in-framing charge against the son of the petitioner in Special Case No. 14 of 2005 included Section 420 of the  Penal Code, 1860. The learned court below discharged the accused-persons by the impugned order merely  by referring some procedural irregularities which, if any, could easily be cured by him as, they were not fatal to  the proceeding in that case. At the time of charge hearing the learned Judge is to see whether the allegations in the Petition of Complaint constitutes prima-facie offence as alleged but the learned court below without giving the petitioner any opportunity to adduce any evidence to prove the allegations has discharged the accused-opposite-parties.
23. Now question is whether is there any scope to discharge the accused at the time of framing of charge when prima-facie case is disclosed against the petitioner in the prosecution materials.
24. In this regard, the case of State VS Md Shafiqul Islam reported in 40 DLR 310 is very relevant wherein it has been held-
7. Section 241A is a new Section in the statute book. The provision of this Section is to be strictly followed. It is needless to say that an order of discharge can be made only when no case is made out against an accused.
11…….there being a prima-facie allegation it was incumbent on the trial court to frame the charge against the accused.
25.  In the case of Gazi Mozibul Huq VS Abid Hossian Babu, reported in 5 MLR (AD) 63, the Appellant Division held-
"7. The Prosecution case as set out in the petition at complaint has got prima-facie ingredients of the offences alleged. The exact nature at the offence against the accused petitioners can only be thrashed out upon a trial. The prosecution should not be stifled when there is a prima-facie case. No interference is therefore called for in this case".
26. It is also very important to decide whether the learned Judge had any scope to consider the plea of the accused-opposite-parties and thereby to discharge them at the time of framing of charge when prima-facie case is disclosed in the prosecution materials.
27. In the case of Mahbuba Akhter vs Mozemmel Hoque, reported in 15 BLD 339 = 47 DLR 404, the High Court Division in this regard held that:
"5. Under Section 241A of the Code of Criminal Procedure learned Magistrate      is to consider the documents submitted with the case record. At that stage Magistrate is to consider documents of the prosecution and not the documents of the defence which could only form part of the record after the charge is framed and trial begins."
28. In the case of Abid Hossain Babu vs Gazi Mojibul Haq reported in 20 BLD 72, the High Court Division also held that-
"The learned Special Judge discharged the accused persons considering the some extraneous materials which were not available either in the complaint petition or in the record and, as such, the Special Judge acted beyond his jurisdiction be that it under Section 241A or 265C of the Code discharging the accused by illegally relying upon some extraneous materials which were not in the record."
29. In view of the above discussion and principles laid down by our apex court,  we are of the view that there is no scope to discharge the accused at the time of charge hearing accepting the prosecution version when prima-facie case is disclosed in the prosecution materials.  The disputed question of facts, the defense version of the accused, defense materials and prima-facie case only be proved/ disproved/discarded at the time of trial by taking evidences.
30. In the facts and circumstances as discussed above we are of the view that in the prosecution materials prima-facie case has been disclosed against the opposite-party Nos.2-5. Whether the opposite-party Nos. 2-5 are at all involved With the alleged offence or not that can only decided at the time of trial by taking evident. In view of the above we find merit in the Rule and the Rule is liable to be made absolute.
31.  Accordingly, the Rule is made absolute.
32. The impugned order dated 27-4-2006 discharging the accused-opposite-party Nos.2-5 hereby set-aside.
33. The learned Judge of the trial court is directed to proceed with the case in accordance with law in the light of the observation made above. The learned judge is further directed to conclude the trial as early as possible preferably within 6 (six) months from the date of receipt of a copy of this judgment.   

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