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When discharged from the cases of Anti Corruption Commission

| Updated: August 05, 2021 20:43:38


When discharged from the cases of Anti Corruption Commission

Sub-section 3 of the Section 6 of the Criminal Law Amendment Act, 1958 provides that the provision of Chapter XX of the Code Criminal Procedure, 1898, shall apply to trial of cases under the Act, in so far as they are not inconsistent with the provisions of the Act. Chapter XX of the Code of Criminal Procedure deals with the trial of cases by the Magistrates. Section 241A Cr. P.C. deals with discharged and section 242 Cr. PC. deals with when charge to be framed.

241a of the code of criminal procedure stats that when the accused appears or is brought before the Special Judge and if the Special Judge upon consideration of the record of the case and the documents submitted therewith and making such examination, if any, of the accused as the Special Judge thinks necessary and after giving the prosecution and the accused an opportunity of being heard, considers the charge to be groundless, he shall discharge the accused and record his reasons for so doing.

The procedure prescribed by the section should be strictly followed. An order of discharge can be made only according to the words of the section that no case has been made out. The Special Judge should first take into consideration the prosecution case as given in FIR, charge-sheet, statements of witnesses recorded by the investigating officer of the Durnity Daman Commission and the documents produced and also hear the defence and then apply the law to the Criminal acts to find whether there is prima-facie case and the Special Judge can discharge the accused if no case has been made out.

In the case of Moudud Ahmed Vs. The State reported in 16 BLD (AD) 27, it has been held that in framing charge the trial Court will only see if on the basis of the materials collected by the prosecution a prima facie case to go for the trial has been made out against the accused. The existence of a prima facie case to go for trial justifies the framing of charges.

6 blc 282-taher hossain rushdi vs. state-sections 241a, 242, 256c, 265d(1) and 439-- in the case there are detailed allegations against the accused petitioner and his accomplices and during the investigation it is revealed that the papers produced before the investigating agency were also examined by the handwriting expert and it was found that the documents in question and bills and vouchers were fictitious and hence there is no illegality in framing charges against the petitioners. The view taken by the High Court Division has been affirmed by Appellate Division reported in 7 MLR (AD) 116.

In the case of H.M. Ershad Vs. the State reported in 45 DLR 533 it has been held that Section 241 of the Code of Criminal Procedure casts a duty on the Judge to discharge the accused when there is no ground for proceeding with the case and his order must record reasons therefore. The Court has jurisdiction to pass an order of discharge if it was satisfied that the charge was groundless for which it was to give reasons but if it is framed charge it was not required of the court to record reasons. In interpreting the provisions sections 241 and 242 of the Crl.P.C. the High Court Division held that the Court has jurisdiction to pass an order of discharge if he is satisfied that the charge is groundless and if he finds so, has to give reason but in framing charge it is not required for to record reason showing that there are grounds for framing charge, if it is enough if the Court is of opinion that there is ground the presumption that the accused has committed the offence. The formation of such opinion is dependant only on the application of judicial mind based on materials collected from the records of the case.

In Begum Khaleda Zia Vs. State reported in 21 BLC (AD) 151, it has been held that the petitioner was on dock and the contents of charge had been read over to the petitioner who denied the charge and pleaded not guilty. In view of the contents of the order sheet, we are unable to accept the extraneous matter produced before the High Court Division and to observe that the contents of the charge had not been read over to the petitioner.

In Begum Khaleda Zia Vs. State reported in 21 BLC (AD) 16, it has been further held that since from the prosecution papers disclosed prima-facie case against the petitioner there was no error in the order framing charge. Relying upon the extraneous matter it is difficult for the Appellate Division to accept the submission, in view of the facts that the order sheet shows that the petitioner, at the relevant time, was on dock and contents of charge had been read over to her who pleaded not guilty and claimed to be tried.

In the case of Begum Khaleda Zia Vs. State and another reported in 19 BLC 398 it has been held that though there was an application under section 241A of the Code of Criminal Procedure but that was not considered and the learned Judge rejected the same on the ground that the learned advocate for the accused-petitioner did not move the application. In Special Case No. 5 of 2013 there was no application under section 241A of the Code of Criminal Procedure rather from the order sheet it is found that after framing charge, learned advocate for the accused-petitioner filed an application under section 241A of the Code of Criminal Procedure. It is true that exercise of sections 241A and 242 of the Code of Criminal Procedure are independent of any application, but on perusal of the impugned orders, it cannot be said that the Court below did not comply with the provisions of sections 241A and 242 of the Code of Criminal Procedure. Both sections 241A and 242 of the Code should be read together. This view has been affirmed by the Appellate Division as referred above i.e. 21 BLC (AD) 16 and 21 BLC (AD) 151.

In the case of Habibur Rahman Vs. Md. Showkat Ali and others reported in 24 BLC (HD) (2019) 906, it has been repeatedly held 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. The disputed question of facts, the defense version of the accused, defense materials and prima-face case only be proved/disproved/ discarded at the time of trial by taking evidences.

It has been further held that at the time of charge hearing (sections 241A and 242 Cr. P.C. ) 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 complainant any opportunity to adduce any evidence to prove the allegations has discharged the accuseds.

In the case of Anti Corruption Commission vs. the State and another reported in 25 BLC (HD) 29 it has been held that the Anti Corruption Commission being the prosecuting agency may submit charge-sheet following the allegations made in the FIR if it finds prima-facie case against the accused. But it has no right to resolve any dispute alleged by the accused. The accused has every right and authority to produce his/her defence materials before the court during trial of the case. Moreover, there is no provision of submitting any application before the investigating officer for making reassessment of the allegations, liabilities, expenditures and costs of construction of house. There is an ample scope for the accused to explain about the allegations and rectify the mistake in calculating assets, even if any, at the time of trial as required under section 27(1) of the Anti-Corruption Commission Act, 2004. Besides the prosecution must also be given opportunity to prove the allegations by adducing evidence before the trial court. Be that as it may, going through the prosecution materials on record, we are of the view that a prima-facie case with regard to offences under sections 26(2) and 27(1) of the Anti-Corruption Commission Act, 2004 has been disclosed against the accused. The allegations so brought against the accused are highly disputed question of facts which cannot be resolved without taking aid of the evidence to be adduced by the parties before the trial court. The High Court Division relied upon in the case of Moudud Ahmed Vs. State, reported in 16 BLD (AD) 27=48 DLR (AD) 42; in the case of Taher Hossain Vs. State reported in 7 BLC (AD) 45 and in the case of Nazrul Islam Vs. State reported in 50 DLR 103 it was spelt out that the learned trial judge may frame charge against an accused under section 242 of the Code of Criminal Procedure if there are sufficient prosecution materials on record to frame charge against an accused. It is true that the charge cannot be framed against the accused-person mechanically unless any reasonable and cogent prima-facie case is disclosed against the accused in the FIR as well as in the charge-sheet and in other prosecution materials.

The controlling power of revision i.e. criminal revision in some cases rests with the High Court Division. Section 439 of the Code of Criminal Procedure must be read along with and subject to the provision of section 435 of the Code. In respect of special cases under the Criminal Law Amendment Act 1958, the revisional power deals with section 10(1A) of the Criminal Law Amendment Act, 1958. The object is to confer a kind of paternal and supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law irregularity of procedure, neglect of proper precautions and apparent harshness of treatment. The revisional Jurisdiction of High Court Division is very extensive. The Jurisdiction under Section 10(1A) of the Act which is very wide may be exercised to test the correctness, legality or even the propriety of the finding sentence or order of the subordinate court or for satisfying itself as to the legality of their proceeding.

The propriety or legality of the charge as framed against the accused-petitioner cannot be scrutinised and interfered with under section 10(1A) of the Criminal Law Amendment Act, 1958 as the trial Court is the sole authority to frame charge against any accused having a prima facie case against him and the High Court Division in exercise of its revisional jurisdiction under section 10(1A) of the Act does not generally go into facts but in certain circumstances this Court for rectification of injustice may also go into facts, if in the determination of any question of facts, onus is wrongly placed upon any party or an incorrect principle has been applied in determining the question of fact or any material piece of evidence has been ignored or due to by the court below. This court having paternal and supervisory jurisdiction can certainly, in the interest of justice, scrutinise and go into facts and examine the propriety of the impugned order of finding in question.

The revisional powers are not limited to the powers mentioned in section 10(1A) of the Criminal Law Amendment Act, 1958 which merely describes some of the reliefs which the High Court Division may grant. But it is not exhaustive. It has all the powers of an appellate Court and more it can enhance sentence. The revisional power though very wide is purely discretionary to be fairly exercised according to the exigencies of each case. It is an extra-ordinary power which must be exercised with due regard to the circumstances of each particular case. A private party who has no right of appeal, can come in revision where the Durnity Daman Commission/Government fails to exercise the right of appeal.

Under section 10(1A) of the Criminal Law Amendment Act, 1958/under section 439 of the Code of Criminal Procedure the High Court Division may also suo motu call for the record of the Courts subordinate to it and set aside any order passed by such Courts in any legal proceeding which has caused miscarriage of justice. Even there is no prescribed period of limitation either in the Code of Criminal Procedure or in the Limitation Act, 1908 for filing revision. As a matter of longstanding practice in the High Court Division 60 (sixty) days limitation, provided under Article 155 of the First Schedule of the Limitation Act for appeal, is being followed for revision. But there is no legal bar to entertain in the interest of justice such revisional application even after the period of 60 (sixty) days. Moreover in the absence of any limitation prescribed for revision under the law, it cannot also be properly said that the application filed beyond 60 (sixty) days is barred by limitation. The revisional Court is to look into the question whether there has been gross negligence on the part of the petitioner or an inordinate delay in moving such revisional application.

Md Khurshid Alam Khan, Advocate, Supreme Court, and Editor, Dhaka Law Reports (DLR)

 

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