Article 102 of the Constitution: Court should not invoke its jurisdiction

Md Nazrul Islam Talukder J
KM Hafizul Alam J
Nurul Islam Moni……..Petitioner
vs
Government of Bangladesh represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs, Bangladesh Dhaka and others………….. Respondents.
Judgment
April 9th, 2019

Anti-Corruption Commission Rules 2007, Rule 13(3)
Rule 13(3) is merely a procedural law and non-compliance of such procedural law cannot be regarded as fatal to record a prosecution case against an offender who alleged to have committed the schedule offence under the Anti-corruption Commission Act, 2004………………………….(17)
Anti-Corruption Commission vs Mehedi Hasan, 67 DLR (AD) 137; Anti-Corruption Commission vs Mehedi Hasan, 67 DLR (AD) 137, Habibur Rahman Molla vs State, 61 DLR and State of HP vs Lekh Raj 2000 SCC (Crl) 147 ref.
Md. Joynal Abedin with Md Sagir Hossain, Advocates-For the Petitioner.
AKM Amin Uddin DAG with Helena Begum (China), AAG-For the Respondents.
Hassan MS Azim, Advocate-For the Anti-Corruption Commission.
Judgment
Md Nazrul Islam Talukder J : On an application under Article 102 (a) (ii) of the Constitution of the People’s Republic of Bangladesh, this Rule Nisi, at the instance of the petitioner, was issued calling upon the respondents to show cause as to why the Rule 14 of the Anti-Corruption Commission Rules, 2007 shall not be declared ultra vires of law and as to why the initiation and continuation of the proceeding of Special Case No 18 of 2008 arising out of Patharghata Police Station Case No. 14 dated 22-7-2007 under Sections 406/409//419/ 420/468/471 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 violating the provision of Rule 13(1)(2)(3) of the Anti-Corruption Commission Rules, 2007, now pending in the Court of learned Senior Special Judge, Patuakhaii, shall noi he declared without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. The fact leading to issuance of the Rule Nisi runs as follows:-
On 14-7-2007, one Md Mojibur Rahman being complainant filed a petition of complaint in the court of learned Upazila Magistrate, Patharghata, Barguna under Sections 406/419/420/468/471 of the Penal Code read with Rule 14 of the Emergency Powers Rules, 2007 against 16 (sixteen) accused persons including the petitioner and the learned Magistrate after examining the Complainant sent the same to the Officer-in-Charge, Patharghata Police Station for recording the same as FIR and the Officer-in-Charge of Patharghata Police Station recorded the same as Patharghata Police Station Case No. 14 dated 22-7-2007. It alleged in the FIR than die petitioner (the FIR named accused No. 1) was the Member of Parliament of Bargtma-2 Constituency (Patharghata-Bamna). During his tenure, 645 bandles of relief tins were sanctioned in the name of petitioner from the Ministry of Food and Disaster Management for distributing the same among the disaster affected persons but the petitioner in collaboration with other accused in violation of the rules and procedures distributed the same in the name of some organizations and persons who were not entitled to receiving such relief tins. The petitioner and others misusing their power and authority misappropriated more than Taka 10 (ten) lac by distributing the relief tins in the name of disqualified organizations and persons and submitted false allotment letter to the concerned ministry. Hence, this FIR against the petitioner and others under Sections 406/409/419/420/468/471 of the penal Code read with Rule 14 of the Emergency Powers Rules, 2007.
3. It may be noted that one of the co-accused namely Depen Kumar Biswas made a confessional statement under Section 164 of the Code of Criminal Procedure implicating himself and others in the commission of offences.
4. After lodging the FIR, the case was investigated by Md Enayet Hossain, Assistant Director, Anti-Corruption Commission, Sammonnita Zila Karjalaya, Patuakhali, who after holding investigation having found prima-facie case submitted charge-sheet being No.142 dated 3-8-2008 under Sections 406/409/419/420/467/468/ 471 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 against the petitioner and others on 3-8-2008.
5. Having received the investigating report, the learned Magistrate transmitted the record of the case to the court of learned Senior Special Judge, Barguna (here, it may be mentioned that the Senior Special Judge Court is in Patuakhali District) and the same was numbered as Special Case No.18 of 2008.
6. It is stated in the application that the petitioner was arrested by the police and then obtained bail and till today he is on bail.
7. At the very outset, Mr Md Sagir Hossain, the learned Advocate appearing on behalf of the petitioner, submits that as per Rule 13(3) of the Anti-Corruption Commission Rules, 2007, no private person has authority to’ file a petition of complaint against any person for any offence but the instant case at hand was filed by a private individual in violation of Rule 13(3) of the Anti-Corruption Commission Rules, 2007 and, as such, the initiation and continuation of the proceeding are liable to be declared without lawful authority and are of legal effect.
8. He next submits that the Rule 2 (Gha) of the Anti-Corruption Commission Rules, 2007 defines the definition of “Competent Court” suggesting that the Special Judge being competent court can only entertain a petition of complaint in respect of the aforesaid offences but in the instant case, the petition of complaint was filed before the court of learned Magistrate and the case was initially investigated by police who submitted a report on 5-6-2007 and on the basis of the said report, the case was then investigated by Anti-Corruption Commission, which is a violation of the mandatory provision of law and, as such, the impugned proceeding is liable to be declared without lawful authority and is of legal effect.
9. He lastly submits that as per law, by obtaining the sanction of the Anti-Corruption Commission, the proceeding of the Anti-Corruption cases starts and a private person can also file a petition of complaint before the “Competent Court” after failing to approach the Anti-Corruption office or the police station but in the instant case, the complainant has not approached therein and there is no statement that the complainant went to the Anti-Corruption Office or to the Police Station but failed to lodge the case and, as such, there is a violation of Rule 13(3) of the Anti-Corruption Commission Rules 2007 in the instant case and, as such, the impugned proceeding is liable to be declared without lawful authority and is of legal effect.
10. On the other hand, Mr Hassan MS Azim, the learned Advocate appearing on behalf of the Anti-Corruption Commission, submits that the initiation and continuation of the criminal proceeding cannot be challenged under the writ jurisdiction and, as such, this writ petition challenging the criminal proceeding is not maintainable in the eye of law and for this reason, this Rule Nisi is liable to be discharged. Mr Azim, in support of his contention, has referred to a decision in the case of Anti-Corruption Commission vs Mehedi Hasan, reported in 67 DLR (AD) 137, wherein it was decided that a criminal proceeding under the writ jurisdiction cannot be quashed unless the vires of law involved is challenged.
11. Mr AKM Amin Uddin, the learned Deputy-Attorney General appearing for the State has adopted the submissions made by the learned Advocate for the Anti-Corruption Commission and categorically submits that the writ petition filed by the petitioner challenging the impugned proceeding is not maintainable since the impugned criminal proceeding against the petitioner cannot be challenged under the writ jurisdiction and in that view of the matter, the writ petition is liable to be discharged.
12. We have gone through the writ petition and perused the materials annexed therewith. We have also considered the submissions advanced by the learned Advocates for the respective parties. It appears from the record that the petitioner has filed this writ petition for quashing the impugned proceeding and for declaration that the Rule 14 of the Anti-Corruption Commission Rules, 2007 is ultra vires of law. In the case of Anti-Corruption Commission vs Mehedi Hasan, reported in 67 DLR (AD) 137, it is now well settled that a criminal proceeding under the writ jurisdiction cannot be quashed unless the vires of law involved is challenged.
13. It may be noted that though a Rule was issued calling upon the respondents to show cause as to why Rule 14 of the Anti-Corruption Commission Rules, 2007 shall not be declared ultra vires of law but not a single ground has been taken in that regard. Furthermore, the learned Advocate for the petitioner could not make out any case as to why the Rule 14 of Anti-Corruption Commission Rules, 2007 should be declared ultra vires of law.
14. In order to appreciate the submissions of the learned for the petitioner, it will be worthwhile to quote Rule 13(3) of the Anti-Corruption Commission Rule, 2007 for the convenience of discussion and decision. Rule 13(3) of the Anti-Corruption Commission Rule, 2007 runs as under-
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15. In view of the above, no complaint in respect of an offence specified in the schedule to the Anti-Corruption Commission Act, 2004, shall be filed directly in court by any person but if any competent court is satisfied that the complainant approached the Commission or any of its office or police station but failed to get the complaint accepted then the said court may accept the complaint and direct the commission for investigation of the same.
16. It may be mentioned that the aforesaid procedural law as to filing petition of complaint by a person of complaint by a person is not mandatory rather it is directory in nature since no consequence has been given therein.
17. It is now well settled that Rule 13(3) is merely a procedural law and non-compliance of such procedural law cannot be regarded as fatal to record a prosecution case against an offender who alleged to have committed the schedule offence under the Anti-Corruption Commission Act, 2004.
18. Under the circumstances, the court should not invoke its jurisdiction under Article 102 of the Constitution to quash the very initiation and continuation of the proceeding initiated by the Anti-Corruption Commission on hyper-technicality unless an accused is substantially affected and prejudiced.
19. On the point of hyper-technicality of law, we may refer to a decision in the case of Habibur Rahman Molla vs The State, reported in 61 DLR 1 = State of HP vs Lekh Raj, reported in 2000 SCC (Crl) 147 wherein it has been spelt out as follows:-
“The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a utopian thought but has to be considered as part and parcel of the human civilization and realities of life. The court cannot ignore the erosion in values of life which is a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting the society and the mankind.”
20. Having considered all the facts and circumstances of the case, the submissions advanced by the learned Advocates for the respective parties and the learned Deputy Attorney General for the State and the proposition of laws cited above, we do not find any merit in this Rule.
21. Accordingly, the Rule is discharged.
23. The learned judge of the trial Court is directed to proceed with the case in accordance with law and to conclude the trial of the case as early as possible preferably within 6(six) months from the date of receipt of this judgment.
Communicate the judgment to the learned judge of the concerned trial Court and to the Chairman Anti-Corruption Commission for their information and necessary action.