When convictions can not be set-aside
Appellate Division :
(Criminal)
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
Hasan Foez Siddique J
AHM Shamsuddin
Choudhury J
Anti Corruption Commission ………….Petitioner
vs
Aman Ullah Aman and others …… Respondents,.
Judgment
May 26th, 2014.
Anti-Corruption Commission Act (V of 2004)
Section 27(1)
Criminal Law Amendment Act (XL of 1958)
Section 10
Notice issued under Section 26(1) by the Secretary of the Commission was without jurisdiction. But, for this reason the High Court Division cannot set-aside the conviction of the accused in respect of an offence under Section 27(1) of the Ain High Court Division acted illegally in setting aside the conviction of the accused in respect of offence under Section 27(1) of the Ain. The judgment and order of the High Court Division so far as it relates to setting aside the conviction and sentence under Section 27(1) of the Ain, is set-aside. The matter is remanded to the High Court Division to dispose of the appeal on merit afresh.
Anti-Corruption Commission vs Iqbal Hasan Mahmood, 66 DLR (AD) 185 ref.
Md Khurshid Alam Khan, Advocate, instructed by Sufia Khatun, Advocate-on-Record-For the Petitioner.
Ahsanul Karim, Advocate, instructed by Mvi Md Wahidullah, Advocate-on-Record-For the Respondent.
Judgment
Hasan Foez Siddique J: Delay is condoned.
This petition, at the instance of Anti Corruption Commission, is directed against the judgment and order dated 16-8-2010 passed by the High Court Division in Criminal Appeal No. 3990 of 2007 allowing the appeal and setting-aside the judgment and order dated 21-7-2007 passed by the Special Judge No.1, Dhaka, in Special Case No.1 of 2007.
2. We have heard the learned Advocates of both the parties, perused the judgments of the High Court Division and Special Court. The learned Special Judge convicted the respondent No.1 under Section 26(2) of the Durnity Daman Commission Ain, 2004 (the Ain) read with Rule 15(Gha)(5) of the Durnity Daman Commission Bidhimala, 2007 (the Bidhimala) and sentenced him to suffer rigorous imprisonment for three years and also convicted him under Section 27 (1) of the Ain read with Section 5(2) of Act II of 1947 and sentenced him to suffer rigorous imprisonment for 10 (ten) years and to pay fine of Taka 10,00,000, in default, to suffer rigorous imprisonment for l(one) year more with a direction to run the sentence consecutively. The respondent No.2 was convicted under Section 27(1) of the Ain, 2004 read with Section 109 of the Penal Code and sentenced to suffer rigorous imprisonment for three years. The Special Judge directed to -confiscate properties of the respondents. Against the said order of conviction and sentence the respondents preferred the aforesaid appeal.
3. The High Court Division by the impugned judgment and order allowed the appeal and set-aside the judgment and order of conviction and sentences as well as the order of confiscation of the properties passed by the trial Court mainly on the reasoning that commission was not properly constituted in accordance with law from 7th February 2007 to 25th February 2007 and in view of non-constitution of the Commission the notice issued and served upon the respondents on 18-2-2007 under the signature of the Secretary of the Commission to submit wealth statement was without jurisdiction. The High Court Division relied upon the decision of this Division passed in Criminal Petition for Leave to Appeal No.398 of 2009 and Civil Petition for Leave to Appeal Nos.1658 and 1659 of 2008.
4. The learned Counsel appearing on behalf of the petitioner, submits that besides Section 26 of the Ain, the respondents were also convicted under Section 27(1) of the Ain as well, which is an independent penal provision having no nexus with Section 26 of the Ain and therefore the High Court Division erred in law in setting aside the judgment and order of conviction under section 27(1) of the Ain read with Section 5(2) of the Act II of 1947. The learned Advocate for the petitioner relied on the latest decision of this Division in Criminal Petition for Leave to Appeal No. 537 of 2011 (Anti-Corruption Commission vs Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku and another reported in 66 DLR (AD) 185. In the cited case, this Division, in an identical circumstance, has observed:
“On perusal of the impugned judgment we noticed that the High Court Division did not at all enter into the merit of the matter and set-aside the conviction mainly on the ground that no Commission was properly constituted when the accused-respondent was served with the notice to submit his wealth statement. Section 26(1) empowers the Commission to issue notice upon any person who appears to have acquired property which are beyond his known source of income and if the statement submitted by him is found to be false, he will be liable to conviction. Section 27 is an independent provision and for initiation of a proceeding against any person under the said provision, no notice is required to be served. If the prosecution can establish that any person has acquired or amassed wealth which is beyond his known source of income, he may be prosecuted and convicted under Section 27(1).
In this case, the accused-respondent was also convicted under Section 27(1) of the Ain on the reasonings that he had acquired properties which were beyond his known source of income, and said properties were also confiscated by the learned Special Judge.
True, during the relevant time, the Commission was not properly constituted. So, the notice issued upon him under section 26(1) by the Secretary of the Commission was without jurisdiction. But, for this reason the High Court Division cannot set-aside the conviction of the accused-respondent in respect of an offence under Section 27 (1) of the Ain read with Section 5(2) of Act II of 1947. And in doing so, it has not at all discussed the evidence on record. The learned Special Judge on a thorough assessment of the evidence on record found the accused guilty under section 27 (1) of the Ain read with Section 5(2) of Act 11 of 1947 for possession of wealth which were said to have been beyond his known source of income.
In view of the above, the High Court Division acted illegally in setting aside the conviction of the accused-respondent in respect of offence under section 27(1) of the Durnity Daman Commission Ain read with Section 5(2) of Act II of 1947. The impugned judgment is not legally sustainable in law and the same is liable to be interfered with.”
5. In view of the decision of this Division in identical circumstances, the judgment and order of the High Court Division so far as it relates to setting aside the conviction and sentence of the respondents under section 21(1) of the Durnity Daman Commission Ain, 2004 read with section 5(2) of the Ain II of 1947 is set-aside.
6. The matter is remanded to the High Court Division to dispose of the appeal on merit afresh. This petition is accordingly disposed of.
(Criminal)
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
Hasan Foez Siddique J
AHM Shamsuddin
Choudhury J
Anti Corruption Commission ………….Petitioner
vs
Aman Ullah Aman and others …… Respondents,.
Judgment
May 26th, 2014.
Anti-Corruption Commission Act (V of 2004)
Section 27(1)
Criminal Law Amendment Act (XL of 1958)
Section 10
Notice issued under Section 26(1) by the Secretary of the Commission was without jurisdiction. But, for this reason the High Court Division cannot set-aside the conviction of the accused in respect of an offence under Section 27(1) of the Ain High Court Division acted illegally in setting aside the conviction of the accused in respect of offence under Section 27(1) of the Ain. The judgment and order of the High Court Division so far as it relates to setting aside the conviction and sentence under Section 27(1) of the Ain, is set-aside. The matter is remanded to the High Court Division to dispose of the appeal on merit afresh.
Anti-Corruption Commission vs Iqbal Hasan Mahmood, 66 DLR (AD) 185 ref.
Md Khurshid Alam Khan, Advocate, instructed by Sufia Khatun, Advocate-on-Record-For the Petitioner.
Ahsanul Karim, Advocate, instructed by Mvi Md Wahidullah, Advocate-on-Record-For the Respondent.
Judgment
Hasan Foez Siddique J: Delay is condoned.
This petition, at the instance of Anti Corruption Commission, is directed against the judgment and order dated 16-8-2010 passed by the High Court Division in Criminal Appeal No. 3990 of 2007 allowing the appeal and setting-aside the judgment and order dated 21-7-2007 passed by the Special Judge No.1, Dhaka, in Special Case No.1 of 2007.
2. We have heard the learned Advocates of both the parties, perused the judgments of the High Court Division and Special Court. The learned Special Judge convicted the respondent No.1 under Section 26(2) of the Durnity Daman Commission Ain, 2004 (the Ain) read with Rule 15(Gha)(5) of the Durnity Daman Commission Bidhimala, 2007 (the Bidhimala) and sentenced him to suffer rigorous imprisonment for three years and also convicted him under Section 27 (1) of the Ain read with Section 5(2) of Act II of 1947 and sentenced him to suffer rigorous imprisonment for 10 (ten) years and to pay fine of Taka 10,00,000, in default, to suffer rigorous imprisonment for l(one) year more with a direction to run the sentence consecutively. The respondent No.2 was convicted under Section 27(1) of the Ain, 2004 read with Section 109 of the Penal Code and sentenced to suffer rigorous imprisonment for three years. The Special Judge directed to -confiscate properties of the respondents. Against the said order of conviction and sentence the respondents preferred the aforesaid appeal.
3. The High Court Division by the impugned judgment and order allowed the appeal and set-aside the judgment and order of conviction and sentences as well as the order of confiscation of the properties passed by the trial Court mainly on the reasoning that commission was not properly constituted in accordance with law from 7th February 2007 to 25th February 2007 and in view of non-constitution of the Commission the notice issued and served upon the respondents on 18-2-2007 under the signature of the Secretary of the Commission to submit wealth statement was without jurisdiction. The High Court Division relied upon the decision of this Division passed in Criminal Petition for Leave to Appeal No.398 of 2009 and Civil Petition for Leave to Appeal Nos.1658 and 1659 of 2008.
4. The learned Counsel appearing on behalf of the petitioner, submits that besides Section 26 of the Ain, the respondents were also convicted under Section 27(1) of the Ain as well, which is an independent penal provision having no nexus with Section 26 of the Ain and therefore the High Court Division erred in law in setting aside the judgment and order of conviction under section 27(1) of the Ain read with Section 5(2) of the Act II of 1947. The learned Advocate for the petitioner relied on the latest decision of this Division in Criminal Petition for Leave to Appeal No. 537 of 2011 (Anti-Corruption Commission vs Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku and another reported in 66 DLR (AD) 185. In the cited case, this Division, in an identical circumstance, has observed:
“On perusal of the impugned judgment we noticed that the High Court Division did not at all enter into the merit of the matter and set-aside the conviction mainly on the ground that no Commission was properly constituted when the accused-respondent was served with the notice to submit his wealth statement. Section 26(1) empowers the Commission to issue notice upon any person who appears to have acquired property which are beyond his known source of income and if the statement submitted by him is found to be false, he will be liable to conviction. Section 27 is an independent provision and for initiation of a proceeding against any person under the said provision, no notice is required to be served. If the prosecution can establish that any person has acquired or amassed wealth which is beyond his known source of income, he may be prosecuted and convicted under Section 27(1).
In this case, the accused-respondent was also convicted under Section 27(1) of the Ain on the reasonings that he had acquired properties which were beyond his known source of income, and said properties were also confiscated by the learned Special Judge.
True, during the relevant time, the Commission was not properly constituted. So, the notice issued upon him under section 26(1) by the Secretary of the Commission was without jurisdiction. But, for this reason the High Court Division cannot set-aside the conviction of the accused-respondent in respect of an offence under Section 27 (1) of the Ain read with Section 5(2) of Act II of 1947. And in doing so, it has not at all discussed the evidence on record. The learned Special Judge on a thorough assessment of the evidence on record found the accused guilty under section 27 (1) of the Ain read with Section 5(2) of Act 11 of 1947 for possession of wealth which were said to have been beyond his known source of income.
In view of the above, the High Court Division acted illegally in setting aside the conviction of the accused-respondent in respect of offence under section 27(1) of the Durnity Daman Commission Ain read with Section 5(2) of Act II of 1947. The impugned judgment is not legally sustainable in law and the same is liable to be interfered with.”
5. In view of the decision of this Division in identical circumstances, the judgment and order of the High Court Division so far as it relates to setting aside the conviction and sentence of the respondents under section 21(1) of the Durnity Daman Commission Ain, 2004 read with section 5(2) of the Ain II of 1947 is set-aside.
6. The matter is remanded to the High Court Division to dispose of the appeal on merit afresh. This petition is accordingly disposed of.