The New Nation - Internet Edition

High Court Division

(Criminal)

Syed Muhammad Dastagir Husain-J.

And

Mamnoon Rahman-J.

CRIMINAL MISC. CASE NO. 709 OF 2003 With CRIMINAL MISC. CASE NO. 2663 OF 2003 .

(Application u/s 561A Cr. Pc. for quashment of proceedings of Metro Special Case No, 95 of 2002 of Metropolitan Senior Special Judge, Dhaka) Khondaker Fazlul Haque……….Petitioner. in Crl. Misc. No. 709/2003.

Md. Aftabuddin Ahmed @ Abtabuddin

……Petitioner.

in Cr1. Misc. 'No. 2663 of 2003.

Vs

The State …….. opposite parties in both cases.

For the petitioner in both cases: Mr. A.K.M. Ali Advocate

For the State Mr. A.B.M.Waliur Rahman Khan, A.A.G.

Judgment: 5 January 2003

Code of Criminal Procedure Section 561A- Quashment of proceedings cannot be allowed when the application is premature and involves question of enquiry as to the truth or otherwise of the allegations

Penal Code 1860-

Section 409- Criminal misappropriation-

Prevention of Corruption Act, 1947

Section 5(2)- Offence of criminal misconduct-

Proceedings of a case where the charge has not yet been framed are held by the learned judges of the High Court Division as in the instant case cannot be quashed.

Where prima facie materials are there on the record disclosing the offence, and where the question of enquiry to find out the truth or otherwise of the allegations is involved, the application u/s 561A Cr. PC is not maintainable as those question can only be decided by the trial Court after taking evidence during trial.

Therefore it has not been decided to sell out the vacant land of the Metal Packeging Limited situated in Chitagong and the decision taken by the Board of Trustee cannot be changed by a purchase commitee to sell out the said land. The purchase commitee of the Trust taken such decision to sell out the property belonging to the trust appears to be a prima-facie case which cannot be decided by this court……..(Para 7)

Further it appears the charge has not yet been framed. The trial Court will testify the decision of the board and these are the maters for the trial Court according to the case reported in 45 D.L.R. (A.D.) 48. In a proceeding under Section 561A this court cannot be drawn in an enquiry as to the truth or otherwise of the facts which are not in the prosecution case.

In this case whether other co-accused had any role in the transaction or whether they abeted the principal offenders are the questions involved which can only be decided on taking evidences. Therefore we are not inclined to quash the proceeding at this stage. Accordingly the Rule is discharged. Stay granted earlier by this court is hereby vacated…………..Para 8.

Judgment

Syed Muhammad Dastagir Husain J.:- Two Rules were heard analogously as it arises out of the same FIR and it involved common question of facts and disposed of by one judgment

2. These Rules are directed against the proceeding in Metro Special Case No. 95 of 2002 under Sections 409, 402/109 of the Panel Code read with Section 5(2) of the Anti-Corruption Act, 1947 arising out of BAC GR. Case No. 33 of 2002 now pending in the court of Metropolitan Senior Special Judge Court, Dhaka.

3. Buareau of Anti-Corruption lodged an FIR against the petitioners and others alleging inter alia, that the petitioner and others in collusion with each other by misusing official power caused a financial loss of Tk 1.10 crore to Bangladesh Muktijuddah Kallyan Trust by selling its landed property measuring 2 acres of Metal Pakage Ltd. Dhaka at a price less than the Government fixed rate bypassing the decision taken on 61st meeting of the board of trustee. The Burueau of Anti Corruption after investigation submited charge sheet on 21.7.2002 under Sections 409/420/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1847. The petitioner came before the court and obtained the bail from the Chief Metropolitan Magistrate. Thereafter the petitioner moved this application and obtained the present Rule.

4. Mr. AKM Ali, the learned Advocate appearing on behalf of the petitioners in both the cases, submits that in the FIR nothing has been specifically mentioned about the participation of this petitioner and he is not even named in the body of the FIR and the other petitioner in Miscellanous Case No. 2663 of 2003 is not named in the FIR. Further submits that he has raised objection with regard to the fixation of the price and on his objection a valuer was appointed to evaluate the price of the property and they are the subordinate officers of the trust and cannot avoid decision of the superior authority.

Therefore they are not at all involved or the allegation as made therein does not atract the petitioner in any way.

5. Mr ABM Waliur Rahman Khan, the learned Assistant Atorney General appearing on behalf of the State, by filing counter-affidavit submits that on 61st meetings of the Board of Srustees no decision was taken to sell out the vacant land of Metal Packages Ltd. belonging to Bangladesh Freedom Fighters Welfare Trust situated at Nasirabad, Chitagong.

The decision which was taken in the said meeting was to start construction for multistoried commercial/ residential building and the petitioners with ill motive and in collusion with each other have taken alternative, decision to sell out the said property through a meeting held on 9.2.2000.

Therefore they have misused the official power and they have taken arbitrary, illegal and malafide decision. He further submits that the decision of the Board of Trustee can only be altered by a decision of the Board of Trustees.

The decision to sell out the most valuable property belonging to the Trust is a misuse of official power thus commited the offence which is triable and they will be given opportunity to defend themselves in the court below as such the proceeding at this stage can not be quashed.

6. We have gone through the F.I. R. charge sheet and the counter-affidavit and the reply to the counter-affidavit, it appears that in the 61st decision in gha it has been decided which runs as follows :

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7. Therefore it has not been decided to sell out the vacant land of the Metal Packaging Limited situated in Chitagong and the decision taken by the Board of Trustee cannot be changed by a purchase commitee to sell out the said land. The purchase commitee of the Trust taken such decision to sell out the property belonging to the trust appears to be a prima-facie case which cannot be decided by this court

8. Further it appears the charge has not yet been framed. The trial Court will testify the decision of the board and these are the maters for the trial Court according to the case reported in 45 D,L.R, (A.D.) 48. In a proceeding under Section 561 A this court cannot be drawn in an enquiry as to the truth or otherwise of the facts which are not in the prosecution case.

In this case whether other co-accused had any role in the transaction or whether they abeted the principal offenders are the questions involved which can only be decided on taking evidences.

Therefore we are not inclined to quash the proceeding at this stage. Accordingly, the Rule is discharged. Stay granted earlier by this court is hereby vacated.