The New Nation - Internet Edition

High Court Division

(Criminal Appellate Jurisdiction)

Siddiqur Rahman

Miah J

Md Rezaul Haque J

Judgment

May 29th, 2007

Bashar and others

…………..Accused Appellants

vs

State…………..Respondent*

Code of Criminal Procedure

(V of 1898)

Section 164

From the form of the recording statement, it is clear that the Magistrate did riot state when she started recording the statement. How much time she allowed the accused for reflection. So, on scrutiny of the above confessional statement, it is difficult for us to hold that the same was recorded in full compliance with the provision of 164(3) of the Code of Criminal Procedure and that the same is not voluntary and true. . t.. (24)

Zakir Hossain vs State 55 DLR 137; Halim vs State 8 BLC 19; Ustar Ali vs State 3 BLC (AD) 53, Emran Ali alias Md Emran vs State 37 DLR I; Lutfur Nahar Begum vs State 27 DLR (AD) 29; Babar Ali Molla vs State 44 DLR (AD) 10; Rezaul Karim (Md) alias Rezaul Alam Rickshawala 55 DLR 382; State vs Kabel Molla 55 DLR 108 and Md Akbar Ali vs State 1999 BLD 268 ref.

Ruhul Quddus, Advocate·-For the Appellant.

SM Waliur Rahman Khan Deputy Attorney-General with 8hamim Ara Dura. Assistant Attorney-General-For the State.

Judgment

Md Rezaul Haque J: These three appeals by appellants Bashar in Criminal Appeal No. 2945 of 2001, Habibullah, Mizan, Md Ali Mistri and Md Kamrul Hasan in Criminal Appeal No. 2721 of 2001 and Mohiuddin and Harun in Criminal Appeal No. 2776 of 2001 are directed against the common judgment and order of conviction and sentence dated 8-7-2001 passed by learned Assistant Sessions Judge. 2nd Court. Bhola in Sessions Case No.3 of 2000 arising out of Lalmohan police station case No.6 dated 16-2-1999 corresponding to GR No. 20 of 1999 (Lal) convicting the accused appellant under section 457 of the Penal Code and sentencing them to suffer rigorous imprisonment for 7 years and to pay fine of Taka 500 each in default. to suffer rigorous imprisonment for three months more. It is further ordered that both the sentences will run concurrently and accused Md Jamal was acquitted from the charge leveled against him.

2. The prosecution case, at the trial, in short, is that on the night following 14-2-1999 Mahmudul Haque (PW 1) and his family members having had their supper went to sleep. At about 1 o’clock at night Mahrnudul Huq woke up at the heavy light inside the room and saw that 15/16 thieves entered into the house by cutting two holes and they were stealing away the goods. Said Mahmudul Huq and his son Kamal began to shout by saying, 'thief thicf. The thieves tied up them. The thieves snatched away one bangle, one ear ball, Nasal ring from his wife, they took away gold chain from his daughter, 12 sarees of his wife and daughter, two wrist watches, one National Radio and torchlight. When Nasima the daughter of said Mahmudul Huq. aged about 17 years. torched a 'hurricane, one of the thieves hit on her head when she got injury. The thieves stole away the articles worth Taka 5,00,000. At the hue and cry of all the family members the thieves ran away. At the time of fleeing away the thieves left their shoes and scarf.

3. On getting first information report Lalmohan Police Station Case No.6 dated 16-2-1999 was started and Sub-Inspector Md Shakhwat Hossain was appointed investigating officer of the case who held investigation. During investigation he visited the place of occurrence. prepared sketch map along with index, recorded statement under section 161 of the Code of Criminal Procedure of the witnesses. arrested accused Mizan and produced him before the Magistrate to record his statement under section 164 of the Code of Criminal Procedure. On completion of the investigation he submitted charge sheet against 10 accused persons under sections 460/380 of the Penal Code.

4. Ultimately the case record was communicated to the court of learned Assistant Sessions Judge for trial. The learned Assistant Sessions Judge framed charge against the accused persons under sections 460/380 of the Penal Code and at the time of framing charge the accused pleaded not guilty of the offence charged with and claimed to be tried.

5. At the trial. prosecution examined as many as 8 witnesses but the defence examined none. However the accused persons were given opportunity to cross examine all the prosecution witnesses. From the trend of cross-examination it appears that the defence plea is that accused persons are innocent and they have been implicated in this case falsely.

6. The learned Assistant Judge, after considering the evidence and other facts and circumstances of the case found the accused persons guilty of the offence charged with and passed the impugned judgment and order of conviction and sentence in the manner already stated above and acquitted accused Md Jamal from the charge.

7. Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence the convicts preferred three separate appeals for setting aside the 0rder of conviction.

8. Mr Md Ruhul Quddus along with Mr Md Toufik Enam the learned Advocate appcaring on behalf of the appellants in Criminal Appeal Nos, 2945 of 2001 and 2721 of 2001, submits that it is a case of no evidence. The only basis of the conviction is the confessional statement of accused Siraj. Learned Advocate submits that established legal position is that statement under section 164 of the Code of Criminal Procedure can at best be used against its maker if it is found true, voluntary and inculpatory in nature but there is no scope to use the confessional statement of an accused against any other co-accuseds without any corroborative evidence. In support of his submission he refers case of Zakir Hossain vs State reported in 55 DLR 137. Learned Advocate further submits though there is a confessional statement of accused Siraj yet, it is exculpatory in nature. He contends that accused appellant Md Siraj is beneficiary of the alleged occurrence. The statement under section 164 of the Code of Criminal Procedure of accused Siraj has not been supported by any of the witnesses. He further submits that the articles which were recovered from the possession of the confessing accused Seraj has not been placed for test of identification parade, which is also corroborated by the investigating officer. The investigation officer categorically stated that ¯^‡b©i wRwbm ev`xi evwoi †Kvb †jvK Øviv mbv³ Kiv‡bv nq bvB| Learned Advocate further submits that the seized articles are not similar with the articles mentioned in the seizure list. No TI parade of the accuseds or the article has been done. Mr Ruhul Quddus further submits that the seizure list witnesses were not examined during trial by the prosecution to prove its case beyond any shadow of doubt. He further submits during examination under section 342 of the Code of Criminal Procedure of the accused person no attention was drawn as to the evidence on record. Learned Counsel further submits that under section 342 of the Code of Criminal Procedure law has provided protection of the accused and it imposes a duty upon the Court to question the accused properly and fairly. In this connection he refers the cases of reported in 55 DLR 108. 1999 BLD 280. He draws our attention to discrepancies in the evidence of prosecution witnesses and accordingly, submits that the accused appellants are entitled to be acquitted from the charge.

9. Mr Yusuf Hossain Humayun, the learned Advocate appears on behalf of accused appellants Mohiuddin and Harun and submits that there is no legal evidence against this accused except 164 statement of accused Siraj. He has also adopted the submission made by learned Advocate Mr Ruhul Quddus and prays for acquittal of the accused appellants.

10. Mrs Shamim Ara Dora, Assistant Attorney General appears on behalf of the State and submits in reply that the confessional statement of accused Siraj was true and voluntary and he has entangled all the accused persons with this case. She further submits that two stolen articles have been recovered from the possession of the accused Siraj and he has vividly narrated the incident. She further submits that 164 statement of accused Siraj was true and voluntary and as there is no complaint of torture, as such, it can safely be relied upon and the learned judge rightly convicted the appellant. According to her, there is no reason to interfere with the judgment of this case.

11. Let us now discuss the material evidence on record together with the available facts and attending circumstances of the case to ascertain whether the prosecution has been able to establish the charge against the accused appellants for the purpose of maintaining the judgment and order of conviction and sentence passed by the learned Judge of the tribunal.

12. PW 1 the informant in his examination in chief stated that he was a teacher at Charmiaji Government Primary School, on 14-2-1999 he went to sleep with his family members and woke up at 1 O’clock at night in the heavy light and found that 15 or 16 thieves entered into his room by digging hole in his house, he and his son Kamal shouted and the thieves tied up them. They took away one ear ball, bangle and nasal ring from his wife, they took away one chain made of gold from his daughter Hasina and 12 sarees of his wife and daughter, they also took away two wrist watches and torchlight, one National radio and their clothes which may be worth Taka 5,00,000. At the sound of shifting his daughter Hasina came down from the first floor with a hurricane in her hand and then one of the thieves gave a blow on her head for which she became injured. At the hue and cry of the family members nearby people came there. He identified the first information report and his signature. In cross examination, he stated that he did not mention any name of any accused in the first information report. He could not recognise any accused person. He further stated that some of the accused were his relatives and some of them lived in the same area. They were known to him from earlier. He further stated that ear ring and bangle are different things. He did not identify the stolen articles.

13. PW 2 Md Kamal in his examination in chief stated that he is the son of the informant, on 14-2-1999 he went to sleep along with his parents and woke up at the light in the room and saw some thieves in the room. They tied up him and his father. The thieves took away their goods.

14. PW 3 Md Mosharraf Hossain in his examination-in-chief stated that he is an inhabitant of Charlangutia village, he was a student, he was in his residence on 14-2-1999. He woke up at the hue and cry at about 1 o’clock in that night. One man told him that the sons and daughter of Mahmudul Hoque were crying. On query, he came to know that the dacoits snatched away their articles, he deposed before the police officer. In cross examination, he stated that he did not see any dacoits while he went to the house of informant.

15. PW 4 Md Shahabuddin in his examination-in-chief stated that he was a farmer, he slept at 9-00 PM on 14-7-1999. His house was at a distance of 400 yards from the house of occurrence. Having heard the hue and cry he went to the place of occurrence at about 1-00 AM and found that Mahmudul Huq (informant) his wife, sons and daughter were crying, they narrated that the thieves took away their goods by entering into the house and the accused given a lathi blow on the head of Nasima, the daughter of the informant. He was not cross examined by the defence.

16. PW 5 Abdul Khalek in his examination in chief stated that the date of occurrence was 14-21999 at about I o’clock the occurrence took place in the house of Mahmudul Master. He went to the place of occurrence having heard the hue and cry and found that the informant and his sons and daughter were crying. They informed them that the thieves stoic away their goods by digging two holes when they entered into the house. Police seized one scarf (WR1) and old sandal, he put his signature on the seizure list. This witness was not also cross examined by the defence.

17. PW 6 Abul Kalam in his examination-in-chief stated that the occurrence took place on 14-2-1999 at about 1 o’clock at night. The police investigated the case on 16-2-1999, police seized one ladies sandal in his presence and obtained his signature on the seizure list. He identified his signature thereon. He was not also cross examined by the defence.

18. PW 7 SI Md Shakhawat Hossain in his examination in chief stated that on 14-2-1999 he was posted at Lalmohan police station, he was appointed investigation officer of the case. He visited the place of occurrence. prepared a sketch map along with index, recorded statement under section 164 of the Code of Criminal Procedure of the witnesses. He also arrested accused Siraj and arranged for recording his statement under section 164 of the Code of Criminal Procedure. He recovered one gold ear-ring and printed saree from his possession. In cross examination, he stated that accused Siraj did not disclose the name of accused Jamal in his confessional statement. He did not examine Dr Bimol during his investigation. He did not keep any certificate as to injured of Nasima, the daughter of the informant. He denied the suggestion that he entangled accused Jamal faisely in this case. The first information report was lodged on 16-2-1999 and the occurrence took place on 14-2-1999. The description of saree was not given in the first information report, ear-ring made of gold and printed saree were recovered from the residence of accused Siraj. No TI Parade was held by the members of the house of the informant as to the seized alamats, the recovered articles were not indentified by the members of the house of the informant. In the first information report the name of the accused was shown as unknown. He further stated that in the first information report it was stated that they could identify the accused if they see them further but no TI parade was arranged. He denied the suggestion that the seized articles from the possession of Siraj were not the stolen articles.

19. PW 8 Begum Smriti Rani Gharami, Magistrate, 1st Class, in the examination-in-chief stated that on 7-4-1999 she was posted as Magistrate, 1st Class, at Bhola and she recorded the statement under section 164 of the Code of Criminal Procedure of accused Siraj. She filled up the procedure of recording statement under section 164 of the Code of Criminal Procedure. She asked the question as per rules. She denied the suggestion that she did not give time to the accused before recording his statement.

20. These are all evidence adduced by the prosecution side. In this case PW I Mahmudul Haq is the informant, PW 2 Md Kamal, son of the informant, PWs 3 and 4 were formal local witnesses, PWs 5 and 6 were the seizure:: list witnesses and put their signature on the seizure list (which were seized from the house of the informant). PW 7 the investigation officer and PW 8 is the Magistrate, 1st Class who recorded statement of accused Siraj under section 164 of the Code of Criminal Procedure. From the evidence on record it is clear that neither in the first information report nor the witnesses in the dock disclosed any name of the accused persons. PW I the informant in his testimony categorically stated that some or the accused persons are from his village and also some arc his relatives but he did not mention them as an accused in this case. PW 2, the:: son of the informant, saw the occurrence as per prosecution story but he did not disclose any name of the accused person and other witnesses they did not see the occurrence. In this case only evidence before us is the 164 statement of accused Siraj which was recorded by PW 8 Magistrate, 1st Class. Now let us see the statement under section 164 of the accused Siraj, which runs as follows-

Avwg †m”Qvq, ¯^Áv‡b Avcbv‡K g¨wR‡óªU Rvwbqv ewj‡ZwQ †h, Avwg c~e©Pi D‡g` MÖv‡gi Bwi ¯‹x‡gi cvIqvi cv¤ú PvjvB| MZ †Kvievbx C‡`i Av‡M Avwg gy¸wiqv ev‡Ri Avgvi _vKvi RvqMvq iv‡Î ¸gvBqv wQjvg| ZvwiL Avgvi g‡b bvB| Gw`b MZiv‡Î Abygvb 11-30 Uvi mgq nvi“b, gwnDwÏb, wcZv-Rwni“wÏb †g¤^vi, mvs-c~e©Pi D‡g`, Avjx, nvweeyjvn wcZ- Avt gvbœvb, mvs-c~e©Pi D‡g`, wgRvb, wcZv-Avey gvIjvbv, mvs c~e©Pi D‡g`, evkvi †PŠayix, wcZv-gvRvnvi, mvs †j¸wUqv, Kvgi“j, wcZv-Rwni“j nK, mvs c~e©Pi D‡g` me©vbv-jvj‡gvnb, †Rjv-‡fvjv, Avgvi _vKvi RvqMvq Avwmqv ¸g nB‡Z DVvBqv e‡j †h, Pj& gvngy`yj nK gvóv‡ii evwo‡Z Avgv‡`i `vIqvZ Av‡Q| ZzBI Avgv‡`i mv‡_ hvwe| Avwg Zvnv‡`i K_vgZ †j¸wUqv MÖv‡gi gvngy`yj gvóv‡ii evwoi DVv‡b †M‡j Dc‡i ewY©Z †jv‡Kiv Avgv‡K e‡j †h, `vIqvZ LvB‡Z Avwm bvB| Pzwi Kwi‡Z AvwmqvwQ| ZLb Avjx, nvweeyjvn, nvi“b, evkvi I wgRvb `yBwU wmZ KvwUqv M‡i †Xv‡K| Avgiv Pvi Rb N‡ii evwn‡i `vovBqv _vwK|

(To be continued)

21. Admittedly except PWs 1 and 2 there is no ocular witness to the occurrence but both the witnesses could not identify the thieves. The witnesses, specially PWs I and 2 the only eye-witnesses, stated that they could not recognise any of the thieves even in the dock. There is, in fact, nothing on record to identify any of the appellants as the thieves. Furthermore, it is evident from the record that police claimed that they have apprehended one accused, namely Siraj, along with the stolen articles from that area but no test of identification parade was held to identify the thieves or to identify the alleged articles which have been recovered from the possession of the accused appellant Siraj. Of course, in such type of case where the informant stated in the first information report that he would be able to recognise the accused if he saw them again, the test of identification parade ought to have been held to identify the real culprits.

Thus in the absence of any test identification parade of the accused person and for the seized articles in order to identify the actual thief, the appellants cannot be labeled as the thief in the present case on mere suspicion. In this case the trial Court has relied solely on the Judicial confession of accused Siraj made under section 164 of the Code of Criminal Procedure, which has been marked as Exhibit 6. It appears that the learned Assistant Session Judge relied upon the 164 statement of accused Siraj and convicted and sentenced all the appellants.

22. Now let us see how far the confessional statement is true and voluntary and how far it was correct in relying upon the same in convicting all the appel1ants including those who have no such confession but were implicated by the alleged confessions by the co-accuseds.

23. The confessional statement of the accused has to be recorded under section 164 of the Code of Criminal Procedure, particularly in compliance with the provision of sub-section 3 of section 164 of the Code of Criminal Procedure. This sub-section speaks of the manner of recording of 164 statement and it is a mandatory provision That failure to comply with the same, the confession shall be invalid and unreliable. The provision of section 164 and provision of section 364 of the Code require to be strictly observed and followed to make the confession voluntary and true which can be the basis of conviction. It is to be considered that any defect arising out of violation of any mandatory provision of law is not curable under section 533 of the Code of Criminal Procedure.

24. Keeping in mind the above mentioned provision of law, let us now consider the 164 statement of accused Siraj in the instant case.’ We find from 1st column of the printed form that the accused was produced before the Magistrate in his office chamber on 7-4-1999 at 10-00 AM and he was arrested on 5-4-1999. It is evident from the form that there are some other vacant spaces and it was not filled up carefully. It appears that the translation of the printed questions appears to have been made not properly. From the form of the recording statement, it is clear that the Magistrate did not state when she started recording the statement. How much time she allowed the accused for reflection. So, on scrutiny of the above confessional statement, it is difficult for us to hold that the same was recorded in full compliance with the provision of 164(3) of the Code of Criminal Procedure and that the same is not voluntary and true. Hence the trial Court appears to have committed gross illegality in accepting the confessional statement as voluntary and true.

25. It is also evident from the 164 statement of the accused that the confessing accused did not take any active part in the commission of offence. He categorically stated that Avgiv Pvi Rb N‡ii evwn‡i `vovBqv _vwK So, it is clear that the confessional statement is exculpatory in nature and, as such, the same cannot be used against the maker of the same.

26. In the case of Md Akbar Ali vs State reported in 1999 BLD 268 it was held that:

“Formalities as provided under sections 164 and 364 of the Code have not been complied with in recording the confessional statement of the accused. It appears that the confessing accused made the confessional statement after coming from the police remand which in no way removes the doubt that said confessional statement is the product of threat, coercion and physical torture. Moreover, there is no independent evidence to corroborate the same. The confessional statement appears to be exculpatory having no active part in the occurrence by the confessing accused and, as such, the same cannot be used against its maker and, as such, the conviction cannot be sustained on the basis of said confessional statement.”

This view receives support in the cases of Zakir Hossain vs State, reported in 55 DLR 137, case of Halim vs State, reported in 8 BLC 19.

27. It appears that the learned trial judge wrongly accepted the confessional statement of the accused Siraj as true and voluntary. It has already been settled that confession of an accused can be used against its maker if it is found true, voluntary and inculpatory in nature but it cannot be used against any other co-accused without any corroborative evidence.

28. In the case of Ustar Ali vs State reported in 3 BLC (AD) 53, it was held that:

“Confession of an accused is not a substantive piece of evidence against the coaccused and such evidence alone without substantive corroborative evidence cannot form the basis of conviction of a co-accused.”

Same view receives support in the cases of Emran Ali vs State reported in 37 DLR 1, Lutfur Nahar Begum vs State reported in 27 DLR (AD) 29, Babar Ali Molla vs State reported in 44 DLR (AD) 10, Rezaul Karim (Md) alias Rezaul Alam Rickshawala, reported in 55 DLR 382,

29. Considering all the facts and circumstances, we are led to hold that the learned trial Court failed to consider the aforesaid anomalies in order to hold the accused appellants guilty of the offence charged with and, as such, the order of conviction and sentence passed by the learned Assistant Sessions Judge, 2nd Court, Bhola is hereby set aside.

30. In the result, the appeals are allowed and accused appellants are acquitted from the charge.

Send down the lower Court records along with a Copy of the judgment.

2008(XVI) BLT (HCD) 308

High Court Division

[Criminal]

Present:

Mr. Justice Khademul Islam Chowdhury

And

Mr. Justice Mashuque Hossain Ahmed

Criminal Misc. No. 278 of 2008

Abdur Rashid, t Petitioner

- Versus-

The State, t Opposite Party

Mr. Khandaker Mahbub

Hossain, Advocate, t. for the Petitioner

Mr. Abdur Rouf, D.A.G.

with Mr. Khandaker

Diliruzzaman, A.A.G. t. For the State

Heard on 28.5.2008

Judgment on 29.5.2008

Code of Criminal Procedure, 1898

Section-498 read with

Anti Corruption Rules, 2007

Rule-16(1),

Arrest of Government servant in anticorruption drive to catch hold of any person or persons red-handed connected with the offence by any Police Officer not duly empowered by the Commission or the Commissioner in charge of the commission in laying the trap and conducting the trap operation by abusing official power is a wild goose chase which, by itself tantamounts to corruption therefore, and such exercise by police officer not empowered by the Commission as has been done in the instant case is prima-facie, mala fide and repressive and liable to be struck clown and accused petitioner unlawfully arrested and detained is liable to, be released on bail despite bar to seek bail under Rule 19(Gha)' of the Emergency Power Rules, 2007. [Para-9]

Judgment

Mr. Khademul Islam Chowdhury. J: This Rule at the instance of accused petitioner Abdur Rashid calling upon the Deputy Commissioner, Gopalganj to show cause as to why the accused petitioner should not be enlarged on bail in G.K. No. 87 of 2007 arising out of Gopalganj Police Station Case No.6(4)07 under section 5(2) of the Preventionof Corruption Act, 1947 read with section 161 of the Penal Code, now pending in the Court of Chief Judicial Magistrate, Gopalganj.

2. The prosecution case, in short, is that one Muhammad Masudul Haque S.l. of Police Gopalganj thana as informant on 5.4.2007 lodged the First Information Report with Gopalganj Police Station against accused petitioner who is the Deputy Assistant Settlement Officer and co-accused draftsman Ali Ahmed alleging, inter alia, that Law Enforcement Agency on getting information of illegal transaction of bribe over preparation of record of right at Settlement Office, Gopalgonj, on the basis of a G.D. entry filed by Asgar All, Sub Inspector of police of Gopalganj thana, in order to prevent offence under the leadership of Combined Forces went to the place of occurrence and laid ambush nearby. As soon as bribe money of Taka 3000/- (three thousand) was received by the Deputy Assistant Settlement Officer and co-accused in collusion with each other from one Kamal Sheikh on 5.4.2007 at I 1.20 in terms of 6(six) Bangladeshi currency notes of taka 500/- bearing numbers LU51626, f9823664, K-684179, fk-8030885, b-8321147, LU-4506469, 500 hundred taka each they were caught red - handed by the members of the law enforcement agencies and sum of Taka 36,500/- was recovered from the pant pocket of the accused-petitioner and Taka 540 was recovered from the pant of accused Ali Ahmed along with two mobile sets and one sprint mobile were also seized as alamots in presence or Magistrate, by preparing seizure list. 3. On receipt of the FIR Gopalgonj Police Station Case No.6 dated 5.4.2007 under Section 161 read with section 5(2) of the Prevention of Corruption Act, 1947 was started.

4. Mr. Khandaker Mahbub Hossain, the learned Advocate appearing for the accused petitioner, submits that accused petitioner is innocent and committed no offence. Alleged story of recovery of bribe from possession of the accused petitioner concocted and planted at the behest of interested quarter only to harass and victimise the accused petitioner. The accused petitioner languished in jail since his arrest on 5.4.2007.

S. The learned A.A.G. vehemently opposes the prayer for bail and submits this offence that the accused petitioner was caught red-handed with bribe money received by him and the bribe money was recovered from him and offence being specified in the schedule of Anti-Corruption Act still under investigation is barred from seeking bail.

6. It appears that under section 2(C) Corruption means the offence specified in the schedule Act, i.e. Anti-Corruption Act, 2004, distinct, well defined and distinct procedure of trap case has been laid down in Rule 16 under Chapter VII of the Anti-Corruption Rules 2007.

Sub-Rule-(I) of Rule 16 provides that with a view to preventing corruption only an officer empowered by the Commissioner in Charge, for the purpose to catch hold red handed any person or persons connected with the offence specified in the schedule of the Act, with prior approval of the Commission in Charge can lay the trap and conduct the trap operation and no one else.

7. It is to be noted that under Rule 2(g) of the Anti-Corruption Commission Rules, 2007 investigation proceedings in respect of commission of an offence specified in the schedule of the Anti-Corruption Act, 2004 is to be conducted by the Commission of any person empowered by it for the collection of evidences as distinguished from investigation proceedings into any cognisable offence under Section 4(1)(J) and the Code of Criminal Procedure conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.

8. The prerequisites attached to scheme of trap case with a view to preventing corruption for the purpose to catch hold red-handed any person or persons connected with the offences specified in the schedule of the Act provides safety measure to the honest and innocent government official in the discharge of duty from harassment and victimisation in the hands of unscrupulous elements and this being beneficial must be strictly observed and adhered to.

9. Arrest of Government servant in anticorruption drive to catch hold any person or persons red-handed connected with the offence by any police officer not duly empowered by the Commission or the Commissioner in charge of the commission in laying the trap and conducting the trap operation by abusing official power is wild goose chase which by itself tantamounts to corruption therefore, and such exercise by police officer not empowered by the Commission as has been done in the instant case is prima-facie, malafide and repressive and liable to be struck down and accused petitioner unlawfully arrested and detained is liable to be released on bail despite bar to seek bail under Rule 19(Gha) of the Emergency Power Rules, 2007.

10. In a recent case of State versus Moyez Uddin Sikder and others the Appellate Division has ruled as:-

"(2) The High Court Division misdirected itself in entertaining the objection on the bar under Rule 19(Gha) of the Emergency Power Rules, 2007 and in embarking upon deciding the issue as a general proposition divorced from the facts of the case in view of the principle that 'general propositions do not decide concrete cases.'

(3) Regardless of the ouster of the jurisdiction there may be cases depending on the facts of each case making out a case of without jurisdiction, coram non-judice or malafide and finding of the court to that effect upon final adjudication and determination and then in those cases the bar in Rule 19(Gha) in granting bail under Section 498 of the Code of Criminal Procedure will not apply."

11. It appears alleged recovery of Tk. 36,500/- from the possession of the accused petitioner just after giving it as bribe is dubious and casts serious doubt on the transaction. It further appears the High Court Division enlarged co-accused on bail in view of the fact that Tk.36,500/- was recovered from the possession of the coaccused (accused-petitioner) just after giving bribe. There is no material on record to show that photocopies of 6(six) currency notes of Tk.500/- each were prepared before giving the same to the accused petitioner as bribe. The F.I.R. was lodged on 5.4.2007 with statement in the body of the F.I.R. that it is sent to Anti-Corruption Commission on the very date but learned Assistant Attorney General is unable to say as to whether investigation report has been submitted on completion of the investigation or any trial commenced in the meantime.

12. In view of the above, we find substance in this Rule.

Accordingly, the Rule is made absolute.

13. Let the accused petitioner Abdur Rashid, son late Idris Ali be enlarged on bail to the satisfaction of the Chief Judicial Magistrate, Gopalgonj.