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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.