Present:

Mr. Justice Md. Nazrul Islam Talukder And

Mr. Justice K.M. Hafizul Alam

Criminal Miscellaneous Case No.11914 of 2008

Syed Galib Ahmed and another

........ Accused-petitioners. -Versus-

The State and another

....... Opposite parties. Mr. Ajmalul Hossain, Senior Advocate with Mr. Ahsanul Karim, Advocate

Mr. Khairul Alam Chowdhury, Advocate and Mr. Aminul Hoque, Advocate

....... For the Accused-petitioners. Mr. A.K.M. Amin Uddin, D.A.G with

Ms. Helena Begum (China), A.A.G.

……. For the State-opposite party. Mr. Md. Khurshid Alam Khan, Advocate,

.........For Anti-Corruption Commission.

Heard on 16.10.2018, 07.11.2018, 08.11.2018, 11.11.2018

Judgment on: 25.11.2018.

Md. Nazrul Islam Talukder, J:

On an  application  under Section  561A of the

Code of Criminal Procedure, this Rule, at the instance

of the accused-petitioners, was issued calling upon the opposite-parties to show cause as to why the proceeding of Special Case No.04 of 2008 arising out of Metropolitan Special Case No.62 of 2008 corresponding to A.C.C. G.R. No.88 of 2007 arising out of Tejgaon Police Station Case No.05 of 2007 dated 02.09.2007 under Sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947,  now pending in the Court of learned Special Judge, Court No.3, Dhaka so far as it relates to the accused petitioners, should not be quashed and/or pass such other or further order or orders as

to this Court may seem fit and proper.

The prosecution case in short, is that, on 02.09.2007, one Golam Sarwer Choudhury, Deputy Director of the Anti-Corruption Commission being informant lodged an F.I.R. with Tejgaon Police Station

against the accused-petitioners and others under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947, alleging, inter alia, that the Government decided to handle the container of ICD Dhaka and Chittagong Port through a contractor. Accordingly, Chittagong Port Authority issued tender notice on 1.3.2003 incorporating some terms and conditions therewith. Pursuant to the said tender notice, Global Agro Trade (Pvt.) Company Limited (GATCO) along with others submitted bids before the concerned authority. The Technical Evaluation Committee of the tendering authority found the GATCO as lowest bidder. Though GATCO did not have any previous experience in handling container, the committee declared GATCO responsive and recommended the same to the CHittgaong Port Authority. Thereafter, following the process, the same was placed before the Ministry of

Shipping for consideration. The Ministerial Committee

of the Ministry of Shipping refused to accept the recommendation and proposed to issue retender

notice. Then the proposal of the Ministerial Committee was placed to the Prime Minister’s office.

On 06.12.2003, the then Prime Minister Begum

Khaleda  Zia returned  the matter to  the Ministerial Committee for reconsideration. At the relevant time,

Lt. col. Retd. Akbar Hossain was the Minister of the Ministry of Shipping while the accused Ismail Hossain Saimon is his son. Accused Ismail Hossain Saimon contacted with Arafat Rahman (Coko) son of the then

Prime Minister seeking help to get the contract. Then

accused Arafat Rahman (Coko) demanded half of the

money to be received by accused Ismail Hossain

Saimon from GATCO in order to get a              positive      order by influencing his mother.  Accused

Ismail Hossain Saimon accepted the proposal and

accordingly, accused Arafat Rahman (Coko) upon influencing his mother, the then Prime Minister of the Republic Begum Khaleda Zia, managed to get the recommendation of the Tender Evaluation Committee approved by rejecting the earlier decision of the Ministerial Committee for issuing retender notice. The accused-petitioner No.1-Managing Director of GATCO as well as the accused-petitioner No.2-Director of GATCO, at the time of holding inquiry over the matter, admitted that they had paid Taka 2,19,45,091 to accused Ismail Hossain Saimon for influencing the then Prime Minister. The then Prime Minister Begum Khaleda Zia, in collusion with other accused, allowed GATCO, an inexperienced company for handling operation of Chittagong Port and ICD, Dhaka which caused loss more than Tk.1,000 crore to the State. Hence, the FIR.

After initiation of the FIR, on 13.05.2008, the Anti-Corruption Commission after holding investigation having found prima-facie case submitted charge-sheet against the accused petitioners and others under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947.

The investigating officer after obtaining sanction from the Commission submitted charge-sheet along with the sanction before the Chief Metropolitan Magistrate, Dhaka.

After submission of the Charge-sheet, the case record was transmitted to the Court of Metropolitan Senior Special Judge, Dhaka and the case was registered as Metro Special Case No.62 of 2008. Accordingly, on 15.05.2008, the learned Metropolitan Senior Special Judge, Dhaka took cognizance against the accused-petitioners and others under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 (Act No. II of 1947).

Thereafter, the learned Metropolitan Senior Special Judge, Dhaka transferred the case record to the Court of learned Special Judge, Court No.3, Dhaka and the case was registered as Special Case No.4 of 2008.

It may be noted that the present accused- petitioners and one of the co-accused namely Ismail Hossain Saimon gave the confessional statements before the Metropolitan Magistrate, Dhaka.

The confessional statement of accused- petitioner No.1 Syed Galib Ahmed reads as follows:-

m~Ît †ZRMuvI _vbvi gvgjv bs 5(9)07

Bangladesh Form No. 3859

FORM No. (M) 84

Form of Recording confessions or statements under section 164 of the Code of

Criminal Procedure

Illegibl Before G. ‡R. Gg. Avãyj‡¨nj evKx  Magistrate of

e

In Subdivision   XvKv of District

1. The accused ‰mq` Mvwje Avn‡g`is brought by  †gvn¤§` Rwniæj û`v Dc-cwiPvjK, `y`K, XvK v Police  (Sub) Inspector before

(Head) Constable 

me at my Court

HCaomuspe at (a) Lvm Kvgov  on the ( b) 23/09/07

a. m.. confession

at (c) 2.00 p. m      to have his statement recorded.

mleettmero given to me, dated 23/09/07 from the (d) `~b©xwZ `gb Kwgkb, XvKv  is attached to the record.

I have ascertained that the offence was committed at (a) cÖavb gš¿xi

Kvh©vjq, XvKv I Ab¨bv¨ ¯’vb   on (b) 1/3/03 †_‡K 31/12/06 ch©šZ

a. m..

at (c) p. m

Avmvgx‡K eywS‡q ‡`Iqv n‡q‡Q ‡h, wZwb †`vl ¯x^Kvi Ki‡Z eva¨ bb| wewa †gvZv‡eK g³ y wPšZv Kivi mgq †`Iqv n‡q‡Q| Avkcv‡k cywjk wQj bv|

¯^v: A¯ú÷

23/09/07

mxj _________________________________________ __

(a)     Here insert name of place.

(b)    Here insert date.

(c)     Here insert time.

(d)    Here insert officer’s designation.

Illegible  2. The accused is asked details as to the length of time

during which and places where he has been under the control of the Police.

first placed under observation

I was  detained  at (e)  13.00 a. m.

arrested√ p. m.

village

on  22/09/07 in town √ of Avmvgxi wbR

city

evm¯’vb, bvLvj cvov, XvKv

I was taken to ( f) at ‡ZRMuvI _vbo vn 22/09/07 I was sent to you from ( e) ‡ZRMuvI _vb  v on

23/09/07

3. Having talked with accused explaining to him each of  the  matters  mentioned  in  paragraph  5  hereunder and cautioned him that he ought to reflect carefully before  making  any  statement  I  have  placed  him  in charge of

wjUb

                  Peon

                                       Armed Police Constable

and directed the accused to wait in Lvm Kvgiv in  order  that  he  may  have  time  to  reflect  before

making any statement.

4. I have satisfied myself that there is no police in the Court any place

whence the proceedings can be seen or heard, except the above named. 

wcqb  wjUb who have /has not been

concerned in the investigation of the crime or in the arrest or production of the accused.

5. I now carefully explain afresh to the accused:-

(1)  that  I  am  not  an  officer  of  Police  but  a

Magistrate;

•    (2) that he is not bound to make a confession ;

•    (3) that if the does make a confession it may be used in evidence against him;

•    (4) that he should not say anything because others have told him to say it but is at liberty to say

whatever he really desires to say;

•    (5) that he should say nothing which is untrue;

and  I  sign  my  name  hereunder  in  token  that  these matters have been fully explained and that he appears to me to understand them.

¯^v: A¯ú÷ 23/09/07

Signature Illegible     (Signature of Magistrate,)

mxj

(e) Insert time in accused’s own language; also date and place.

(f) Give place, time and date.

Illegible 6. In order to ascertain whether the accused is prepared

to  make  a  statement  of  his  own  free  will,  he  is  next examined as follows :-

Questions.

Answers and any further statement

made by the

Accused.

1|  cÖt Avwg g¨vwR‡óªU, cywjk bB Rv‡bb wK? Dtnu©¨v Rvwb|

2| cÖt Avcwb †`vl ¯x^Kvi K‡ib Avi bvB K‡ib Avcbv‡K

cywj‡k †`Iqv n‡e bv Rv‡bb wK? Dt nu©¨v Rvwb|

3|  cÖt †`vl ¯x^Kvi Avcbvi wei‡y× p¡rÉ wnmv‡e e¨eüZ

n‡Z cv‡i Rv‡bb wK? Dt nu¨v Rvwb  |

4|  cÖt †`vl¯^xKvi Ki‡Z Avcbv‡K †Kvb fxwZ, Pvc, ev

c‡Öjvfb ‡`Iqv n‡q‡Q wK?  Dt bv|

5|  cÖt Avcwb †`vl ¯^xKvi Ki‡Qb †Kb ? Dt mZ¨ ejvi Rb¨|

7. Record of statement made-

The statement of  ‰mq` Mvwje Avn‡g` aged about  

Years, made in the evsjv  language

My name is  ‰mq` Mvwje Avn‡g`

My father’s name is  ‰mq` †gvt Kvqmvi

I am by caste  gymjgvb  and by occupation  e¨emv My home is at Mauza  117, e¨vsKvim †ivW Police-station ‡ZRMuv  I

cwðg bvLvj cvov,

District   XvKv|  I reside at  bvLvjcvov, †ZRMuvI  |

3 N›Uv mgq ‡`Iqvi ci Revbew›`

Avwg I gš¿x K‡b©j AvKei †nv‡mb Gi †Q‡j mvqgb

GK‡Î Av`gRx I †m›U †Rv‡md ¯‹‡ zj †jLvcov K‡iwQ|

ebvbx c~ivZb wWIGBPGm-G Avgv‡`i evmv mvqgb‡`i evmvi GjvKvq wQj| Gfv‡e mvgqg‡bi mv‡_ eÜzZ¡ nq| Avgvi `~im¤ú‡K©i PvPv kïo Rbve Avbnvi †PŠayix Avgvi I mvqg‡bi eÜzZ¡ welq Rvb‡Zb 

(** AwZwi³ e³e¨ mv`v KvM‡R)

Statement

[Note- This should be taken down as nearly as possible in the words of the accused and whenever a question is put to him the question should be recorded together with the answer. If the statement is long, foolscap sheets serially numbered may be inserted here for the purpose, provided the statement beings and also ends and is signed on the form itself.]

 ¯^v: mxj A¯ú÷ 23/09/07

Gfv‡e †Rvo ce~K© mvqgb Rvby/07 fk¿Ñ ¹UvKv Av`vq Ki‡Z _v‡K hvi cwigvb Kg‡ekx 2,19,45,091/- UvKv|

‰mq` Mvwje Avn‡g`

 (Signature mark of the accused.)

¯^v: mxj A¯ú÷

23/09/07

(Signature of the Magistrate.)

I have studied carefully the provisions of Rule 23 of the High Court’s General Rules and Circular Orders Chapter I, Volume I (Criminal), and have observed strictly the directions therein,. I have also applied strictly the provisions of section 164 of the Criminal

Procedure Code.

I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it an admitted by him to the correct, and it contains a full and true account of the statement made by him.

¯^v: mxj A¯ú÷

23/09/07

(Signature of the Magistrate.)

8. Brief statement of Magistrate’s reason for

believing that the statement of voluntarily made.

Illegible  [Note.- Any complaints of ill-treatment or injuries

noticed on the accused or referred to by the accused should appear under paragraphs 6 and 7 but should be specifically noticed here and the action taken by the Magistrate thereon should be mentioned. When the confession is recorded otherwise than in the Court building and during Court hours the Magistrate’s reasons are likewise to be recorded here.]

Avmvgx ‡¯P^Qvq, ¯Z^:ù zZ©fv‡e †`vl ¯^xKvi K‡ib| ¯^v: mxj A¯ú÷

23/09/07

9. If at any stage shall appear to the Magistrate that the statement made or about to be made by the accused is not voluntary, the Magistrate shall forth with record order hereunder discontinuing the proceeding under section 164. Criminal Procedure Code, and stating reasons therefore.

Avmvgx †`vl ¯^xKvi †¯” ^Qvq nIqvq ‡Kvb weiwZ Qvov wjwce× Kiv n‡jv|

10. The accused is forwarded to  XvKv ‡Rj nvRZ at XvKv,

5.45 Uv

¯^v: A¯ú÷ 23/09/07

 (Signature of Magistrate)

[Note.- The form to be used by Magistrates recording confessions is the one _ the appropriate Rules in margin.]

** (AwZwi³ e³e¨)

Rbve Avbnvi †PŠt K¬vwmK Ki‡cv‡ik‡bi WvB‡i±i wQ‡jb

I Kb‡UBbvi n¨vÛwjs Kv‡R AwfÁZv wQj| †bŠ-cwienb gš¿bvj‡qi  Aax‡b PÆMÖvg e›`i KZ„c ©‡ÿi Kb‡UBbvi n¨vÛwjs

wVKv`vix Kv‡R †UÛvi †Nvlbv n‡j Avbnvi †PŠayix Avgvi wbKU e¨emvi fÙй¡h wb‡q Av‡mb Ges e‡jb GB †UÛviwU wZwb Kgwc‡UwUf n‡Z cvi‡eb Z‡e KvRwU a‡i ivLvi Rb¨  wmweG †bZv‡`i K‡›Uªvj I KvRwU hv‡Z wi‡UÛvi bv nq (A‡b¨i Øviv cÖfvweZ n‡q) Zvi Rb¨ AvKei †nv‡mb Gi ‡Q‡j BmgvBj ‡nv‡mb mvqg‡bi mn‡hvMxZv c‡ ÖqvRb|  Avbnvi †PŠayix Avgvi cwÖZôvb

M¨vU‡Kv‡Z †hvM`vb c~e©K Av‡jvP¨ †UÛv‡ii e¨emvi fÙй¡h †`b|

Gici  mvqg‡bi mv‡_  †`Lv  Kwi Ges ewj  wkwcs  gš¿bvj‡qi

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wi‡UÛvi Ki‡Z bv cv‡i  ‡m welqwU †m †Lqvj ivL‡e| Z‡e

M¨vU‡Kv‡K Lowest n‡Z n‡e Ges Zv‡K 51 kZvsk †kqvi w`‡Z

n‡e e‡j Rvbvq| c‡i Avgiv mvqg‡bi K_vg‡Zv webvg‡ ~j¨ 51%

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nq| 

Avgiv Gici †UÛv‡i AskMÖnb Kwi| †UÛv‡i  Avgiv

Lowest nB| Bnv Aby‡gv`‡bi Rb¨ gš¿xmfv KwgwU‡Z ‡ciÖb Kiv

nq| miKvix µq pwœ²¡¿¹ gš¿xmfv KwgwU‡Z Rbve mvBdiz ingvb

(gš¿x) e¨vcviwU we¯ZvwiZ Z‡ zj a‡i cÖ¯ZvewU bv‡KvP K‡i ‡`b|

mvBdzi ingvb mv‡n‡ei c~Î kwdDi ingvb evey m¤¢eZ †ewmK BwÄwbqvwis Gi mv‡_ 2nd lowest bidder Gi wbKU †_‡K

Avw_©K myweav wb‡q‡Q| GRb¨ Rbve mvBdzi ingvb‡K cÖfvweZ K‡i fÙй¡h¢V bvKP K‡i w`‡q‡Q| cvi‡PR KwgwU‡Z ¢pÜ¡¿¹¢V bvKP

nIqvi ci mvqgb Avgv‡K AewnZ K‡i Ges e‡j †h cÖavbgš¿xi

†Q‡j AvivdvZ ingvb †Kv‡Kv‡K Zv‡`i mv‡_ m¤ú³ „ Ki‡j Zvi

gv †eMg Lv‡j`v wRqv wi‡UÛvi welqwU bvKP K‡i w`‡j Avgiv KvRwU cv‡ev| Avwg mvqgb‡K ewj Avgvi wKQz ejvi bvB ZzB †hUv fvj g‡b Kwim †mUvB Ki| †m ‡gvZv‡eK mvqgb AvivdvZ ingvb‡K GB Kv‡Ri mv‡_ involve K‡i Ges mvqgb Avgv‡K

Rvbvq ‡Kv‡Kv‡K UvKv w`‡Z n‡e| GB Ae¯v ’q Avwg ewj eÜz

‡Zvgv‡K webvg‡ ~j¨ 51% †kqvi w`‡qwQ †Kv‡Kv‡K UvKv w`‡Z n‡j Avgvi Avi †Kvb e¨emv _v‡K bv| ZLb mvqgb e‡j Zvi Ask

†_‡K †Kv‡Kv‡K UvKv w`‡e| †m e‡j ‡Zvgvi KwgU‡g›U n‡e K_v g‡Zv UvKv w`‡Z n‡e| mvqgb †Kv‡Kv‡K w`‡q Zvi gv‡qi gva¨‡g wi‡UÛv‡ii fÙй¡h¢V bvKP Kivq| Ges cieZ©x cvi‡PR KwgwU‡Z

Avgv‡`i fÐÙ ¹¡Ahby‡gvw`Z nq|

Gici PÆMÖvg e›`i La«Ñf­rl mv‡_ M¨vU‡Kvi Pzw³ m¤úvw`Z nq|  2 wW‡m¤^i 2004 Avgiv KvR öl¦ Kwi| Rvby/2005 †_‡K mvqgb cwÖZgv‡m 10 mr UvKv `vex K‡i| 1g 6 gvm c‡ÖR± Gi  bvbv Li‡Pi Kvi‡b 10 mr K‡i UvKv w`‡Z

cvwiwb Gi c‡i cwÖZgv‡m mvqgb Avgvi wbKU †_‡K AwaK UvKv ‡Rvoc~eK© Av`vq Ki‡Z _v‡K hvi cwigvb †Kvb gv‡m 16 mr,

†Kvb gv‡m 14 mr UvKv| Gfv‡e †Rvo ce~©K mvqgb Rvby/07

fkÑ¿ ¹UvKv Av`vq Ki‡Z _v‡K hvi cwigvb  Kg‡ekx

2,19,45,091/- UvKv|

 ˆmq` Mvwje Avn‡g` (ü¡r£l ü¡rl)

¯^v: A¯ú÷ 23/9/07

The confessional statement of accused petitioner No.2 Syed Tanvir Ahmed reads as follows:

m~Ît †ZRMuvI _vbvi gvgjv bs 5(9)07

Bangladesh Form No. 3859

FORM No. (M) 84

Form of Recording confessions or statements under section 164 of the Code of

Criminal Procedure

Illegible Before G. ‡R. Gg. Avãyj‡¨nj evKx  Magistrate of

‡g‡UªvcwjUvb g¨vwR‡óªU, XvKv

the first class

the second class specially empowered in this behalf

In Subdivision   XvKv of District

1. The accused  ‰mq` Zvbwfi Avn‡g`is brought by  †gvn¤§` S¢ql¦m û`v Dc-cwiPvjK, `y`K, XvK v  Police  (Sub) Inspector 

(Head) Constable

before me at my Court

Camp at (a) Lvm Kvgov  on the ( b) 23/09/07 House

at (c) 1.00   a. m..      to have his statement recorded.

confession

 p. m

letter

memo given to me, dated 23/9/07 from the (d) `~b©xwZ `gb

Kwgkb, XvKv  is attached to the record.

I have ascertained that the offence was committed at (a) cÖavb gš¿xi Kvh©vjq, XvKv|I Ab¨bv¨ ¯’v‡b  on (b) 1/3/03 †_‡K 31/12/06 at (c)

ap. .mm..

Avmvgx‡K eywS‡q ‡`Iqv n‡q‡Q wZwb †`vl ¯^xKvi Ki‡Z eva¨ bb| wewa †gvZv‡eK g³ ywPšÍv Kivi  mgq †`Iqv

n‡q‡Q| Avkcv‡k cywjk wQj bv|

¯^v: A¯ú÷

23/9/07

mxj _________________________________________ __

(d)    Here insert name of place.

(e)     Here insert date.

(f)     Here insert time.

(d) Here insert officer’s designation.

Illegible 2. The accused is asked details as to the length of time

during which and places where he has been under the control of the Police.

first placed under observation detained a. m.

I was arrested√ at (e) 13.00 p. m.

village

on  22/09/07 in town √ of Avmvgxi wbR evm¯’vb,

city

bvLvj cvov,

I was taken to ( f) ‡ZRMuvI _vb a vt on 22/09/07

I was sent to you from ( e)  ‡ZRMvuI _vbv on

23/09/07

3. Having talked with accused explaining to him each of the  matters  mentioned  in  paragraph  5  hereunder  and cautioned  him that  he ought to reflect carefully before making any statement I have placed him in charge of

wjUb

                  Peon

                                       Armed Police Constable

and directed the accused to wait in Lvm Kvgiv

in order that he may have time to reflect before making any statement.

4. I have satisfied myself that there is no police in the Court any place

whence the proceedings can be seen or heard, except the above named. 

wcqb   wjUb who have /has not been

concerned in the investigation of the crime or in the arrest or production of the accused.

5. I now carefully explain afresh to the accused:-

(1) that I am not an officer of Police but a Magistrate;

•    (2) that he is not bound to make a confession ;

•    (3) that if the does make a confession it may be used in evidence against him;

•    (4) that he should not say anything because others have  told  him  to  say  it  but  is  at  liberty  to  say whatever he really desires to say;

•    (5) that he should say nothing which is untrue;

and I sign my name hereunder in token that these matters have been fully explained and that he appears to me to understand them.

ü¡: A¯ú÷

23/9/07

Signature Illegible     (Signature of Magistrate,)

mxj

(e) Insert time in accused’s own language; also date and place.

(f) Give place, time and date.

Illegible  6. In order to ascertain whether the accused is prepared

to  make  a  statement  of  his  own  free  will,  he  is  next examined as follows :-

Questions.

Answers and any further statement

made by the

Accused.

1| cÖt Avwg g¨vwR‡óªU, cywjk bB Rv‡bb wK? Dt nu©¨

Rvwb|

2| cÖt Avcwb †`vl ¯^xKvi K‡ib Avi bvB K‡ib Avcbv‡K

cywj‡k †`Iqv n‡e bv/`y`‡ yKi Awdmv‡ii wbKU †`Iqv

n‡e bv Rv‡bb wK?  Dt nu©¨v Rvwb |

3| cÖt Avcbvi †`vl ¯^xKvi Avcbvi ¢hl¦­Ü p¡rÉ wnmv‡e e¨eüZ n‡Z cv‡i Rv‡bb wK? Dt nu¨v Rvwb|

4| cÖt †`vl¯^xKvi Ki‡Z Avcbv‡K †Kvb fxwZ, Pvc ev

c‡Öjvfb ‡`Iqv n‡q‡Q wK? Dt bv|

5| cÖt Avcwb †`vl ¯^xKvi Ki‡Qb †Kb ? Dt mZ¨ ejvi

Rb¨|

7. Record of statement made-

The statement of ‰mq` Zvbfxi Avn‡g` aged about 37

ermi

Years, made in the evsjv language

My name is ‰mq` Zvbfxi Avn‡g`

My father’s name is ‰mq` †gvt Kvqmvi

I am by caste gymjgvb  and by occupation e¨emv My home is at Mauza 117, e¨vsKvim †iv, Police-station

‡ZRMuvI

District XvKv|     I reside at bvLvjcvov, †ZRMuvI |

3 N›Uv mgq ‡`Iqvi ci Revbew›`

mv‡eK gš¿x AvKei †nv‡m‡bi †Q‡j mvBgb I Avgvi ‡QvU fvB ˆmq` Mvwje Avn‡g` GK‡Î ¯‹‡ zj †jLvcov Ki‡Zv

Av`gRx ¯‹zj I †m›U †Rv‡md ¯‹‡ zj| GKmgq cyivZb wWIGBPGm GjvKvi cvkvcvwk GKB GjvKvq emevm KiZvg| ‡mB m‡ ~Î Mvwj‡ei mv‡_ mvBg‡bi eÜzZ¡|

(** AwZwi³ e³e¨ mv`v ) KvM‡R

Statement

[Note- This should be taken down as nearly as possible in the words of the accused and whenever a question is put to him the question should be recorded together with the answer. If the statement is long, foolscap sheets serially numbered may be inserted here for the purpose, provided the statement beings and also ends and is signed on the form itself.]

 ü¡: mxj A¯ú÷

23/09/07

GB welqwU Avwg Avgvi †QvU fvB‡qi wbKU †_‡K AewnZ n‡qwQ|

SYED TANVEER AHMED

23/9/07

 (Signature mark of the accused.)

¯^v: mxj A¯ú÷

23/9/07

(Signature of the Magistrate.)

I have studied carefully the provisions of Rule 23 of the High Court’s General Rules and Circular Orders Chapter I, Volume I (Criminal), and have observed strictly the directions therein,. I have also applied strictly the provisions of section 164 of the Criminal Procedure Code.

I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it an admitted by him to the correct, and it  contains  a  full  and  true  account  of the  statement made by him.

¯^v: mxj A¯ú÷

23/9/07

(Signature of the Magistrate.)

8. Brief statement of Magistrate’s reason for believing

that the statement of voluntarily made.

Illegible [Note.- Any complaints of ill-treatment or injuries noticed

on the accused or referred to by the accused should appear under paragraphs  6 and 7 but should be specifically noticed here and the action taken by the Magistrate thereon should be mentioned. When the confession is recorded otherwise than in the Court building and during Court hours the Magistrate’s reasons are likewise to be recorded here.]

Avmvgx ‡¯P^Qvq, ¯c^‡Öbvw`‡q n‡q Revbew›` cÖ`vb K‡ib|

¯^v: mxj A¯ú÷

23/9/07

9. If at any stage shall appear to the Magistrate that the statement made or about to be made by the accused is not voluntary, the Magistrate shall forth with record order hereunder discontinuing the proceeding under section 164. Criminal Procedure Code, and stating reasons therefore.

Avmvgx Revbew›` †¯” ^Qvq cÖ`vb Kivq ‡Kvb weiwZ Qvov wjwce× Kiv n‡jv|

10. The accused is forwarded to  XvKv ‡Rj nvRZ  at 4.30Uv

¯^v: A¯ú÷

23/9/07

 (Signature of Magistrate)

[Note.- The form to be used by Magistrates recording confessions is the one _ the appropriate Rules in margin.]

** (AwZwi³ e³e¨..)

Mvwj‡ei PvPv k¦ïo (`yi m¤ú‡K©i) Rbve Avbnvi ‡PŠayix Zv‡`i

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welqwU Avwg Avgvi ‡QvU fvB‡qi wbKU †_‡K AewnZ n‡qwQ|

SYED TANVEER AHMED

(ü¡r£l ü¡rl)

ü¡: A¯ú÷ 23/9/07

The confessional statement of co-accused Ismail Hossain Saimon runs as follows:

m~Ît †ZRMuvI _vbvi gvgjv bs 5(9)07

aviv: 409/109 `twet I 1947 mv‡ji `~b©xwZ cÖwZ‡iva AvB‡bi 5(2) aviv, `twet 409/109 aviv

Bangladesh Form No. 3859

FORM No. (M) 84

Form of Recording confessions or statements under section 164 of the Code of

Criminal Procedure

Illeg Before Gm.Gg. †di ‡`Šm Avjg  Magistrate of        ible  ‡g‡UªvcwjUvb g¨vwR‡óªU  (AvBwW bs-6058)

gyL¨ gnvbMi nvwKg Av`vjZ, XvKv

the first class

the second class specially empowered in this behalf

In Subdivision    of  XvKv District

1. The accused  BmgvBj †nv‡mb (mvqgb) (36)is brought by

†gvt QvbvDjøvn Ks bs-9102 Police (H(Seuabd))  ICnsopnesctatobrle before me at my

Court HCaomuspe at (a) wbR Lvm Kvgiv  on the ( b) 24/09/07 at (c) 2.30 a. m..      to have his costnafteesmsieonnt recorded.

p. m

mleettmero given to me, dated 24/9/07 from the (d)

is attached to the record.

I have ascertained that the offence was committed at (a)

on (b)  at (c)   ap. .mm..

Avmvgx‡K 5 bs Aby‡”Q` ewY©Z e³e¨ h_vh_fv‡e eywS‡q ejv n‡q‡Q| g³ y wPšÍv Kievi h‡_ó mgq †`qv n‡q‡Q|

Avmvgx ‡¯” ^Qvq †`vl ¯^xKv‡ii B”Qv †cvlb K‡i cÖKZ …

Z_¨ Dc¯’vcb Ki‡e g‡g© AwfgZ e¨³ Ki‡j Zvui Revbew›` Record Kiv nq|

ü¡: A¯ú÷

24/09/07

_________________________________________ __

(g)    Here insert name of place.

(h)    Here insert date.

(i)      Here insert time.

(d) Here insert officer’s designation.

Illegible  2. The accused is asked details as to the length of time

during which and places where he has been under the control of the Police.

first placed under observation

detained 12.30 a. m. I was arrested√ at (e)  12.30  p. m.

village

on  24/09/07 in town √ of ¸jkvb G¨vwfwbD

city

GjvKv n‡Z †MÖßvi Kiv

I was taken to (f) ¸jkvb _vbv at  12.45 wgt  on

24/09/07

I was sent to you from (e) ¸jkvb _vbv 1.00 Uv on 24/09/07

3. Having talked with accused explaining to him each of the  matters  mentioned  in  paragraph  5  hereunder  and cautioned him that he ought to reflect carefully before

making any statement I have placed him in charge of ‡gvt Av³vi †nv‡mb

                  Peon

                                       Armed Police Constable

and directed the accused to wait in  Av`vjZ feb¯ ’Lvm

Kvgiv

in  order  that  he  may  have  time  to  reflect  before making any statement.

4. I have satisfied myself that there is no police in the

Court any place

whence the proceedings can be seen or heard, except the

above named.  Avgvi `„wó

mxgvi g‡a¨ †Kvb cywj‡ki †jvK/i¨ve Gi †jvK wQj bv|

who have/has not been

concerned in the investigation of the crime or in the arrest or production of the accused.

5. I now carefully explain afresh to the accused:-

(1) that I am not an officer of Police but a Magistrate;

•    (2) that he is not bound to make a confession ;

•    (3) that if the does make a confession it may be used in evidence against him;

•    (4) that he should not say anything because others have  told  him  to  say  it  but  is  at  liberty  to  say whatever he really desires to say;

•    (5) that he should say nothing which is untrue;

and  I  sign  my  name  hereunder  in  token  that  these matters have been fully explained and that he appears to me to understand them.

Signature Illegible     (Signature of Magistrate,)

mxj

(e) Insert time in accused’s own language; also date and place.

(f) Give place, time and date.

Illegible  6.  In  order  to  ascertain  whether  the  accused  is

prepared to make a statement of his own free will, he is next examined as follows :-

Questions.

Answers and any further statement

made by the

Accused.

1| Avcwb Rv‡bb wK Avwg cywjk bB Avwg GKRb

g¨vwR‡óªU ---nu©¨v

2| Avcwb Rv‡bb wK-Avcwb †`vl ¯^xKv‡i eva¨ bb  --

nu¨v

3| Avcbvi cÖ`Ë e³e¨ Avcbvi weiæ‡× GgbwK mvRv

cÖvwß e¨envi n‡Z cv‡i|  nu¨v

4| Avcbv‡K †`vl¯^xKvi Ki‡Z fqfxwZ  wKsev

†Kvbfv‡e cÖjyä Kiv n‡q‡Q wK?   bv|

5| Avcwb ‡Kb †`vl ¯^xKvi Ki‡eb?  Avwg

mZ¨ cÖKv‡k AvMnÖx|

7. Record of statement made-

The statement of  BmgvBj †nv‡mb (mvqgb) aged about 36

Years, made in the evsjv language

My name is  BmgvBj †nv‡mb (mvqgb)

My husband’s name is  giûg †jt K‡b©j (Aet)

AvKei †nv‡mb

I am by caste gymwjg and by occupation  e¨emv

(Fish Feed I Fish A¯ú÷)

My home is at Mauza  6 wW.I.GBP.Gm. †ivW bs 4, ebvbx

XvKv| Police-station

District I reside at

Mvwje Avgvi †QvU †ejvi eÜz| Av`gRx K¨v›U ¯‹zj I †m›U †Rv‡md ¯‹z‡j Avgiv GKmv‡_ c‡owQ| Avwg

Gi g‡a¨ CCC (Comilla Cadet College) G

covïbv K‡iwQ| gv‡S `yR‡bi g‡a¨ `xN© w`b fk¿Ñ ¹

(2002 mvj fk¿Ñ)¹ ‡`Lv p¡r¡v nq wb| †m 2003

mv‡j Avgvi mv‡_ (A¯ú÷) K‡i Ges ICD ‡UÛvi

Kv‡Ri e¨cv‡i K_v e‡j| Avwg ZLb G e¨cv‡i (A¯ú÷)

RvbZvg bv| c‡i †m Avgv‡K ¢hÙ¹¡¢la Rvbvi Rb¨

Avbnvi I A¯ú÷ mv‡ne Gi Kv‡Q wb‡q hvq| hviv

Av‡M PÆMÖv‡g K¬vwmK †Kv¤úvbxi A¯ú÷ KvR KiZ| Zviv KvRwU eywS‡q e‡j| ZLb Avwg ewj (A¯ú÷)

‡K Technically Ges Financially cvi n‡Z n‡e|

Zviv welqwU (A¯ú÷) g‡g© Avk¦¯’ K‡ib| Zviv Avgv‡K Zv‡`i †Kv¤úvbx‡Z 51% †kqvi w`‡e (A¯ú÷) Avk¦¯’

K‡i| Gici nvwme mv‡ne I Avbnv mv‡ne PÆMÖv‡gi K¬vwmK (A¯ú÷)  Gi g~j¨gvb msMÖn K‡i Ges M¨vU‡Kvi me©wb¤œ g~j ¨ wbav©ib (A¯ú÷ )

Statement

[Note- This should be taken down as nearly as possible in the words of the accused and whenever a question is put to him the question should be recorded together with the answer. If the statement is long, foolscap sheets serially numbered may be inserted here for the purpose, provided the statement beings and also ends and is signed on the form itself.]

Gici KvRwU µq pwœ²¡¿¹ KwgwU‡Z hvq| †mLv‡b ZrKvjxb A_©gš¿x mvBdzi ingvb mv‡ne evav †`q| Gici welqwU Avwg Avgvi evev‡K  ewj| evev G wel‡q †Kvb Help Ki‡Z cvi‡e bv g‡© Rvbvb|

‡h‡nZz KvRwU Tender ewnf~Z© nevi m¤¢vebv i‡q‡Q

†m‡nZz Avgiv welqwU AvivdvZ ingvb †Kv‡Kv‡K ewj Ges mnvqZv PvB| Zv‡K ¢hÙ¹¡¢la eywS‡q ewj Ges

Zv‡K M¨vU‡Kvi fr ‡_‡K cÖwZ (A¯ú÷)

ü¡: mxj A¯ú÷ 24/09/07

 (Signature mark of the accused.)

ü¡: mxj A¯ú÷ 24/09/07

(Signature of the Magistrate.)

I have studied carefully the provisions of Rule 23 of the High Court’s General Rules and Circular Orders Chapter I, Volume I (Criminal), and have observed strictly the directions therein,. I have also applied strictly the provisions of section 164 of the Criminal Procedure Code.

I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it an admitted by him to the correct,  and it  contains  a  full and true  account of the statement made by him.

ü¡: mxj A¯ú÷ 24/9/07

(Signature of the Magistrate.)

8. Brief statement of Magistrate’s reason for believing

that the statement of voluntarily made.

Illegible [Note.- Any complaints of ill-treatment or injuries

noticed on the accused or referred to by the accused should appear under paragraphs 6 and 7 but should be specifically noticed here and the action taken by the Magistrate thereon should be mentioned. When the confession is recorded otherwise than in the Court building and during Court hours the Magistrate’s reasons are likewise to be recorded here.]

Avmvgx Avgvi wbKU kvwiixK wbh©vZ‡bi ‡Kvb Awf‡hvM K‡iwb| Avwg Zvi kix‡ii `„k¨gvb As‡k †Kvb RL‡gi wPý

†`wL wb|

9. If at any stage shall appear to the Magistrate that the statement made or about to be made by the accused is not voluntary, the Magistrate shall forth with record order hereunder discontinuing the proceeding under section 164. Criminal Procedure Code, and stating reasons therefore.

Avmvgx mZ¨ NUbv weeZ „ Ki‡bi Rb¨ †¯^”Qv g~jK G e³e¨ cÖ`vb K‡i‡Qb g‡g© g‡b Kwi|

10. The accused is forwarded to ‡Rj nvRZ  at (5.50 wgt)

ü¡: A¯ú÷

24/9/07

 (Signature of Magistrate)

[Note.- The form to be used by Magistrates recording confessions is the one _ the appropriate Rules in margin.]

m~Ît  †ZRMuvI _vbvi gvgjv bs 5(9)07

avivt  409/109 `twet I 1947 mv‡ji `~b©xwZ cÖwZ‡iva AvB‡bi 5(2)

aviv|

12,00,000/- (ev‡iv mr) UvKv †`evi fТanІ¦¢`aB| †Kv‡Kv

Avgvi  c~e©  cwiwPZ|  Avgiv DOHS  gv‡V  GK‡Î  †Lj vajyv

KiZvg| Gici †Kv‡Kv Zvi gv‡K w`‡q µq pwœ²¡¿¹mfv KwgwUi

¢pÜ¡¿  ¹¯w’ MZ  Kivq|  Zvi  gv  c‡ ~ei©  wbq‡gB  †UÛvi  Ab‡ygv`b

Kivb| Zvici M¨vU‡Kv KvRwU cvq| cÖwZgv‡m †Kv‡Kv‡K 4/5 mr UvKv †`qv n‡Zv| Gfv‡e 1ermi P‡j| Gi g‡a¨ M¨vU‡Kvi †gwk‡b hvwš¿K œ¦¢V †`Lv †`qvq Zv‡K UvKv †`qv eÜ n‡q hvq|

†gwkb wVK n‡j cieZ©x‡Z †Kv‡Kv‡K c‡ yiv UvKv ‡`qv n‡e †m

cÖwZkæÖwZ †`qv nq|  Gici n‡Z †Kv‡Kv‡K Avi UvKv †`qv nq wb|

UvKvi wnmve Gg.wW ˆmq` Mvwje Avn‡¤§‡`i Kv‡Q Av‡Q| GB

Avgvi e³e¨

ü¡: A¯ú÷  ü¡: A¯ú÷ 24/9/07  24/9/07

GB g‡g© cÖZ¨qb KiwQ †h D‡jøL¨ e³e¨ weew „Z cÖ`vbKvix‡K cvV K‡i ïbv‡bv nq, †m G e³e¨ Zvi ejv g‡Z wjwce× n‡q‡Q wbwðZ n‡q ¯^vÿi K‡ib|

ü¡: A¯ú÷ 24/9/07

Being aggrieved by the impugned proceeding, the accused-petitioners approached this Court with an application under section 561A of the Code of Criminal Procedure for quashing the impugned proceeding and obtained this Rule with an order of stay of the impugned proceeding.

At the very outset, Mr. Mr. Ajmalul Hossain, the learned Senior Advocate alongwith Mr. Ahsanul Karim, Advocate, Mr. Khairul Alam Chowdhury, Advocate and Mr. Aminul Hoque, Advocate, appearing on behalf of the accused-petitioners, submits that the facts disclosed in the FIR and charge sheet are so preposterous that even if the facts are admitted in the entirety on their face value, the same does not disclose any offence under section 5(2) of the Prevention of Corruption Act, 1947 or under section 409 of the Penal Code and as such, the impugned proceeding of Special Case No. 04 of 2008 arising out of Metro Special Case No. 62 of 2008 corresponding to A.C.C G.R. Case No.88/07 arising out of Tejgaon P.S. Case No.05 of 2007 dated 02.09.2007 now pending before the Court of learned Special Judge, Court No.3, Dhaka is nothing but an abuse of the process of the Court and is liable to be quashed.

He next submits that the learned Judge of the Special Court has taken cognizance of the offences in the said case under section 5(2) of the Prevention of Corruption Act, 1947 and section 409 of the Penal Code read with section 109 of Penal Code against the accused-petitioners without jurisdiction since the Anti-Corruption Commission has not issued any sanction under section 32 of the Anti-Corruption Commission Act, 2004 read with Rule 15(7) of the Anti Corruption Commission Rules, 2007 before taking cognizance of the instant case and as such, the continuation of the case is an abuse of the process of the Court and the same is liable to quashed.

He then submits that in the FIR and charge- sheet, there is no allegation that the principal accused i.e. the then Prime Minister Begum Khaleda Zia demanded any property or pecuniary advantage for herself or any one else or had any knowledge as to alleged transaction in question, for which she refused to approve the recommendation of the Ministerial Committee and as such, there was no illegal or corrupt means or otherwise abuse of office of the Prime Minister, especially when the Prime Minister has all the discretion to refuse any recommendation of the Ministerial Committee and as such, the impugned proceeding against the accused-petitioners is liable to be quashed.

He categorically submitts that no offence of abetment under section 109 of the Penal Code towards commission of the alleged offence under section 5(2) of the said Act of 1947 and section 409 of the Penal Code has been disclosed against the accused-petitioners, since the alleged payment was admittedly made by the alleged 16 cheques to the accused Ismail Hossain Saimon around one and half year afteraward of the contract of GATCO, there cannot be any instigation, conspiracy or aiding in awarding the said contract to GATCO, more so when the accused Ismail Hossain Saimon and accused Arafat Rahman (Coko) are not public servants, the impugned proceeding of the said case against the accused-petitioners is liable to be quashed.

He candidly submits that since allegedly the accused-petitioner No.1 having made the said alleged payment to accused Ismail Hossain Saimon who allegedly parted the said money with the accused Arafat Hossain (Coko), the accused-petitioners were not benefited with any pecuniary advantage and as such, it cannot be alleged that the accused- petitioners abetted the offences as alleged and therefore, the impugned proceeding against the accused-petitioners is liable to be quashed.

He categorically submits that there is no allegation whatsoever, against the accused-petitioner No.2 as to his any sort of involvement in the affairs of the business of GATCO except a mere statement that the accused-petitioner No.2 is a director of GATCO and as such, the impugned proceeding against the accused-petitioner No.2 is liable to be quashed as a matter of course.

He then points out that the facts as disclosed in the FIR and the charge-sheet do not attract the ingredients of the offences and as such, the same cannot fall within the scope of section 5(1) of the Prevention of Corruption Act, 1947 or section 409 of the Penal Code and as such, the impugned proceeding is liable to be quashed.

He further supplements that the facts as disclosed in the FIR and charge-sheet against the accused-petitioners, do not disclose any offence under section 5(1) of the Prevention of Corruption Act, 1947 since there is no allegation that any public servant obtained any property/advantage for awarding the said contract to GATCO or had any involvement in any alleged transaction in between

the accused Ismail Hossain Saimon and the accused Arafat Rahman (Coko) and the accused-petitioners are admittedly not public servant and therefore, the impugned proceeding against the accused-petitioners is liable to be quashed.

He vigorously submits that the allegations made in the FIR and the charge-sheet against the accused- petitioners do not disclose any offence under section 409 of the Penal Code since no property whatsoever was entrusted with any of the accused, neither any property whatsoever was under control of any of the accused which could have been disposed of or converted into his own use by the said accused and as such there being no criminal misappropriation by the any of the accused within the meaning of section 409 read with 405 of Penal Code, no offence has been disclosed under the said section and as such, the impugned proceeding against the accused-petitioners is liable to be quashed.

Mr. Ajmalul Hossain has strongly argued that the Anti-Corruption Commission Act, 2004 came into effect on the 9th May, 2004 but the alleged occurance took place from 01.03.2003 to 31.12.2006 and as such, the institution of the case for the alleged offences partly committed prior to coming of the aforesaid ACC Act, 2004 with retrospective effect is totally illegal and without jurisdiction and that the proceedings of inquiry and investigation are also illegal and not sustainable in the eye of law and for those reasons and that following the same, there is a ample chance of misjoinder of charge and in order to prevent miscarriage of justice, further investigation is required in order to ensure fair investigation.

In this connection, the learned Advocates have referred to the certain provisions of the Anti- Corruption Act, 1957 and the ACC Act, 2004, the relevant rules of the ACC Rules, 2007, section 6 of the General Clauses Act and Articles 31 & 35(1) of the Constitution.

He  points  out  that  since  the  inquiry  into  the matter was held ignoring sub-rules (1), (2) and (5) of the ACC Rules, 2007, the case instituted in violation of the said rules is liable to be quashed.

It was further urged that no proper sanction was obtained in accordance with section 32(1) of the Anti- Corruption Commission Act, 2004 read with Rule 15(7) of the Anti-Corruption Commission Rules, 2007 and since the sanction was given in a mechanical way, it was not a sanction in the eye of law.

He lastly submits that the learned Judge of the special Court constituted under the Criminal Law Amendment Act, 1958 is under strict obligation to dispose of the said case within the statutory period of 60 days from the date of cognizance on 15.05.2008 under section 6A of the Criminal Law Amendment Act, 1958 but in the instant case, the learned Judge of the Special Court failed to dispose of the said case within 60 days from the date of cognizance and as such, the learned Judge of the Special Court having failed to dispose of the case even after 60 days from the date of cognizance, the impugned proceeding against the accused-petitioners is liable to be quashed.

On the other hand, Mr. Md. Khurshid Alam Khan, the learned Advocate for the Anti-Corruption Commission, by submitting counter affidavit, vehemently opposes the Rule and categorically submits that on a plain reading of the FIR, confessional statement of the accused petitioners, charge sheet, cognizance order, the case of abetment has been disclosed against the accused-petitioners which clearly attracts the offence under section 109 of the Penal Code and the same may be proved on taking evidence or may be inferred from the conduct of the accused and attending circumstances of the case and as such, the allegation of abetment cannot be decided under section 561A of the Code of Criminal Procedure and for this reason, the Rule should be discharged.

He next submits that the allegations that have been brought against the accused-petitioners and others are all disputed questions of facts and that disputed questions of facts cannot be decided under section 561A of the Code of Criminal Procedure invoking the inherent jurisdiction of this Court.

He then submits that prima facie allegation of abetment has been disclosed from the materials collected by the prosecution and as such, the prosecution should not be debarred from proving the allegation by adducing evidence which may be oral, documentary and circumstantial in nature.

He candidly submits that from the charge-sheet, it is evident that sanction was given by the Commission in accordance with law and the charge- sheet together with sanction was duly submitted before the concerned court below and that the matter of sanction has already been settled by the apex court in a series of legal decisions and that Sanction from the Commission will be required when the charge-sheet is filed under sub-section (2) of

section 32 of the ACC Act, 2004 and on receipt of the charge-sheet along with a copy of the letter of sanction, the Court takes cognizance of the offence for trial, either under the original section 32 or the amended section 32 and that as a matter of fact, only one sanction will be required under unamended or amended section 32 of the ACC Act, 2004.

Mr. Khan in support of his submission has referred to legal decisions taken in the cases of the Anti-Corruption Commission vs Dr. Mohiuddin Khan Alamgir and others, reported in 62 DLR(AD) (2010)290, Habibur Rahman Mollah vs the State and another, reported in 62 DLR(AD) (2010)233 and 61 DLR(HC)1, Anti-Corruption Commission vs Md. Bayazid and others, reported in 65 DLR(AD) (2013)97.

He vigorously submits that the Anti-Corruption Commission Act, 2004 came into force on the 9th May

of 2004 and the alleged offences as it appears from the F.I.R were allegedly committed from 01.03.2003 to 31.12.2006 which indicates that the offence was partly committed prior to coming of the ACC Act, 2004 but in spite of aforesaid scenario, there is no bar to proceeding with the case giving retrospective effect and this point of law has already been decided by the apex court so for this reason the impugned proceeding can not be quashed.

Mr. Khan in support of his submission has referred to a legal decision taken in the case of Tarique Rahman vs Government of Bangladesh and others, reported in 63 DLR(AD) (2011)18 and the aforesaid decision was further affirmed in Civil Review Petition No. 32 of 2011 by the Appellate Division, reported in 63 DLR(AD) (2011)162.

He categorically submits that it is true that there are some time limits for completion of investigation and trial of the case as per Rule 10 of the ACC Rules, 2007 and conclusion of trial as per section 6A of the Criminal Law Amendment Act, 1958 but those are not mandatory rather directory in nature and that being the position of the law there is no violation of law and rules in the instant case and considering all the aspect of the case, the Rule should be discharged.

Mr. Khan in support of his submission has referred to legal decisions taken in the cases of AHM Mustafa Kamal @ Lotus Kamal vs Bangladesh, reported in 61 DLR(AD) (2009)10 and SM Mozammel Hoque Talukder @ Shahjahan Talukder @ Shahjahan and others vs the State, reported in 68 DLR(AD) (2016)370.

He lastly submits that the accused-petitioners made a confessional statements before the Metropolitan Magistrate, Dhaka involving themselves with the commission of offences and the same may be tested at the time of trial by cross-examining the recording Magistrate and as such, the question of quashing the proceeding at this stage does not arise at all and as such, considering all the aspects of the case, the Rule should be discharged.

Mr. A.K.M. Amin Uddin , the learned Deputy Attorney-General along with Mrs. Helena Begum (China), the learned Assistant Attorney-General, appearing for the State, submits that the disputed questions of facts cannot resolved by this Court invoking its inherent jurisdiction under section 561A of the Code of Criminal Procedure and as such, the Rule should be discharged.

He next submits that the disputed question of facts can only be decided on taking evidence from the witnesses of the respective parties before the trial court and that being the reason, the Rule should be discharged.

We have gone through the application under section 561A of the Code of Criminal Procedure and the Annexures annexed thereto. We have also perused the application and heard the submissions made by the learned Advocates for respective parties. We have also considered them to the best our wit and wisdom giving thoughtful analysis on them.

Before coming to a decision in this Rule, it is pertinent to note that the inherent power under Section 561A of the Code of Criminal Procedure can be invoked at any stage of the proceeding even after conclusion of the trial, if it is necessary to prevent the abuse of process of the court or otherwise to secure the ends of justice. The aforesaid view finds support in decision in the case of Sher Ali (Md) and others Vs The State, reported  in 46 DLR (AD) (1994) 67 wherein it was decided as under:-

“the inherent power under Section 561A of the Code of Criminal Procedure can be exercised to quash a proceeding or even a conviction on conclusion of a trial if the court concerned got no jurisdiction to hold the said trial or the facts alleged against the accused do not constitute any criminal offence, or the conviction has been based on ‘no evidence’ or otherwise to secure ends of justice”. 

The guidelines and principles for quashing a proceeding were initially formulated and settled in the decision in the case of Abdul Kader Chowdhury Vs The State reported in 28 DLR (AD) 38. Subsequently, the aforesaid views were reiterated in the decision in the case of Ali Akkas Vs Enayet Hossain and others, reported in 17 BLD (AD) (1997) 44 =2 BLC (AD) (1996) 16 wherein it was spelt out that to bring a case within the purview of Section 561A of the Code of Criminal Procedure for the purpose of quashing a proceeding, one of the following conditions must be fulfilled:-

(I)                         Interference even at an initial stage may be justified where the facts are so preposterous that even on admitted facts no case stands against the accused;

(II)                     Where the institution and continuation of the proceeding amounts to an abuse of the process of the Court;

(III)                  Where there is a legal bar against the initiation or continuation of the proceeding;

(IV)                 In a case where the allegations in the FIR or the petition of complaint, even if taken at their face value and accepted in their entirety, do not constitute the offence as alleged and

(V)                     The allegations against the  accused although constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. 

           The aforesaid principles were reechoed in the decision in the case of Begum Khaleda Zia Vs. The State and another, reported in 70 DLR (AD) (2018) 99.

Now, question arises as to whether the principles and guidelines for quashing a proceeding settled by our Appellate Division are applicable in the instant case at hand for quashing the same.

It is evident from the prosecution materials that on 02.09.2007, one Golam Sarwer Choudhury, Deputy Director of the Anti-Corruption Commission being informant lodged an F.I.R. with Tejgaon Police Station against the accused-petitioners and others under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947, alleging, inter-alia, that the Government decided to handle the container of ICD Dhaka and Chittagong Port through a contractor. Accordingly, Chittagong Port Authority issued tender notice on 1.3.2003 incorporating some terms and conditions therewith. Pursuant to the said tender notice, Global Agro Trade (Pvt.) Company Limited (GATCO) along with others submitted bids before the concerned authority. The Technical Evaluation Committee of the tendering authority found the GATCO as lowest bidder. Though GATCO did not have any previous experience in handling container, the committee declared GATCO responsive and recommended the same to the CHittgaong Port Authority. Thereafter, following the process, the same was placed before the Ministry of Shipping for consideration. The Ministerial Committee of the Ministry of Shipping refused to accept the recommendation and proposed to issue retender notice. The proposal of the Ministerial Committee was placed to the Prime Minister’s office. On 06.12.2003, the then Prime Minister Begum Khaleda Zia returned the matter to the Ministerial Committee for reconsideration. At the relevant time, Lt. col. Retd. Akbar Hossain was the Minister of the Ministry of Shipping. Accused Ismail Hossain Saimon is his son. Accused Ismail Hossain Saimon contacted with Arafat

of the Ministerial Committee for issuing retender notice.  The accused-petitioner No.1-Managing Director of GATCO as well as the accused-petitioner No.2-Director of GATCO, at the time of holding preliminary inquiry over the matter, admitted that they had paid Taka 2,19,45,091 to accused Ismail Hossain Saimon for influencing the then Prime Minister through accused Arafat Rahman (Coko), the son of the then Prime Minister Begum Khaleda Zia. The then Prime Minister Begum Khaleda Zia, in collusion with other accused, allowed GATCO, an inexperienced company for handling operation of Chittagong Port and ICD, Dhaka which caused loss more than Tk.1,000 crore to the State.

It appears from the FIR that the names of the accused- petitioners have been disclosed in the FIR and the Anti-Corruption Commission after holding investigation having found prima facie case submitted charge sheet against the accused petitioners and others under section 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947. So, the allegations brought against the accused- petitioners and others in the FIR are found prima- facie thruthful by the investigating officer. 

It is apperant from the record that the accused- petitioners made confessional statements under section 164 of the Code of Criminal Procedure confessing their involvement in the crime.

Anyway, taking into consideration of the FIR, charge-sheet and the confessional statements given by the present accused-petitioners and another, the learned Metropolitan Senior Special Judge took cognizance of the offences in the case on 15.05.2008.

The submissions made by the learned Advocates for the accused-petitioners may be formulated in 5 folds-firstly, the allegations are so preposterous that the same donot disclose any offence against the accused-petitioners under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of

Corruption Act, 1947; secondly, the learned Special Judge took cognizance of the offences in the case under sections 409/109 of the Penal Code read with sectin 5(2) of the Prevention of Corruption Act, 1947 without any sanction required to be issued under section 32 of the Ant-Corruption Commission Act, 2004 read with Rule 15(7) of the Anti-Corruption Commission Rules, 2007; thirdly, no property was entrusted with the accused-petitioners and they cannot be tried by the learned Special Judge as they are not public servants; fourthly, the Anti-Corruption Commission has no power and authority to hold inquiry and investigation since part of the offences were committed prior to coming of the ACC Act, 2004 and fifthly, the learned Special Judge could not dispose of the case within the statutory period of 60 days from the date of cognizance.

Now, we want to take up the first legal issue for discussion and decision. It is contended on behalf of accused-petitioners that the prosecution materials do not disclose any prima-facie case against the accused –petitioners and the allegations brought against the accused-petitioners are preprosterous in nature. On the hand, Mr. Khan with reference to prosecution materials points out that the prosecution materials disclose prima-facie case against the accused- petitioners and others, so there is no bar to proceed with the case against the accused-petitioners and others. Now, let us see how far the prosecution has been able to disclose the prima-facie allegations against the accused-petitioners in the prosecution materials.

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