IN THE SUPREME COURT OF BANGLADESH

     APPELLATE DIVISION

     Present:

 Mr. Justice Hasan Foez Siddique, Chief Justice

Mr. Justice Md. Nuruzzaman

  Mr. Justice Obaidul Hassan

            Mr. Justice Borhanuddin

  Mr. Justice M. Enayetur Rahim

CRIMINAL PETITION FOR LEAVE TO APPEAL NO.793 of 2019

(From the order dated 11.11.2018 passed by the High Court Division in Criminal Revision No.3497 of 2018)

Mirza Abbas Uddin Ahmed, son of late          .......…..….Petitioner Abdur Razzak

                                                  -Versus-

The State and another          ..…..…Respondents

For the petitioner

For the respondent No.1 For the respondent No.2

Date of hearing and judgment

:      Mr. Abdur Razzaque Khan, senior Advocate along with Mr. Sagir Hossain Leaon, Advocate, instructed by Mr. Zainul Abedin, Advocate-on-Record.

:      Not represented.

:      Mr. Md. Khurshid Alam Khan, senior Advocate, instructed by Mr. Md. Zahirul Islam, Advocate-on-Record.

:      The 25th day of October, 2022.

JUDGMENT

Obaidul Hassan, J. This Criminal Petition for Leave to Appeal has arisen out of the order dated 11.11.2018 passed in Criminal Revision No.3497 of 2018 by a Division Bench of the High Court Division rejecting the revisional application summarily which was filed against the order No.79 dated 23.09.2018 read with order No.80 dated 30.09.2018 passed by the learned Special Judge, Court No.6, Dhaka in Special Case No.13 of 2008 corresponding to ACC G.R. No.84 of 2007 arising out of Ramna Police Station Case No.35 dated 16.08.2007

under Sections 26(2) and 27(1) of the Anti-Corruption Commission Act, 2004.

The prosecution case, in a nutshell, is that one Shafiqul Alam, Assistant Director, Anti-Corruption Commission (shortly, ACC) as informant lodged a First Information Report (shortly, FIR) under Sections 26(2) and 27(1) of the Anti-Corruption Commission Act, 2004 (shortly, ACC Act, 2004) read with Rule 15(Gha)(5) of the Emergency Powers Rules, 2007 and Section 109 of the Penal Code, 1860 against the accused-petitioner and his wife with Ramna Police Station, DMP, Dhaka stating, inter alia, that after scrutiny of bw_ bs-`y`K/23-2007(Aby:- 2) it has been found that the accused persons with ill motive collusively acquired wealth of Tk.5,97,13,234.00 illegally beyond their known sources of income and concealed the information about wealth amounting Tk.33,48,581.00 in the wealth statement filed by them which is an offence under Sections 26(2) and 27(1) of the ACC Act, 2004 read with Rule 15(Gha)(5) of the Emergency Powers Rules, 2007 and Section 109 of the Penal Code, 1860. Accordingly, Ramna Police Station Case No.35 dated 16.08.2017 arising out of ACC G.R. No.84 of 2007 under Sections 26(2) and 27(1) of the ACC Act, 2004 read with Rule 15(Gha)(5) of the Emergency Powers Rules, 2007 and Section 109 of the Penal Code, 1860 was started against the petitioner and his wife.

The ACC investigated the case. During investigation the Investigating Officer collected the supporting materials, recorded the statement of witnesses and after investigation, the Investigating Officer submitted memo of evidence before the ACC for necessary sanction under Section 32 of the ACC Act, 2004 and after obtaining sanction from the ACC submitted charge sheet being No.238 dated 14.05.2008 against the accused-petitioner and his wife under Sections 26(2) and 27(1) of the ACC, 2004 read with Rule 15(Gha)(5) of the Emergency Powers Rules, 2007 and Section 109 of the Penal Code, 1860.

After submission of charge sheet, the case record transferred to the Court of Special Judge, Court No.6, Dhaka for holding trial and registered the same as Special Case No.13 of 2008.

During trial, charge has been framed by the learned Special Judge, Court No.6, Dhaka against the accused-petitioner and his wife under Sections 26(2)/27(1) of the ACC Act, 2004. The said charge was read over to the accused persons while they pleaded not guilty and claimed to be tried.

On 30.09.2018 the petitioner filed an application under Section 403 of the Code of Criminal Procedure stating that the trial of the instant case is barred on the ground that earlier another case was filed against him on the self same facts under Sections 155/156 of the Income Tax Ordinance, 1984 read with Section 15(Gha)(5) of the

Emergency Power Rules, 2007 in which he was convicted, but subsequently acquitted in Criminal Appeal No.6464 of 2008. The trial court upon hearing rejected the said application.

Being disgruntled with the order No.79 dated 23.09.2018 read with Order No.80 dated 30.09.2018 passed by the Special Judge, Court No.6, Dhaka in Special Case No.13 of 2018 corresponding to ACC G.R. No.84 of 2007 arising out of Ramna Police Station Case No.35 dated 16.08.2007 under Sections 26(2)/27(1) of the ACC Act, 2004 the petitioner filed Criminal Revision No.3497 of 2018 under Section 10(1A) of the Criminal Law Amendment Act, 1958. The High Court Division, after hearing the parties rejected the application summarily by order dated 11.11.2018.

Feeling aggrieved with the judgment and order dated 11.11.2018 passed by the High Court Division in Criminal Revision No.3497 of 2018 the accused-petitioner preferred this Criminal Petition for Leave to Appeal before this Division.

Mr. Abdur Razzaque Khan, the learned senior Advocate along with Mr. Sagir Hossain Leaon, the learned Advocate, appearing for the petitioner took us through the order dated 11.11.2018 passed by the High Court Division in Criminal Revision No.3497 of 2018, the materials on record and submit that the High Court Division has not applied its judicial mind having failed to appreciate that earlier the accused-petitioner was prosecuted under Sections 155/156 of the

Income Tax Ordinance, 1984 read with Section 15(Gha)(5) of the Emergency Power Rules, 2007 and the present case against the petitioner has arisen out of the same and identical matter. The learned Counsels next contend that as per provisions of Sections 235(2)/236/403 of the Code of Criminal Procedure and Article 35(2) of the Constitution read with Section 26 of the General Clauses Act, 1897, there is a bar to proceed in subsequent case originated from the same and identical facts. The learned Counsels further contended that Section 403 of the Code of Criminal Procedure bars a second trial on the self same facts, thus, the present case against the petitioner is not maintainable in the eye of law. But the High Division without considering the aforesaid provisions of law passed the impugned order, which is liable to be set aside. The learned Counsels lastly submit that the petitioner had earlier been dealt with, convicted and sentenced by trial Court and subsequently the said judgment and order of conviction was set aside by the High Court Division, and as such the trial on the same and identical subject matter is barred by law.

Per contra, Mr. Md. Khurshid Alam Khan, the learned senior Counsel appearing on behalf of the respondent No.2, has seriously controverted the submissions produced by the learned Counsels for the petitioner. The learned senior Counsel contends that the earlier case was filed against the accused-petitioner under Sections 155 and

166 of the Income Tax Ordinance, 1984 read with Section 15(Gha)(5)

of the Emergency Power Rules, 2007 at the behest of Deputy Commissioner of Taxes and the present case has been filed against

him under Sections 26(2)/27(1) of the ACC Act, 2004 at the instance

of the ACC, from which it is clear that the present case is quite different and separate from the earlier case and the High Court Division has not committed illegality in rejecting summarily the Criminal Revision filed by the petitioner. The learned Counsel argues further that on face of the FIR and charge sheet there is a prima facie case against the petitioner under Sections 26(2)/27(1) of the ACC Act, 2004, and as such the High Court Division rightly rejected the Criminal Revision. In support of his submissions the learned Counsel has relied on a decision reported in 21 BLC(HC) (2016) 200 wherein it

has been held that the Income Tax Ordinance is purely a law relating to prevention of tax evasion and realization of income tax, which is completely distinct offence unlike the present one which relates to corruption.

We have gone through the judgment and order dated 11.11.2018 passed by the High Court Division in Criminal Revision No.3497 of 2018, considered the submissions of the learned Counsels

for both sides and the materials on record. The main question in the case in hand is whether the earlier case filed against the petitioner under Sections 155 and 166 of the Income Tax Ordinance, 1984 read

with Section 15(Gha)(5) of the Emergency Power Rules, 2007 and the subsequent  case  filed  under Sections 26(2)/27(1)  of the ACC  Act, 2004 are same and identical in nature ? To get answer of the question let us peruse the provisions of law in this regard.

Sections 165 and 166 of the Income Tax Ordinance, 1984 is extracted below:

“Section 165. Punishment for false statement in [verification, etc.]-

A person is guilty of an offence punishable with imprisonment for a term which may extend to three years [but shall not be less than three months], or with fine, or with both, if he-

(a)  makes a statement in any verification, etc in any return or any other document furnished under any provisions of this Ordinance which is false;

(b) knowingly and willfully aids, abets, assists, incites or induces another person to make or deliver a false return, account, statement, certificate or declaration under this Ordinance, or himself knowingly and willfully makes or delivers such false return, account, statement, certificate or declaration on behalf of another person;

[(c) sings and issues any certificate mentioned in the first or second proviso to section 82 which he either knows or believes to be false or does not believe to be true];

[(d) refuses to furnish such information as may be necessary for the purpose of survey under section 115.] Section 166. Punishment for concealment of income, etc.-- A person is guilty of an offence punishable with imprisonment which may extend to five years [but shall

not be less than three months], or with fine, or with both, if  he  conceals  the  particulars,  or  deliberately  furnishes inaccurate particulars, of his income.”

Now let us have a glimpse on Sections 26 and 27(1) of the ACC

Act, 2004.

""26| mnvq m¤úwËi †NvlYvt- Kwgkb †Kvb Z‡_¨i wfwˇZ Ges Dnvi we‡ePbvq

c‡ª qvRbxq ac¿ ¹cwiPvjbvi ci hw` GB g‡g© p¿º¤ø nq †h, †Kvb e¨w³, ev Zvnvi

c‡¶ Ab¨ †Kvb e¨w³ , ‰ea Dr‡mi mwnZ Am½wZcY~© m¤úwËi `L‡j iwnqv‡Qb ev

gvwjKvbv AR©b Kwiqv‡Qb, Zvnv nB‡j Kwgkb, wjwLZ Av‡`k Øviv, D³ e¨w³‡K Kwgkb  KZ©K…wba©vwiZ  c×wZ‡Z  `vq-`vwq‡Z¡i  weeiY  `vwLjmn  D³  Av‡`‡k wbav©wiZ Ab¨ †h †Kvb Z_¨ `vwL‡ji wb‡`©k w`‡Z cvwi‡e| (2) hw` ‡Kvb e¨w³-

(K)  Dc-aviv (1) G DwjwLZ Av‡`k cªvwßi ci Z`byhvqx wjwLZ wew eZ „ ev Z_¨

cª`v‡b e¨_© nb ev Ggb †Kvb wjwLZ weew „Z ev Z_¨ cª`vb K‡ib hvnv wfwËnxb

ev wg_¨v ewjqv g‡b Kwievi h_v_© KviY _v‡K, A_ev

(L)  †Kvb eB, wnmve, †iKW©, †NvlYv cÎ, wiUvY© ev Dc-aviv(1) Gi Aaxb †Kvb `vwLj cÎ `vwLj K‡ib ev Ggb †Kvb weew „Z c`ªvb K‡ib hvnv wfwËnxb ev

wg_¨v ewjqv g‡b Kwievi h_v_© KviY _v‡K, Zvnv nB‡j D³ e¨w³ 3(wZb) ermi fkÑ¿¹ Kviv`Û ev A_©`Û ev Dfqwea `‡Û `Ûbxq nB‡eb|

27| ÁvZ Av‡qi Drm ewnf~©Z m¤úwËi `Ljt  -(1) †Kvb e¨w³ Zvnvi wbR bv‡g

ev Zvnvi c‡¶ Ab¨ ‡Kvb e¨w³i bv‡g, Ggb †Kvb ¯nvei ev A¯nvei m¤úwËi

`L‡j iwnqv‡Qb ev gvwj Kvbv AR©b Kwiqv‡Qb, hvnv AmvayDcv‡q AwRZ© nBqv‡Qb

Ges Zvnvi ÁvZ Av‡qi Dr‡mi mwnZ Am½wZcY~© ewj qv g‡b Kwievi h‡_ó KviY

iwnqv‡Qb  Ges  wZwb  D³i¦c  m¤úwË  `Lj  m¤ú‡K ©Av`vj ‡Zi  wbKU  wePv‡i

p­¿¹¡lRbK e¨vL¨v cª`vb Kwi‡Z e¨_© nB‡j D³ e¨w³ Ab~a¡© 10(`k) ermi Ges

Ab~¨b 3(wZb) ermif kÑ¿¹ †h †Kvb †gqv‡` Kviv`‡Û `Ûbxq nB‡eb Ges Z`ycwi

A_© `‡ÛI `Ûbxq nB‡e, Ges D³i¦c m¤úwËmg~n ev‡Rqvcvªß †hvM¨ nB‡e| ''

On going through Sections 26 and 27(1) of the ACC Act, 2004 it appears that Section 26 envisages the provision for issuance of notice, holding preliminary inquiry by the Anti-Corruption Commission in

order to ascertain the wealth of a person while Section 27(1) of the ACC Act, 2004 lays down the provision regarding the Anti- Corruption Commission of offence where the wealth of a person is found not in proportionate to his known sources of income. The intention of the legislature behind the enactment of ACC Act, 2004 is prevent corruption.

On the other hand, the Income Tax Ordinance, 1984 is enacted to regulate the income tax matter. It is enacted for realization of income tax and to prevent the evasion of income tax. Sections 165 and 166 are penal sections in respect of making false statement in any verification in any return or any other document and concealment of income.

From the above, it is evident that the offences under Sections 26 and 27(1) of the ACC Act, 2004 and Sections 165 and 166 of the Income Tax Ordinance, 1984 are completely separate and distinct and one is not dependant on others. Therefore, the present case under Sections 26 and 27(1) of the ACC Act, 2004 shall proceed independently. Although the petitioner was earlier acquitted in a case under Sections 165 and 166 of the Income Tax Ordinance, 1984 it will not put any embargo on the trial of the present case.

On meticulous observation, we find the submissions made by the learned Counsel for the respondent No.2-ACC merit consideration. We find no infirmity in the order dated 11.11.2018

passed by the High Court Division in Criminal Revision No.3497 of 2018 and as such it does not warrant interference by this Division.

In view of the aforesaid facts and circumstances, the Criminal Petition for Leave to Appeal is dismissed.

C.J. J.

J. J. J.

The 25thday of October, 2022  RRO; Total words 2235