In The Supreme Court of Bangladesh

  High Court Division

  (Criminal Miscellaneous Jurisdiction)

PRESENT:

         MR. JUSTICE ABU TAHER MD. SAIFUR RAHMAN

AND

              MR. JUSTICE KHANDAKER DILIRUZZAMAN

CRIMINAL MISCELLANEOUS CASE NO. 8427 OF 2004

Hashibul Hassan alias Lavloo......…Accused Petitioner 

  -Versus-

The State….….....Opposite party

None appears............For the accused petitioner Mr. Imran Ahmed Bhuiyan, DAG with

Mr. Mehadi Hasan (Milon), AAG and

Ms. Aleya Khandker, AAG

........For the state Judgment on: The 10th of August, 2023

ABU TAHER MD. SAIFUR RAHMAN, J.

This Rule was issued on an application filed by the accused  petitioner  under  section  561A  of  the  Code  of Criminal Procedure, 1898 calling upon the opposite parties to show cause as to why the proceedings of Special Case No. 68 of 2004, arising out of Kotwali Police Station Case No. 37 dated 25.07.2003, corresponding to G.R. Case No. 272 of 2003 under sections 409/420 of the Penal Code read with section 5(2) of the Anti Corruption Act, 1947 now pending in the Court of learned Special Judge, Faridpur should not be quashed and/or such other or further order or orders passed as to this Court may seem fit and proper.

At the time of issuance of the Rule, the Court was pleased  to  stay  all  further  proceedings  of  the  aforesaid Special  case  for  3  (three)  months  from  date  which  was subsequently extended till to disposal of the Rule.

For disposal of the Rule, the relevant facts may briefly be stated as follows:

That  one  Sheikh  Md.  Fauabilla,  District  Anti Corruption Officer, Faridpur lodged an FIR with the local police stations alleging inter alia that the accused petitioner as a Chairman of Faridpur Pourashava received total amount of Tk. 1,00,84,431/- through several cheques from the T & T  Board  as  compensation  for  cutting  roads  at  Faridpur District  for  laying  the  underground  cables  to  set  up  the digital exchange project of T & T Board. Regarding  the aforesaid money, the accounts are to be dealt with jointly, by the  Chairman  of  Faridpur  Pourashava  and  the  Nirabahi Officer  of  Faridpur  Upazilla.  However,  the  accused petitioner as Chairman of Faridpur Pourashava, opened an account  No.  S.T.D-70  dated  22.01.2001  under  his  own signature  alone  in  Rupali  Bank,  Faridur  Branch  and deposited all the cheques amounting to  Tk. 1,00,84,431/- and subsequently the said account was closed on 28.01.2003 by  withdrawing  the  entire  amount  along  with  interest amounting to Tk. 1,17,007/- without having any entry into the cash book of the Pourashava. Subsequently, the accused petitioner  opened  another  S.T.D  Account  No.  75  dated 14.09.2002 with joint signature and deposited the amount of Tk.  40,00,000/-  and  misappropriated  the  amount  of  Tk. 61,94,737/- from the aforesaid fund, as provided by the T & T board. Hence, the aforesaid case  was filed against the accused petitioner. Thereafter, the accused petitioner duly appeared before the Court below and obtained bail. After investigation,  the  Anti-Corruption  Commission  submitted charge sheet No. 39 dated 15.02.2004 against the accused petitioner under sections 409/420 read with section 5(2) of the Anti-Corruption Act. Thereafter, the aforesaid case was transferred to the Senior Special Judge, Faridpur for trial which was registered as Special Case No. 68 of 2004. Being aggrieved, the accused petitioner preferred this application before  this  Court  under  section  561A  of  the  Code  of Criminal  Procedure  for  quashing  the  aforesaid  impugned proceeding and obtained the instant Rule and stay.

None appears for the accused petitioner to support the Rule.  However,  the  accused  petitioner  has  stated  in  his application that as per resolution dated 03.04.2001 adopted by  the  Faridpur  Pourashava,  the  accused  petitioner  as  a Chairman of the said Pourashava is empowered to open an account himself alone regarding the money as provided by T & T Board. Accordingly, the accused petitioner opened STD Account No. 57 in the Janata Bank, Faridpur Branch, and deposited  the  alleged  amount  of  Tk.  60,84,508/-  and  till today the said money is available in the aforesaid account as evident from Annexure-‘C’ series to the instant application and as such the instant proceeding is liable to be quashed. 

As  against  this,  Mr.  Imran  Ahmed  Bhuiyan,  the learned Deputy Attorney General for the state submits that as per FIR and charge sheet there is a specific allegation against  the  accused  petitioner  and  hence  the  accused petitioner has no ground to invoke the provision of section 561A of the Code of Criminal Procedure and as such the instant Rule is liable to be discharged.

Heard the submissions of the learned Advocate for the state and perused the materials on record thoroughly.

On perusal of the petitioner’s application, it transpires that the contention as raised by the accused petitioner in his application as ground Nos. 1 to V are absolutely a matter of fact  which  cannot  be  decided  at  this  stage  under  the jurisdiction  of  section  561A  of  the  Code  of  Criminal Procedure.

Under the given facts and circumstances of the case and  the  reasons  as  stated  above,  we  do  not  find  any substances of this Rule.

As a result, the Rule is discharged.

The  order  of  stay  granted  earlier  by  this  Court  is hereby stand vacated.

The trial Court below is hereby directed to proceed with the case expeditiously in accordance with law.

Communicate this judgment and order at once.

Khandaker Diliruzzaman, J:

I agree