Present:

Mr. Justice Md. Nazrul Islam Talukder And

Mr. Justice K. M. Hafizul Alam

CRIMINAL MISCELLANEOUS CASE NO. 11219 OF 2011

Anti-Corruption Commission

........ Informant-petitioner -Versus-

The State and others

 ....... Opposite-parties Mr. Md. Khurshid Alam Khan, Advocate

....... For the Petitioner No one appears 

………For the Accused-opposite-parties Mr. A.K.M. Amin Uddin, D A.G with

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

....... For the State-opposite-party no.1 Heard and Judgment on 09.04.2019

Md. Nazrul Islam Talukder, J.

On an application under section 561A of the Code of Criminal Procedure, this Rule, at the instance of the informant-petitioner, was issued calling upon the opposite- parties to show cause as to why the order no. 32 dated 30.11.2010 passed by the learned Senior Special Judge, discharging the accused-opposite party nos. 2 and 3 under section 241A of the Code of Criminal Procedure from

Special Case No.11 of 2008 arising out of Avoynagar (Jessore) Thana Case No.20 dated 15.11.2007, should not be quashed/set aside or any other order passed as to this Court may deem fit and proper.

Facts, relevant for the purpose of disposal of the Rule, in short, are that one Sheikh Fyaz Alam, Assistant Director, Anti-Corruption Commission, (hereinafter referred to as the ACC) Segunbaghicha, Dhaka lodged a First Information Report (in brief the FIR)  on 15.11.2007 with Avoynagar Police Station, Jashore stating  inter-alia, that the accused persons in collaboration with each other transferred their illegally acquired money by illegal means and by hiding the same, committed offence under section 13 of the Money Laundering Protirodh Ain, 2002 read with Rule 15 of the Emergency Power Rules, 2007. From the inquiry, it appears that, the accused Giridhari Lal Modi, Chairman and Managing Director of Uttra Group of Industries, is the owner and controller of all activities of the company; that he is engaged in suspicious and unnatural monetary transactions; that it appears from the records that the accused Ajoy

Chakrobarty as a Manager of Uttara Traders Private Ltd. made transaction of Tk.64,68,46,915/- (Taka sixty four crore sixty eight lacs forty nine thousand nine hundred fifteen) only in his personal current account no.276 maintained with Uttara Bank, Noapara Branch, Jashore during the period between 23.07.98 to 16.03.2003, which is unusual for an employee like Ajoy Chakraborty; that being aware about such transactions, Bangladesh Bank directed Uttara Bank to conduct an investigation vide memo no. gvjcÖwe (we‡kl)17/2003-77 Zvs 07.04.2003 Bs but Uttara Bank failed to submit any report of investigation about such suspicious transaction of the accused no.3, and accordingly the departmental action has been taken against the concerned officers of Uttara Bank by a letter as contained in memo no. cÖt Kvt e¨t Dt wet gvjcÖwet 2003/838 ZvwiL 23.07.2003Bs that the accused Ajoy Chakroboriti by his letter dated 09.01.2003 disclosed that above mentioned amount belongs to the Uttara Traders Private Ltd. On the other hand, the accused Giridhari Lal Modi vide his letter dated 09.01.2003, permitted accused

Ajoy Chakroborty to make transaction of the fund of the Uttara Traders Private Ltd. in his personal account and as such it appears that the above mentioned transacted amount in the personal account of accused Ajoy Chakraborty actually belongs to the accused Giridhari Lal Modi; that Uttara Traders Private Ltd. maintains three accounts with three different Banks at Noapara, Jashore namely (i) Janata Bank, Noapara Branch, Jessore Account No. 0122-020023083,(ii) Sonali Bank, Noapara Branch, Jashore, Account No. Current 2301, (iii) IFIC Bank, Noapara Branch, Jashore Account No. 418 (Old), Current Account No. 00633004186 (new); that the accused Ajoy Chakraborty as an employee of the company transacted the above amount of money in his personal account by violating the provisions of the Articles 37 and 41 of the Articles of Association of the Uttara Traders Private Ltd.; that the accused Giridhari Lal Modi was required to operate the above accounts by signing check and draft and accused Ajoy Chakraborty cannot make any transaction in his personal account as a Manager of Uttara Traders Private Ltd. But the above transactions have been done through

illegal means by concealment of the existence of a huge amount of money of Tk.64,68,46,915/- (Taka sixty four crore sixty eight lacs forty nine thousand nine hundred fifteen) among which Tk.5,93,61,659/- was transacted after 30.04.2002 when the operation of the Money Laundering Protirodh Ain, 2002 came into force, thus the accused persons by way of illegal transaction of above mentioned huge amount of money in the personal account of accused Ajoy Chakraborty committed offence under sections 2(tha) and 20 of the Money Laundering Protirodh Ain, 2002 which is punishable under section 13 of the Money Laundering Protirodh Ain, 2002 read with Rule 15 of the Emergency Power Rules, 2007. Hence the FIR was lodged.

The Anti-Corruption Commission after holding investigation having found  prima-face case submitted charge-sheet being no.161 dated 30.07.2008 under section 13 of the Money Laundering Protirodth Ain, 2002 read with Rule 15 of the Emergency Power Rules, 2007 before the Chief Judicial Magistrate, Jashore.

Thereafter the case record was transmitted to the Court of Sessions Judge and Senior Special Judge, Jashore and registered as Special Case No. 11 of 2008.

The learned Senior Special Judge, Jashore on 4.8.2008 took cognizance of the offence against the accused opposite party nos. 2 and 3 under section 13 of the Money Laundering Protirodh Ain, 2002 read with Rule 15 of the Emergency Power Rules, 2002.

Thereafter, the learned Senior Special Judge on 30.11.2010 discharged the accused-opposite party nos.2 and 3 from the case by allowing the application for discharge under section 241A of the Code of Criminal Procedure, 1898(in brief the CrPC).

Being aggrieved by and dissatisfied with the impugned order of discharge dated 30.11.2010, the petitioner-ACC approached this Court with an application under section 561A of the CrPC and obtained this Rule on 25.04.2011. Subsequently the petitioner filed a supplementary affidavit.

None appears on behalf of the accused-opposite party nos. 2 and 3, when this Rule is taken up for hearing.  

However, Mr. Md. Khurshid Alam Khan, the learned Advocate, appearing on behalf of the petitioner-ACC, submits that the sanction from the commission is required when the charged-sheet is filed 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, and as a matter of fact, only 1(one) sanction is required under section 32 of the Anti-Corruption Act, 2004 but the learned Senior Special Judge, Jashore failed to appreciate the same, hence, the impugned order of discharge is liable to the quashed for securing ends of justice in the case.

Mr. Khan next submits that the offence under the provisions of Money Laundering Protirodh Ain, 2002 has been made out in the FIR as well as in the charge-sheet and other prosecution materials and as such, there is no legal bar to continue with the trial under the provision of Money Laundering Protirodh Ain, 2002 being a schedule offence of the Anti-Corruption Commission Act, 2004, hence the

learned Senior Special Judge, Jashore committed serious illegality in discharging the accused-opposite party  nos.2 and 3 as such the impugned order of discharge is liable to be quashed for securing ends of justice in the case.

He further submits that since the offence of money laundering is a schedule offence of the Anti-Corruption Commission Act, 2004 there is no legal bar to hold trial of the accused-opposite party nos.2 and 3 under the provision of the ACC Act, 2004, for commission of the offence alleged to have been committed under the Money Laundering Protirodh Ain, 2002 and as such, the question of prejudice does not arise at all, hence the impugned order of discharge is liable to be quashed for securing ends of justice in the case.

Mr. Khan lastly submits that all the facts as alleged in the FIR as well as in the charge-sheet are disputed questions of fact and the claim of innocence of the accused–opposite party nos.2 and 3 are completely defence version, therefore, at the time of framing of charge, there is no scope to consider the disputed questions of fact and defence version but the learned trial judge without considering this aspect most

illegally discharged the accused-opposite party nos. 2 and 3, hence the impugned order is liable to be set aside.

Mr. A.K.M Amin Uddin, learned Deputy Attorney- General appearing for the State, submits that there is specific allegation against the accused-opposite party nos.2 and 3 in the prosecution materials and  prima facie case has been disclosed against them and the same are disputed questions of facts, as such at the time of charge hearing, there is no scope to discharge the accused, hence for the ends of justice, the Rule may kindly be made absolute.

We have perused the application under section 561A of the Cr.P.C, supplementary affidavit and other prosecution materials annexed thereto. We have also considered the submissions advanced by the learned Advocate Mr. Md. Khurshid Alam Khan for the informant-petitioner and the learned Deputy Attorney-General for the State as well as relevant laws.

On perusal of the records, it appears that in the FIR, there is an allegation that-

ÒwKš‘ msNwewai D³ Aby‡”Q‡`i e¨Z¨q NwU‡q wMwiavixjvj ‡gv`xi m¤ú~Y© ÁvZmv‡i I Amr D‡Ï‡k¨ Zvi Kg©Pvix wgt ARq PµeZ©xi bv‡gi Avk«‡q e¨w³MZ GKvD›U ‡LvjvBqv weMZ Bs‡iwR 23/7/98 ZvwiL nB‡Z 16

gvP© 2003 ZvwiL ch©šÍ ‡gvU 64,68,46,915/- (‡PŠlwÆ ‡KvwU AvUlwÆ j¶ ‡QPwjøk nvRvi bqkZ c‡bi) UvKvi ‡jb‡`b cwiPvwjZ nq| D‡jøwLZ As‡Ki

UvKvi g‡a¨ ‡gvU 5,93,61,659/- (cvuP ‡KvwU PyivbeŸB j¶ lvU nvRvi

cvuPkZ DblvU) UvKvi ‡jb‡`b gvwbjÛvwis c«wZ‡iva AvBb, 2002 Kvh©Kix

nIqvi ZvwiL 30 Gwc«j 2002 Gi ci cwiPvwjZ n‡q‡Q|Ó

The charge- sheet also reveals the allegation against

the opposite party nos. 2 and 3 which reads as follows-

ÒDËiv ‡U«Wvm© c«vt wjt Gi bIqvcvovmn e¨vsK wnmve chv ©‡jvPbvq Av‡iv ‡`Lv hvq ‡h, AvBGdAvBwm e¨vsK wjt Ges ‡mvbvjxe¨vsK wjt bIqvcvov kvLv h‡kvi G DËiv ‡U«Wvm© (c«vt) wjt ‡Kvs Gi bv‡g 02 wU e¨vsK

wnmve i‡q‡Q| D³ wnmve `ywU‡Z DËiv ‡U«Wvm© (c«vt) wjt Gi bIqvcvov kvLvi

g¨v‡bRvi ARq PµeZ©x‡K, D‡jøwLZ ‡Kv¤úvbxi ‡evW© Ae WvB‡iKUim KZ©…K

GKK fv‡e wnmve cwiPvjbvi Rb¨ g¨v‡ÛU Ae Aw_wiwUÓ c«`vb Kiv nq| ‡h

Abyhvqx ARq PµeZ©x ‡Kv¤úvbxi e¨vsK wnmve 02wU cwiPvjbv Ki‡Zb| ‡Kv¤úvbxi bv‡g D³ 02wU e¨vsK GKvD›U m¤ú~Y© mPj _vKv m‡Ë¡I ARq

PµeZ©xi e¨w³MZ bv‡g GKB ¯’v‡b bIqvcvovq 03 wU wnmve Ly‡j ‡Kv¤ú bxi msNwewai e¨Z¨q NwU‡q m¤ú~Y© A‰ea cš’vq D‡Ïk¨g~jK fv‡e DËiv ‡U«W©v‡m©i

(c«vt) wjt Gi ‡gvU 77,89,46,303 UvKvi (DËiv e¨vsK 64,68,46,915+

RbZv e¨vsK 12,35,14439+ AM«Yx e¨vsK 85, 84,949) ‡jb‡`b nq|

Zb¥‡a¨ gvwbjÛvwis c«wZ‡iva AvBb, 2002 Kvh©Ki nIqvi ci 30-04-2002

Gi ci ‡_‡K ARq Pµe©Z©xi D‡jøwLZ 03 wU wnmve n‡Z ‡gvU 8,41,81,556

XvKv| (DËiv e¨vsK 2,80,24,352 + RbZv e¨vsK 4,77,35,204 + AM«Yx e¨vsK 84,22,000) K¨vk D‡Ëvjbc~e©K mwi‡q wb‡q D‡jøwLZ cwigvY UvKvi Ae¯’vb ‡Mvcb Kiv nq|Ó

From the charge-sheet, it further appears that- ÒZ`‡šÍ my¯úófv‡e c«gvYxZ nq ‡h, DËiv ‡U«Wvm© c«vt wjt ‡Kv¤úvbxi bv‡g bIqvcvov hv‡kv‡i 02wU e¨vsK wnmve Pjgvb _vKv m‡Ë¡I D‡jøwLZ ‡Kv¤úvbxi g~jKvh©KviK Avmvgx wMwiavix jvj ‡gv`x m¤ú~Y© cwiKwíZfv‡e Amr D‡Ïk¨ ev¯Íevq‡bi j‡¶¨ Aci Avmvgx DËiv ‡U«Wv‡m©i g¨v‡bRvi ARq PµeZ©x ci¯úi ‡hvMmvR‡m mwµq mn‡hvwMZvq e¨w³MZ bv‡g Avmvgx wMwiavix jvj ‡gv`xi ¯^v‡_© GKB ¯’v‡b ARq Pµe©Z©xi bv‡g 03 wU e¨vsK wnmve Ly‡j wecyj As‡Ki UvKv ‡jb‡`b K‡ib| ARq PµeZ©x e¨w³MZ bv‡g Av‡jvP¨ wZbwU e¨vsK wnmve Ges D‡jøwLZ wnmv‡e ‡jb‡`‡bi welqwU ‡Kv¤úvbxi evwl©K wbixw¶Z wnmve weeiYx‡Z c«`vb bv K‡i Ges miKv‡ii wewfbœ Avw_©K wbqš¿YKvix ms¯’vi `…wó my‡KŠk‡j Gov‡bvi gva¨‡g ‡jb‡`K b…Z A‡_©i Ae¯ v’ b ‡Mvcb K‡ib| Avmvgx ARq PµeZ©xi e¨w³MZ e¨vsK wnmve wZbwUi ‡jb‡`b ch©v‡jvPbvq c«Zxqgvb nq ‡h, D³ wnmve ¸wj‡Z RgvK…Z UvKv AwaKvskB

ARq PµeZ©x wb‡R K¨vk D‡Ëvjb K‡ib, Ges Z`‡šÍ hvi ‡Kvb nw`m cvIqv hvqwb| D³ 03wU e¨vsK wnmve n‡Z ‡h wecyj cwigvb K¨vk D‡Ëvjb Kiv n‡q‡Q Zb¥‡a¨ gvwbjÛvwis c«wZ‡iva AvBb, 2002 Kvh©Ki nIqvi ZvwiL 30- 04-2002 Gi ci ‡_‡K wnmve 03wU evsjv‡`k e¨vs‡Ki gvwbjÛvwis c«wZ‡iva wefv‡Mi n¯Í‡ÿ‡c eÜ nIqv ch©šÍ ‡gvU 8, 41,81,556 (AvU ‡KvwU GKPwjøk j¶ GKvwk nvRvi cvuPkZ Qvcvbœ) UvKv K¨vk D‡Ëvjb c~e©K mwi‡q wb‡q D³ cwigvb UvKvi Ae¯’vb ‡Mvcb Kiv nq| Avmvgx ARq PµeZ©xi e¨w³MZ e¨vsK wnmv‡ei gva¨‡g DËiv †UªWvm© cÖvt wjt Gi ewY©Z UvKv n¯ÍvšÍi Ges Ae¯’vb ‡MvcbKib cÖwµqvwU ‡Kv¤úvbxi g~jKvh©KviK Avmvgx wMwiavix jvj ‡gv` i mwµq cwiKíbvq Ges Aci Avmvgx ARq PµeZ©xi ‡hvMmvR‡m Amr D‡Ïk¨ msNwVZ n‡q‡Q g‡g© Z`‡šÍ c«gvwYZ n‡q‡Q weavq gvwbjÛvwis c«wZ‡iva AvBb, 2002 Gi 2(V) Ges 20 avivi AvIZvq AvnwiZ ev AwR©Z m¤ú‡`i A‰ea

cš’vq n¯ÍvšÍi I Ae¯’v‡bi ‡MvcbKiY msµvšÍ Aciva msMV‡bi d‡j gvwbjÛvwis c«wZ‡ivva AvBb, 2002 Gi aviv 13 Abyhvqx AvmvgxØq kvw¯Í‡hvM¨ Aciva K‡i‡Qb hv Riywi ¶gZv wewagvjv, 2007 Gi wewa 15Gi AvIZvfy³|

From the above prosecution materials, it appears that

there is specific allegation against the accused-opposite party

nos.2 and 3 that huge amount of money (TK. 77,89,46,303)

of the company has been transferred to the account of

accused no. 2 illegally   and out of the said money, they in collusion with others laundered Tk. 8,41,81,556.

 In view of the facts and circumstances of the case, we find that strong prima facie case has been disclosed against the opposite-party nos. 2 and 3 in the prosecution materials. The claim of the opposite-party nos.2 and 3 is that they did not commit any offence under section 13 of the Money Laundering Protirodh Ain, 2002 as alleged in the FIR and charge-sheet. Accused Giridhari Lal Modi permitted his manager accused Ajay Chakraborty to make transaction of the amount of Uttara Traders Private Ltd. in his personal account are completely defence version and disputed question of facts. But the learned trial Judge accepting the defence version/defence plea of the accused-opposite-party nos. 2 and 3 discharged them from the case.        

Now question is whether there is any scope to discharge the accused at the time of framing of charge when prima-facie case is disclosed against the accused-opposite- party nos. 2 and 3 in the prosecution materials.

In this regard, the case of The State vs Md. Shafiqul Islam reported in 40DLR (1988) 310 is very relevant, wherein it has been held :

ʺ7. Section 241A is a new section in the statute book. The provision of this section is to be strictly followed. It is needless to say that an order of discharge can be made only when no case is made out against an accused.ʺ

Further held ʺ11. there being a prima-facie allegation it was incumbent on the trial court to frame the charge against the accusedʺ.

In the case of Gazi Mozibul Huq and others vs Abid Hossian Babu reported in 5 MLR(AD) 63, the Appellant Division held -

“7. The Prosecution case as set out in the petition of complaint has got prima-facie ingredients of the offences alleged. The exact nature of the offence against the accused petitioners can only be thrashed out upon a trial. The prosecution should not be stifled

when there is a prima- facie case. No interference is therefore called for in this case.”

In the case of  Mahbuba Akater and others vs Mozemmel Hoque and others reported in 15 BLD (HCD) 339, the High Court Division in this regard held that:

ʺ5. Under section 241A of the Code of Criminal Procedure learned Magistrate is to consider the documents submitted with the case record. At that stage Magistrate is to consider documents of the prosecution and not the documents of the defence which could only form part of the record after the charge is framed and trial begins.ʺ

In the case of Abid Hossain Babu vs Gazi Mojibul Haq and others reported in 20 BLD (HD) 72, the High Court Division also held that :

″The learned Special Judge discharged the accused persons considering the some extraneous materials which were not available either in the complaint petition or in the record and as such the Special Judge acted beyond his jurisdiction under section 241A or

265C of the Code discharging the accused by illegally relying upon some extraneous materials which were not in the record.″

In view of the above discussion and principles laid down by our apex court, we are of the view that there is no scope to discharge the accused at the time of charge hearing accepting the defence version when  prima-facie case is disclosed in the prosecution materials. The disputed question of facts, the defense version of the accused, defense materials and  prima-facie case can only be proved/disproved/discarded/decided at the time of trial by taking evidence. Apart from this, there is also an important question of law involved with the case as to whether without prior permission of the Bangladesh Bank, the Anti-corruption Commission can lodge FIR as well as investigate the case relating to the allegations of laundering of money.

On perusal of the impugned order, it appears that apart from the factual issues, the learned Judge of the Court below discharged the accused-opposite-party nos.1 and 2 mainly stating that- ″since Bangladesh Bank is exclusively

empowered to lodge an FIR and to make an investigation or inquiry to detect the matter of money laundering, no other authority other than the Bangladesh Bank itself, can file any FIR against the accused-petitioners. Bangladesh Bank is not an informant of the case nor investigated the matter of money laundering, Bangladesh Bank also did not authorize Sheih Fiaz Alam, Assistant Director of Anti-Corruption Commission to lodge an FIR against the accused petitioners. Hence it has been quite illegal and unwarranted to initiate any allegation against the accused petitioners being violative of the provision of the Money Laundering Prevention Act, 2002″.

With regard to the above findings, it appears that the Money Laundering Protirodh Ain, 2002 came into force on 30.04.2002. The alleged offence took place since 23.07.1998 to 16.03.2003. Out of the alleged illegal transaction of Tk. 64,68,46,915, the accused opposite party nos. 2 and 3 illegally transferred Tk.5,93,61,659 after the Money Laundering Protirodh Ain, 2002 came into the force on 30.04.2002.

Though at the relevant time in the schedule of the Anti-Corruption Commission Act, 2004, the Money Laundering Protirodh Ain, 2002 was not included but vide Ordinance no. 17, dated 30.07.2007 section 3Ka was

included in the Money Laundering Protirodh Ain, 2002

which is reproduced as follows-

3K|ÒZ`šÍ, wePvi BZ¨vw` welqK we‡kl weavb-(1) GB AvB‡bi Ab¨ †Kvb avivq wfbœZi hvnv wKQzB _vKzK bv †Kb, GB AvB‡bi Aaxb-

(K)   Acivamg~n `ybx©wZ `gb Kwgkb AvBb, 2004 (2004 mv‡ji

5bs AvBb) Gi Zdwmjfz³ Aciva wnmv‡e `yb©xwZ `gb Kwgkb KZ©„K Z`šÍ‡hvM¨ nB‡e;

(L)     Acivamg~n Criminal Law Amendment Act,

1958 (Act XL of 1958) Gi wmwWDjfz³ Aciva wnmv‡e Special

Judge KZ©„K wePvh© nB‡e; Ges

(M)  Acivamg~‡ni Z`šÍ, wePvi I mswkøó Ab¨vb¨ wel‡q G BAvB‡bi

weavbvejxi mwnZ we‡iv‡ai †ÿ‡Î, `yb©xwZ `gb Kwgkb AvB, 2004 Ges

Criminal Law Amendment Act, 1958  Gi weavbvejx cÖvavb¨ cvB‡e| (2) Dc-aviv (1) Gi weavb m‡Ë¡I GB aviv Kvh©Ki nBevi c~‡e© GB AvB‡bi Aaxb wb®úbœvaxb †Kvb Aciv‡ai Z`šÍ, wePvi I mswkøó Ab¨vb¨ welqvw` Ggbfv‡e wb®úbœ nB‡e †hb GB aviv Kvh©Ki nq bvB|Ó

From the above provision of section 3Ka, it appears

that Money Laundering Protirodh  Ain, 2002 has been deemed to be included in the schedule of Anti-Corruption Commission Act, 2004 and in case of contradiction between

the Money Laundering Protirodh Ain, 2002, the Anti- Corruption Commission Act, 2004 will get priority in respect

of investigation, trial and other issues relating to the offence

of money laundering.

From the records, it appears that one Assistant Director, Anti-Corruption Commission, Segunbaghicha, Dhaka lodged an FIR on 15.11.2007 with Avoynagar Police

Station, Jashore under section 13 of the Money Laundering

Protirodh Ain, 2002 read with Rule 15 of the Emergency

Powers Rules, 2007 [effective from 12.01.2007]. For better

understanding, Rule-15 is reproduced as below-

“`yb©xwZi Aciva m¤úwK©Z weavb- Riæix Ae¯ v’ †NvlYvi Kvh©KiZvKv‡j ivóª I RbM‡Yi A_©‰bwZK Rxeb, ¯^v_© I wbivcËv wecbœKvix `yb©xwZ m¤úwK©Z Acivamg~n `gb wel‡q cÖPwjZ `yb©xwZ `gb Kwgkb AvBb,

2004 (2004 m‡bi 5 bs AvBb), gvwbjÛvwis cÖwZ‡iva AvBb, 2002 (2002

m‡bi 7bs AvBb) Ges Income Tax Ordinance, 1984

(Order No. XXXVI of 1984)  Gi Aax‡b AvqKi, `yb©xwZ I gvwbjÛvwis m¤úwK©Z Acivamg~n Kvh©Kifv‡e `gb Kwievi Rb¨ AvBb-k„•Ljv

iÿvKvix evwnbxmg~n D³ ev Kwgkb Kg©KZ©v D³ Aciva D`NvUb ev AbymÜ b,

Awf‡hvM ev gvgjv `v‡qi Ges Aciv‡ai mwnZ mswkøó AcivaxMY‡K Ö‡qvR‡b †MÖdZvi Kwiqv, Z`šÍ I wePviv‡_© h_vh_ AvBbvbyM KZ©„c‡ÿi wbKU mgc©b

Kwievi j‡ÿ¨ Dchy³ e¨e¯ v’ MÖnb Kwi‡e|ÕÕ

From the above provision of Rule 15, it appears that

the Anti-Corruption Commission had right to inquiry/lodging case/complaint/ investigation with regard to the offence of

Money Laundering Protirodh Ain, 2002. Though the Money Laundering Protirodh Ain, 2002 was repelled by the Money Laundering Protirodh Ordinance, 2008 with effect from 15.04.2008 but section 31 saved the previous proceeding initiated under the Money Laundering Protirodh Ain, 2002

which is reproduced as below :

 “iwnZZKib I †ndvRZ- (1) GB Aa¨v‡`k Kvh©Ki nBevi m‡½ m‡½ gvwbjÛvwis cÖwZ‡iva AvBb, 2002 (2002 m‡bi 7 bs AvBb) iwnZ nB‡e|

(2) D³iæc iwnZ nIqv m‡Ë¡I D³ AvB‡bi Aaxb `v‡qiK…Z v †b K

gvgjv ev M„nxZ †Kvb Kvh©aviv Awb®úbœ _vwK‡j Dnv GBiæc ‡ wb®úbœ nB‡e †hb D³ AvBb iwnZ bq bvB|Ó

Section 9 of the Money Laundering Protirodh Ordinance, 2008 states that the offences of money laundering

would be investigated by the Anti-Corruption Commission. Section 9 reads as follows-

“Aciv‡ai Z`šÍ I wePvi- (1) GB Aa¨v‡`‡ki Aaxb Acivamg~n `yb©xwZ `gb Kwgkb AvBb, 2004 (2004 m‡bi 5bs AvBb) Gi AaxY Zdwmjfz³ Aciva M‡Y¨ `yb©xwZ `gb Kwgkb ev Kwgkb nB‡Z Z`y‡Ï‡k¨ ÿgZvcÖvß †Kvb Kg©KZ©v KZ©„K Z`šÍ‡hvM¨ nB‡e|

(2)            GB Aa¨v‡`‡ki Aaxb Acivamg~n Criminal Law

Amendment Act, 1958 (Act XL of 1958) Gi section

3 Gi Aaxb wbhy³ †¯úkvj RR KZ©„K wePvh© nB‡e|

(3)    GB  Aa¨v‡`‡ki  Aaxb  Acivamg~‡ni  Z`šÍ,  wePvi  I  mswøó k

Ab¨vb¨ wel‡q GB Aa¨v‡`‡ki weavbvejxi mwnZ we‡iv‡ai †ÿ‡Î, `yb©xwZ `gb Kwgkb AvBb, 2004 Ges Criminal Law Amendment Act,

1958 Gi weavbvejx cÖvavb¨ cvB‡e|”

  Moreover, though the Emergency Power Rules, 2007

was repelled by the Emergency Powers (Repealed) Ordinance, 2008 with effect from 12.12.2008 and section 3

saved the previous proceeding initiated under the Emergency

Power Rules, 2007 which reads as follows :

“Riæix ÿgZv weagvjv, 2007 Gi iwnZKiY I †ndvRZ-D³ Aa¨v‡`k iwnZ nBevi mv‡_ mv‡_ Dnvi Aaxb cÖbxZ Riæix ÿgZv wewagvjv, 2007, AZtci D³ wewagvjv ewjqv DwjøwLZ, iwnZ nB‡e|

(2)   Dc-aviv (1) Gi Aaxb D³ wewagvjv iwnZ nIqv m‡Ë¡I, D³

iwnZ wewagvjvi Aaxb wb®úbœ mKj Kvh©µg Gbgfv‡e Aÿzbœ _vwK‡e †hb D³ wewagvjv iwnZ nq bvB|

(3)  Dc- aviv(1) Gi Aaxb iwnZ nIqvi mv‡_ mv‡_ D³ wewagvjvi

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It appears that the investigation officer of the Anti- Corruption Commission having found  prima facie case submitted charge sheet on 30.07.2008 and as per the provision of section 12(2) of the Money Laundering Protirodh Ordinance, 2008, and section 32 of the Anti- Corruption Commission Act, 2004, the investigation officer obtained sanction from the Anti-Corruption Commission

vide letter dated 29.07.2008 and submitted the investigation

report along sanction letter to the court.

It is to be noted that though subsequently the Money Laundering Protirodh Ordinance, 2008 was repealed by the new money laundering law but the proceeding initiated under the said ordinance was saved.

The aforesaid view finds support in the case of Tarique Rahman vs Bangladesh and others, reported in 63 DLR(AD) (2011)18 (para 25-29) and the same is also affirmed in Review Petition No. 32 of 2011, reported in 63 DLR(AD) (2011)162 (para 32).

In view of the above discussions of the provisions of law and the facts, it appears that the Anti-corruption Commission rightly lodged the FIR and thereafter lawfully investigated the case and submitted investigation report with the sanction of the Anti-Corruption Commission, therefore, the findings of the learned Court below discharging the accused-opposite party nos.2 and 3 are not sustainable in law.           In the facts and circumstances as discussed above, we are of the view that in the prosecution materials prima-facie case has been disclosed against the accused-opposite-party nos.2 and 3 and there is no legal bar to proceed with the case against them. Whether the accused-opposite-party nos. 2 and 3 are at all involved with the alleged offence or not that can only be decided at the time of trial by taking evidence.

Considering the facts and circumstances of the case and the proposition of law settled by our Apex court, we are of the view that the impugned order dated 30.11.2010 discharging the accused-opposite party nos. 2 and 3 is not sustainable in the eye of the law, therefore, we find merit in the Rule and the Rule is liable to be made absolute.

Accordingly, the Rule is made absolute.

Consequently, the impugned order no. 32 dated 30.11.2010 discharging the accused-opposite-party nos. 2 and 3 is hereby set side.

The accused-opposite party nos.2 and 3 are directed to surrender before the learned Senior Special Judge, Jashore in no time.

The learned Judge of the trial court is directed to proceed with the case in accordance with law in the light of the observations made above and to release the accused- opposite-party Nos.2 and 3 on bail if they surrender. The learned trial Judge is further directed to conclude the trial as early as possible preferably within 06 (six) months from the date of receipt of the copy of this judgment and order.

Let a copy of this judgment and order be communicated to the concerned Court below forthwith.

K. M. Hafizul Alam, J.

I agree.