Anti-Corruption Commission vs Abdul Azim (2017) 69 DLR (AD) 208

Fact:

This petition is at the instance of the Anti-Corruption Commission that is directed from a judgment of the High Court Division by which it made the rule nisi declaring a letter issued by the Metropolitan Session Judge, Dhaka according to permission to freeze the bank accounts of the writ petitioners calling it to be without authority.

The writ respondents opened several bank accounts (in several branches) with different banks in their names. They claimed that they were doing their business by paying taxes and VAT regularly. The writ respondents without informing the petitioners, issued an official letter, to freeze those accounts for 30 days.

Subsequently, the writ respondents furnished a list of bank accounts of the petitioners requesting the Commission to take initiative against those accounts. Pursuant thereto, the commission appointed the writ respondent to inquire into the matter, who filed an application before the learned Special Judge and Metropolitan Sessions Judge, praying for freezing those accounts to protect the interest of the customers from practicing fraud.

Accordingly, the Metropolitan Sessions Judge, without issuing any show cause notice, issued an administrative order, allowing the writ respondents to freeze all the band accounts.

Issues:

The Appellate Division was the authority to dispose of the case, determining some important issues or findings that the High Court Division might have missed. If the following issues are settled according to relevant laws and provisions, there must be no doubt to demonstrate justice.

1. Whether the permission of The Metropolitan Sessions Judge, to freeze the accounts of the writ petitioners was really to be without lawful authority?

2. Whether the direction to initiation of any proceedings before the order to freeze the accounts actually needed?

3. If the initiation of proceedings were permitted by the relevant provision, then what would be the consequences?

4. Was the Metropolitan Sessions Judge empowered to pass such an order?

5. How much effectiveness was shown at the instance of the decision of the High Court Division? Is it able to administer justice?

6. Whether the observations of the Appellate Division can take steps toward justice?

To find out the above issues, each and every word of the following Provisions and Laws had to be determined by the Appellate Division.

1. Section-9 of The Code of Criminal Procedure, 1898.

2. Section-94 of The Code of Criminal Procedure, 1898.

3. Section- 17, 19 & 20 of Anti-Corruption Commission Act, 2004.

 

Decision:

The Appellate Division observed that The High Court Division was totally misconceived in entertaining the writ petition and was totally unmindful while declaring the order. So, the judgment of the High Court Division was set aside. The Appellate Division has given its judgment on behalf of the Anti-Corruption Commission, having respect for their proceedings. Moreover, This petition has been disposed of by the Appellate Division with the following findings and observations.

 

Justification:

The observation of the Appellate Division was profoundly capable of administering justice. The inaccuracy and incompetency of the High Court Division have occurred through such findings and observations without any doubt. The findings and observations are described briefly as follows:

1. The decision of the High Court Division that the learned Metropolitan Sessions Judge acted more than jurisdiction and the point is that he cannot make such an order before the initiation of any proceedings was really vague, unspecified, and indefinite in the manner.

2. The Commission has all the powers to take such steps if it thinks that it has information that the writ petitioners have been involved in the business of money racketeering.

3. The views of the High Court Division i.e. proper inquiry and information before freezing order, whether prima-facie material was found or not, power of the session judge to pass the order, are somehow in point considered according to law. But to some extent, if the views taken by the High Court Division are accepted, then it will not be possible on the part of the commission to collect incriminating documentary evidence against any suspected offenders.

4. The initiation of proceedings under the law arises after collecting such materials on inspection of the banking transactions but if the suspected offender removes all the money from the bank, or destroys the documents with the help of the bank officials, it will be difficult on the part of the investigation officer to collect evidence against them. If the suspected officers get scent of the movement of the commission, they may withdraw the entire amount and leave the country.

5. The High Court Division held that under the Money Laundering Protirodh Ain, the Special Judge is empowered to pass such order and that the learned Sessions Judge has no power to make such order. But it failed to notice that the learned Metropolitan Sessions Judge is an ex-officio Senior Special Judge and under the Ain, it is the Metropolitan Sessions Judge who is authorized to pass such an order.

6. The Sessions Judge in a Sessions’ Division is an ex-officio Senior Special Judge within the meaning of The Criminal Law Amendment Act and The Anti-Corruption Commission Act. These provisions are self-explanatory and no further explanation is necessary. Therefore, The High Court Division was totally unmindful in arriving at such a conclusion.

Relevant Case Laws:

1. Nurul Huda vs Bahar Uddin, 41 DLR 395

2. Zaved Khan vs Anti-Corruption Commission, 63 DLR 221

Written by---
Tanwee Saha
Department of Land Management and Law
Jagannath University, Dhaka