Anti-Corruption Commission vs Sheikh Amin Uddin (2017) 69 DLR (AD) 373

 

Facts:

The respondents named Sheikh Amin Uddin, Sheikh Basir Uddin, and Sheikh Basir Uddin were the accused persons, said to have committed some offenses under the Penal Code. The investigation of the cases was undertaken by the then Bureau of Anti-Corruption and is pending under The Anti-Corruption Act, of 1957. Subsequently, the said Act was repealed by The Durnity Daman Commission Ain.2004.

Despite the repeal of the Anti-Corruption Act, some officers of the defunct Bureau were appointed as the investigation officer under the commission, and after the investigation of the above cases, an officer submitted chargesheets in those cases. The Metropolitan Special Judge took cognizance of the offenses. Amid the trial of the case, the accused moved to The High Court Division challenging the notification of the Durnity Daman Commission.

The High Court Division declared the notification issued by the Commission and the chargesheet submitted by the investigation officer was without lawful authority. The commission then moved the Appellate Division against the judgment of The High Court Division heard along with other two petitions.

Issues:

The Appellate Division was at the opinion to determine this remarkable case by scrutinizing some important provisions and Laws along with some significant points on the following issues:

1. Whether the decision of The High Court Division that the notification issued by the commission and the chargesheet submitted by the investigation officer without lawful authority really bear the prominence of a critical observation?

2. What was actually the purpose of the newly formed commission (Durnity Daman Ain, 2004)? Does it authorize a complete destruction of the previous defunct Bureau?

3. What are the functional activities of the newly formed commission? Was it authorized to work independently?

4. What was the aim of the commission? What were the connecting provisions and Laws between the repealed Act and the newly formed commission?

5. Whether a police report submitted by an officer of the defunct Bureau of Anti-Corruption after investigation in respect of an offense punishable under the Durnity Daman Ain, before retaining him as an officer of the Commission after scrutiny be legal?

6. Whether an officer of the defunct Bureau can investigate a case before he has been retained as an officer of the Commission by the rules?

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- 35(2), 38(3), 35(2), 3(2) of The Anti-Corruption Commission Act, 2004.

2. Section- 38(2) of The Durnity Daman Commission Ain, 2004.

3. Section- 6 of The General Clauses Act, 1897.

                       

Decision:

The judgment of the High Court Division is set aside. The review petition arises against the judgment and is dismissed. The petitioners are disposed of with some findings and observations. The Special Judges are directed to conclude the trial of the cases on a priority basis not later than 6 months from the date of the receipt of judgment.

 

Justification:

The Appellate Division while observing the case has provided its decision based on some critical analysis and thoughtful observations. Through these novel and satisfactory findings, the Appellate Division could become able to administer justice overall. The findings and observations are as follows:

1. In the view of the High Court Division, the Commissioner cannot appoint an officer of the defunct Bureau of Anti-corruption to investigate a case instituted under the repealed act without retaining him as an officer of the Commission. Whilst the Appellate Division denied that fact.

2. In the view of the Appellate Division, there is no dispute that on the day of the repeal of the Anti-Corruption Act, 1957, The Durnity Daman Commission Ain, 2004 came into operation. It is an independent Commission that has a legal entity.

3. On a look into the provisions, there cannot be any doubt that the Commission is fully an independent body. The selection of the investigation officers, their appointments, the permission to hold investigation of offenses specified in the schedule of the Ain, and the approval of the investigation reports, the selection of prosecutors, and their appointments are exclusively within its power. The government cannot interfere with the activities in any manner.

4. Despite the repeal of the Anti-Corruption Act, the operation of the said Act, as far as possible, shall be effective, as if the Act had not been repealed. If an inquiry, investigation into any allegation, or sanction for filing a case is pending under the said Act immediately before the repeal of the Act, such inquiry, investigation, and sanction shall be performed by the Commission under Section-38 of the Ain which is a saving clause.

5. Despite of the delay in the procession of retention of such officers and employees of the Bureau, if the Commission empowers any officer to perform any act, his act cannot be said to be illegal or unauthorized. Even if the Commission is not constituted under the Ain, the actions taken under the repealed Act shall continue as if it has not been repealed. All activities will continue until the Commission is fully established.

6. This scrutiny is for the purpose of retention of officers and employees by the Commission permanently, but it has nothing to do with the conclusion of the investigation of the pending cases. This scrutiny does not mean that until such process is concluded the Commission’s works shall remain suspended. That does not mean that they will be lost their service.

7. If the intention or the object of the Ain as discussed above are looked into, there is no doubt that the new Ain expressly not only keeps alive rights and liabilities under the repealed Act but also not destroy the rights accrued or liabilities incurred under the repealed Act. It cannot be inferred that the intention is to destroy the rights and liabilities. If there is any incompatibility, the court will determine the circumstances based on relevant laws.

Relevant Case Laws:

1. District Mining Officer vs Tata Iron, (2001) 7 SCC 358

2. Munshi Lal Beni Ram Glass Works vs SS Singh, (1969) 3 SCC 786

3. Indira Sohanlal vs Custodian of Evacuee Property, Delhi, AIR (1956) (SC) 77

4. Dayawati vs Indrajit, AIR (1966) (SC) 1423

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