Discharge from cases of Anti-Corruption Commission

Sub-section (3) of the section 6 of the Criminal Law Amendment Act, 1958 provides that the provision of Chapter XX of the Code of Criminal Procedure (CrPC), 1898, shall apply to trial of cases under the Act, in so far as they are not inconsistent with the provisions of the Act. Chapter XX of the CrPC deals with the trial of cases by the Magistrates, while section 241A of the CrPC prescribes the conditions on which an accused shall be discharged and section 242 of the CrPC details as to when charges are to be framed.

To quote section 241A of the CrPC, it goes on to say that: "When the accused appears or is brought before the Special Judge and if the Special Judge upon consideration of the record of the case and the documents submitted therewith and making such examination, if any, of the accused as the Special Judge thinks necessary and after giving the prosecution and the accused an opportunity of being heard, considers the charge to be groundless, he shall discharge the accused and record his reasons for so doing."

In a criminal trial, the procedure prescribed by the section should strictly be followed. An order of discharge can be made only according to the words of the section that no case has been made out. The Special Judge should first take into consideration the prosecution case as given in FIR, charge-sheet, statements of witnesses recorded by the investigating officer of the Anti-Corruption Commission and the documents produced and also hear the defence and then apply the law to the criminal acts to find out whether there is a prima-facie case or not. The Special Judge can discharge the accused only if no case has been made out.

In the case of Moudud Ahmed v The State reported in 16 BLD (AD) 27, it was held that in framing charge the trial Court will only see if on the basis of the materials collected by the prosecution a prima facie case to go for the trial has been made out against the accused. The existence of a prima facie case to go for trial justifies the framing of charges.

In Taher Hossain Rushdi v State 6 BLC (HCD) 282, there were detailed allegations against the accused petitioner and his accomplices and during the investigation it was revealed that the papers produced before the investigating agency were also examined by the handwriting expert and it was found that the documents in question and bills and vouchers were fictitious and hence there was no illegality in framing charges against the petitioners. The view taken by the High Court Division (HCD) was subsequently affirmed by the Appellate Division (AD) reported in 7 MLR (AD) 116.

In Begum Khaleda Zia v State reported in 21 BLC (AD) 151, it was held that the petitioner was on dock and the contents of charge had been read over to the petitioner who denied the charge and pleaded not guilty. In view of the contents of the order sheet, the Court was unable to accept the extraneous matter produced before the HCD and to observe that the contents of the charge had not been read over to the petitioner.

In Begum Khaleda Zia v State reported in 21 BLC (AD) 16, it was further held that there was no error in the order of framing charge since the prosecution papers disclosed prima-facie case against the petitioner. Relying upon the extraneous matter, it was difficult for the AD to accept the submission, in view of the facts that the order sheet showed that the petitioner, at the relevant time, was on dock and contents of charge had been read over to her who pleaded not guilty and claimed to be tried.

In the case of Begum Khaleda Zia v State and another reported in 19 BLC 398, it was held that though there was an application under section 241A of the CrPC, but that was not considered and the honourable Judge rejected the same on the ground that the learned advocate for the accused-petitioner did not move the application. In Special Case No. 5 of 2013, there was no application under section 241A of the CrPC rather from the order sheet it was found that after framing charge, learned advocate for the accused-petitioner filed an application under section 241A of the CrPC. It is true that the exercise of sections 241A and 242 of the CrPC are independent of any application, but on perusal of the impugned orders, it cannot be said that the Court below did not comply with the provisions of sections 241A and 242. Both sections should be read together. This view was later affirmed by the AD as referred above, i.e. 21 BLC (AD) 16 and 21 BLC (AD) 151.

In the case of Anti Corruption Commission v The State and another reported in 25 BLC (HCD) 29, it was observed that the Anti-Corruption Commission being a prosecuting agency may submit charge-sheet following the allegations made in the FIR, if it finds prima-facie case against the accused. But it has no right to resolve any dispute alleged by the accused. The accused has every right and authority to produce his/her defence-related materials before the Court during trial of the case. Moreover, there is no provision for submitting any application before the investigating officer in order to make a reassessment of the allegations, liabilities, expenditures and costs of construction of house. The HCD relied upon in the case of Moudud Ahmed v State, reported in 16 BLD (AD) 27 = 48 DLR (AD) 42; in the case of Taher Hossain v State reported in 7 BLC (AD) 45 and in the case of Nazrul Islam v State reported in 50 DLR 103. It was spelt out that the learned trial Judge may frame charge against an accused under section 242 of the CrPC, if there are sufficient prosecution materials on record to frame charge against an accused. It is true that the charge cannot be framed against the accused-person mechanically unless any reasonable and cogent prima-facie case is disclosed against the accused in the FIR as well as in the charge-sheet and/or in other prosecution materials.

THE WRITER IS AN ADVOCATE, SUPREME COURT OF BANGLADESH AND EDITOR, DHAKA LAW REPORTS (DLR).