Inquiry and Investigation— ‘Inquiry’ and investigation’ are not one and the same. They are distinct terms. They are distinguishable from each other. Investigation (তদন্ত) of can only be commenced and carried out conclusion of inquiry (অনুসন্ধান) and lodgment of an FIR against a person. Tofail Ahmed vs Chairman, Anti-Corruption Commission 62 DLR 33.

As per Rule 3(5) of the Anti-Corruption Commission Rules, 2007, the ACC shall not directly go for conducting inquiry in respect of complaints which have not been found to be prima-facie correct and true by the Scrutiny Committee, but in the present case the impugned notices have been issued upon the petitioners neither without holding any initial scrutiny, nor examining the context of the complaint thoroughly which causes the un-necessary consumption of the valuable time of the court as well as harassing the citizens without any reason. …Md. Atiqur Rahman & anr Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 70 ....View Full Judgment

Words ‘মামলা দায়ের’ means institution of a case by submission of a charge-sheet by an officer of the Commission, before the concerned Court and certainly not an first information report as envisaged under section 154 the Code of Criminal Procedure or a complaint (অভিযোগ) as envisaged under Rule 3 and 4 of the Rules.
The irresistible conclusion is that no sanction will be required to file a complaint (অভিযোগ) either with the Commission or with the police. But sanction from the Commission shall be required both under the unamended and the amended 32, before institution of a case “মামলা দায়েরের ক্ষেত্রে” in the concerned Court. Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.

An officer of the Commission lodged a first information report on 6-3-2007 with the Tejgaon Police Station and a case started. This is not envisaged under rules 3and 4 of the Rules. Those Rules provide only for filing of the complaint involving the offences mentioned in the schedule to the Act. However, those provisions are merely directory and deviation from provisions in lodging an first information report instead of a complaint, would not vitiate the proceedings. Anti-Corruption vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.

Commissioners resigned from the Commission on 7-2-2007 and it was reconstituted on 24-2-2007, as such, although the Commission existed as an Institution on 18-2-2007, when the notice was issued, but there was no Commission within the meaning of section 3 read with section 5 of the Act on that date. Anti-Corruption Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.

Rule 16 of the Anti- Corruption Commission Rules, 2007 is applicable only in the case of any officer of the Anti-Corruption Commissioner, who lay the trap and conduct the trap operation only. This provision of law being a special law like Anti-Corruption Commission Rule, 2007 or Section 20 or 17 of the Anti- Corruption Commission Act, 2004 did not oust the jurisdiction of other law enforcing agencies. Occurrence took place on 23-1-2011 and FIR was lodged on 24-1-2011 and on the same day it was transmitted to the Anti-Corruption Commission for investigation following the procedure of Rule 4 of the Anti-Corruption Commission Rule, 2007. SM Sabbir Hasan vs State 63 DLR 368.

A well-established legal principle is that a person upon whom power is delegated cannot delegate the same to another person. In the instant case the legal provision in Rule 17(1) is such that the Commission itself could delegate the power to issue a notice for submission of wealth statement to anyone of its officers not below the rank of Deputy Director (DD). Akbar Khan vs ACC 62 DLR 20.

Anti-Corruption Commission Act, 2004
Section 19
Anti-Corruption Commission Rules, 2007
Rule 8 and 11 and 20
If Appellate Division meticulously examine the above two provisions i.e., section 19 of the Act, 2004 and 20 of Rules, 2007, coupled with rule 8 and 11 of the above Rules, then this Division has no hesitation to hold that those provisions have been made for the interest and benefit of a person(s) against whom an inquiry or investigation is going on as he is giving opportunity to defend himself in inquiry or investigation stage. Thus, there is no room to say that issuance of such notice by the Commission or its authorized officer is harassing, malafide and prejudiced to the concerned person(s). .....Durnity Daman Commission =VS= Md. Ashraful Haque, (Civil), 2023(1) [14 LM (AD) 499] ....View Full Judgment

ACC did never wanted to know it by affording the petitioner an opportunity of being heard or by calling for a written statement from him, which it had power to under Rule 8 and II of the ACC Rules, 2007. Such discretion is neither unfettered, nor it has been vested in the ACC to arm it with redundant power or to exercise its discretion with caprice, but be guided by the provisions of section 3(2) of the Act. Obaidul Kader (Md) vs State 63 DLR 425.

The Court below has seen the CD and became sure about the transaction. The matter is still under investigation and if the mighty accused is granted bail the investigation of the case will be hampered as he holds very powerful position in the Anti-Corruption Commission. SM Sabbir Hasan vs State 63 DLR 368.

In respect of submission of charge-sheet and its requirement for sanction the learned Counsel submits that sub-rule (1) of Rule 15 to 18 of the Anti-Corruption rules speaks about the sanction and filing of the case and charge- sheet thereto. The sanction as given by one of the Commissioner of the Commission to submit charge-sheet purported to have been signed by one of the Commissioner of the Commission is not at all valid sanction, as he did not apply his mind to the requirement of the law and the materials available on record. Even, he did not go through the 161 and 164 statements of the witnesses at all. Having been done so he ought to have refused to accord sanction. In short, it may be called that the alleged sanction is a mechanical sanction and it did not fulfill the requirement of the law rather it is contrary to decisions of the Apex Courts and, as such, taking of cognizance on such charge-sheet is illegal, malafide which amounts to a malice in law. Sheikh Hasina vs State 63 DLR 162.

The act of the Commission in according the sanction, without affording the accused any hearing under Rule 11 of the ACC Rules, 2007, amounts to colorable exercise of power by the ACC and its failure to remain স্বাধীন ও নিরপেক্ষ which is the touch stone to judge the validity of its acts and deeds. Obaidul Kader vs State 63 DLR 425.

A valid sanction being a condition precedent to a valid prosecution, The impugned proceeding has been launched without a valid sanction and the same, based on such a sanction amounts to an abuse of the process of the Court. Obaidul Kader vs State 63 DLR 425.

The sanction in question has not been accorded as per prescribed Form-3, mandatorily required by rule 15(7), and that apparently the same has been given mechanically. Hence the questioned sanction is not a sanction in the eye of law. Bayazid vs State 61 DLR 772.

”Form 3” is the part of the statute and accordingly when a specified Form has been prescribed in the statute for particular purpose the sanctioning authority has no scope to assign any reason of its satisfaction beyond the said format given in the form. Habibur Rahman Molla vs State 61 DLR 1.

There is no scope to challenge the efficacy of the sanction which has been accorded in Form No. 3 under rule 15(7) of the ACC Rules, 2007 prescribed by the legislature. The recital of the sanction order clearly shows that sanctioning authority was satisfied, on scrutinizing the record, produced in respect of the allegation brought against the accused-petitioner to accord sanction for prosecution. Habibur Rahman Molla vs State 61 DLR 1.

Penal Code, 1860
Section 161 read with
Section 5(2) of the Prevention of Corruption Act, 1947 And
Section 561A of the Code of Criminal Procedure, 1898 And
Durnity Daman Commission Bidhimala, 2007
Rule 16:
A proceeding cannot be quashed depending on alleged procedural error in the method of collection of evidence to be adduced and used. The High Court Division failed to distinguish the allegations of demands, acceptance and attempts to accept gratifications and those with the procedure to collect evidence to substantiate allegations of acceptance and attempts to accept gratifications or demands, thereby, erroneously quashed the proceedings. …Anti Corruption Commission Vs. Md. Rezaul Kabir & ors, (Criminal), 8 SCOB [2016] AD 144 ....View Full Judgment

Neither the seizure list witness PWs 4 and 5 nor the PWs 9, 10 and 11 who accompanied with PW 1 did support the prosecution case in respect of recovery of marks notes from the possession of the appellants. Rather the defence case was that due to fail in the Dispute Case No. 129 of 2003 on 2-7-2003 out of the grudge PW 8 Abul Kalam Azad who proved himself as a ‘Mamlabaz’ subsequently created a false case against the accused-appellants with the help of PW 1 who without taking any effective permission as per Rule 16(2) of the Anti-Corruption Commission Rule brought the case is more probable. Jahangir Alam vs State 63 DLR 294.

To lay and conduct trap to catch hold of an accused red handed and the requirement of the officer so conducting trap to be empowered by the Anti-Corruption Commission.
To empower an officer by the commissioner in charge of, investigation lay trap and conduct the proceedings required under rule 16 of the Anti-corruption Commission Rules, 2007 is mandatory requirement of law. In absence of such empowerment or authorisation the learned judges held proceedings’ illegal and abuse of the court and as such quashed the same. R Kabir (Md.) Vs. State and another 14 MLR (2009) (HC) 482.

The Penal Code, 1860
Section 161 r/w
The Prevention of Corruption Act, 1947
Section 5(2) r/w
The Code of Criminal Procedure, 1898
Section 561A r/w
Durnity Daman Commission Bidhimala, 2007
Rule 16
A proceeding cannot be quashed depending on alleged procedural error in the method of collection of evidence to be adduced and used. The High Court Division failed to distinguish the allegations of demands, acceptance and attempts to accept gratifications and those with the procedure to collect evidence to substantiate allegations of acceptance and attempts to accept gratifications or demands, thereby, erroneously quashed the proceedings. .....Anti Corruption Commission =VS= Md. Rezaul Kabir, [3 LM (AD) 509] ....View Full Judgment

Anti-Corruption Commission Act, 2004
Sections 19 and 20 and
Rule 20 of the Anti-Corruption Commission Rules, 2007 read with
Section 160 of the Code of Criminal Procedure:
It appears from the record that the ACC in the name of exercising discretionary power issued the impugned notices hurriedly during pendency of Writ Petition 1087 of 2019 directing the petitioners to appear before the ACC to make statements with respect to taking possession of RAJUK plot unlawfully creating forged documents and evasion of registration fees and other taxes at the time of purchase of the land in question, which is tantamount to interference in the administration of justice that cannot escape characterization of a mala fide act having something in the mind of the Respondent No.3 and that is why we have no hesitation to say that the impugned notices have been issued abusing of the discretion and thus the same are liable to be interfered with by this Court. …Md. Atiqur Rahman & anr Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 70 ....View Full Judgment

Settled proposition of law as laid down in the cases of Dr. Narul Islam Vs. Bangladesh, 33 DLR(AD)201; BADC and another vs. Md. Shamsul Hoque Majumder and others, 60 DLR (AD)152 and Abdul Hoque and another vs. Bangladesh, 68 DLR(AD)235 that mere harshness or unreasonableness or arbitrariness cannot be a ground to declare a law void or inconsistent with the provision of the constitution and, that if an incumbent is entitled to get relief without declaring a law void, the Court will give such relief. The Anti-Corruption Commission should follow the following observations/guidelines in order to exercise power given under Rule 54(2) of the Service Rules-
i. the Durnity Daman Commission (Karmachari) Chakuri Bidhimala, 2008 has prescribed the procedure to initiate departmental proceeding against an employee for the offence committed by him including misconduct affording all opportunities of Principle of Natural Justice and ensuring all rights to defend his case hence, it should not apply the provisions of Rule 54 (2) of the Durnity Daman Commission (Karmachari) Chakuri Bidhimala,, 2008 at first to get rid an employee unless situation demands so;
ii. the provisions of Termination Simplicitor should not be used in a fanciful manner when there is other way out;
iii. since bidhi 54 (2) of the Durnity Daman Commission (Karmachari)Chakuri Bidhimala, 2008 has given unfettered and unguided power to the Anti-Corruption Commission authority to get rid of any employee who is causing displeasure to them without assigning any reason which is opposed to the 'Principle of Natural Justice" and of 'audi alteram partem' therefore, it is expected that the authority must exercise the power under Rule-54 (2) the Service Rules of 2008 with utmost care and caution;
iv. since bidhi 54 (2) of the Durnity Daman Commission (Karmachari)Chakuri Bidhimala, 2008 creates a sense of insecurity in the minds of the employees to perform their duties with honesty and courage therefore, under rule 54 (2) of the Service Rules of 2008 the employer must exercise the power only in special cases where it is necessary and other employees also find the decision of the authority as rational;
v. an employee of Anti-Corruption Commission usually works with serious cases of corruption and misappropriation of power and position committed by the most powerful stake holders of the country including the most powerful businessman, politicians of the country and the bureaucrats of the Governments, the authority while exercising the power of ‘Termination’ must remain careful that nobody is victimized at the behest of high ups;
vi. the service of an employee of a Statutory Corporation, Public Body, National Enterprise etc. is not like that of a master and servant rather their tenure of service and other terms and condition are based on the relevant Statute and the Service Regulations, Thus extra ordinary power to terminate any employees with three months’ notice or pay in lieu of who has served a long time is always discouraged;.
vii. case of every employee is required to be dealt with on merit by the concerned authority before they decide to terminate him from his job. Since the law empowers the authorities with such extra ordinary weapon, it should be used only in an extra ordinary situation and as a last resort, on consideration of individual merit of each and every case and not otherwise;
viii. an employee should not be terminated by using Rule 54 (2) as a tool in the garb of a constructive dismissal;
ix. without assigning any reason as envisaged in Rule 54 (2) does not mean without having any reasons. Reason or reasons must be recorded in the note sheet before the Authorities take its decision to terminate an employee;
x. selection for Termination under Rule 54 (2) shall be made fairly and justly, without any pick and choose, without any bias, without any discrimination under the mandate of the Constitution of the People's Republic of Bangladesh. The parameters of such termination has to be set in accordance with the equality provision of the Constitution;
xi. the authority must act rationally in its decision making process within the concept of Wednesbury Reasonableness;
xii. no employee should be terminated from his service against whom any departmental proceeding has already been initiated and pending with specific charges; in that situation, the authority must conclude the proceeding and punish the accused if he is found guilty. Not in any other manner. It is also expected that all the Government, Semi-government, Autonomous bodie(s), Corporation(s), Statutory bodie(s), institution(s) should follow the above observations/guidelines in taking action of termination against its employee whatever discretionary power has been conferrer given in the relevant law/Rules. .....Durnity Daman Commission =VS= Md. Ahsan Ali, (Civil), 2024(1) [16 LM (AD) 93] ....View Full Judgment