The High Court in a full judgement on Wednesday said that the government nakedly interfered with the affairs of an independent body like the Anti-Corruption Commission by taking the decision to withdraw an ACC case and persuading the prosecutor to withdraw it from the trial court.
In a short order, the online bench of Justice M Enayetur Rahim and Justice Md Mostafizur Rahman on December 10, 2020 cancelled an order earlier issued by the Sylhet divisional Special judge, which, on January 26, 2012, acquitted a union parishad chairman and three union counsellor members of corruption charges, following a recommendation from the home ministry on February 11, 2010.
The HC in the short order also declared illegal the home ministry’s recommendation to withdraw the ACC case.
The High Court in the full judgement released on Wednesday says, ‘Such an endeavour on the part of the government can be regarded as a naked interference in the affairs of an independent body like the commission.’
The High Court said that Section 3(2) of the Anti-Corruption Commission Act 2004 postulates in clear terms that the Anti-Corruption Commission shall be an independent and impartial body.
The court said that since Section 10(4) of the Criminal Law Amendment Act 1958 authorised the ACC only to withdraw a case, the government has nothing to do in such matter as the provision of Section 494 of the Code of Criminal Procedure for withdrawal from prosecution would not be applicable in the corruption case, which is triable by the court of special judge, which are constituted under the Criminal Law Amendment Act 1958.
‘Even then, materials on record go to show explicitly that in exercise of power under Section 494 of the code the government decided to withdraw the special case filed in 2009 pending in the Court of the Divisional Special Judge, Sylhet and persuaded the same through a public prosecutor,’ the High Court continued.
The HC says,‘…as per the mandate of Section 10(4) of the Criminal Law Amendment Law 1958, the Anti-Corruption Commission is the only authorised body to withdraw from the prosecution against any person.’ says the court adding, ‘Thus, it is patent that the government has nothing to do in respect of withdrawal of a case filed under the Act of 2004 or the Act of 1958.’
‘It is apparent that the learned special public prosecutor has erred in law in filing the application for the withdrawal of the case without obtaining prior approval from the commission,’ the High Court says, adding that, ‘The learned judge of the trial court without applying his judicial mind acquitted all the case following the prayer from the government in a mechanical way.’
The High Court in the judgement asked the Divisional Special Judge, Sylhet to proceed with the case in accordance with law and asked the four accused to surrender in the court within four weeks.
The HC said that the accused might approach the commission for the withdrawal of the case and the commission is at liberty to consider their representation while keeping in mind the nature and gravity of their offence and the fact that in the last 13 years the accused petitioners have suffered in various ways.
The Sylhet divisional special judge’s court on January 26, 2012 acquitted the chairman, Abul Kashem and members MA Razzaq, MA Sattar and Niaz Ali after accepting a prayer filed by Sylhet public prosecutor Mezbahuddin to comply with the home ministry’s February 11, 2010 recommendation for withdrawing the case.
The ACC on October 19, 2014 challenged the lower court’s order for acquitting the four accused and the High Court on March 27, 2016 issued a ruling on the government and the four accused to explain why the acquittal order would not be scrapped.
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