MOHD. SHOWKOT ALI vs. Respondent: NATIONAL BOARD of REVENUE, REPRESENTED by ITS CHAIRMAN, SEGUNABAGICHA, DHAKA and OTHERS

Jul 3, 2022

IN THE SUPREME COURT OF BANGLADESH
(HIGH COURT DIVISION)

Writ Petition No. 1365 of 2008

Decided On: 18.05.2008

Appellants: MOHD. SHOWKOT ALI
Vs.
Respondent: NATIONAL BOARD OF REVENUE, REPRESENTED BY ITS CHAIRMAN, SEGUNABAGICHA, DHAKA AND OTHERS

**Hon’ble Judges:**Md. Abdur Rashid and Md. Ashfaqul Islam, JJ.

Subject: Criminal law

Catch Words

Mentioned IN

**Acts/Rules/Orders:**Criminal Law Amendment Act, 1958 - Section 4(1); Customs Act, 1969 - Section 156; Penal Code, 1860 - Section 109, Penal Code, 1860 - Section 406, Penal Code, 1860 - Section 409, Penal Code, 1860 - Section 420; Prevention Of Corruption Act, 1947 - Section 5(2)

Counsels:
For Appellant/Petitioner/Plaintiff: Ahsanul Karim with Khairul Alam Choudhury, Rumeen Farhana

Case Note:
Transfer of a vehicle after the specified period of three years of importation under the Notification being SRO No. 122 dated 24.05.88 did not create any liability criminal or otherwise under any law of the land.
After said period said Mirza Azam MP became absolute owner of the vehicle and as an owner he had the right to transfer the vehicle. By transfer of the vehicle, no offense was committed either by the seller or buyer, the petitioner.
Upon such transfer of the vehicle, lodging of an FIR and submission of a charge-sheet were all unauthorized and uncalled for, which resulted in serious harassment of innocent petitioner. Cognizance of the offences against the petitioner was therefore serious misuse and abuse of the cognizance power of the Court. During emergency, what is happening today even after the sub-ordinate judiciary was made separate and independent of the executive could not be conceived of earlier. Continuation of the case against the petitioner is equally abuse of process of the Court

JUDGMENT

Md. Abdur Rashid, J.

  1. The above Rule NISI was issued asking the respondents to show cause as to why initiation and continuation of Special Case No. 153 of 2007 arising out of Gulshan PS Case No. 41(3)07 dated 10.03.07 corresponding to GR Case No. 178 of 2007 under section 409 read with section 109 of the Penal Code and section 5(2) of the Prevention of Corruption Act, 1947 now pending before the Senior Special Judge at Dhaka should not be declared to be without any lawful authority and of no lawful authority. Short facts for disposal of the Rule are that one Mirza Azam, Member of Parliament, in short, MP imported a white color Lexus Jeep vide bill of entry no. C-179443 dated 13.03.03. After the jeep was cleared, it was registered as Dhaka-Metro Ga-11-4387. Said Mirza Azam then, on 26.12.06 transferred the jeep to the Metro Spinning Mills Limited upon receipt of part payment of taka 13,00,000.00 out of total price of taka 39,00,000.00. It was acknowledged by said Mirza Azam that after the change of ownership to the name of the company, it would pay the rest of the consideration.

  2. On 09.03.07 the petitioner was arrested. On 10.03.07 an FIR was lodged under section 406 and 420 read with section 109 of the Penal Code against Mirza Azam and the petitioner Md. Showkat Ali. After completion of investigation, the police submitted a charge sheet on 19.11.07 against them and the company under section 409 and 420 read with section 109 of the Penal Code, section 5(2) of the Prevention of Corruption Act, 1947, rule 15 of the Emergency Powers Rules, 2007 and section 156 of the Customs Act, 1969.

  3. Upon receipt of the charge sheet, the Metropolitan Senior Special Judge by his order dated 22.11.07 took cognizance of offences under section 409 read with section 109 of the Penal code and section 5(2) of the Prevention of Corruption Act, 1947 against the petitioner and said two others.

  4. Mr. Ahsanul Karim, learned advocate for the petitioner took us through the writ petition and submitted that as the petitioner on 26.12.06 purchased the jeep after the specified period of three years from the date of importation of the vehicle on 13.03.03 the petitioner incurred no criminal liability, initiation and cognizance of the case against the petitioner was therefore unauthorized and without jurisdiction.

  5. He submitted that the transfer of vehicle after the prescribed period of three years of importation created no offence under any law of the land and continuation of the case against the petitioner was therefore serious abuse of the process of the Court.

  6. He lastly submitted that in view of the Notification being SRO No. 58 dated 25.04.07 on repeal of the Notification being SRO No. 37 dated 02.04.07 the Government re-fixed under section 4(1) of the Criminal Law Amendment Act, 1958 the local and territorial jurisdiction of different special Courts of the country, and Metropolitan Senior Special Judge at Dhaka had no such jurisdiction, cognizance of the offences against the petitioner by said Metropolitan Senior Special Judge by his order dated 22.11.07 was equally unauthorized and without jurisdiction.

  7. None of the respondents in the Rule appeared nor did anybody contest it.

  8. Transfer of a vehicle after the specified period of three years of importation under the Notification being SRO No. 122 dated 24.05.88 did not create any liability criminal or otherwise under any law of the land. After said period said Mirza Azam MP became absolute owner of the vehicle and as an owner he had the right to transfer the vehicle. By transfer of the vehicle, no offense was committed either by the seller or buyer, the petitioner.

  9. Upon such transfer of the vehicle, lodging of an FIR and submission of a charge-sheet were all unauthorized and uncalled for which resulted in serious harassment of innocent petitioner. Cognizance of the offences against the petitioner was therefore serious misuse and abuse of the cognizance power of the Court. During emergency, what is happening today even after the sub-ordinate judiciary was made separate and independent of the executive could not be conceived of earlier.

  10. For the reasons stated, continuation of the case against the petitioner is equally abuse of process of the Court.

  11. In the result, the Rule is made absolute without however any order as to cost.

  12. Cognizance and further proceedings of aforesaid Special Case No. 153 of 2007 arising out of Gulshan PS Case No. 41(3)07 dated 10.03.07 corresponding to GR Case No. 178 of 2007 are hereby declared to have been taken and continued without any lawful authority and as such, of no legal effect and is accordingly, quashed for the ends of justice. Communicate at once.

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