Title: Anti-Corruption Commission vs Md. Shahidul Islam & others
Reference: 68 DLR (AD) (2016) 242
“Appellate Division declared that a criminal proceeding can be brought against an MP as Public Servant under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947”
Facts of the case:
In this judgment, two civil appeals and a criminal petition for leave to appeal were heard together and disposed of because of their commonality in the subject matter. All of these cases involved the offence relating to transferring or purchasing tax-free jeep before the expiry of the prescribed time limit under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act,1947.
TheMembers of Parliament (MPs) are given the privilege of importing certain vehicles tax-free but with a restriction that such vehicles cannot be transferred or sold before the expiration of 4 years from the date of importation, if done it would constitute an
The HCD quashed the proceedings of the lower courts based on the arguments that the MPs are not Public Servant within the meaning of section 21 of the Penal Code and section 2(b) of the Prevention of Corruption Act, so the initiation of the whole proceedings under the above-mentioned sections are bad in law and thus deserved to be quashed.
Mr.Mahbubey Alam appearing on behalf of the appellants, however, submitted that there was
On the other-hand, the Advocate appearing on behalf of the Respondent side defended the judgment of the HCD and argued that as the respondents being MPs the criminal proceedings against them initiated by the ACC were bad in law.
the respondent side also argued that an MP occupies a seat of the Parliament, not an office as the Public Servants do. Again, they do not get any salary but offenses remuneration under Article 68 of the Constitution and they also are not engaged in any public duty rather they perform their Constitutional obligations which are different from that of public duties.
The main question before the Appellate Division (AD) to resolve in this case was whether a criminal proceeding can be brought against an MP as Public Servant under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947. And in order to resolve the matter interpretation of some related words such as “office”, “seat”, “salary”, “remuneration” and the phrase“Public Servant” itself was necessary. In this judgment the AD while interpreting the before mentioned words concluded that “an MP holds an office and by virtue of such office he is required or authorized to carry out duties and such duties are in the nature of public duties.”
The AD found no distinction between salary and remuneration. Rather remuneration is a broader term which includes salary as has been observed in Accountant General, Bihar vs N Bakshi, AIR(1962) SC 505. Just because the term remuneration is not defined in the constitution it is not logical to use this expression in a limited way.
Again, the AD concluded that “the words “seat” and “office” are interchangeable terms and either of them can be used while referring to a member of Parliament.” In the defense of such interpretation, the AD referred many Law Dictionaries andCase Laws. For example, in PV NarashimaRao vs State (1998) 4 SCC 626 the definition of office has been taken fromNew English Dictionary as “A position or place to which certain duties are attached, especially one of a more or less public character.” Also in RV White, 13 SCR (NSW) the Supreme Court held that a Member of a State Legislation holds an office.
The next question that the Supreme Court gave an answer to in this case was whether an MP is authorized or required to perform any public duty by virtue of his office. While referring to PV NarashimaRao case the AD confers that an MP is authorized or required by the Constitution to perform Public duties, including enactment of legislation in which the state, the public and the community at large hold great interest. Indian Supreme Court held in PV NarashimaRao case that the expression “public servant” contained in section 2 (c) of the Prevention of Corruption Act 1988 also applicable for Member of Parliament for the purpose of Prevention of Corruption Act.
The definition of Public Servant is also provided in the Criminal Law Amendment Act 1958. The definition given
Again, by analyzing the scheme of the ACC Act, the AD came to the conclusion that ACC Act is applicable for public servants as well as “any other person”. With the ACC Act the scope of the definition of “Public Servant” has been widened so as to make it more effective by covering a wider range than before.
And lastly the AD also held the writ petitions not maintainable on the ground that the Respondents had
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