DUDOK (Anti-Corruption Commission) notice in a pending civil suit claiming forged/ fabricated documents.
Dr.Ahamuduzzaman (founder of ain-qanoon.com)
I am living in Uttarkhan. I am the only son of my deceased father Mohabbat Ali. My father became owner of 10 katha land through purchase by a sale deed in 1967 from my uncle Mohammad Ali. The name of my father included in the Dhaka City survey and I mutated the land in my name after the death of my father in 2012. One Forkan Ali claimed owner of the same property based on another sale deed executed in 1981 by the son of my deceased uncle. I am in possession. Now the person is trying to oust/ dispossessed me from the land.
The so called owner Forkan Ali filed a case under section 144 and 145 in which police submitted report in our favour. He filed a civil suit in 2009 which now I am competing. Now he has filed a complaint against me to the ACC (DUDOK) claiming that the mutation was false. DUDOK issued notice against me and I appeared and submitted all relevant papers.
What can I do now?
Can DUDOK issue such notice in a pending case? Please suggest/ advice me.
Md. Rafik Uddin, Uttarkhan, Dhaka.
Dear Mr. Rafique,
I am very much glad to hear from you. I know how you are passing your bad days due to such suit or false cases as you have claimed.
The fact is very clear that DUDOK has issued notice on a pending civil suit. The opposite party is constantly trying to harass you by filing cases one after another and probably he is a very influential person or a suitor/ mamlabaj.
DUDOK (Anti Corruption Commission) is empowered under the ACC Act, 2004 and the ACC Rules, 2007 to issue notice against any person and can even call for records from Courts or other public authorities.
However, to ensure justice, DUDOK should not interfere in a pending case/ suit which is a matter of sub-judice.
DUDOK must follow the provisions of law not to use it as a sword but as a shield.
I would like to argue with the following provisions of law in favour of you:
Section 26 of the General Clauses Act, 1897 stated that “Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice”
Section 195 © of the Cod eof Criminal Procedure stated that “195 (c) of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.
(2) In clauses (b) and (c) of sub-section (1), the term "Court" includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the 1HYPERLINK "http://bdlaws.minlaw.gov.bd/print_sections.php?id=75&vol=§ions_id=21021"[ Registration Act, 1908].
(3) For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate:
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such court shall be deemed to be subordinate; and
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.
(4) The provisions of sub-section (1), with reference to the offences named therein, apply also to criminal conspiracies to commit such offences and to the abetment of such offences, and attempts to commit them.
(5) Where a complaint has been made under sub-section (1), clause (a), by a public servant, any authority to which such public servant is subordinate may order the withdrawal of the complaint and, if it does so, it shall forward a copy of such order to the Court and, upon receipt thereof by the Court, no further proceedings shall be taken on the complaint.
Section 10 of the CPC also provided that “No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in Bangladesh having jurisdiction to grant the relief claimed, or in any Court beyond the limits of Bangladesh established or continued by the Government and having like jurisdiction, or before the Supreme Court.
Explanation.-The pendency of a suit in a foreign Court does not preclude the Court in Bangladesh”.
Our suggestions/ Advice
So, DUDOK before taking into cognizance of any matter must examine merit of the case and also consider the existing provisions of other laws on the matter. If DUDOK takes the matter for its consideration of investigation or inquiry before filing any case under sections (463/467/468 etc,.)of the Penal Code to the Court of Magistrate based on its own source, it may be prejudice and one sided. As a civil suit is now pending and filed by the same person who has filed the allegation to DUDOK, it is seen as a malafide intention and as such liable to be rejected. However, DUDOK cannot file any case on the matter alleging forged or fabricated documents unless the concern civil court gives a judgement and certificate that the documents submitted for evidence before it by you was forged and fabricated.
If you consider harassment is the object of such notice, you can go to the concern Civil Court for an injunction against the notice issued by DUDOK. Even you can file a writ challenging the validity of DUDOK notice in a pending suit. An application/ petition under section 561-A of the Cr P C can also be filed, if DUDOK decided to file a case on such pending matter following section 195 (c) of the Cr P C.
You have many other options to apply to the Higher authority of DUDOk (Commission) to change the Investigation officer of DUDOK on the allegation of harassment and that you shall not get proper investigation and justice by such officer.
You need not be worried and I do believe that justice shall prevail.
In DUDOK RULES, after investigation by the concern officer, it shall go to the their Law Division and must be certified by the Commission whether to file a case or not. I don’t get any merit in filing such case by DUDOK against you until the judgment is passed.
You must collect all deeds, bia-deeds, porcha/ khatians, record of rights, mutation, title deeds, possession related documents, rent receipts etc,.
You must pay khajna/ revenue in due time. If the person blames or gives disputes, you can file an appeal to ADC (Revenue) for not receiving khajna/ revenue by the A/c (Land) office , if any.
To summarize, you give/pay khajna/ revenue, collect all papers(deeds and documents), maintain lawful possession, compete in civil suit, give a written reply to DUDOK notice claiming it has no authority to issue such notice in a pending civil suit and file writ or injunction petition challenging illegality of such notice or finally file a petition under section 561-A against the case filing of DUDOK, if any in future.
In DUDOK law, there is a provision to take necessary action against a person if any false allegation is filed to harass a person.
Finally, You have a good title, if all information provided to us is correct/accurate.
Founder of ain-qanoon.com
(Compiled and edited by: Dr. Ahamuduzzaman, founder of ain-qanoon.com)/ 24.3.2016