1981 P Cr (PLP)

Jehangir Ali one of the Directors of Kalyal Commercial Corporation was sent to civil prison by the Registrar Co-operative Societies under section 8 of the Co-operative Banks (Re-payment and Recovery of Loan) Ordinance (hereinafter to be called as an Ordinance) as he being one of the Directors of the Kalyal Commercial Corporation Ltd., a borrower not only refused to make payment of the loan taken from the Co-operative Bank which stands dissolved but also failed to furnish security as required under section 3 of the said Ordinance. This detention of the above-named Jehangir Ali is challenged by the petitioner on the following grounds namely:- (1) That as no notice under section 5(2) of the said Ordinance was issued to the detenu in respect of the liability of the Kalyal Commercial Corporation Ltd., no detention of Jehangir Ali could legally be made in the civil jail by the Registrar. After issuance of a notice under section 5(2) the person proceeded against has a legal right to defend himself under subsection (3) of the same section. (2) That the procedure Laid down under section 4(2) of the said Ordinance was not followed by the, Registrar which warrants an inquiry to be conducted before a borrower could be detained in civil prison under section 8 of the Ordinance. (3) That the detenu has not appropriated any amount of loan obtained by the Kalyal Corporation Ltd., and as such there is no liability for payment of the loan and if there is airy loan outstanding against the corporation it can be met out of the assets of the Corporation. (4) That no inquiry to ascertain the liability of the said, detenu was made by the Registrar and so no order of detention could legally be passed by him against detenu Jehangir Ali. In order to support the order of detention, Registrar Co-operative Societies was examined by the counsel of the non-applicants. Relevant documents pertaining to the detention of Jehangir Ali were also placed on record. The counsel for the parties were beard and the perusal of the documents concerned was also made: A notice as required by section 5(2) of the Ordinance was also issued to the Directors of the Corporation including the detenu as was deposed to by the Registrar. This notice does not contain the names of the Directors. It was simply issued to Messrs Kalyal Commercial Corporation Ltd., and the same was received by the Manager of Kalyal Hotel, whose name is also not known to the Registrar as to who this person was to have received the notice. Obviously notice was not served upon the Directors by name including the detenu and it was thus without due service of the detenu that he was proceeded against arbitrarily. Certificate Exh. P. A. issued by the Superintendent Jail Mirpur shows that Jehangir Ali bad been under detention in Jail from 9-1-1978 to 8-4-1979 in connection with a criminal case connected with the Co-operative Bank, a creditor. Again Jehangir Ali was detained in civil prison from 4-2-1980 to 22-2-1980 on a warrant issued by the Registrar Co-operative Societies" under section 8 of the Ordinance. On 23-2-1980 Jehangir Ali was released from civil prison after payment of the loan obtained by him from the Co-operative Bank, But as soon as be was released from the civil prison he was got re-arrested by the very Registrar on the same day and was sent to civil prison. This second detention under section 8 of the Ordinance is under challenge with which we are dealing instantly. No inquiry before sending Jehangir Ali to the civil prison by the Registrar was conducted as required by subsection (3) of section 5 of the Ordinance. At the time when Jehangir Ali was produced before the Registrar in custody, he asked the prisoner to show whether he was prepared to make payment or secure the loan as the case may be and on his refusal to do any of the things he was sent to jail. The proper question to be put to him ought to have been to the effect in response to the notice already issued under section 5(2) whether he admitted the loan claimed by the opposite-party and if he did not admit the liability he was then to be asked to submit his written statement to him so that notice could be issued to the other parties concerned and then after holding an inquiry as necessary according to him and giving the parties reasonable opportunity of being heard a decision was to be given about the liability thereof. In this circumstance, no warrant of arrest could legally be issued by the Registrar at this stage of the case. Evidently a cart was placed before the horse. No shelter can be taken by the Registrar under an amendment of section 5(2) of the Ordinance when the notice bad already stood issued. It was then the bounden duty -of the Registrar to get is the served upon the detenu who was already known to him and was in civil prison for non-payment of the loan under section 8 of the Ordinance within his knowledge, but the same was not sent to him in jail for his service and thus without affording opportunity to him of being heard he was condemned thereby violating the doctrine of audi alteram partem and that is the violation of the principle of .natural justice making detention of Jehangir Ali improper and illegal. It was argued by the learned Additional Advocate General that as section 5(2) was amended and the word `shall' was substituted lay the word 'may', it was not compulsory for the. Registrar to issue notice under section 5(2) of the Ordinance. This is no argument. The notice already stands issued. At the time the notice was issued it was a mandatory 7ovisron of law to give notice to a person to be proceeded against under the provision of law contained in the Ordinance and that was why a notice was issued but its service was not duly effected as required by law. The issuance of notice has not totally been dispensed with. It is discretionary. The Registrar may or may not issue the notice but when the notice had 'heady been issued under a mandatory provision of law in pursuance which an inquiry under subsection (3) of section 5 of the Ordinance is to be conducted by the Registrar which is to the following effect.- (3) where any borrower to whom notice under subsection (2) is issued does not admit the loan or any liability arising therefrom, he shall within thirty days of the receipt of notice, or within such further period as the Registrar may, in special circumstances allow, submit either personally or by registered post (acknowledgement due), a written statement to that effect to the Registrar, who thereupon shall cause notice to be issued to the Bank or society concerned, and shall, after making such inquiry as he considers necessary, and giving the parties reasonable opportunity of being heard, decide about the liability;" And if a notice is issued in exercise of the descretion vested in the I Registrar under the amended law, he is still compulsorily bound by law to old the inquiry. Obviously above mentioned provision of law contained in subsection (3) of section 5 of the Ordinance was violated by the Registrar. As soon as Jehangir Ali was released from the Civil Jail e on 23-2-1980 he was re-arrested on a warrant improperly issued by the Registrar. That being so, the detention of Jehangir Ali being illegal, his release is accordingly ordered. The Superintendent, Jail, Mirpur shall at once set him at liberty, if he is not, wanted in connection with some other case. Petition allowed.