Bankers-ACC tug of war: A legal analysis

According to economists and historians, the word 'bank' originated from the Greek term 'banque' or the Latin term 'bancus'. It was as early as 2000 BC when the Babylonians had developed the system of banks. The Hindustan Bank is the first in the Southeast Asian region. It was established in 1700 at Calcutta, India. The Dhaka Bank was the first of this land. It was established in 1806. The Dhaka Bank Limited, established in 1995, is no successor of the former. The central bank of Bangladesh was created under the Bangladesh Bank Order, 1972. It is the primary regulatory body of all banks and non-bank financial institutions operating in Bangladesh.
In public perception, a banker is an individual who works in a bank. Legally, a banker is a company carrying on the business of bankers. A private commercial bank in Bangladesh has always been a public limited company as prescribed by the Bangladesh Bank. The Banking Companies Act, 1991 (Act XIV of 1991) has not given any definition of 'Banker'. Section 2 (2) of the Bankers' Book Evidence Act, 1891 (the BBEA, 1891) has defined 'Bank' and 'Banker' as any company carrying on the business of bankers. Section 2(1) of the BBEA, 1891 has defined 'Company'. 'Company' means a company registered under any of the laws relating to companies for the time being in force in Bangladesh or incorporated by any Bangladesh law".
Section 2 (3) of the BBEA, 1891 has defined the 'Bankers' Book' which includes ledgers, day-books, cash-books, account-books and all other books used in the ordinary business of a bank. With the advancement of global trade and socio-economic growth the 'bank' has assumed various forms such as investment banks, mortgage banks, merchant banks, savings bank etc.  
ANTI-CORRUPTION COMMISSION ACT, 2004 VS LEGAL PROTECTION OF BANKERS' BOOK: The rationale of framing the BBEA, 1891 despite having the Evidence Act, 1872: Historically money involves four functions: a medium, a measure, a standard and a store. Moneyed or wealthy men had always been targeted and been the prey to inhuman cruelties of vicious human beings. From my personal viewpoint, the rationale of framing the BBEA, 1891 is that bankers are the custodian of public money and if they pass information to undesired recipients, then the depositors' secrecy and even their lives may be endangered. Money is a highly-sensitive asset of a person and to some extent roots of many evils. There is also a saying that money is a hydra-headed monster. So, for the sake of averting unauthorised disclosure of information the BBEA, 1891 was framed and thus the bankers' books are protected from any unauthorised disclosure. Section 19 of the Anti-Corruption Commission Act, 2004 (Act No. V of 2004) [the ACC Act] has given special powers to the ACC for investigation into any complaint relating to corruption and under the Section 19 (d) the ACC can requisition any public documents or their certified copies from any court or office. As the bankers' books are not public documents as defined in Section 74 of the Evidence Act, 1872, hence production of the same requires prior permission of the Sessions Judge or the High Court Division for inquiry, as the case may be. The ACC vide its Office Order dated 24.06.2009 also acknowledged the legal protection of bankers' books in light of the Sections 5, 6 (1) of the BBEA, 1891 and Section 94 (1) of the Criminal Procedure Code, 1898 (CrPC 1898).
BBEA, 1891 and CrPC, 1898 have not indemnified the banker but qualified: As far as Section 5 of the BBEA, 1891 is concerned, no authority, even the Bangladesh Bank, can directly ask for or requisition any bankers' book. Though plain reading of Section 51 (b) of the Banking Companies Act, 1991 (Act No. 14 of 1991) may lead one to think that the Bangladesh Bank as the primary regulatory body of the banks has got the absolute authority to ask for any bankers' book, that is also a qualified authority as is in the Section itself. According to Section 2 of the Act No. 14 of 1991, the Act itself is an effective special piece of legislation, i.e. the Act No. 14 of 1991 has not got any overriding effect and it will not be prejudicial to other laws rather than being supplementary. Thus Section 5 of the BBEA, 1891 has safeguarded a banker from not providing any bankers' book, when the bank is not a party to the legal proceeding. Section 94(1) (a) of the CrPC, 1898 has provided for qualified production of bankers' books to the requesting authority with prior permission of the Sessions Judge to investigate any offence under Sections 403, 406, 408, 409, 421,422,423,424 and 465 to 477A ( the Sections) of the Penal Code, 1860 and in any other case with prior permission of the High Court Division of the Supreme Court of Bangladesh. The High Court Division of the Supreme Court also confirmed the legal binding under Section 94 (1) of the CrPC, 1898 in dealing with the issue of Sonali Jute Mills Ltd. vs ACC. Jurisdiction of the sessions judge to give prior permission is limited for 'investigation of offences' only under sections of the Penal Code, 1860.
ACC'S POSITION BEFORE AND AFTER THE AMENDMENT TO THE ACC ACT: The ACC was created under Section 3 of the ACC Act as an independent and impartial body. It has been given almost all powers as may be necessary for investigation into any complaint relating to corruption. Section 19 of the Act has given special powers to the ACC for inquiry and investigation including requisition of any public documents or their certified copies from any court or office. But the ACC was not getting bankers' books easily in accordance with their orders and for the statutory limitation as mentioned in Sections 5 and 6(1) of the BBEA, 1891 and Section 94 (1) of the CrPC 1898. Hence parliament amended the ACC Act to get rid of the impediments as under Sections 5 and 6(1) of the BBEA, 1891 and Section 94 (1) of the CrPC 1898.
As the ACC was not getting the requested bankers' books from the banks without prior permission of the Sessions Judge or the High Court Division and there were other legal issues, the Act was amended in 2013. In the Anti-Corruption Commission (Amendment) Act, 2013 (Act No. 60 of 2013) the Section 2A was inserted giving it the overriding power in the event of any conflict and thus made the ACC Act a special one. Such a clause in a statute makes the provision independent of other provisions contained in the law, even if the other provisions are contrary to it. That means the provisions of the BBEA, 1891 and the CrPC, 1898 have been made inoperative, when it comes to that clause.
The relation between a general law and a special law is well-described by the Latin maxim "generalia specialibus non derogant" i.e. general words do not derogate from the special. That means universal things do not detract from specific things. This well-known proposition of law says that when a matter falls under any specific provision, it must be governed by that provision and not by the general provision. The general provisions must admit to the specific provisions of the law. It is a basic principle of statutory interpretation. In dealing with the issue of Managing Director of Rupali Bank Limited and Others vs. Tofazal Hossain, the Appellate Division of the Supreme Court held, inter alia, if any legal remedy is ordinarily under both the general law and the special law, the remedy prescribed by the special law must be sought in exclusion of the one available under the general law.
Mr Sastri, the Chief Justice of India, held that the non-obstante clause cannot reasonably be read as overriding anything contained in any relevant existing law which is inconsistent with the new enactment. These are the well-set rules of interpretation of a non-obstante clause. Normally, a non-obstante clause is always expressed in a negative form by using the words 'notwithstanding anything contained' or 'anything contained in a previous law shall not affect the provisions of a particular Act' and so on.  
So, in light of the Appellate Division's view, the ACC Act with the insertion of Section 2A has become a special law and the ACC is thus unfettered to ask for or requisition any documents from any office, including banks, for the purpose of inquiry or investigation.
Under the Section 2A, the ACC may now use the ACC Act, 2004 as a sword, because any wilful disobedience to the ACC order invites three years' punishment and fine too. Therefore, even the ACC may use the ACC Act as a sword while the bankers cannot use the provisions of BBEA, 1891 and the CrPC 1898 as the shield.
The writer is Head of Legal Department at Mutual Trust Bank Ltd.
 jewel_yes@yahoo.com