Criminal Justice System in Bangladesh
Subject: Law | Topics:

Introduction

General:

Criminal Justice System refers to judicial process or procedure of adjudicating criminal issues of which depends on vast knowledge in the Criminal matter and its practice. Easily it may be said Criminal Justice in concerned with the punishment of the wrong other than civil wrong which in Criminal Proceeding is know as crime.

The main objective of the Criminal Proceeding is to punish wrongdoer. Criminal Justice brought only for rendering punishment of the accused for the allegation alleged against him subject to the proof that the offence or crime has been committed by him or not.

Definition:

In this research the following words and expressions have the following meanings:

  1. Bangladesh is a unitary, independent, sovereign Republic to be known as the People’s Republic of Bangladesh.
  2. Advocate used with reference to any proceeding in any Court means an advocate or a mukhtar authorized under any law for the time being in force to practice in any such Court and includes any other person appointed with the permission of the Court to act in such proceeding.
  3. bailable offence means an offence shown as bailable in the second schedule, or which is made bailable by any other law for the time being in force; and “non-bailable offence” means any other offence.
  4. charge includes any head of charge when the charge contains more heads than one.
  5. Clerk or Staffs of the State includes any officer specially appointed by the Chief Justice to discharge the functions given by this Code to the Clerk of the State.
  6. Complaint means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code that some person whether known or unknown, has committed an offence, but it does not include the report of a police-officer.
  7. High Court Division” means the High Court Division for criminal appeal or revision.
  8. Inquiry includes every inquiry other than a trial conducted under this Code by a Magistrate or Court.
  9. Investigation includes all the proceedings under this Code for the Collection of evidence conducted by a police-officer or by any person (other than a Magistrate) who is authorized by Magistrate in this behalf.
  10. Judicial proceeding includes any proceeding in the course of which evidence is or may be legally taken on oath.
  11. Offence means any act or omission made punishable by any law for the time being in force.
  12. officer in charge of a police-station includes, when the officer in charge of the police-station is absent from the station-house or unable from illness or other cause to perform his duties, the police-officer present at the station house who is next in rank to such officer and is above the rank of constable or, when the Government so directs, any other police-officer so present.
  13. Place includes also a house, building, tent and vessel.
  14. Police-station means any post or place declared, generally or specially, by the Government to be a police-station, and includes any local area specified by the Government in this behalf.
  15. Public Prosecutor means any person appointed under section 492, and includes any person acting under the directions of a Public Prosecutor.
  16. Special law is a law applicable to a particular subject.
  17. Section denotes one of those portions of a chapter of this Code which are distinguished by prefixed numeral figures.
  18. act denotes as well a series of acts as a single act: the word
  19. Omission” denotes as well a series of omissions as a single omission.
  20. Dishonestly -whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”.
  21. Moveable properties are intended to include corporeal property of every description, except land and thing attached to the earth or permanently fastened to any thing which is attached to the earth.
  22. Court of Justice denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially.
  23. Judge” denotes not only every person who is officially designed as a Judge, but also every person,-
    who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment.
  24. Government” denotes the person or persons authorized by law to administer executive Government in Bangladesh, or in any part thereof.
  25. Public includes any class of the public or any community.
  26. Person includes any Company or Association, or body of persons, whether incorporated or not.
  27. Man denotes a male human being of any age: the word “woman” denotes a female human being of any age.

Rational of the study:

Everyman has a criminal mentality. Whenever he gets chance or needs to take benefit he just use that and as a result crime committed and which tends criminal justice to be adjudicated.

Bangladesh is a development country which because of its economic, political and geographical position is full of crime but does not seek justice properly.

Criminal Justice System of the country is only showing uniformed theoretically but practically it suffers much disability. Criminal violation to a person is much painful and non-bearable. The rational of the study is to bring out reason behinds failure to seek justice and the steps which may reasonably be able to suppress its disabilities.

Objectives of the study:

The main objective of the Criminal Justice is to punish the wrong door with penalty which intent to deter peoples to not engaged in crime and suppress crime. The main objective of the study is to find out the reason why Criminal Justice is not ensured yet after having all the body of enforcing and almost uniformed judicial system.

We have the law, administrative body, legislative body, Executive Authorities and Judiciary everything to suppress crime and to ensure justice if it committed but hence there are lots of cases where no justice is ensured and moreover crime is increasing day by day .So the study objects to find out reason of such incapability and to find out some practical doings which may reasonably reduce crime.

Following are the main objective of the study:

  1.   Find out the problems behind failure to justice, and
  2.    Point out suggestions to reform the failure.

 Scope of the study:

The fieldwork on which this thesis is based was carried out from 01st April 2013 to 1st September 2013.

In order to gain a broad perspective on and nuanced understanding of the criminal justice system my original aim was to find out the present condition of the criminal justice system of the country by considering the origin of the laws of the country. And on that’s reason I spend about 5 months on gathering information from the cases pending or adjudicated in various criminal court within the territory and from the communication with jurists, lawyers, staffs, police, plaintiff and accused also.

Methodology of the study:

The methodology of the present research work include- Review of related literature and examination of important principle document, law Book and Based, Journals, law ripcord DLR, ILR, Periodicals and Judicial precedence concern with Criminal Justice System.

The work also includes- Case study, data collection, concerning cases instituted in and disposed of every year and interviewing of litigant, Lawyers, Law officers and Judges. Where necessary and expending data would be collected from primary sources litigants, Lawyers and Judges would be selected for interview. On the basic of convenience and expedience, in cases of need other related work such as using web side, on visiting library could also be carried out. Basically the work would be a combination of description and anilities. Further the work also is a work of theoretical or operational research.

In final, as regards approach the work would be blend of to approaches-

  • Historical Approaches
  • Analytical Approaches

 Limitation of the study:

Every good work is restricted by certain restriction. Research on criminal justice system is also a good work because the criminal justice system of the country are suffering from  much disabilities and through this research problem behind the criminal justice system shall be definitely specify as well as reasonable remedial measures may be drawn from critical analysis on such disabilities and from the suggestion proposed by the jurists, lawyer, judges etc.

Besides the research was subjected to some others technical limitation also. For example while working on this research I had to go through various limitations those are termed in this research as limitation of the study.

As a researcher I had to go through following limitations namely,

  • Analysis or research on criminal justice system is a vast and wide doings. It is hard to complete the research within this short period of time granted by the 6 months.
  • The research is subjected to the vast knowledge in the criminal justice system and as a researcher I had to suffer from the reference of book,
  • It was hard to communicate or have the appointment of the jurists on criminal justice system,
  • The criminal justice system of Bangladesh is a vast matter which can not be exactly or completely analyzed with in 200 pages,
  • Finally, due to time constraint many of the aspects could not be discussed and presented in the assigned report.

Chapter- Two

Crime, Criminal Justice System and Cause of Crime:

Bangladesh Perspective

Crime:

Literally crime means an act or omission that constitutes an offense that may be prosecuted by the state and is punishable by law.

Crime is “an action or an instance of negligence that is deemed injurious to the public welfare or morals or to the interests of the state and that is legally prohibited”

The term crime does not, in modern times, have any simple and universally accepted definition, but one definition is that a crime, also called an offence or a criminal offence, is an act harmful not only to some individual, but also to the community or the state (a public wrong). Such acts are forbidden and punishable by law.

The idea that acts like murder, rape and theft are prohibited exists all around the world, and probably has universal moral basis.[4] What precisely is a criminal offence is defined by criminal law of each country. While many have a catalogue of crimes called the criminal code, in some common law countries no such a comprehensive statute exists.

The state (government) has the power to severely restrict one’s liberty for committing a crime. Therefore, in modern societies, a criminal procedure must be adhered to during the investigation and trial. Only if found guilty, the offender may be sentenced to punishment such as community sentence, imprisonment, life imprisonment or, in some jurisdictions, even death.

To be classified as a crime, the act of doing something bad (actus reus) must be usually accompanied by the intention to do something bad (mens rea), with certain exceptions (strict liability).

While every crime violates the law, not every violation of the law counts as a crime. Breaches of private law (torts and breaches of contract) are not automatically punished by the state, but can be enforced through civil procedure.

Whether a given act or omission constitutes a crime does not depend on the nature of that act or omission. It depends on the nature of the legal consequences that may follow it. An act or omission is a crime if it is capable of being followed by what are called criminal proceedings.

Thus crime is an unlawful act or omission from doing an act which he is bound to do or under the obligation to do so but acted or omitted.

 Criminal:

The word criminal was used first in the 15th century and derived from Late Latin word criminalis .The word literally means A person who has committed a crime.

A criminal is a person who has acted or omitted himself from doing an act for which he was bound to do or omit him from doing under obligation imposed by any law or whose duty it was to do or omit himself from doing.

Thus criminal means a person who committed a crime is the criminal himself for such act.

 Criminal Justice System:

Criminal justice system is a generic term for the procedure by which criminal conduct is investigated, arrests made, evidence gathered, charges brought, defenses raised, trials conducted, sentences rendered, and punishment carried out.

It also means the system of law enforcement, the bar, the judiciary, corrections, and probation that is directly involved in the apprehension, prosecution, defense, sentencing, incarceration, and supervision of those suspected of or charged with criminal offenses.

The criminal justice system consists of three main parts: (1) Legislative (create laws); (2) adjudication (courts); and (3) corrections (jails, prisons, probation and parole). In the criminal justice system, these distinct agencies operate together both under the rule of law and as the principal means of maintaining the rule of law within society.

The criminal justice system is the set of agencies and processes established by governments to control crime and impose penalties on those who violate laws. There is no single criminal justice system in the United States but rather many similar, individual systems. How the criminal justice system works in each area depends on the jurisdiction that is in charge: city, county, state, federal or tribal government or military installation. Different jurisdictions have different laws, agencies, and ways of managing criminal justice processes.

System Components:

Most criminal justice systems have five components-law enforcement, prosecution, defense attorneys, courts, and corrections, each playing a key role in the criminal justice process. The system of law enforcement, the bar, the judiciary, corrections, and probation that is directly involved in the apprehension, prosecution, defense, sentencing, incarceration, and supervision of those suspected of or charged with criminal offenses.

Law Enforcement: Law enforcement officers take reports for crimes that happen in their areas. Officers investigate crimes and gather and protect evidence. Law enforcement officers may arrest offenders, give testimony during the court process, and conduct follow-up investigations if needed.

Prosecution: Prosecutors are lawyers who represent the state or federal government (not the victim) throughout the court process-from the first appearance of the accused in court until the accused is acquitted or sentenced. Prosecutors review the evidence brought to them by law enforcement to decide whether to file charges or drop the case. Prosecutors present evidence in court, question witnesses, and decide (at any point after charges have been filed) whether to negotiate plea bargains with defendants. They have great discretion, or freedom, to make choices about how to prosecute the case. Victims may contact the prosecutor’s office to find out which prosecutor is in charge of their case, to inform the prosecutor if the defense attorney has contacted the victim2, and to seek other information about the case.

 Defense Attorneys: Defense attorneys defend the accused against the government’s case. They are ether hired by the defendant or (for defendants who cannot afford an attorney) they are assigned by the court. While the prosecutor represents the state, the defense attorney represents the defendant.

 Courts: Courts are run by judges, whose role is to make sure the law is followed and oversee what happens in court. They decide whether to release offenders before the trial. Judges accept or reject plea agreements, oversee trials, and sentence convicted offenders.

 Corrections: Correction officers supervise convicted offenders when they are in jail, in prison, or in the community on probation or parole. In some communities, corrections officers prepare pre-sentencing reports with extensive background information about the offender to help judges decide sentences. The job of corrections officers is to make sure the facilities that hold offenders are secure and safe. They oversee the day-to-day custody of inmates. They also oversee the release processes for inmates and sometimes notify victims of changes in the offender’s status.

Causes of Crimes:

Cause found in scientific method:

‹ Weakness

People are not bad by nature, but sometimes simply too timid to resist the vicious demons that play on their weaknesses and cut their bond with the source of their Power. Humans are good by default, but not everyone is made of steel so as to defend themselves against the demonic forces – destructive emotions and detrimental attitudes: fear, ignorance, hatred, worry, revenge, envy, attachment, greed, lust, selfishness, doubt, prejudice, pride, vanity, impatience, sloth, discrimination, arrogance, ambition, addiction, gluttony, criticism, blame, anxiety, frustration and so on. We all get attacked by those faulty ethereal goblins of our minds and hearts, but most of us succeed to resist them. It’s easy to act on anger, greed, revenge or any of highlighted above, but it takes courage and strength to determine that there is something more important than that.

 There are two core reasons why weakness prevails with some:

1) lack of faith, not believing enough in the power of one’s own internal weapons (against inner demons), such as: courage, tolerance, understanding, forgiveness, mercy, honesty, sincerity, integrity, honor, modesty, humbleness, generosity, love, compassion, kindness, detachment, patience, self-discipline, temperance, etc. As a result of not trusting inner resources, there is no enough motivation to develop them and use them. Art Solutions – get the free crime cure; watch inspirational films and read inspirational stories of good qualities conquering the bad ones.

2) Imbalance – most criminals are simply too strong physically, pumping up the body muscles, but not enough the mental and emotional muscles. The reason why their strength becomes weakness is because they are not balanced.
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Underneath all the weaknesses is a genuine human desire to do well. When we decline ourselves from our source (Higher Power), we find ourselves either in a wrong relationship or in a wrong job, or simply in a wrong place at wrong time, but also in a wrong state of mind – causing us to do the wrong things, on the wrong side of tracks.

‹ Poor judgment

Lack of proper education and great role-models causes many to fail to distinguish right from wrong. In most cases offenders don’t think they are doing something wrong, it seems right from their point of view. Poor judgment is also reflected in knowing its wrong, but thinking they could get away with it, not getting caught. Art Therapy Solutions – get the free crime cure.

Lack of love being raised in a dysfunctional family, or coming from a disadvantaged background, or feeling discriminated; none of it alone can cause crime. There are so many others in the world with such conditions, but nevertheless don’t turn to crime. However they cause the lack of love and respect for others. That, endorsed with some other factors, can be a major issue related to crime.

‹ Poverty

Poverty is often blamed for leading to crime, however underneath is something more vital – society bombards us with commercial values, making us want more and more material things, to the point when some would do anything (including criminal acts) to get them.  Unemployment is another factor in this category that contributes to crime through looking ways to earn money by any means possible. Art Therapy Solutions – get the free crime cure; – find the best powerbroker (presented also here in the top of the right column) to help you out of poverty into wealth.

Deprived neighborhoods economically impoverished neighborhoods breed criminal minds  Solution: if moving out is out of the question, then keep away from the guys in the hood by making yourself busy with putting your new show on the road. Do you have the strength to distance yourself from the harmful influences of your neighbors? If not, find the strength from the power behind your new thing, which you can discover in the illustrated guide ‘Jump’.

‹ TV violence

‹ Being a victim in a chain of events sometimes individuals don’t mean to cause harm, but are drawn into it by a chain of events that are beyond their control or influence.

‹ Poor parenting skills erratic or harsh discipline, lack of parental control, supervision and monitoring,  parental conflict,  family dysfunction/breakdown, criminal, anti-social and or alcoholic parent/s Read more about it from BBC indoor. The Independent Father lessens is also one of underestimated cause of crime. Read more about it by clicking here. Consider these facts:

  • 85% of all children that exhibit behavioral disorders come from fatherless homes (U.S. Center for Disease Control);
  • 90% of all homeless and runaway children are from fatherless homes (U.S. Bureau of the Census);
  • 80% of rapists motivated with displaced anger come from fatherless homes (Criminal Justice & Behavior, Vol 14, p. 403-26, 1978);
  • 70% of juveniles in state-operated institutions come from fatherless homes (U.S. Dept. of Justice, Special Report, Sept 1988);
  • 85% of all youths sitting in prisons grew up in a fatherless home (Texas Dept. of Corrections 1992).

‹ Ecological it has long been known by police officers that cold winter nights keep criminals off the streets and crime levels down. Crime scientists speculate that one of the hidden consequences of global warming will be an increase in street crime during mild winters. Studies have suggested that warmer temperatures boost aggression hormones such as epinephrine and testosterone.

‹ Fraudulent Supreme Court rulings Defective court rulings are one cause of the extra crimes.

American FBI has devised a list of the factors which contribute to crime. Source: Bureau’s “Uniform Crime Report”:

  1. Population density and degree of urbanization.
  2. Variations in composition of the population, particularly youth concentration.
  3. Stability of population with respect to residents’ mobility, commuting patterns and transient factors.
  4. Modes of transportation and highway systems.
  5. Economic conditions, including median income, poverty level and job availability.
  6. Cultural factors and educational, recreational and religious characteristics.
  7. Family conditions with respect to divorce and family cohesiveness.
  8. Climate.
  9. Effective strength of law enforcement agencies.

10. Administrative and investigative emphases of law enforcement.

Chapter—Three

Origin & Development of Criminal Justice System in the United Kingdom

General:

The law of United Kingdom is uniform and specific compare to others country of the world. They are the most law abiding country of the world and that’s the reason to foot them to highest step of success.

Though it is most law abiding country but in past there was no uniform law to regulate them but they adopt it in need of time.

Origin and nature of Laws of United Kingdom:

The main source and origin of laws of United Kingdom is Common law. Thus common law is the foundation of laws of UK as common law was the only system of adjudicating dispute among peoples of the country. Afterwards Equity and Statue law developed and make revolutionary changes in judicial system.

Considering from origin and nature of laws the law of United Kingdom are of three types:

  1. Common Law
  2. Equity and
  3. Statute law

 A. Common Law:

The Common Law is therefore, a body of rules which had never been ordained by any Monarch or enacted by any legislative body. It grew by decision and in the British system. In particular, it covers the general principles of the law of contracts and civil wrongs. The criminal law, too, was the Common Law. Though most of it has now been put into statutory form.

So Englishmen one of the most-abiding nations in the world and the Common Law was in origin a judge-made lad. The Common Law is a body of rules which had never been ordained by any Monarch, or enacted by any legislative body the criminal law, too, was the Common Law.

Common Law, arising from ancient customs, finds its origin to about eight hundred years back, Before the Norman conquest there was no uniform legal system. The courts were local bodies and the laws had varied a great deal in different places.

 The Norman and Angevin Kings were determined to unite the nation and “to make the strength of Monarchy felt, or, in the legal phrase, to make the King’s writ run,” throughout the length and breadth of the land. They found that their judicial power was the most effective instrument for this purpose, and their practice was to send their judges to tour the country and to see that it was being properly governed. In the beginning, the traveling judges listened to cases in the local courts and applied the customs which they found in different places.

Gradually, they began to iron out the differences and applied the same principles every where much regarded for particular local custom. By the process of unification the judges built a system of rules which was the same or “common” for the whole of the realm.

B.Equity:

With the lapse of time, however, the Common Law became sufficiently inflexible as to give rise to serious complaints. Judges ceased to adapt it to the changing needs of British society. There were many cases in which the Common Law provided no remedy and sometimes there were manifest injustices because of rigid adherence to precedence.

Feudalism was disappearing and money was taking its place about the fifteenth century. The country at that time was passing through a period of social, economic and political instability in which justice often required a procedure less technical and dilatory and method of enforcement more summary, than those that the Common Law was providing.

The development of Equity, the second strand in English Law, provided remedies for deficiencies in to Common Law and saved the situation

The law had always regarded the Kings as the fountain of justice, and the court were his courts. If his courts failed to give justice an aggrieved subject was entitle to the King and to pray him to grant a remedy out to deal with each petition on merit, giving the matter his personal attention and sometimes discussing it with his Council. But he soon found that if he kept on dealing with the entire petition himself, he would have time for nothing else

Equity was rooted not in custom but in conscience. “It was based on the belief that law should correspond to the moral standard of the community”    Since Equity provided remedies where the Common Law could only impose penalties, and as it recognized the existence of new problems to which the law had not been adapted, much business came to the Chancellors was framed a body of rules knows as an addition to it. Equity included such principles as following:

                                      “Equity will not suffer a wrong to be

                                                     Without a remedy.

                                        He who seeks equity must do equity

                                                     Delay defects equity.

                                                      Equality is equity.

                                        Equity looks to the intent, rather than

                                                       To the form.”

So, Equity consists of a miscellaneous collection of principles, “not systematically related to one another, but each tending to make this or that of the Common Law more equitable than would otherwise be”. Equity simply added to the rules of the Common Law in order to make it more equitable and thereby to remove the rigidity or inadequacy of law

C Statute Law:

The Statute Law is composed of Acts passed by Parliament and this is by far the largest source of law in modern time .Until the nineteenth century almost all civil and criminal law was Common Law and Equity. Even when the civil and criminal law had been embodied in the Acts of Parliament their basis still remained Common Law. It must, however, be noted that Statute Law overrides the Common Law. This is unlike Equity, because it does not contradict Common Law. It simply mitigates Common Law or meets its deficiencies.

In case of a conflict between Statute and Common Law  , the former is always upheld. For the Statute Law has final voice, whatever the Common Law , or past Statutes, or, decisions based on them may have prescribed, that can be altered by a new Statute.

In fact the need for Statutory Law was felt to remove the anomalies by the precedents which did not fulfill changing needs of society and were in conflict with the new standards.

When we turn from the sources to the contents of law, the most important distinction is the one between civil and criminal law. The object of civil proceedings, which is called “action”, is give redress, usually, in the form of pecuniary damages, to some private party whose rights another has infringed, on the other hand, in criminal proceedings or “prosecutions” the law does not regard the wrong act as directed to a particular person only. It considers that there is a public interest at stake and its aim is to protect society against such acts by punishing the offender.

 Some criminal Laws enforceable In United Kingdom:

Every judicial system is directed and administered through some rule, procedure and Act. United Kingdom for administering criminal judicial system has enacted different criminal rules and Act besides they follow common laws and hardly believe in equity.

For example for the purpose of fixing specific procedure of appeal they have enacted “Criminal Appeal Act, 1968”.

Some of the criminal law enforceable in United Kingdom are mentioned bellow:

  • Juries Act 1974
  • Road Traffic Act 1988
  • Theft Act 1968
  • Offences against the Person Act 1861
  • Suicide Act 1961
  • Prison Security Act 1992
  • Criminal Justice Act 1991
  • Misuse of Drugs Act 1971
  • Drug Trafficking Act 1994
  • Terrorism Act 2000
  • Criminal Damage Act 1971
  • Firearms Act 1968
  • Child Abduction Act 1984
  • Sexual Offences Act 1956

Classification of criminal courts:

United Kingdom has adopted and moderate their court system or structure of the court time to time as it demands.

Classification of criminal courts may be made in considering two period of time. they are:

  1. The structure of courts in the Ancient legal system
  2. The structure of courts in the contemporary legal system

A The structure of courts in the Ancient legal system:

Following courts were existing during ancient United Kingdom judicial system:

Petty cases courts:

Acting single, Justices of Peace and Magistrates have jurisdiction over petty cases.

Punishment by a fine of not more than twenty shillings or by imprisonment for not more than fourteen days.

 Petty Session Court:

More serious cases than petty cases are tried by a Benches of two or more Justices or a Magistrate, its called a Court of Petty Session .The courts have summary jurisdiction.

Punishment may impose maximum fines ranging from ₤50 to ₤100 or even ₤500 in certain specified cases, or  By imprisonment   may impose a sentence up to six months or in a very few cases, a year.

If the offence is punishable by imprisonment for more than three months, the accused may be tried by Jury.

 Quarter Sessions Court:

The Court of Quarter Sessions composed of two or more of the Justices from the whole of county. In the larger towns it is presided over by a single paid Magistrate, the Recorder, appointed by the Home Secretary. All indictable offences, save the most serious, can be tried here, and appeals from the Courts of Summary Jurisdiction are heard. In fact, it is the court in which majority of grave crimes are tried.

Court of Assizes:

Court of Assizes is branches of the High Court of Justice. They are held in the country towns and in certain big cities three times a year. A Queen’s Benches judge is the presiding officer of the court assisted by a jury.

The Assistant Judges work on circuits covering England and Wales, and travel from one country to another in the course of their duties and try any indictable offence committed in the country.

The Judge at a criminal trial, in English law it is not the function of a judge to discover the truth. He observed the rules and both sides to the cases have fair play.

The truth will be known when the jury gives their verdict. If the jury returns the verdict of not guilty, the accused is forthwith discharged. If on the other hand, it finds him guilty, the judge pronounces judgment. If the jury cannot agree , there may be a new trial with a different set of juries.

 The House of Lords:

The House of Lords is the highest Court, as stated previously, both in civil and criminal cases. But its criminal business is quite exceptional. Since 1948 the House of Lords has voted away the historic rights  of its members to tried for treason or felony by a jury of Peers of their owe or higher rank. The House no longer exercises any original jurisdiction.

B. The structure of courts in the contemporary legal system

A working knowledge of the court structure is required for the understanding of the location of adjudication, the types of dispute handled and the interaction of culture and personnel. You should learn the jurisdiction of each type of court (i.e. what kinds of case it can deal with), how it fits into the hierarchy of courts, how it compares with other courts in terms of workload and how it is organized (e.g. where it sits; who the judges are). The relevant courts are, beginning with the lowest:

 Magistrates’ Courts

 County Courts

 the Crown Court

 the High Court

 the Court of Appeal

 the Supreme Court

 the Judicial Committee of the Privy Council

 the European Court of Justice.

Magistrates Courts

Magistrates’ Courts have a wide and varied jurisdiction. They are involved in some way in virtually all criminal prosecutions; magistrates hear cases concerning young persons (when constituted as a Youth Court), family or ‘domestic’ proceedings, as well as enforcement of income tax or local tax. Magistrates’ Courts are therefore of enormous importance in the criminal justice decision-making process. They also grant (or refuse) licensees for the sale of alcoholic liquor, betting, etc. Aside from their breadth of jurisdiction, the most important feature of Magistrates’ Courts is the extensive involvement of lay people (non-professionals) as judges.

There are approximately 26,000 magistrates who sit as unpaid, part-time lay judges; in inner London, by contrast, there are professional ‘stipendiary magistrates’ (recently renamed District Judges, Magistrates’ Court), advised by a professionally qualified clerk. The fact that professional judges sit in Magistrates’ Courts in inner London is largely an accident of history.

 County Courts:

There are almost 250 County Courts in England and Wales. As a result most medium sized and large towns contain this court of first instance in the civil justice process. As of January 1999, the County Court will normally hear cases on contract and tort to a limit of £25,000, and certain property and other matters to a limit of £30,000. Claims in contract or tort between £25,000 and £50,000 can either be heard in the County Court or High Court, while claims over £50,000 will be heard in the High Court

 The Crown Court

Although predominantly a court of first instance for the trial of the more serious criminal offences, the Crown Court also has significant appellate and civil business. The most controversial aspect of the Crown Court’s jurisdiction concerns the extent to which an accused person should have the right to insist upon trial by jury. The relationship between the Crown Court and Magistrates’ Courts as higher and lower trial courts for criminal cases raises questions similar to those mentioned above relating to civil courts. But the relationship between the criminal courts is more complex, because jury trial is available in criminal cases only in the Crown Court; any proposal to adjust this relationship will necessarily raise sensitive questions about extending/removing the right to jury trial.

 The High Court

The High Court is based in London, with various provincial ‘branches’. Some knowledge of its historical development is essential to understand the modern arrangement of the High Court. Note that the High Court is merely one part of the Supreme Court of England and Wales

The High Court has three branches:

 the Chancery (the historic successor to the Chancellor’s Court) dispensing equity. It mainly deals with trust matters, conveyance, mortgages, contested probate, intellectual property other than that covered by the Patents Court (one of the four specialist courts of the High Court) bankruptcy and appeals from decisions of Commissioners of Inland Revenue

 the Queen’s Bench, which mainly deals with personal injury, contract and tort claims

 The Family Division, which hears divorce cases and ancillary matters, and Children Act cases.

 The Court of Appeal

It is only necessary for you to understand what decisions may be the subject of an appeal to the Court of Appeal Civil Division or to the Court of Appeal Criminal Division, and how the Court is constituted to hear them.

  The Supreme Court

The Supreme Court came into being in October 2009, replacing the Appellate Committee of the House of Lords, and assuming the devolution jurisdiction of the Judicial Committee of the Privy Council. The Supreme Court is now the highest court in the UK. The court is staffed by 12 ‘independently appointed judges’ – Justices of the Supreme Court. The Court’s jurisdiction extends over appeals on matters of law raising issues of ‘great public importance’ in civil cases from the UK. It also has a similar jurisdiction over criminal law in cases from England, Wales and Northern Ireland. The powers of the court also cover issues in raised by devolution – as specified under the Scotland Act 1998, the Northern Ireland Act 1998, and the Government of Wales Act 2006 (www.supremecourt.gov.uk/about/the-supreme-court.html).

  The Judicial Committee of the Privy Council

Primarily a Commonwealth court, the Judicial Committee is of interest mainly in relation to the doctrine of precedent. It has played an important role in drawing together the common law legal family, although the number of common law countries that have it as their highest court is declining.

  The European Court of Justice

An important recent feature of the English legal system is the increasing use made of two courts, the first of which − the European Court of Justice (ECJ) − takes its jurisdiction from the United Kingdom’s entry into the European Union, while the second − the European Court of Human Rights (ECtHR) − takes its jurisdiction from the United Kingdom’s signing the European Convention on Human Rights.

 The European Court of Justice

This court hears:

 Applications from member states’ courts for preliminary rulings under Article 177 EEC [European Economic Convention]

 Direct actions against member states or EU institutions

 requests for opinions on international law and the European Treaty

 Tort claims

 Certain action for judicial review.

Appointment of Magistrates and judges:

Following are the methods of appointment of judges and magistrates:

 Appointment of Magistrates:

The Stipendiary Magistrates are appointment by the Secretary of state for Home Affairs and barristers of seven years’ standing.

 Appointment of Judges:

Justices of the Peace are appointment by the Lord Chancellor [ft- or by the Chancellor of the Duchy of Lancaster] on the recommendations of the Lord-Lieutenants of the counties. The Magistrates have jurisdiction over the same classes of cases as Justices of the Peace and also some additional powers.

 Salient features of criminal laws of United Kingdom:

Englishmen one of the most abiding nations in the world. Their laws, their customs and their law abiding mentality brings them to the highest stage of development. Entire laws of that English man has amended and developed time to time because of the changes of the time and for necessity.

However some features of this law made their laws complete and justifiable to seek justice. Following are some basic features which made their laws complete comparison to others country:

 A.    Rule of law:

Rule of law has a great importance in judicial system of United Kingdom. As there rule of law is ensured no one can escape and also no one is beyond the judicial capacity so possibility of ensuring criminal justice becomes light.

To know how rule of law works in criminal justice system we have to understand what is rule of law and what does it objects?

Rule of law   One of the very important features of the British constitution is there cognition of the Rule of Law. It is based on the Common Law of the land and is the product of the centuries of struggles of the people for the recognition of their inherent rights and privileges.  It means three things–               First—What is supreme in Britain is law. There is no such thing as arbitrary power and every rule by which the government governs must be authorized by law, either Statute Law, passed by Parliament, or by the ancient principles of Common Law, Which have been recognized for many hundreds of years now.

In other words, the “Latin tag populi supreme lax” – cannot be used by the government as an excuse for pursuing its own idea of the public interest without regard for legality.

Second— Everyone is subject to the law and no one can plead that he acted under orders. His business like everyone else is to obey the law. The government and its officials derive such power as they possess from the ordinary law.

Third— The Rule of Law makes the government subject to Parliament and through Parliament to the people. To put it another way, Parliamentary supremacy is, in part, only tolerable because the Rule of Law is recognized.

So, where the Rule of Law prevails no one can suffer any penalty or loss of liberty unless he has been tried and sentenced by a court. At one time it was the practice in periods of emergency in Britain to pass Acts of Parliament suspending the issue of the Writ of Habeas Corpus.

B.     Jury:

Introduction to juries

The highly distinctive role that the jury has played in the English legal system was noted in earlier chapters. It used to be said that the jury was one of the leading exports of the UK, along with football, cricket, the common law and the parliamentary system. It became enshrined in the US Constitution, where currently in most criminal cases the charge is first considered by a grand jury with between 12 and 23 members. It is of interest to have a basic understanding of the operation of the jury in the US. There the grand jury hears witnesses against the accused, and if 12 jurors believe that there is sufficient evidence to prosecute, an indictment or the like is presented. The jury sitting at the trial proper is called a petit (or petty) jury from its smaller size (usually 12 members). The selection of a trial jury is essentially alike in civil and in criminal cases. The venire, a panel of prospective jurors living in the district where the trial is to be held, is summoned for examination. Counsel for the parties may first challenge the array, that is, object that the venire as a whole was improperly chosen or is for some reason unfit. The challenges to the poll (the members of the venire taken individually) that follow are designed to secure as jurors unbiased persons without special knowledge of the matters in issue. Included are challenges for principal cause. (i.e. some grounds such as relationship to a party that requires dismissal of a member of the venire); challenges to the favor (i.e. suspicion of unfitness on which the judge rules); and a limited number of other challenges. Once selected, the jury (usually with several alternates) takes an oath to act fairly and without preconceptions. At the close of the evidence, and after the summations of counsel, the judge instructs the jury concerning the verdict.

The value of juries in civil trials is disputed both in the US and the UK. Opponents of juries argue that they are ineffective, irrational, and cause delay; proponents argue that juries bring community standards to bear, can moderate the effects of harsh laws, and are a protection against incompetent judges. Although the use of juries is declining for various reasons, common-law countries have a clear symbolic regard for the jury and show great care in the selection of jurors.

Procedure regarding Jury:

One of the basic features of the criminal court of United Kingdom is jury. Jury is the body to administer justice like court but hold some difference in formation. Every jury is formed or consisted of twelve to twenty three presiding judges to deal with any dispute place before them. The fundamental of this jury system is that two or more judges presided over it. The jury system is more successful and the decision of it is more justifiable because there exist co operation between the judges and whenever the judgment is made by twelve to twenty three consciences it becomes justifiable.

The laws of United Kingdom has give it importance and that’s why the decision pronounce by it is more acceptable. The gentle United Kingdom has adopted law to specify its power and function and other procedure. The Act is known as “The Juries Act, 1974”.

 A Finding through research in Jury:

Thomas, Professor at the Centre for Empirical Legal Studies at University College London. The survey included more than 1,000 jurors at Crown Courts and a separate study of over 68,000 jury verdicts. In newspaper comments Professor Thomas summarized the findings:

This research shows that juries in England and Wales were found to be fair, effective and efficient – and should lie to rest any lingering concerns that racially-balanced juries are needed to ensure fairness in trials with BME defendants or racial evidence. But it is also clear from the research that jurors want and need better information to perform this crucial role. The study recommends that all sworn jurors be issued with written guidelines explaining what improper conduct is, including use of the Internet, and how and when to report it.

 C.    Summary trial:

Course of a summary trial

The course of a summary trial is, to a large extent, identical to the course of trial on indictment. As this is not a law of evidence course, we shall be exploring aspects of the course of trial, both summarily and on indictment, so as to highlight some of the key issues for discussion. The key distinction is that in a summary trial the magistrates are tries of both fact and law. By contrast, a trial on indictment will be heard by a jury who decide on questions of fact and before a judge who will advise the jury on issues of law. Following are the steps of a summary trial by the courts of magistrate:

 1 The plea:

As the summary trial begins, the clerk of the court will put the information to the accused. The accused must then plead either guilty or not guilty. If the accused stays silent, a not guilty plea will be entered. If the accused pleads guilty, the magistrates move to the process of sentencing, which we shall deal with later.

 2. Prosecution case:

If the accused pleads not guilty, the prosecution has to prove that the accused did commit the offence with which he or she is charged. The prosecution can give an opening statement, but given the magistrates’ experience in trying cases this is unlikely to be long. The prosecution will then examine their witnesses in chief, who will then be cross examined by the defense. If any matters are raised during cross-examination, the prosecution has the right to re-examine their witnesses. There may also intermittently be questions from the bench. Written statements can be used under s.9 of the Criminal Justice Act 1967.

 3. Submission of no case

Once the prosecution has outlined its case, the defense may decide to make a Submission of no case to answer. This should be upheld if there is no evidence to prove an essential element of the offence charged, or if the evidence presented by the prosecution has been so discredited by the defense that it is manifestly unreliable and no reasonable tribunal would convict on it. If a submission of no case is upheld the accused goes free. If not, the trial continues.

 4. Defense case

Under rule 37.1 CrimPR, if there is a case to answer the defense may wish to call evidence, but does not have to. The defendant is a competent witness, and therefore can give evidence, but is never compellable, so cannot be forced to give evidence. Once the defense evidence has been presented the defense can deliver a closing speech. The prosecution does not have the right to deliver a closing speech, but the relative informality does permit them to ask questions when and if they become relevant.

 5. Verdict

If the summary trial is being presided over by a district judge, the judge will usually announce his or her decision immediately. Lay magistrates tend to retire to consider their verdict. Unlike the jury in a trial on indictment, the judge at summary trial must deliver a verdict based on the offence charged. Under s.142 of the Magistrates’ Courts Act 1980, if the magistrates then have second thoughts they can direct that the case be re-heard by different justices.

A pre-trial review involves the magistrates ordering the steps that need to be taken for Trial. This can include special measures directions for vulnerable witnesses and rules

 Committal for sentencing:

Once a defendant has pleaded guilty or has been found guilty by the magistrates’ Court, the magistrates will then proceed to sentence. They will follow a procedure (Described in Chapter 14). In doing this they are limited by the restrictions on their powers of punishment. Under s.154 of the Criminal Justice Act 2003, the maximum prison sentence that the magistrates can impose in respect of any one offence is twelve months. The maximum aggregate term for two or more offences is 65 weeks. All of this is done in line with the new ‘custody plus’ arrangements.

 D.    Appeal:

The procedure of appeal in criminal justice system is described and specified in criminal appeal Act, 1968. This is the English man who enacts laws regarding every navel matters. So it can be said that appeal process of the criminal court is unitary.

Following are the process as to appeal from an inferior court to the higher court in criminal justice system of United Kingdom:

 Appeals from the magistrates’ courts

There are three ways in which a decision of a magistrates’ court can be challenged. These are:

  1. Appeal to the Crown Court
  2. Appeal to the High Court by way of case stated
  3. Appeal to the High Court for judicial review.

An appeal to the Crown Court can only take place if a person has been convicted, whereas an appeal to the High Court by way of case stated or for judicial review can be made by anyone who is ‘aggrieved’ by the magistrates’ court decision.

 Appeal to the Crown Court

This is the most important process of the three for this course. It is governed by ss.108–110 of the Magistrates’ Courts Act 1980 and Part 63 of the Criminal Procedure Rules 2005. If a person is convicted by a magistrates’ court, they may only appeal in certain prescribed circumstances. If that person pleaded not guilty, they can appeal against their conviction or their sentence. But if they pleaded guilty, they can only appeal against their sentence. This latter process is governed by s.108 (1) of the Magistrates’ Courts Act 1980. Under s.108 (3) an appeal against sentence can be brought in respect Of any order made. There is an express prohibition on appealing an order to pay costs. As has already been indicated, a plea of guilty at trial in the magistrates’ court will Prohibit an appeal against conviction. There are three exceptions to this rule.

Pleas equivocal when made. This is where the defendant says ‘guilty’ but adds things like ‘I did it to defend myself’. The law would normally demand that this accused change their plea to ‘not guilty’ but if they do not, appeal is possible. This will usually result in the case being remitted by the Crown Court for full hearing on a not guilty plea.

Pleas subsequently shown to be equivocal. This is where a plea is made unequivocally but is then rendered equivocal by additional information provided by the defendant before the magistrates pass sentence. A good example would be where the defendant pleads guilty to breaking into someone’s house but then, in mitigation, tells the magistrates that he had broken in by mistake, believing it to be his friend’s house, and that the friend would not have minded him breaking in. This would make the guilty plea inconsistent with the mitigation.

Pleas entered under duress. Even if a plea of guilty was unequivocal when made and this was still the case prior to the passing of sentence, this will not prevent appeal if the plea was subsequently discovered to have been entered under duress. A good example would be where two people are jointly charged with theft and one party would have argued that they were forced to undertake the theft, fearing serious harm to them or their loved ones, and they were likewise forced to enter the plea of guilty because the other party had decided that a guilty plea would result in a lesser sentence.

Finally, the Criminal Cases Review Commission can refer a conviction in the magistrates’ court to the Crown Court even if it is based upon a guilty plea.

Appeal to the High Court by case stated

This process is one where an appeal takes place on a point or points of law. The clerk of the magistrates’ court prepares the document for appeal with the co-operation of the magistrates. This appeal is then filed with the High Court. These appeals are governed by s.111 of the Magistrates’ Courts Act 1980, Part 64 of Criminal Procedure Rules 2005, and Order 56, Rules of the Supreme Court 1965.

 Procedure on appeal

An application for appeal on this process must be made within 21 days. It must be in writing and should identify the question of law or jurisdiction on which the High Court’s opinion is sought. The application is then sent to the clerk of the relevant magistrates’ court. If it is felt to be a frivolous appeal, then under s.111(5) of the Magistrates’ Courts Act 1980 a certificate will be issued by the magistrates explaining that the application has been refused. If this happens, the defendant can apply to the High Court for an order which compels the magistrates’ court to state a case.

The magistrates will then draft a letter stating the case by identifying the key facts of the case, but not the evidence that led to these facts being established. The charge or charges heard are then outlined and the contentious issues relating to questions of law or jurisdiction are raised along with any authorities raised or the magistrates’ decision. Once this has happened the letter is sent to the appellant, who then has to lodge it within ten days. If it is not lodged within ten days it will be struck out. If a custodial sentence has been passed, bail may be granted.

 Appeals from the Crown Court

Historically, if a person was convicted on indictment there was no general right of appeal. This was changed by the Criminal Appeal Act 1907, which created the Court of Criminal Appeal. The Court of Criminal Appeal was then abolished by the Criminal Appeal Act 1966, which transferred its jurisdiction to the Court of Appeal (Criminal Division). The primary function of the Court of Appeal (Criminal Division) is to hear appeals by the defense against the accuser’s conviction or sentence. Other functions include a procedure whereby the Attorney-General can increase an over-lenient sentence by referring the case to this court. It is also possible for the court to give an opinion on a point of law which arose during the trial that led to an acquittal.

The Lord Chief Justice is President of the Criminal Division. When Considering an appeal, there must be at least three judges sitting. There may be more, but this is rare. This panel can deliver majority decisions.

 Besides this the legal system of united kingdom has clear and specific provision as to appeal in different exception .for example Criminal legal system of united kingdom does not exclude following matters of appeal::

  1. Appeal from the High Court to the House of Lords
  2. Appeals against conviction(Section 2(1) of the Criminal Appeal Act 1968)
  3. Appeal in case of Errors in a trial
  4. Effect of an appeal  (Under s.2(2) of the Criminal Appeal Act 1968)
  5. Appeals against sentence.( Under s.9 of the Criminal Appeal Act 1968)

 Sentencing:

The Criminal judicial system of United Kingdom has adopted an Act to deal with the sentencing pronunciation procedure. They adopt Powers of Criminal Courts (Sentencing) Act 2000. According the very Act Sentencing in United Kingdom are two forms:

  1. Custodial sentences
  2. Fines
  3. Others Sentence

 1 Custodial Sentence:

If an adult is faced with a custodial sentence, this means that he or she is facing a period of imprisonment. For a sentence of imprisonment to be passed the offender must be aged 21 or over. Offenders under 21 years of age are awarded a sentence of detention rather than imprisonment. Both terms suggest that the offender’s liberty will be limited and they will be allocated to a prison. There are two main types of prison: closed and open prisons. Closed prisons have boundary walls or fences and the parameter is secure. Open prisons, by contrast, enjoy a far more relaxed regime.

Prisons may also be local, which means that they house prisoners who are on remand or long-term prisoners who are being allocated to a training prison. Training prisons are either open or closed and usually provide useful working facilities. They have far better conditions than local prisons.

  1. When deciding that a custodial penalty is to be imposed, the court has to abide by certain statutory requirements.
    These include the following:
  2. All prisoners have to be legally represented or must have been offered such representation.
  3. The criteria laid out in s.152 of the Criminal Justice Act 2003 must be met before a custodial sentence is passed.
  4. A pre-sentence report should be obtained before a custodial sentence is passed (s.156 of the Criminal Justice Act 2003).
  5. All aggravating and mitigating factors must be considered by the court before a Custodial sentence is passed.
  6. The court must state its reasons for passing a custodial sentence.

 Sentencing for statutory offences

Whilst all common law offences (most notably manslaughter) are prima facie

Punishable with life imprisonment, statute has defined the maximum penalty for a Number of key offences. Prisons are the usual forum for custodial sentences and are classified according to the Level of security imposed. All offenders under the age of 21 are detained, whereas all Offenders over 21 are imprisoned.

 2. Fines:

If a community sentence is not appropriate and the threshold is not met, a fine may be the appropriate non-custodial sentence. If the offence is an indictable one, there is no maximum limit placed on the Crown Court with regard to the size of the fine. However, fines are by far the most common penalty for summary offences and each offence will be allocated to a level which caps the limit of the fine.

The levels of fine are:

Level 1 £200

Level 2 £500

Level 3 £1,000

Level 4 £2,500

Level 5 or either way offence £5,000.

 To impose a fine the magistrates need to consider the seriousness of the offence under s.164 of the Criminal Justice Act 2003. Having considered aggravating and mitigating factors, the court will then decide, on means testing grounds, whether the fine should be level A (assessed on 50% of weekly take home pay), level B (assessed on 100% of weekly take home pay) or level C (assessed on 150% of weekly take home pay). page 246 University of London International Program. At the time of issuing the fine, the court must make clear the term of imprisonment that will be imposed if the offender defaults and does not pay. The court imposing the fine must give the offender time to pay. Fines can be combined with the community sentence if it is appropriate.

 3. Other sentences:

Endorsement and disqualification from driving

If a traffic offence is suitably serious, the offending driver may find themselves

Disqualified from driving, under the Road Traffic Act 1988. This is a good example of Incapacitation at work as it demands that the offender be prevented from committing the offence again by rendering them unable to do so. Lesser traffic offences Involve the driver’s license being endorsed with penalty points. When the penalty Points add up to 12, the license is confiscated and the defendant is disqualified for at least six months. If the offender is convicted of:

  1. causing death by dangerous driving
  2. careless driving whilst under the influence of alcohol or drugs
  3. trying to drive whilst under the influence of alcohol or drugs or
  4. dangerous driving

They will be automatically disqualified. A minimum period of 12 months must pass before they are allowed to hold a driving license again.

 Forfeiture and compensation orders

Under s.143 of the Powers of Criminal Courts (Sentencing) Act 2000, a forfeiture order can be made if the court is satisfied that the offender used the property to be confiscated to commit or facilitate the offence. Section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 provides for the order where an offender has to pay compensation to the victim of his offence.

 Restitution and confiscation orders

Under s.148 of the Powers of Criminal Courts (Sentencing) Act 2000, goods which have been stolen can be recovered where the court orders anyone having possession or control of the goods to restore them to the original owner. Under the Proceeds of Crime Act 2002 it is now possible for the Crown Court to utilize its power to confiscate the assets of those convicted of criminal offences.

Recommendation for deportation

If a convicted offender is not a British citizen, then under s.3 of the Immigration Act 1971 a recommendation can be made to the Home Secretary that he be returned to his country of origin.

Hospital order

Sections 37–43 of the Mental Health Act 1983 cover the provision of hospital orders where the court decides that an individual should be admitted and detained in Hospital where they can receive treatment for their mental disorder. The effect of the order is to authorize the offender’s move to a hospital where they will be housed for about six months before the review begins.

Anti-social behavior order (ASBO)

An ASBO can be awarded under s.1 of the Crime and Disorder Act 1998. Here the court protects the local community from the anti-social behavior that others have engaged in by preventing the ‘offenders’ from disrupting others’ lives.

Registration under the Sex Offenders Act 1997

As a result of this legislation, some offenders are required to notify the police of their whereabouts so that supervision in the community can take place.

Disqualification from working with children

If an offender has been convicted of an offence involving a child, they can be disqualified by the court from working with children in future.

 F.     Bail:

Bail is the release of a person who is subject to a duty to surrender to custody at an appointed time and place. Bail is the process of getting release from the custody legally. The gentle United Kingdom has adopted a specific Act for determining procedure on bail. the Act is known as the Bail Act 1976.

 Some remarkable development on Bail by the Act is pointed out bellow:

  1. Remand on bail or in custody
  2. Principles governing the decision to grant or refuse bail
  3. Custody time limits
  4. The imposition of conditions for bail(Section 3 of the Bail Act 1976)
  • Duty to surrender to custody
  • Sureties
  • Deposit of security

G.    Regulation or procedure regarding police:

Power, function and others procedure regarding police has been specified by several enactments of Acts. Among them Police and Criminal Evidence Act 1984 is the most efficient:

Summery of the Police and Criminal Evidence Act 1984

The majority of police powers involved in the detection of crime are to be found in the Police and Criminal Evidence Act 1984. These statutory provisions are accompanied by extensive Codes of Practice which provide substantial guidance as to the way in which police powers should be exercised. A criminal charge can be brought about in two particular ways. For serious offences an arrest followed by detention in a police cell can take place before a decision to charge is taken. For less serious offences the process of issuing a summons is used.

The Act does not forget to include the followings procedure:

  • The power to arrest without warrant(s.24 and s.24A of PACE)
  • Detention without charge is dealt with under ss.40–44 of PACE and there is a timetable which the police are expected to follow to reach a resolution as to whether or not to charge.
  • The main milestones of detention without charge are as follows:
  • Within 6 hours A review takes place to decide whether it is necessary to hold the detainee.
  • Within 15 hours Nine hours after the first review a second review takes place.
  • Within 24 hours here a detainee must be charged or released unless the continued detention has been authorized by the station superintendent.
  • Within 36 hours Here a detainee must be charged or released unless a magistrates’ court has issued a warrant of further detention.
  • After 72 hours the magistrates’ court can extend the detention for a further 36 hours after the first 36 hours.
  • After 96 hours The magistrates’ court can extend the detention for a further 24 hours after the first two periods of 36 hours. At the end of this period the detainee must
  • Right to a solicitor(s.58(1) of PACE)
  • Recording what the suspect says
  • Powers of stop and search(ss.1–3 of PACE)
  • Powers to search premises(Section 8 of PACE)
  • Statutory safeguards(ss.15–16 of PACE)

Chapter- Four

Origin & Development of Criminal Justice System under Hindu Period, Muslim Period, British Period & Pakistan Period

 Criminal Judicial system Under Hindu Period:

The subject of Legal History comprises the growth, evolution and development Of the legal system of a country; it sets forth the historical process where by a legal system has come to be what it is over.

Hindu Period:   these period extents for nearly 1500 years before and after the beginning of the Christian era. The ancient India was divided into several independent states and the King was the supreme authority of each state. As far as the administration of justice is concerned the King was considered the fountain of justice. He was entrusted with the supreme authority of the administration of justice in his kingdom. The essential features of judicial system of this period were as follows:

A.  Organization of Court Structure:

Following courts were exist during the ancient Hindu period:

 The King’s Court:

The Kings court was the highest court of appeal in the state. It was also a court of original jurisdiction for cases of vital importance to the state. In Kings Court the King was advised by learned Brahmins, The Chief Justice and other judges, ministers, elders and representatives of the trading community.

 The Chief Justice’s Court:

The Chief Justices Court which consisted of the Chief Justice and a board of judges to assist the Chief Justice. All the judges in the board belonged to three upper castes preferable Brahmins.

 Special Tribunal:

Sometimes separate tribunals with specified territorial jurisdiction used to be formed from among judges who were members of the board of the Chief Justice’s court.

 D.    Town or District Court:

In towns and districts courts were run by the government officials to administer justice under the authority of the king.

 E.     Village Council:

The local village councils or Kulani was constituted at village level .This councils consisted of a board of five or more members for administration of justice to villagers. The councils dealt with civil and criminal matters.

 B.    Judicial Procedure:

A.    Stages of a Suit:-

A suit or trial consisted of four stages the plaint, the reply and investigation and finally the verdict or decision of the court.

 B.     Bench of more than one Judges:-

The courts were functioning on the principle that justice should not be administered by a single judge. Generally a bench of two or more judges would administer justice. Even the King decided cases in his council.

 Appointment of Judges and Judicial Standard:-

In the appointment of the Chief Justice and other judges the question of caste consideration played vital role. The Chief Justice was mandatory appointed from Brahmins. A sudra was forbidden to be appointed as a judge. Appointments were made from among the persons who were highly qualified and learned in law. Women were not allowed to hold the office of a judge. Judges were required to take the office of a judge. Judges were required to take the oath of impartiality when deciding disputes between citizens.

 D.    Doctrine of Precedent:–

The decisions of the King’s court were binding on all lower courts. The principles of law declared by higher courts were taken into consideration by the lower courts while deciding cases.

 Evidence:

During the course of proceeding both the parties were required to prove their case by producing evidence. Ordinarily, evidence was based on any or all the three sources, namely, documents, witnesses, and the possession of incriminating objects. In criminal cases, sometimes circumstantial evidence was sufficient to punish the criminal or acquit him.

C.   Trial by Ordeal:

Ordeal which was a kind of custom based on religion and faith in God was a means of proof to determine the guilt of the person. The application of trial by ordeal was limited only to the cases where any concrete evidence on either side was not available. This system ordeal was very painful and dangerous to the accused, and sometimes the person giving ordeal died during the ordeal. Some common ordeals are described below:

 Ordeal by Fire: According to the Hindu myth fire is considered to be God and it has purifying qualities. According to the ordeal of fire, the accused was directed to walk through or stand or sit in fire for some specified time. If the accused comes out from the fire without any harm, he was considered to innocent.

Sometime the accused was asked to carry a red hot iron ball in his hand and walk a few paces. If he had no signs of burns after the ordeal, he was considered to be innocent.

Ordeal by water: Water seen as a sign of purity under the Hindu mythology was used to test the guilt of the accused. The accused was required to stand in waist- deep water and then to sit down in the water, as an archer shot to an arrow. If the accused remained in the water during the time limit, he was held to be innocent,. Alternatively the accused was required to drink water used in bathing the idol. If he had no harmful effects within next fourteen days, he was declared to be innocent.

 C.    Ordeal by Poison:-

This method was also based on the view that God protects innocent people. The accused was required to drink poison without vomiting it. If he survived, he was declared to be innocent.

 D.    Ordeal by Rice- grains:-

The accused was required to chew un- husked rice and then asked to spit out. If blood appeared in his mouth, he was considered to be guilty, otherwise not.

 E.     Ordeal by Lot:-

Two lots of the same type representing Right (Dharma) and Wrong (Adharma) were placed in a jar. The accused was asked to draw a lot, if the accused drew Dharma he was declared innocent.

 D.   Trial by Jury:

The jury system existed in ancient India but not in the same from as understood in today’s world. There is evidence that the community members used to assist the administration of justice. They were merely examiners of the case of conflict and placed true facts before the judge though the verdict was declared by the presiding judge and by the jury.

E.    crimes and punishments:

The philosophy of crime and punishment was based on the idea that the punishment removed impurities from the accused person and his character is reformed. Before punishment was to be awarded the judge had to consider the motive  and nature of the offence, time and place, strength, age, conduct, learning and monetary position of the offender.

There were four methods of punishment- by gentle admonition, by severe reproof, by fine and by corporal punishment. These punishments could be inflicted separately or together depending upon the nature of the offence.

Judges always considered the relevant circumstances before deciding actual punishment. The severity of punishment depended on caste as well.

Certain classes of persons were exempted from punishment:-

  • Old people over eighty
  • Boys below sixteen
  • Women and persons suffering from diseases were to be given half of the normal punishment.
  • A child below five was considered to be immune from committing any crime and therefore was not liable to be punished.
  • In adultery and rape, punishment was awarded on the basis of the caste consideration of the offender and of the woman.
  • In abuse or contempt case every care was taken to see that each higher caste got due respect from persons of lower caste.

For example:- If a person of a lower caste set with a person of higher cast, the man of the lower caste was to be branded on the breech. For committing murder the murder was to pay 1000 cows for killing a Kshatriya, 100 for a Vaisyo and 10 for a Sudra. These cows were given to the King to be delivered to the relatives of the murdered person. A bull was given to the King as a fine for murder.

If a Brahmin was killed a person of lower caste, the murderer would be put to death and his property confiscated.

If a Brahmin was killed by another Brahmin he was to be branded and banished. If a Brahmin killed a person from lower caste,  he was to compound for the harem of the King, adding the King’s enemy, creating revolt in the army, murdering ones father or mother or committing serious arson, capital  punishment was given in varied forms, namely, roasting alive,  drowning, trampling by elephants, devouring by dogs, cutting into pieces, impalement etc.

The above discussion on crime and punishment gives a necessary idea that infliction of punishment was not based on any broad principle rather on whim and caste consideration which was completely devoid of humanity and ethics.

 Criminal Judicial system Under Muslim Period:

A Judicial System in Medieval India

This period starts with the invasion by Turkish Muslims in the Indian Sub-continent in 1100 A.D. The Hindu kingdoms began to disintegrate gradually with the invasion of Turkish race in the end of eleventh and the beginning of the twelfth century. When Muslim conquered the states, they brought with them the. Turkish idea of administration. The theory of Muslims was based on Quran, their religious book. According to the Quran, sovereignty lies in Allah (God) and the King is His humble servant to carry out His will on the earth. The ruler was regarded as trustee, being the Almighty’s chosen agent.

The whole Muslim period in India may be divided into two sub-periods- the Sultanate of Delhi and the Mughal Empire. By the end of twelfth century Muslim Sultanate was established at Delhi by

Muhammad Ghor. This period existed for thirty, years beginning from 1206 till 1526. On the other hand, in 1526 Delhi Sultanate came to an end when Delhi was captured by Zahiruddin Babar. Babar founded the Mughal Empire in India which existed until 1857.

B Legal System under the Sultanate

The Sultan or the King was the supreme authority to administer justice in his kingdom. The judicial system under the Sultanate was organized on the basis of administrative divisions. A systemic classification and gradation of the courts existed at the seat of the capital, in Provinces, Districts, Parganahs, and villages. The powers and jurisdiction of each court were clearly defined.

Courts at Centre: The courts established at the capital of the Sultanate were as follows: The King’s Court, Diwan-e-Mazalim, Diwan-e-Risalat, Sadre Jehan’s court, Chief Justice’s court and Diwan-e-Siyasat.

  • The King’s court was presided over by the Sultan himself. This court exercised both original and appellate jurisdiction in all kinds of cases. It was the highest court of appeal in the realm. In discharging judicial functions the Sultan was assisted by two reputed Muftis highly educated and expert in law.
  • The court of Diwan-e-Mazalim and court of Diwan-e-Risalat were the highest courts of criminal and civil appeals respectively. Though the Sultan nominally presided over these courts, in the absence of the Sultan the Chief Justice (Qazi-ul Quzat) presided over these courts. Quazi-ul Quzat was the actual head of the judiciary and he tried all types of cases. Qazi-ul Quzat was appointed by the Sultan from amongst the most virtuous of the learned men in his kingdom. In 1248, Sadre Jahan was appointed by Sultan Nasiruddin. This post was superior to post of Qazi-ul Quzat. Now he became defacto head of the judiciary. The offices of Sadre Jahan and Chief Justice remained separate for a long period, but these were amalgamated by emperor Ala Uddin. However, these were again separated by Sultan Firoz Tuughlaq.
  • The court of Diwan-e-Siyat was constituted to decide the cases of rebels and high treason etc. Its main purpose was to deal with criminal prosecutions.

Some of the other officers attached to the court of Chief Justice were as under:

  • Mufti: He was selected by the Chief Justice and appointed by the Sultan. He acted as legal expert and in case of difference of opinion between the mufti and judge, the difference was referred to the Sultan for decision.
  • Pandit: He was a Brahmin learned in law of Hindu and he acted as expert of law in civil cases of non-Muslims and his position was similar to the Mufti.
  • Mohtasib: He was entrusted with the prosecution for the violation of cannon law.
  • Dadbak: He was the registrar or the clerk of the court and his duty was to ensure attendance of persons summoned by the court. Sometimes he was also entrusted with the task of trying of petty civil cases.

Provincial Courts: In each Province (Subah) at the Provincial Headquarters four courts were established, namely Adalat Nazim-e-Subah, Adalat Qazi-e-Subah, Governor’s Bench (Diwan-e-Subah) and Sadre-e- Subah.

Adalat Nazim Subah: This court was presided over by the Nazim. In the Province the Sultan was represented by him and like   the   Sultan   he   exercised   both   original   and   appellate jurisdiction. In original cases he usually sat as single judge. From his judgment an appeal lay to the Central Appeal Court at Delhi. While exercising appellate jurisdiction, the Nazim sat with the Qazi-e-Subah constituting a Bench to hear appeals. From the decision of this Bench, a final second appeal lay before the Central Court at Delhi.

Adalat Qazi-e-Subah: This court was presided over by the Chief Qazi of the Province. This court tried all cases of civil and criminal matters. It also heard appeals from the courts of District Qazis. Appeals from this court lay to the Adalat Nazim-e-Subah. This   court   also  had  the  supervisory jurisdiction  over  the administration of justice in his province and to see that the Qazis in districts were properly functioning. Qazi-e-Subah was appointed by the Sultan, but selected by the Chief Justice amongst persons who had established reputation for learning and scholarship of law and possessed a high character and was a man of unimpeachable integrity. Four officers namely Mufti, Pandit, Mohtasib and Dadbak were attached with this court too.

Diwan-e-Subah: This court had both original and appellate jurisdiction in all revenue matters. It had the final authority in the Province over all cases concerning revenue.

Sadre-e-Subah: This was the Chief Ecclesiastical court in the province. This court dealt with the matters relating to grant of stipend, lands etc.

District Courts: In each District, at the District Headquarter, following courts were established:

  • The District Qazi’s Court: This court had the jurisdiction to try all civil and criminal matters. It also heard appeals from the decisions of the Parganah Qazis, Kotwals and village panchayats. This court was presided over by the Qazi who was appointed by the Sadre Jahan on the recommendation of the Qazi-e-Subah. This court was also assisted by same four officials as mentioned above.
  • Faujder Court: This court had jurisdiction to try petty criminal cases concerning security and suspected criminals.Appeal from this court lay with the court of Nazim-e-Subah.
  • Court of Mir Adils: This court dealt with land revenue matters. Appeal from this court lay before the Court of Diwan-e-Subah.
  • Court of Kotwals: This court was authorised to try police and municipality cases.

Parganah’s Courts: The Courts of Qazi-e-Parganah and Kotwals were constituted at each Parganah Headquarter. The Court of Kazi-e-Parganah had all powers of a District Kazi in all civil and criminal cases except hearing appeals. The Kotwal was authorised to try petty criminal cases. He was also the principal executive officer of the town.

Village Courts: For each group of villages, a panchayat was functioning to look after the executive and judicial functions. The panchayat decided petty civil and criminal cases of purely local nature.

B Legal System under The Mughal Administration

During the Mughal period (1526-1857) the Mughal emperor was considered the ‘fountain of justice’. The emperor created a separate department of justice (Mahakuma-e-Adalat) to regulate and see that justice was administered properly. The important courts functioning during this period were as follows:

Courts at Capital

Three important courts were functioning at the capital city of Delhi. They were as follows:

(a)  The Emperor’s Court: The Emperor’s court presided over by the emperor himself, was the highest court of the empire. This court had jurisdiction to hear both civil and criminal cases. The Emperor while hearing the cases as a court of first instance, was assisted by Daroga-e-Adalat, Mufti and Mir Adil. While hearing appeal the Emperor presided over a Bench consisting of the Chief Justice (Qazi-ul-Quzat) and other Qazis of the Chief Justice’s   court.   The   Emperor  referred  points   for – opinion regarding authoritative interpretation of law on a particular point to the Chief Justice’s court.

(b)  The Court of Chief Justice: This was the second important court at the capital, This court presided over by the Chief Justice was assisted by two Qazies of great importance who were attached  to  this  court  as  puisne judges.   This   court  had jurisdiction to try original, civil and criminal cases and also to hear appeals from the Provincial courts. It had also supervisory power over the working of the Provincial courts.

(c)  Chief Revenue Court: This was the third important court in Delhi. It was the highest court of appeal to decide revenue cases. This court was also assisted by the same four officials as mentioned below.

In each court, as stated above, four officials were attached- Daroga-e-Adalat, mufti, Muhtasib and Mir Adil. Apart from the above-stated three important courts, there were also two courts in Delhi. The court of Qazi-e-Askar was a special court to decide military matters. This court moved from place to place with troops. Another court was the court of Qazi of Delhi which sat in the absence of the Qazi-ul-Quzat to decide local civil and criminal matters.

 Provincial Courts

In each Province there were following three types of courts:

(a)  The    Governor’s    Court   (Adalat-e-Nazim-e-Subah):    The Governor or Nazim presided over this court and he had original jurisdiction in all cases arising in the Province. This court had also jurisdiction to hear appeals from the subordinate courts. Further appeal from this court lay to the Emperor’s court. This court had also supervisory power over the administration of justice in the Province. One Mufti and a Daroga-e-Adalat were attached to this court.

(b)  The Provincial Chief Appeal Court (Qazi-i-Subah’s Court):

This court heard appeals from the decisions of the Qazis of the districts. The powers of Qazi-i-subah were co-extensive with those of Governors. This court had original civil and criminal jurisdiction as well. The officers attached to this court were, Mufti, Mohtasib, Daroga-e-Adalat-e-Subah, Mir Adil, Pandit, Sawaneh Nawis and Waqae Nigar.

(c) Provincial Chief Revenue Court (Diwan’s Court): This court presided over by Diwan-e-Subah had original  and appellate jurisdiction in all revenue matters. An appeal from this court lay to the Diwan-e-Ala at the Imperial capital. Four officers attached to this court were- Peshker, Darogha, Treasurer and Cashier.

District Courts

In each district there were following four courts:

(a) District Qazi: The chief civil and criminal court of the district was   presided   over   by   the   Qazi-e-Sarkar.   This   court   had jurisdiction to try all civil and criminal matters. Appeal from this court lay to the Qazi-e-Subah. Qazi-e-Sarkar was the principal judicial officer in the District. Six officers were attached to this court- Darogha-e-Adalat, Mir Adil, Mufti, Pandit, Mohtasib and Vakil-e-Sharayat.

(b)  Faujdar Adalat: This court presided over by a Faujdar had jurisdiction to try cases concerning riots and state security. An appeal lay to the court of Governor from the decisions of this court.

(c)  Kotwali Court: This court presided over by a FCotwal-e-Shahar decided all petty criminal cases. Appeals from this court lay to the Qazi-e-Sarker.

(d)  Amalguzari Kachari: This court presided over by an Amalguzar decided revenue matters. An appeal from this court lay to Diwan-e-Subah’s adalat.

Parganah’s Court

In each Parganah there were three courts:

(a)  Qazi-e-Parganah’s Court: This court had jurisdiction over all civil and criminal cases arising within its original jurisdiction. This court had no appellate jurisdiction. Appeal from this court lay to the court of District Qazi.

(b)  Court of Kotwal: This court decided all petty criminal cases. Appeals   from   this   courts’   decision   lay  to   the   Court   of District Qazi.

(c)  Amin-e-Parganah:   This  court  presided  over  by an Amin decided all revenue matters. An appeal from this court lay to the District Amaguzar.

Village Courts

In each village two types of courts were working- court of village panchayat and the court of Zaminder. The village panchayat consisted of five persons headed by a headman. The panchayat had the power to decide petty local civil and criminal matters. No appeal was allowed from the decision of a panchayat. In the late Mughal period, Zaminder’s courts were empowered to try petty criminal and civil matters.

B(1)Crime and Punishment in the Mughal Administration

A systematic judicial procedure was followed by the courts during the Mughal period. The judicial procedure was regulated by two Muslim Codes namely Fiqh-e-Firoz Shahi and Fatwai-i-Alamgiri. Evidence was classified into three categories- (a) full corroboration; (b) testimony of a single individual; and (c) admission including confession. The court always preferred full corroboration to other classes of evidence. The Muslim criminal law broadly classified crimes under three heads: (i) crimes against God; (ii) crimes against the King; and (iii) crimes against private individual. During the Muslim period trial by ordeal as existed in Hindu period was prohibited. Instead three forms of punishments were executed by the courts under Muslim law for above three types of crimes.

(a)  Hadd (fixed penalties): This is the form of punishment which was prescribed by the cannon law and could not be reduced or modified by human agency. Hadd meant specific punishments for specific offences. It thus provided a fixed punishment as laid down in Sharia for crimes like theft, robbery, whoredom (zinah), apostasy (ijtidad), defamation and drunkenness. It was equally applicable to Muslims and non-Muslims. The state was under a duty to prosecute all those who were guilty under Hadd. “No compensation was granted under it. For instance, stoning to death was prescribed for adultery or drinking wine, cutting off the right hand for theft etc. All offences for which Hadd was prescribed as punishment are characterised as offences against God, in other words, against ‘public justice’.

(b)  Tazir (Discretionary Punishment): This was another form of punishment which meant prohibition and it was applicable to all crimes which were not classified under Hadd. Offences. for which tazir was fixed were all offences against God. It included crimes like gambling, causing injury, minor theft etc. Under Tazir the kind and amount of punishment was left entirely with the judge’s wish; courts were free to even invent new methods oi punishing the criminals e.g. cutting out the tongue, impalement etc. The object was to reform the criminal.

 (c) Qisas (retaliation) and Diya (blood money): Qisas meant, in principle, life for life and limb for limb. Qisas was applied to cases of willful killing and certain types of grave wounding or maiming which were characterisd as offences against human body. Qisas was regarded as the personal right of the victim or his next of kin, to inflict a like injury on the wrong-doer as he had inflicted on his victim. Under Qisas the relatives or successors of the murdered person could excuse the murderer. Qisas^ became Diya when the next of kin of the victim was satisfied with money as compensation for the price of blood. This also could not be reduced or modified either by the Q*. zi or the Emperor. In cases where Qisas was available, it could be exchanged with diya or blood money.

B(2)Defects of Muslim Administration of Justice

The Muslim administration of justice particularly the criminal justice in medieval India suffered from many defects. The British people who gradually took over to administer justice here always had an owl-look over the Muslim criminal law. Warren Hastings declared it to be a more barbarous law than anything. The inherent defects of Muslim administration of justice were as follows:

(i) The judicial administration was defective in the sense that there was no separation between the executive and judiciary. The emperor who was the head of the government was also the fountain of justice and administered justice directly.

(ii) In many cases Muslim criminal law was not certain and uniform. In practice it was discovered that the law laid down in Hidaya and Fatwa-e-Alamgiri was mostly conflicting. There were differences of opinions among Muslim jurists which gave the Qazis a good deal of leeway to interpret the law and apply it to a specific fact before him. Thus in each case the interpretation of law depended on the Qazi.

(iii) The Muslim criminal law did not draw any distinction between public law and private law. Criminal law was regarded as a branch of private law. It had not developed the idea that crime was an offence not only against the injured individual but also against the society as well.

(iv) Muslim criminal law suffered from much illogicality. This is because crimes against God were regarded crimes of an atrocious character. Crimes against men were regarded as crimes of a private nature and punishment was regarded as private right of the aggrieved party.

(v) The most defective provision in Muslim criminal law was the provision of Diya. In many cases the murderer escaped simply by paying money to the dependants of the murdered person. Many evil practices developed out of it.

(vi) In cases where murdered person left no heirs to punish the murderer or to demand blood-money no specific provisions was available in Muslim law. A minor heir was to wait till he attained majority for punishing the murderer or demanding the blood-money.

(vii) Though Muslim law tried to distinguish between murder and culpable homicide, it did not rest on the intention or want of intention of the culprit. It rested on the method of weapons employed in committing the crime. This was peculiar and generated grave injustice.

(viii)The law of tazir which provided for discretionary punishment was also very vague which gave too much power to the judges. On the one hand, even innocent persons were punished by the courts while on the other hand, it led to corruption and injustice. Punishment could be unduly severe or ridiculously light as there was no standard or measure for them.

(ix) The law of evidence under Muslim law was very defective unsatisfactory, and of primitive nature which made conviction of offenders quite difficult. For example, no Muslim could be given capital punishment on the evidence of an infidel. In other cases evidence of one Muslim was regarded as being equivalent to those of two Hindus. Evidence of two women was regarded as being equal to that of one man. Again, evidence was to be direct; no circumstantial evidence was allowed. To convict a man for rape, for example, it was necessary to have four witnesses who would swear that they had actually seen the accused in the very act of committing the offence. A thief would be convicted only on the evidence of two men, or of one man and two women. It was an invariable case rule to exclude the evidence of women in all cases under haddor qisas.

(x) The nature of punishment of stoning, mutilation etc were so cruel and inhuman that no flesh and blood could even think of it in a civilized society. The punishment of mutilation meant slow, cruel and lingering death to the unfortunate person who had to undergo it, for he could not adopt any means of livelihood. The manner was one to give gooseflesh in ones body. The culprit was tied down. The executioner took a blunt hatchet and hacked off the hand by the joint of a wrist and the foot by the joint of an ankle. The bleeding stump was immediately immerged into a pot of boiling butter (ghee) in order to stop bleeding.

 Criminal Judicial system Under British Period:

A Modernization of Ancient Indian Law

The modernisation of ancient Indian law took place in the hand of the British people who came in India as a trading company under a series of Royal Charters. The pace of the development of the administration of justice in British India may be divided into following five periods:

a. Early Administration of Justice until the Charter of 1726;

b. Administration of Justice from the Charter of 1726 till the Regulating Act of 1773;

c. Administration of Justice from the Regulating Act of 1773 till the era of Unification in 1861; and

d. From 1861 till the Independence in 1947.

B First Period: Early Administration of Justice until the Charter of1726

This period marks the beginning of the British involvement into the administration of justice in India. In another sense, this period deals with the intervention of the Company into the- administration of justice in India as opposed to intervention by the British Queen. The East India Company gradually took possession of three factories and settlements at Bombay, Madras and Calcutta. Starting as trading stations, these settlements became known as the Presidency Towns and the territories around these towns came to be known as Mufassil. Till’1726 the administration of justice in three Presidency Towns was haphazard. The Company participated in administration of justice in cooperation with the local Mughal authorities. Some changes were brought in the administration of justice in three Presidency Towns with the intervention of some Charters issued from time to time by the Company though these changes were fringe and different in three Presidency Towns. For example, the first Mayor’s court in India was established at Madras by the Company’s Charter of 1687. This was a Company’s court as opposed to the Crown’s court and no specific rules of law and procedure was laid down for this court by the Company. On the other hand, the Company first acquired the territorial acquisition of Bengal, Bihar and Orissa in 1765 as Mufassil area as opposed to Presidency Towns. Though the Company took the full control of Diwani and military power, the administration of both civil and criminal justice.were left to the indigenous machinery at the hand of natives until 1772. The development of adalat system in Mufassil area will be discussed in a different heading.

C Second Period: The Era of the Mayor’s Court: Administration of Justice from the Charter of 1726 till the Regulating Act of 1773

This period may be divided into two parts: from the Charter of 1726 till the Charter of 1753; and from the Charter of 1753 till the Regulating Act of 1773. The first part of this period marks the beginning of the intervention by the British Crown in the administration of justice in India. The Charter of 1726 issued by King George I by way of granting Letters Patent1 to the Company was the first gateway of the introduction of English law in India. The Charter of 1726 established a corporation for each Presidency towns. Following changes in the administration of justice were made by this Charter:

C(1) Criminal judiciary:

a. Justices of the Peace: Under the Charter the criminal justice was fully executive dominated. In each Presidency town the criminal justice was vested in the Governor and five senior members of the Council of the Company. Each of them was to act in the same manner, and to have the same powers, as the justices of the peace in England. A justice of the peace could arrest persons accused of committing crimes, punish those who were guilty of minor crimes, and commit the rest to be tried by the Quarter Sessions.

b. Court of Quarter Session:  Three justices of the peace collectively were to form a court of record and they were to hold quarter sessions four times a year to try and punish each and every criminal offence, except high treason, committed in the Presidency Towns. Trial at these session courts were to be held with the help of grand jury and petty jury. All technical forms and procedures of the English criminal justice were introduced in the Presidency Towns as it was explicitly laid down in the Charter.

1 ‘Letters Patent’ is derived from Latin literae paientes meaning writings sealed with the Great Seal of England, whereby a man is authorised to do or enjoy anything that otherwise of himself he could not. They are so termed by reason of their form, because they are open with the seal affixed, readv to be showi, for confirmation of the authority given them. There are other Letters Patent of 1865 establishing High Courts at Calcutta, Bombay and Madras.

‘Letters Patent’ is not an Act but is granted by the Sovereign by virtue of an Act of Parliament, and it should be construed in the same way as an Act. (Banwari Lai v Emperor, AIR 1943 Cal 285).

 

c. Governor-in-Council: Under the Charter criminal justice was vested in the Governor and five senior members of the Council of the  Company.  They  had  both  original  and  appellate jurisdiction in some specified criminal matters, e.g. high treason and serious crimes like murder etc.

C(2) Defects of the Judicial System under the Charter of 1726

(i) The criminal justice was fully executive dominated as it was at the hand of the Governor-in-Council.

(ii) The Mayor’s courts were not free from the executive influence. The aldermen were either Company’s servants or other English traders who depended upon the Company’s permission to stay in India and were at the mercy of the local government. In other words, the Governor and Council were the maker and unmaker of the judges.

(iii) Judges were non-professionals. The Company had a policy of confining administration of justice to its servants and hence it avoided appointing lawyers.

(iv) The Mayor’s court was constituted to work independently. But its relationship with the executive was not stated clearly and there emerged an unhappy clash between the executive and the judiciary. This clash is evident from some important cases like Shrimpy’s case, Arab Merchant’s case, Pagoda Oath case etc.

(v) The Charter did not mention anything about the jurisdiction of the Mayor’s court. When the Mayor’s court decided that it was empowered to decide cases where both the parties were native Indians, it created great dissatisfaction and unrest among native

D Third Period: The Era of the Supreme Court: Administration of Justice from the Regulating Act of 1773 till the era of Unification in1861

Though the Charter of 1753 was issued with a view to removing the defects of the Charter of 1726, the Mayor’s Court suffered from certain drawbacks having far-reaching consequences. In 1772 the House of Commons appointed a secret committee to prove into the affairs of the Company. The committee reported, inter alia, that the Mayor’s court had degenerated into an engine of oppression rather than acting as a court of justice. On the basis of report of the committee the House of Commons intervened and passed the Regulating Act 1773. The Act empowered the King to establish by Charter a Supreme Court at Calcutta. Accordingly the King issued the Charter of 1774 establishing the Supreme Court at Calcutta. Subsequently Supreme Courts were established in Madras in 1801 and in Bombay in 1824 abolishing the Mayor’s Court. After the establishment of the Supreme Court under the Regulating Act of 1773 the judicial reform took the following shape:

(i)                A Supreme Court was established in place of Mayor’s Court in each Presidency Town of Calcutta, Bombay and Madras,

(ii)             Three Courts of Requests in three cities were retained and they were made subordinate to the Supreme Court. However, in 1850 these Courts of Requests were abolished and in their place Small Causes Courts were established in three Presidency Towns.

(iii)           The Supreme Court consisted of a Chief Justice and three other puisne judges. They were to be all professional barristers sent out to India from England. They held office during the pleasure of the King.

(iv)           The Supreme Court was empowered to supervise the Court of Collector, Quarte^ession, Justice of Peace and the Court of Requests. Under this supervisory jurisdiction the Supreme Court could issue various prerogative writs.

(v)              The general jurisdiction of this court was limited within the geographical limits of the PresidencyTown. Beyond the Presidency Towns, the court exercised a personal jurisdiction over three categories of persons- British subjects and persons employed directly or indirectly to the service of the Company.

(vi)           The Supreme Court had both original, appellate, civil, criminal, ecclesiastical and admiralty jurisdiction. It heard appeal from the decisions of the Mufassil courts and Company’s courts.

(vii)         A second appeal from the decision of the Supreme Court where the cause of action exceeded 1000 pagodas lay with the King-in-Council within six months from the decision of the Supreme Court. In criminal cases the Supreme Court had full and absolute discretion to allow or deny permission to make an appeal to the King-in-Council.

(viii)      In 1850 the Courts of Requests were abolished and in their place Small Causes Courts were established in three Presidency towns.

D(1) Defects with the Working the Supreme Court

(i) In actual functioning both the judiciary and the executive came into serious conflicts and dissatisfaction arose between them under the following points:

(ii) There appeared huge debate over the point of jurisdiction. In Patna and Cossijurah’s cases the Supreme Court came into an open conflict with the Company on the issue whether the Indian Zaminder and farmers of revenue came under the jurisdiction of the Supreme Court or not.

(iii) There emerged conflict between the Supreme Court and the Company’s court. This was because neither the Regulating Act nor the Charter of 1774 clarified the question of relationship between the Supreme Court and the Company’s Courts.

(iv) There occurred conflicts on point of superiority between the Council and the Supreme Court. There was a great deal of vagueness in the crucial area of relationship between the Company and the Supreme Court.

(v) The two distinct and parallel judicial systems- the Supreme Court in the Presidency Towns and Adalat in the Mufassil area soon gave rise to conflict over the question of jurisdiction. For example, the Supreme Court cliamed jurisdiction over the whole native population which was opposed by the Council of the Company.

(vi) Raja Nandkumar’s, Radha Charan, Kamaluddin, Saropchand, Patna, Cossijurah etc cases provide glaring examples of lacunae and defective provisions of the Regulating Act and the Charter of 1774.

Thus though the Supreme Court was designed to be independent in discharging its functions, two fundamental things- shortcomings in the Regulating Act and the Charter and the violent interference of the executive- did not allow it to work independently.

E Fourth Period: Era of Unification: From 1861 till the Independence in 1947 (Judicial Reform under the Direct British Rule).

This period may be divided into two sub-heads: from 1861 till 1935 (the era of High Court); and from 1935 till 1947 (the era of High Court and the Federal Court).

As a result of severe clash between the executive and the Supreme Court, within only seven years time the Supreme Court came to be a body disliked by all. Petitions in the form of allegation were submitted to the King of England not only by the Governor-General but also by the inhabitants of Bengal which followed by the appointment of a Select Committee in 1780 to enquire into administration of justice in Bengal. The Committee’s report led to the passage of the Act of Settlement, 1781 which in fact curtailed the power of the Supreme Court to accommodate the Council’s opinion. The Supreme Court now was deprived of its jurisdiction in revenue matters and Company’s Court. Though the plan did away with the clash between the executive and judiciary, it virtually undermined the position and prestige of the Supreme Court as a highest court and also as a court of record, for no longer was it in a position to control the executive. Secondly, the Supreme Court continued its interpretation of ‘constructive inhabitancy’ whereby it exercised jurisdiction over many persons residing outside Presidency Towns. Again, Mufassil courts had jurisdiction over these persons. Third, problems continued to arise regarding concurrent jurisdiction of the two sets of courts. At times the Supreme Court and Mufassil Courts passed conflicting decrees. Fourth, serious conflicts arose in execution proceedings. The process of the Supreme Court ran through the Mufassil where it could execute it in Presidency Towns. On the other hand, the Mufassil courts could not execute its decree in Presidency Towns. To execute it in the Presidency Towns separate suit was to be filed in the Supreme Court for its recognition. Against the background of this unsatisfactory state of affair, gradually opinion began to crystallise in favour of merger and consolidation of the two rival systems.

The first important step to unite the two sets of courts was taken in 1853, where the first Law Commission was established in India and an all India Legislature was created whose laws were to be binding on all courts whether established by the Royal Charter or the Company’s authority.

The second step was the appointment of the second Law Commission which was assigned to formulate a scheme of amalgamation of the Sadar Adalats and the Supreme Court and also to prepare codes of procedure to be applied to all courts.

The third step was the dissolution of the company and the taking over the Government of India by the British Crown in 1858 following the event of mutiny in 1857. This ultimately paved the way of unification much easier.

The final step was taken with the enactment of three uniform codes (Civil Procedure Code, Criminal Procedure Code and Penal Code). With the achievement of these common legal fabric, the stage was set for the union of the two judicial systems and this was finally done by the British Parliament in 1861. By enacting the Indian High Courts Act which provided for the creation of the High Courts in three Presidency Towns by merging the Supreme Court and Sadar Adalats. The Charter for the Calcutta High Court was issued in 1862 and the High Court was established on 2nd July 1862.

 Judicial System after the Unification

a.    Two parallel judicial systems, namely, the Company’s courts in Mufassil areas and three Supreme Courts (King’s Courts) in three Presidency Towns were merged into a unified system under three High Courts of Judicature at three Presidency Towns.

b.    The Supreme Courts and the Courts of Sadar Diwani Adalat and Sadar Nizamat Adalat were abolished.

c.    The ordinary original jurisdiction of the High Court was limited to the local limits of the Presidency Towns. Its predecessor the erstwhile   Supreme   Court   d!     in   fact   exercise   a   broader jurisdiction in the sense that in certain circumstances persons and property beyond the local limits of the presidency towns fell within its jurisdiction.

d.    In its ordinary civil jurisdiction the High Court was empowered to try and determine suits of every description except those falling within the jurisdiction of the Small Causes Courts.

e.    The High Court had original criminal jurisdiction within the local limits of its civil jurisdiction.

f.    The  High Court exercised its appellate jurisdiction to hear appeals from both civil and criminal courts from which appeals were preferred to the Sadar Diwani and Sadar Nizamat Adalats. To be more specific, the original side of the High Court was the immediate successor to the Supreme Court and the appellate side of the High Court was the immediate successor of the Sadar Diwani Adalat and Sadar Nizamat Adalat.

g.    The High Court had supervisory jurisdiction over all subordinate courts both civil and criminal.

h. Unlike the erstwhile Supreme Court, the High Court was empowered to exercise jurisdiction over revenue.

i. A further appeal from the decision of the High Court involving a sum not less than Rs. 10,000 lay to the Privy Council. The High Court was also empowered to certify that the case was fit one for appeal to the Privy Council.

 Criminal Judicial system Under Pakistan Period:

As mentioned earlier, with the adoption of the Constitution of 19 the highest court in Pakistan became the Supreme Court of Pakistan the High Courts were retained at provinces as earlier. The subordinate courts were the same as in 1947. After the adoption of the Constitution of 1962 the’whole judicial structure was the same as under the Constitution of 1956.

Chapter—Five

Provision of the Law concerning criminal justice system in Bangladesh

General:

Legal system of Bangladesh is a mixer or collection of the rules and laws followed in the other country of the world. Bangladesh got its independence on 16th December 1971. Before the independence it passed through different period of administration process e.g.  Hindu, Muslim, British, Pakistan etc. So it enacts its law in considering the history and enacting law which it thought necessary for its administration. As a result in every laws even in the constitution of Bangladesh reflects taste of the ancient period.

Origin and nature of Laws of Bangladesh:

The present legal and judicial system of Bangladesh owes its origin mainly to two hundred years British rule in the Indian Sub-Continent although some elements of it are remnants of Pre-British period tracing back to Hindu and Muslim administration. It passed through various stages and has been gradually developed as a continuous historical process. The process of evolution has been partly indigenous and partly foreign and the legal system of the present day emanates from a mixed system which has structure, legal principles and concepts modeled on both Indo-Mughal and English law. The Indian sub-continent has a known history of over five hundred years with Hindu and Muslim periods which proceeded the British period, and each of these early periods had a distinctive legal system of its own.

Some criminal Laws enforceable in Bangladesh:

Administration of justice is necessary and essential for a country to be run. Every country has enacted law or regulation for administration of justice. Bangladesh has also enacted several Acts for its own self. For the proper management of criminal justice system it enacted different laws. For example penal code, 1860 for the determination or affixing the punishment of criminal offences committed with in the territory of the country.

Thus following are some of the criminal laws enforceable in Bangladesh which is supervising criminal justice system of the country:

  1. Code of criminal Procedure, 1898
  2. Penal Code, 1860
  3. Nari O Shishu Nirjaton  Domon Ain,2000
  4. Special Powers Act, 1974
  5. Police Act, 1864
  6. The Evidence Act, 1882
  7. The Arms Act,1878
  8. The Drugs Act, 1940
  9. The Explosive Substances Act 1908

 Classification of criminal courts:

The ordinary criminal courts have their legal basis in the Code of Criminal Procedure, 1898. The classes of courts, power and function as to the courts, and appointment of the judges are found in this very code.

Section- 6 of the code of criminal procedure deals with the court which will exist in the whole territory. Section-6 of the code of criminal procedure, 1898 is as follows:

Section-6Classes of Criminal Courts

(1) Besides the Supreme Court and the Courts constituted under any law for the time being in force, other than this Code, there shall be two classes of Criminal Courts in Bangladesh, namely:-

(a) Courts of Sessions; and

(b) Courts of Magistrates.

(2) There shall be two classes of Magistrate, namely: –

(a) Judicial Magistrate; and

(b) Executive Magistrate.

(3) There shall be four classes of judicial Magistrate, namely: –

(a) Chief Metropolitan Magistrate in Metropolitan Area and Chief judicial Magistrate to other areas;
(b) Magistrate of the first class, who shall in Metropolitan area, be known as Metropolitan Magistrate;
(c) Magistrate of the second class; and
(d) Magistrate of the third class.

Explanation: For the purpose of this sub-section, the word “Chief Metropolitan Magistrate” and “Chief judicial Magistrate” shall include “Additional Chief Metropolitan Magistrate” and “Additional Chief judicial Magistrate” respectively.

Following are the courts in criminal justice system in Bangladesh in the modern contemporary period to administer justice:

  1. Supreme Court
    1. Appellate Division
    2. High Court Division
    3. Court of Sessions
      1. Court of Sessions
      2. Additional Court of Session
      3. Joint Session Court
      4. Court of Magistrates
        1. Judicial Magistrates
  • Chief Metropolitan Magistrate or Chief Judicial Magistrate
  • Additional Chief Metropolitan Magistrate or Additional Chief Judicial Magistrate
  • Metropolitan Magistrate or Magistrate of 1st class
  1. Executive Magistrates
  • District Magistrate
  • Additional District Magistrate
  • Other Executive Magistrate
  1. Special Magistrates

A The Supreme Court:

Article94: Establishment of Supreme Court:

(1) There shall be a Supreme Court for Bangladesh (to be known as the Supreme Court of Bangladesh) comprising the Appellate Division and the High Court Division.

(2) The Supreme Court shall consist of the Chief Justice, to be known as the Chief Justice of Bangladesh, and such number of other Judges as the President may deem it necessary to appoint to each division.

(3) The Chief Justice, and the Judges appointed to the Appellate Division, shall sit only in that division, and the other Judges shall sit only in the High Court Division.
(4) Subject to the provisions of this Constitution the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions.

B Courts of Sessions:

Section-6 of the Code of Criminal Procedure, 1898 has classified the criminal courts in two heads session and magistrate court; it has categorized Session courts in section-9 of the code. Section-9 of the code of criminal procedure is as follows:

Section-9: Court of Sessions

(1) The Government shall establish a Court of Session for every sessions division, and appoint a judge of such Court; and the Court of Session for [a] Metropolitan Area shall be called the Metropolitan Court of Session.]
(2) The Government may, by general or special order in the official Gazette, direct at what place or places the Court of Session shall hold its sitting; but, until such order is made, the Courts of Session shall hold their sittings as heretofore.
(3) The Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts.
(3A) The members of the Bangladesh Judicial Service shall be appointed as Sessions Judge, Additional Sessions Judge and Joint Sessions Judge in accordance with the rules framed by the President under the proviso to Article 133 of the constitution to exercise jurisdiction in one or more of such areas.]
(4) A Sessions Judge of one sessions division may be appointed by the Government to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in either division as the Government may direct.

(5) All Courts of Session existing when this Code comes into force shall be deemed to have been established under this Act.

 As Section-9 stated, the session courts will include the following:

  • Court of Session
  • Additional Sessions Judge
  •  Joint Sessions Judge

C Courts of Magistrates:

Section-6 of the code of criminal procedure, 1898 has classified the criminal courts which will conduct its judicial power with in the territory Bangladesh. It has established Court of Magistrate as the one of the branch of adjudicating judicial dispute.

Section-6 of the code introduces following classification as to Magistrate courts:

There shall be two classes of Magistrate, namely:

(a) Judicial Magistrate; and

(b) Executive Magistrate

……Section-6(2) of code of criminal procedure, 1898

(a) Judicial Magistrate:

There shall be four classes of judicial Magistrate, namely: –

(a) Chief Metropolitan Magistrate in Metropolitan Area and Chief judicial Magistrate to other areas;

(b) Magistrate of the first class, who shall in Metropolitan area, be known as Metropolitan Magistrate;

(c) Magistrate of the second class; and

(d) Magistrate of the third class

 ………Section-6(3) of Code of criminal procedure, 1898

(b)              Executive Magistrate:

Section-10 of the code of criminal procedure, 1898 dealt with the provision regarding executive magistrate. Section-10 of the code says as:

Section-10: Executive Magistrates:

(1) In every district and in every Metropolitan Area, the Government shall appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate.

(2) The Government may also appoint any Executive Magistrate to be an Additional District Magistrate, and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under this Code or under any other law for the time being in force, as the Government may direct.
(3) Whenever in consequence of the office of a District Magistrate becoming vacant, any officer succeeds temporarily to the chief executive in the administration of the district, such officer shall, pending the orders of the Government, exercise all the powers and perform all the duties respectively conferred and imposed by this Code on the District Magistrate.

(4) The Government may, or subject to the control of the Government, the District Magistrate may, from time to time, by order define local areas within which the Executive Magistrate may exercise all or any of the powers with which they may be invested under this Code and, except as otherwise provided by such definition, the jurisdiction and powers of every such Executive Magistrate shall extend throughout the district.
(5) The Government may, if it thinks expedient or necessary, appoint any persons employed in the Bangladesh Civil Service (Administration) to be an Executive Magistrate and confer the powers of an Executive Magistrate on any such member.
(6) Subject to the definition of the local areas under sub-section (4) all persons appointed as Assistant Commissioners, Additional Deputy Commissioners or Upazila Nirbahi Officer in any District or Upazila shall be Executive Magistrates and may exercise the power of Executive Magistrate within their existing respective local areas.

(7) Nothing in this section shall preclude the Government from conferring, under any law for the time in force, on a Commissioner of Police, all or any of the powers of an executive Magistrate in relation to a Metropolitan area.]

 Thus section-10 declares following as executive magistrates:

  1. District Magistrate
  2. Additional District Magistrate
  3. Executive Magistrate

Power and Functions of the courts:

Powers of the court here refers the sentence or punishment which may the court grant to the victim or complainant for the criminal offences or violation committed against him.

The powers of the court in commencing sentence may be discussed in two heads:

A. Powers of the Magistrate Court and

B. Powers of the court of Sessions and High Court Division

A Powers of the Magistrate Court:

The sentence or punishment which a magistrate court may pronounce in adjudicating any criminal dispute place before his learned court is specified in section-32, section-33 and section-33A of the code of criminal procedure, 1898.

They are as follows:

Section-32.Sentences which Magistrates may pass:

(1)  The Courts of Magistrates may pass the following sentences namely:-
(a) Courts of Metropolitan Magistrates and] of Magistrates of the first class: Imprisonment for a term not exceeding  five years], including such solitary confinement as is authorized by law; Fine not exceeding  ten thousand taka]; Whipping.

(b) Courts of Magistrates of the second class: Imprisonment for a term not exceeding three years], including such solitary confinement as is authorized by law;

Fine not exceeding five thousand taka];

(c) Courts of Magistrates of the third class: Imprisonment for a term not exceeding  two year];

Fine not exceeding  two thousand taka].

(2) The Court of any Magistrate may pass any lawful sentence, combining any of the sentences which it is authorized by law to pass.

Section-33: Power of Magistrates to sentence to imprisonment in default of fine:

(1) The Court of any Magistrate may award such terms of imprisonment in default of payment of fine as is authorized by law in case of such default:

Provided that-

(a) the term is not in excess of the Magistrate’s powers under this Code;

(b) in any case decided by a Magistrate where imprisonment has been awarded as part of the substantive sentence, the period of imprisonment awarded in default of payment of the fine shall not exceed one-fourth of the period of imprisonment which such Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine.
(2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under section 32.

Section-33A: Higher powers of certain Magistrates:

The Court of a Magistrate, specially empowered under section 29C, may pass any sentence authorized by law, except a sentence of death or of transportation or imprisonment for a term exceeding seven years.]

B Powers of the Court Of Sessions and High Court Division:

Sentencing power of the Sessions court and High Court Division has been settled by section-31 of the code of criminal procedure, 1898.

Section-31 states as follows:

Section-31: Sentences which High Court Division and Sessions Judges may pass:

(1) The High Court Division] may pass any sentence authorized by law.

(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorized by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court Division.

(3) A (Joint) Sessions Judge may pass any sentence authorized by law, except a sentence of death or of transportation for a term exceeding 50[ ten] years or of imprisonment for a term exceeding 2 51[ ten] years

Appointment of Magistrates and judges:

Procedure of Appointment of the Magistrates, judges is specified in section-   of the code of criminal procedure, 1898 and the appointment of chief justice and other judges of Supreme Court are specified in or followed by Article 95 of the constitution of Bangladesh.

Appointment of Judges of the Supreme Court:

Article-95: Appointment of Judges:

(1) The Chief Justice shall be appointed by the President, and the other Judges shall be appointed by the President after consultation with the Chief Justice.
(2) A person shall not be qualified for appointment as a Judge unless he is a citizen of Bangladesh and –

(a) has, for not less than ten years, been an advocate of the Supreme Court ; or

(b) has, for not less than ten years, held judicial office in the territory of Bangladesh ; or

(c) has such qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court.

(3) In this article, “Supreme Court” includes a court which at any time before the commencement of this Constitution exercised jurisdiction as a High Court in the territory of Bangladesh.

 Appointment of the magistrates and judges in session divisions:

Appointment of magistrate or subordinate courts is established through Article 115 &116 of the constitution of Bangladesh and section 9, 11 & 18 of the code of criminal procedure, 1898.

[115.Appointments to subordinate courts
Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with rules made by him in that behalf.]
116.Control and discipline of subordinate courts
The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the 67[President] 68[and shall be exercised by him in consultation with the Supreme Court].

 Section 9, 11 & 18 of the code of criminal procedure, 1898 are as followes:

 Section-9: Court of Sessions:

(1) The Government shall establish a Court of Session for every sessions division, and appoint a judge of such Court; and the Court of Session for a] Metropolitan Area shall be called the Metropolitan Court of Session.]
(2) The Government may, by general or special order in the official Gazette, direct at what place or places the Court of Session shall hold its sitting; but, until such order is made, the Courts of Session shall hold their sittings as heretofore.
(3) The Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts.
(3A) The members of the Bangladesh Judicial Service shall be appointed as Sessions Judge, Additional Sessions Judge and Joint Sessions Judge in accordance with the rules framed by the President under the proviso to Article 133 of the constitution to exercise jurisdiction in one or more of such areas.]
(4) A Sessions Judge of one sessions division may be appointed by the Government to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in either division as the Government may direct.

(5) All Courts of Session existing when this Code comes into force shall be deemed to have been established under this Act.

 Section-11: Judicial Magistrates:

(1) In every district outside a Metropolitan Area, the Chief Judicial Magistrates, Additional Chief Judicial Magistrates and other Judicial Magistrates shall be appointed from the persons employed in the Bangladesh Judicial service in accordance with the rules framed by the President under the proviso to Article 133 of the constitution.

(2) An Additional Chief Judicial Magistrate shall have all or any of the powers of the Chief Judicial Magistrate under this Code or any other law for the time being in force, as the Government may direct.

(3) The Government may, or subject to the general or special orders issued by the Government in consultation with the High Court Division, the Chief Judicial Magistrate may, from time to time, define local areas within which the Judicial Magistrates may exercise all or any of the powers with which they may be invested under this Code, and except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district.

(4) Notwithstanding anything contained in this section, the Government may require any Executive Magistrate to perform the functions of a Judicial Magistrate for a period to be determined in consultation with the High Court Division and during such period, the Magistrate shall not perform the functions of an Executive Magistrate.]

 Section-18: Appointment of Metropolitan Magistrates:

(1) In every Metropolitan Area, the Chief Metropolitan Magistrate, Additional Chief Metropolitan Magistrate and other Metropolitan Magistrates shall be appointed from among the persons employed in the Bangladesh judicial Service.]

(2) The Government may appoint one or more Additional Chief Metropolitan Magistrates, and such Additional Chief Metropolitan Magistrates shall have all or any of the powers of the Chief Metropolitan Magistrate under this Code or under any other law for the time being in force, as the Government may direct.

 Illustration, Nature and Salient features of some criminal laws of Bangladesh:

The chapter intends to illustrate some criminal laws of the territory to have knowledge of their nature and salient features. The country has adopted and chosen laws for her administration of justice. Most of the law of the country is adopted from the sub continent of India and somehow the laws and their nature are connected with Laws exist in the ancient period e.g. Hindu, Muslim, British and Pakistan Period. The knowledge of criminal laws of the territory is so much essential to justify or evaluate criminal justice system of the country.

Here elaboration of some law considering their nature, objects and features are described bellow:

A.          Code Of criminal Procedure, 1898:

Code of criminal procedure, 1898 is one of the essential code of the country in dealing with the criminal administration of justice. The only law of the country dealt with the procedure for determining power and function of the country and other procedural matter which is connected with criminal judicial system of the country.

  1. Nature:
  2. Objects:
  3. Fundamental procedures
  4. Evaluation

1. Nature:

CrPC is a branch of procedural law. Adjective of procedural criminal law provides machinery for the punishment of offenders against substantive criminal laws, e.g. the penal code and other statutes. However, CrPC is not the only procedural law for punishing offenders; it is the main general law of procedure for criminal proceedings but any other statute or special law may determine aspects of procedural law.

The CrPC though mainly an adjective or procedural law deals with many other aspects: it deals with the constitution of criminal courts, classifies them, defines their powers etc. there are provisions in the CrPC which provide for substantive law by creating offences.

For instance, section 250 creates a separate offence in case of false, frivolous and vexatious accusations in cases tried by magistrates. In addition to offences created by section 203 and 211 in the penal code, section 250 of the CrPC creates another offence of false accusation and punishment has been prescribed in that very section also. Likewise, section 485A of the CrPC creates another offence with punishment for non-attendance by a witness in obedience to summons. If any witness fails, without just excuses, to appear before a court in response to a summon, the court before which the witness is to appear may try him summarily and sentence him to fine not exceeding two hundred taka and fifty.

2. Objects:

The main objects of the code are to determine and specify the machinery for the punishment of offenders against substantive criminal laws enforceable in the country. The law itself the main general law of the country supervise the formation, function and other procedure requires for administration of criminal justice.

Thus CrPC is the main law of procedure but not the only.

3. Fundamental Procedures:

The Code of Criminal Procedure, 1898 is the main general law of procedure of the country in criminal justice system. The very code does not preclude anything which is needed for the determining of machinery of ensuring criminal justice. It is in considering of law is most uniform and clear. The code successfully elaborate structure of the courts to functions of the court, pre trial stage to commencing of sentences and their execution, other procedures related with the administration of criminal justice.

The knowledge of the code is essential for the criminal justice system because this is the main procedural law of the country to deal with the criminal justice system.

Following are some fundamental features of the code:

A. Classification of the courts:(Section-6 of CrPC)

The code of criminal procedure itself clearly defines the court which will regulate its jurisdiction over the people of the country. Section-6 of the code has clearly classified the courts which will exist in adjudication of criminal disputes within the country.

According to section-6 of the code following are the courts in criminal justice system of Bangladesh in the modern contemporary period to administer justice:

  1. Supreme Court
    1. Appellate Division
    2. High Court Division
    3. Court of Sessions
      1. Court of Sessions
      2. Additional Court of Session
      3. Joint Session Court
      4. Court of Magistrates
        1. Judicial Magistrates
  • Chief Metropolitan Magistrate or Chief Judicial Magistrate
  • Additional Chief Metropolitan Magistrate or Additional Chief Judicial Magistrate
  • Metropolitan Magistrate or Magistrate of 1st class
  1. Executive Magistrates
  • District Magistrate
  • Additional District Magistrate
  • Other Executive Magistrate
  1. Special Magistrates

B. Determining Power and Functions of the Courts:(Section-31 to Section-33A of the Cr.PC):

The maximum Power of sentencing In adjudicating a criminal matter before the courts exist in the territory have been specified in section-31,32,33 and 33A of the code of criminal procedure. The maximum power of sentencing court is drawn in the table bellow:

Power of the Criminal courts: Section-31, 32, 33,33A

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Power Of the Magistrates Court

 

 

 

 

 

 

 

 

 Section-32.Sentences which Magistrates may pass:

The Courts of Magistrates may pass the following sentences namely:-
(a) Courts of Metropolitan Magistrates and] of Magistrates of the first class: Imprisonment for a term not exceeding  five years], including such solitary confinement as is authorized by law; Fine not exceeding  ten thousand taka]; Whipping.
(b) Courts of Magistrates of the second class: Imprisonment for a term not exceeding three years], including such solitary confinement as is authorized by law; Fine not exceeding five thousand taka];

(c) Courts of Magistrates of the third class: Imprisonment for a term not exceeding  two year];

Fine not exceeding  two thousand taka].

(2) The Court of any Magistrate may pass any lawful sentence, combining any of the sentences which it is authorized by law to pass.Section-33: Power of Magistrates to sentence to imprisonment in default of fine:

The Court of any Magistrate may award such terms of imprisonment in default of payment of fine as is authorized by law in case of such default:

Provided that-

(a) the term is not in excess of the Magistrate’s powers under this Code;
(b) in any case decided by a Magistrate where imprisonment has been awarded as part of the substantive sentence, the period of imprisonment awarded in default of payment of the fine shall not exceed one-fourth of the period of imprisonment which such Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine.
(2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under section 32. 

Powers Of the High Court Division or Session CourtSection-31: Sentences which High Court Division and Sessions Judges  may pass:

(1) The High Court Division] may pass any sentence authorized by law.

(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorized by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court Division.

(3) A (Joint) Sessions Judge may pass any sentence authorized by law, except a sentence of death or of transportation for a term exceeding 50[ ten] years or of imprisonment for a term exceeding 2 51[ ten] years.Power of the Special MagistratesSection-33A: Higher powers of certain Magistrates:

The Court of a Magistrate, specially empowered under section 29C, may pass any sentence authorized by law, except a sentence of death or of transportation or imprisonment for a term exceeding seven years.]

 C. Provision as to Arrest:(Section-46 to section-67 and Section-75 to Section-86)

Arrest is the beginning of imprisonment. Its purposes may be classified as preventive, punitive, and protective. There is no necessary assumption that arrest will be followed by a charge. A constable who reasonably suspects a person of involvement in an offence may arrest that person with a view to interrogating him in the more formal atmosphere of a police station.

Thus arrest is the legal detention of a person which does not demand for necessary charge but mere reasonably suspicion of involvement of an offence is enough.

Procedure of arrest may be discussed in the following 3 heads:

  1. Arrest in general
  2. Arrest without Warrant
  3. Warrant of Arrest

3. Arrest in general:

Section 46 to 53 provides procedure of how an arrest can be made. The whole procedure may be described in the following steps:

Effecting arrest by touching the body of the arrestee:

Section-46: Arrest how made:

(1) In making an arrest the police-officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

Resisting Endeavour to arrest:

2) If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police-officer or other person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with 69[ transportation for life].

Search of place entered by:

While making the arrest under warrant or in case of a warrantable case the police officer may ask free ingress to any residence or place where he has reason to believe that the person to be arrested is hiding or has entered into (Section-47)

If ingress to such place can not be obtained under section 47 it shall be lawful for the police officer to break into the house or residence to effect the arrest (Section-48)

If such a breaking into the house is to be done into a zanana, the police officer must to give the women inside the zanana opportunity to withdraw themselves from it (Section-48)

The person arrested shall not be subjected to more restraint than is necessary to prevent his escape (Section-49).

4. Arrest without Warrant: (Section-54-67):

Section 54 to section 67 of the code dealt with the procedure regarding arrest without warrant. Among them section-54 of the code provides unbeaten power to the police to arrest peoples without warrant.

Section-54: When police may arrest without warrant:

Any police-officer may, without an order from a Magistrate and without a warrant, arrest- firstly , any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned;

secondly , any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house breaking;

thirdly, any person who has been proclaimed as an offender either under this Code or by order of the Government;

fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing;
fifthly, any person who obstructs a police-officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody;
sixthly, any person reasonably suspected of being a deserter from the armed forces of Bangladesh.

seventhly , any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Bangladesh, which, if committed in Bangladesh, would have been punishable as an offence, and for which he is, under any law relating to extradition or under the Fugitive Offenders Act, 1881, or otherwise, liable to be apprehended or detained in custody in Bangladesh;
eighthly , any released convict committing a breach of any rule made under section 565, sub-section (3);

ninthly, any person for whose arrest a requisition has been received from another police-officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefore that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

Besides the code includes:

Section-55: Arrest of vagabonds, habitual robbers, etc

Section-57: Pursuit of offenders into other jurisdictions

Section-59: Arrest by private persons and procedure on such arrest

Section-60: Person arrested to be taken before Magistrate or officer in charge of police-station

Section-61: Person arrested not to be detained more than twenty-four hours

Section-64: Offence committed in Magistrate’s presence

Section-65: Arrest by or in presence of Magistrate

5. Warrant of Arrest:

Provision regarding arrest of a person under warrant against any person who committed an act criminal in nature or arrest of the person as require or for whose arrest an order of the court or reasonable authority are mentioned in section-75 to section-86 of the code of criminal procedure, 1898.

D. Search warrant:(Section-94 to section-106 of CrPC):

Section-96 to Section-99G of the code of criminal procedure dealt with the provision regarding issuing search warrant and procedure regarding execution of such warrant.

Section-96: When search- warrant may be issued

Section-97: Power to restrict warrant

Section-98: Search of house suspected to contain stolen property, Forged document, etc

Section-99: Disposal of things found in search beyond jurisdiction

Section-100: Search for persons wrongfully confined

Section-102: Person in charge of closed place to allow search

Section-105: Magistrate may direct search in his presence

E. Disputes as to immoveable property:(Section-145 to Section-148 of the CrPC):

Section 145 to section 148 deals with the disputes as to immovable property. Section 145 of the code states procedure where dispute concerning land, etc. is likely to cause breach of peace and state that party in possession to retain possession until legally evicted.

Section 146 of the code deals with the provision regarding attachment of disputed property subject to exceptions.

Section-145: Procedure where dispute concerning land, etc, is likely to cause breach of peach:

(1) Whenever a  District Magistrate, or an Executive Magistrate specially empowered by the Government in this behalf] is satisfied from a police-report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water of the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

(2) For the purposes of this section the expression “land or water” includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.

(3) A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. Inquiry as to possession

(4) The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject:

Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date:

Provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.

(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final. Party in possession to retain possession until legally evicted

(6) If the Magistrate decides that one of the parties was or should under the first proviso to sub-section (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefore in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.
(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purpose of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit.

(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.

(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107.

Section-146: Power to attach subject of dispute:

(1) If the Magistrate decides that none of the parties was then in such possession, or is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach it until a competent Court has determined the rights of the parties thereto, or the person entitled to possession thereof:

Provided that such Magistrate]may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute.

(2) When the Magistrate attaches the subject of dispute, he may, if he thinks fit and if no receiver of the property, the subject of dispute, has been appointed by any Civil Court appoint a receiver thereof, who, subject to the control of the Magistrate, shall have all the powers of a receiver appointed under the  Code of Civil Procedure, 1908]:

Provided that, in the event of a receiver of the property, the subject of dispute, being subsequently appointed by any Civil Court, possession shall be made over to him by the receiver appointed by the Magistrate, who shall thereupon be discharged.

F. Summary Trial:(Section-260 to Section-265 of the CrPC)

Section-260 to section-265 of the code of criminal procedure, 1898 dealt with the procedure regarding summary trial by the magistrates’ court and relevant procedure arise out of summary trial.

Section-260: Power to try summarily:

(1) Notwithstanding anything contained in this Code,-

(a) the Metropolitan Magistrate ,

(b)  any  Magistrate of the first class  and

(c) any Bench of Magistrates invested with the powers of a Magistrate of the first class shall try in a summary way all or any of the following offences:- offences not punishable with death, transportation or imprisonment for a term exceeding  two years;

(b) offences relating to weights and measures under sections 264, 265 and 266  of the Penal Code;

(c) Hurt, under section 323 of the same Code;

(d) theft, under section 379, 380 or 381 of the same Code, where the value of the property stolen does not exceed ten thousand taka];

(e) dishonest misappropriation of property under section 403 of the same Code, where the value of the property misappropriated does not exceed  ten thousand taka;
(f) receiving or retaining stolen property under section 411 of the same Code, where the value of such property does not exceed  ten thousand taka];
(g) assisting in the concealment or disposal of stolen property, under section 414 of the same Code, where the value of such property does not exceed  ten thousand taka;

(h) mischief, under  sections 426 and 427] of the same Code;

(i) criminal trespass, under section 447, and] house trespass, under section 448, and offences under sections 451, 453, 454, 456 and 457 or the same Code;
(j) insult with intent to provoke a breach of the peace, under section 504, and criminal intimidation, under section 506, and offences under sections 509 and 510] of the same Code;

(jj) offence of bribery and personating at an election under sections 171E and 171F of the same Code;]

(k) abetment of any of the foregoing offences;

(l) an attempt to commit any of the foregoing offences, when such attempt is an offence;
(m) offences under section 20 of the Cattle-trespass Act,1871: Provided that no case in which a Magistrate exercises the special powers conferred by section  33A] shall be tried in a summary way.

(1)  [Omitted by section 22 of the Code of Criminal Procedure (Second Amendment) Ordinance, 1982 (Ordinance No. XXIV of 1982).

 Section-262: Procedure for summary trials:

(1)  In trials under this Chapter, the procedure prescribed in Chapter XX] shall be followed except as hereinafter mentioned.

Limit of imprisonment

(2)  No sentence of imprisonment for a term exceeding  two years shall be passed in the case of any conviction under this Chapter

 G. Appeal:(Section-404 to section-431 of the CrPC):

Section-404 to section-431 of the code of criminal procedure, 1898 laid down procedure regarding appeal.

The provisions of appeal are clear and specific in this code. Section-417 deals with appeal in case of acquittal and section-417A deals with appeal against conviction.

Section-417: Appeal in case of acquittal:

(1) Subject to the provisions of sub-section (4), the Government may, in any case, direct the Public Prosecutor to present an appeal-

(a) To the High Court Division from an original or appellate Order of acquittal passed by any Court of Session;

(b) To the Court of Session from an original or appellate Order of acquittal passed by any Magistrate.]

(2) Notwithstanding anything contained in section 418, if such an order is passed in any case instituted upon complaint, and if the order involves an error of law occasioning failure of justice, the complainant may present an appeal-

(a) To the High Court Division from an original order of acquittal passed by any Court of Session;

(b) To the Court of Session from an original order of acquittal passed by any Magistrate.]

(3) No appeal by the complaint from an order of acquittal shall be entertained by the High Court Division or a Court of Session] after the expiry of sixty days from the date of the order of acquittal.

(4) If, in any case, the admission of an appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1)

 Section-417A: Appeal against inadequacy of sentence:

(1) The Government may, in any case of conviction on a trial held by any court, direct the Public Prosecutor to present an appeal to the High Court Division against the sentence on the ground of its inadequacy.

(2) A complainant may, in any case of conviction on a trial held by any Court, present an appeal to the Appellate Court against the sentence on the ground of its inadequacy:

Provided that no appeal under this sub-section shall be entertained by the Appellate Court after the expiry of sixty days from the date of conviction.
(3) When an appeal has been filed against the sentence on the ground of its inadequacy, the Appellate Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence.

From the above sections it is clear that the procedure of appeal is much codified in the criminal procedure code, 1898. The code includes procedure regarding appeal against acquittal as well as appeal against conviction.

H. Bail and Bond 🙁 Section-496 to Section-502 and Section-513 to section-516 of CrPC):

The word Bail is derived from the old French verb bailleier meaning to five or deliver. Bail in English common law is the security or on surety being taken for his appearance on certain day and a place named. In other words, bail is the delivery of arrested person to his sureties upon their giving security for his appearance at a designated place and time, to the jurisdiction and judgment of the court.

Section 496 to section 502 of the Cr.PC deals with the procedure as to grant bail or bail and Section 513 to section 516 of the same Code deals with the Bond.

Following are the mother of the provisions of appeal:

Section-496: In what cases bail to be taken:

When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police-station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail: Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided:

Provided, further, that nothing in this section shall be deemed to affect the provisions of section 107, sub-section (4), or section 117, sub-section (3).

Section- 497: When bail may be taken in case of non-bailable offence:

(1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police-station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life:

Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3) An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2) shall record in writing his or its reasons for so doing.
(4) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
(5) The High Court Division or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody.

The code of criminal procedure as well as clarified in section 500  release of the person from custody for whose release a bond has been founded in section-499 of the code.

I. Procedure regarding transfer of cases (Section-525A to section-528 of CrPC)

The objects of transfer of criminal cases are to ensure justice.Transfer of criminal case may take following three forms:

a)     Transfer for trial to an appropriate court after taking cognizance under section 191,192,205C or 205CC

b)     Transfer for sentence to an appropriate court under sections 245 and 349

c)     Transfer of a pending case by the appellate division, High Court Division or Sessions Court under chapter XLIV of the Cr.PC.

The provisions regarding transfer of cases in criminal justice system of the Country specified by section 525A to Section 528 of the code of criminal procedure, 1989

Section-525A: Power of Appellate Division to transfer cases and appeals:

(1) The Appellate Division may direct the transfer of any particular case or appeal from one permanent Bench of the High Court Division to another permanent Bench of the High Court Division, or from any Criminal Court within the jurisdiction of one permanent Bench of the High Court Division to any other Criminal Court of equal or superior jurisdiction within the jurisdiction of another permanent Bench of the High Court Division, whenever it appears to it that such transfer will promote the ends of justice, or tend to the general convenience of parties or witnesses.

(2) The permanent Bench of the High Court Division or the Court, as the case may be, to which such case or appeal is transferred shall deal with the same as if it had been originally instituted in, or presented to, such Bench or Court, as the case may be.]

 526B- Power of Sessions Judge to transfer cases:

(1) Whenever it is made to appear to a Sessions Judge that an order under this section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his sessions division.

(2) The Sessions Judge may act either on the report of the lower Court, or on the Application of a party interested, or on his own initiative.
(3) The provisions of sub-sections (4) to (10) (both inclusive) of section 526 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) as they apply in relation to an application to the High Court Division for an order sub-section (1) of section 526.]

Section-528: Sessions Judge may withdraw cases from Assistant Sessions Judge:

(1) Any Sessions Judge may withdraw any case from, or recall any case which he has made over to, any  Joint] Sessions Judge subordinate to him.
(1A) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, any Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge.
(1B) Where a Sessions Judge withdraws or recalls a case under sub-section (1) or recalls a case or appeal under sub-section (IA), he may either try the case in his own Court or hear the appeal himself, or make it over in accordance with the provisions of this Code to another Court for trial or hearing, as the case may be.

Chief Metropolitan Magistrate, Chief Judicial Magistrate or District Magistrate may withdraw or refer cases:

(2) [The Chief Metropolitan Magistrate or 506[ Chief Judicial Magistrate or District Magistrate] may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and may inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same.

 Power to authorize Chief Metropolitan Magistrate or the Chief Judicial Magistrate to withdraw classes of cases:

(3) The Government  with the approval of the High Court Division] may authorize the  Chief Metropolitan Magistrate or the Chief Judicial Magistrate] to withdraw from any Magistrate subordinate to him either such classes of cases as he thinks proper, or particular classes of cases.

(4) Any Magistrate may recall any case made over by him under section 192, sub-section (2), to any other Magistrate and may inquire into or try such case himself.

(5) A Magistrate making an order under this section shall record in writing his reasons for making the same.

 B.                                                                                   Penal Code, 1860:

A penal code is a portion of a state’s laws defining crimes and specifying the punishment. Other parts of the laws of a given state can define crimes and punishments, such as a traffic code or a building safety code, or laws addressing environmental resources by regulating hunting, fishing, or forestry.

In many states, the body of criminal law is published in one or more printed books for convenient reference by lawyers, other professionals of the criminal justice system, and. in principle, ordinary citizens.

Nature and categories of offences under Penal Code 1860:

The penal code 1860 the earliest and the main body of laws which deals with different kinds of offences and punishments. Offences under the code have been classified as those

  1.                                 I.            Against the state;
  2.                              II.            Related to the Army, Navy and the Air force;
  3.                            III.            Against the public tranquility;
  4.                           IV.            By or related to the public servants;
  5.                             V.            Related to elections;
  6.                           VI.            For contempt of the lawful authority of public servants;
  7.                        VII.            Affecting public health, safety, convenience , decency and morals;
  8.                      VIII.            Related to religion
  9.                           IX.            Affecting the human body which have further been sub-divided into offence affecting life, and causing miscarriage, kidnapping, rape, dacoity, or related to marriage, criminal breach of trust and so on

Offences under penal code 1860:

The offences against the State mainly consist of waging or attempting to wage war or abetting waging of war against Bangladesh; conspiring to commit the said offences; collecting arms with the intention of waging war against Bangladesh; sedition; waging war against any neighboring power in alliance with Bangladesh; and assaulting the President of Bangladesh or government with intent to restrain or compel exercise of any lawful power. Offences relating to Army, Navy and Air Force mainly consist of abatement of mutiny; attempting to seduce a soldier, sailor or airman from his duty; abatement of assault by soldier, sailor or airman on his superior officer when in execution of his office; abatement of desertion of soldier, sailor or airman; harbouring deserter and wearing garb or carrying token used by soldier, sailor or airman. Offences related to religion consist of injuring or defiling place of worship; deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion; disturbing religious assembly; trespassing in any place of worship or any burial place or cremation ground with intent to insult the religion of any person, and uttering words or sound with intent to wound religious feelings of another person.

Rape of a woman, kidnapping, theft, extortion, robbery, dacoity, dishonest misappropriation of property, criminal breach of trust etc are all punishable under Penal laws. At the same time offences related to culpable homicide amounting to murder, fraudulent execution of deed of transfer containing false statement, killing or maiming cattle, house-trespass are crimes which are also subject to punishment.

The gravity of an offence provides for imposing death penalty, imprisonment for life, forfeiture of property, fine and whipping as the case may be. Death sentence is the highest form of punishment under the Penal Code and may be imposed for treason, abatement of mutiny, perjury resulting in an innocent person being convicted and executed, murder, abatement of suicide of a minor or insane or intoxicated person, attempt to murder by a person under sentence of imprisonment for life, kidnapping or abducting a person under the age of ten and murder while committing dacoity. Imprisonment for life may be imposed for the above offences and some other grave offences. Imprisonment for various terms may be imposed with fine or without fine for the remaining offences. In case of some heinous offences court may impose fine only instead of imposing sentence of imprisonment. For some heinous offences court may impose sentence of whipping with imprisonment. In some of the offences court may order for forfeiture of the property of the accused. The government may commute a sentence of death including an imprisonment for life to imprisonment of either description for a term not exceeding twenty years. The President may grant pardons, reprieve respites or remissions of sentence.

 C.  Nari O Shishu Nirjaton  Domon Ain,2000 :

Nature of the Code:

The object behind enactment of Nari O Shishu Nirjaton Domon Ain, 2000 is to suppress wrongdoer or offence against the backward group of peoples of the country the woman and Children.

In the constitution of Bangladesh Article-28(4) stated,

“Nothing in this article shall prevent the state from making special provision in favour of women or children or for the advancement of any backward section of citizens”

Thus the State has chosen and adopted law for their most backward section of citizens by imposing more severe punishments for the offence committed against woman and children.

Following are some fundamentals feature of the Act:

The Nari O Shishu Nirjatan Domon Ain 2000 provides that whoever causes death of any woman or child by any poisonous, combustible or corrosive substance shall be punished with death. Offence of grievous hurt caused by using the above substance resulting in permanent privation of the sight, disfiguration of head or face, privation of the hearing, permanent destruction of any member or joint of the body of a woman or child has been made punishable with death, imprisonment for life, or imprisonment up to 14 years with a minimum of 7 years imprisonment.

Rape of any woman or child has been made punishable with imprisonment for life. If any woman or child dies as a result of raping, the offender would be punished with death. Causing death of a woman or child by gang rape is also punishable with death or imprisonment for life. Attempt to cause death or injury by raping a woman or child is also punishable with death or imprisonment for life. Illegal trafficking of women for the purpose of prostitution, illegal cohabitation or engaging in illegal or immoral work has been made punishable with imprisonment for life. Abduction or kidnapping of a woman for the purpose of engaging or using in prostitution, to compel her to marry against her will or to compel her to sexual intercourse by using force or coaxing or cajoling her is punishable with imprisonment for life or imprisonment for 10 years with a minimum of 7 years imprisonment. Causing death of a woman for dowry is punishable with death. Causing grievous hurt to a woman for dowry is punishable with imprisonment for life or 14 years, which shall not be less than 5 years. Attempt to cause death of a woman for dowry is punishable with imprisonment for life. Illegal trafficking in children, custody or possession of children is punishable with death or imprisonment for life. Abduction or illegal confinement of a child is punishable with death or imprisonment for life.

D. Special Powers Act, 1974:

The Special Powers Act 1947 makes hoarding or dealing in black market, counterfeiting currency-note and government stamps, smuggling, adulteration of or sale of adulterated food, drinks, drugs or cosmetics punishable offences. Attempt to commit those offences has also been made punishable offence. The Act also provides that a partner, director, manager, secretary or other officer or agent of a firm, company, or other body corporate shall be liable to be punished for committing the above offences by the firm, company or body corporate. The Act provides for punishment with death or with imprisonment for life, or with rigorous imprisonment for a term which may extend from 7 years to 14 years, with a minimum punishment ranging from one year to two years and also to pay fine.

 E.The Arms Act,1878:

Punishment under Arms Act, 1878:

The Arms Act 1878 Under this Act, unlicensed manufacture, conversion and sale of arms, import and export of arms, transport of any unauthorized arms over Bangladesh and possession of unlicensed fire arms etc have been prohibited. Provisions have been made for granting license to use arms and ammunitions and granting license to deal in arms and ammunitions. In certain case, an arm is to be deposited at police stations or with licensed dealers. Further provisions have been made giving power to the government to make rules as to license, restriction on movements with arms, cancellation and suspension of license etc. Committing any breach of the above prohibitions would be an offence punishable with imprisonment of different terms, including imprisonment for life, not less than 7 or 10 years as the case may be. It is also punishable offence to knowingly purchase arms from unlicensed person or delivering arms to persons not authorized to possess them. Breach of rule under this Act is punishable with imprisonment for a term which may extend to six months, or with fine, or with both, as the case may be.

 F.     The Explosive Substances Act 1908:

The Explosive Substances Act 1908 Explosive substance deems to include any material for making an explosive substance and also the apparatus, machine or any part thereof which may be used for causing or aiding in causing any explosion. Causing explosion by any explosive substance likely to endanger life, injury to person or property or with intent to commit an offence or to enable any other person to commit an offence are punishable under this act with death, imprisonment for life or imprisonment of any other term with a minimum mandatory sentence of 2 to 5 years. Attempt to cause explosion or making or keeping of explosive substance is also an offence punishable with imprisonment of various terms. Even abatement of above offences is also punishable with the same sentence as provided for the offence concerned

G.    The Evidence Act,1872:

The Evidence Act, originally passed by the British parliament in 1872, contains a set of rules and allied issues governing admissibility of any evidence in the courts of law. The enactment and adoption of the Evidence Act was a path-breaking judicial measure introduced in British India, which changed the entire system of concepts pertaining to admissibility of evidences in the courts of law. Up to that point of time, the rules of evidences were based on the traditional legal systems of different social groups and communities of British India and were different for different persons depending on his or her caste, religious faith and social position. The Evidence Act removed this anomaly and differentiation, and introduced a standard set of law applicable to all citizens.

Bangladesh has adopted this law for her administration of justice on 1st September 1872.

Chapter- Six

Comparison between Criminal Justice System of U.K and Bangladesh

Where the question is to find out the irrelevancy or comparison between laws or in large, criminal justice system, of the United Kingdom and Bangladesh, it is too hard to find out because the maximum laws of the sub continent has its origin from the British kingdom as the continent has dominated by the British rules and laws near about 200 years.

Following may be some major difference between the legal justice system or criminal laws of United Kingdom and Bangladesh:

 A.    Jury:

Jury is one of the basic features of the United Kingdoms criminal justice system. They have adopted The Juries Act, 1974 for determining their procedure. It is observed by the country that the most acceptable and correct decision is found by the sentence passed by the jury further it is observed that most of the cases fails to seek justice and are made to question where trial done without jury.

Whereas, the legal system of United Kingdom adopt the Juries Act, 1974 but the legal system of Bangladesh has no such provision as to jury but section-15 and 19 empowers magistrates to sit together as bench subject to direction of the Government.

The High Court Division of the country also operates benches consisted of several justice but it has no original jurisdiction to take cognizance of criminal case.

 B.     Ensuring Rule of Law:

Rule of law has  great importance in judicial system of United Kingdom and one of the very important features of the British constitution As there rule of law is ensured no one can escape and also no one is beyond the judicial capacity so possibility of ensuring criminal justice becomes light.

On the other hand, Rule of law has not yet established though Article-27 of the constitution of the country (Bangladesh)states  “all citizens are equal before law and are entitled to equal protection of law” I short “Equality before law”.

 C.    Summary trial:

The process of summary trial is successful in the criminal system of United Kingdom. It has chosen summary trial for seeking the quick and easiest justice in some criminal matter. Its only followed the following process in it trial and appreciated in almost every country:

  1. The plea:
  2. Defense case
  3. Submission of no case
  4. Prosecution case:
  5. Verdict

 On the other hand,

Section 26 to section 265 of the Cr.PC laid down provisions for summary trial for some offences which is not yet accepted by the experts and the proper and justifiable judgment or justice has not been ensured from its judgment.

 D.    Appeal:

The English man who enacts laws regarding every navel matters. It chosen criminal appeal Act, 1968 for itself to deal with the procedure regarding appeal. An application for appeal on this process must be made within 21 days after the commencement of a sentence.

On the other hand,

The code of criminal procedure,1898 itself the law regarding appeal.  Section 404 to 431 of the code deals with the matter. The code in general provides 60 days to appeal against any judgment of acquittal and conviction.

E.     Sentencing

On passing sentence regarding any criminal case the criminal system of the United Kingdom proves it intelligence. They usually prefer pecuniary compensation rather custodial sentences. Criminal justice system of United Kingdom avoid death penalty and In passing sentence they are more aware so that no injustice would done or no one suffer injustice.

They laid down provision various provisions so that it can surpress injustice and ensure justice to the both plaintiff and defendant. For example,

Under s.11 (3) of the Magistrates’ Courts Act 1980, the magistrates may not pass a custodial sentence on an absent offender.

Courts are not allowed to disqualify the offender from driving unless he is present or the case was previously adjourned for him to attend

 On the other hand,

Criminal justice system of Bangladesh yet not god rid  from passing capital punishment or the death penalty though it is avoided in developed country and on passing of sentences it showed its biasness, pressure either political or any way.

 F.     Bail:

The Bail Act 1976 directs the procedure of bail and other correlated matters of the bail. It has preclude every small exception as it may be arise before setting a person free in Bail.

         On the other hand,

Section-496 to Section-502 of the code of criminal procedure, 1898 operates bail.

Body Related to Criminal Justice System in Bangladesh

The objective of the chapter is to determine and define the body or other institution which are working for the development of law, for ensuring justice and in any way related with the law of the country especially in the field to co-operate criminal justice system of Bangladesh. Following body or organization are the main to entrust with criminal judicial system of Bangladesh:

 Police:

The Bangladesh Police is the main law enforcement agency of Bangladesh to provide service to all citizens and make Bangladesh a better and safer place to live and work. It also upholds the rule of law, ensures safety and security of citizens, prevents and detects crime, brings offenders to justice and maintains peace and public order. It is administered by the central interior ministry of the Government of Bangladesh. Outside the Dhaka capital region and other major cities, police is organized at the district and thana levels. Raised in 1976, the Dhaka Metropolitan Police is charged with maintaining security and order in the national capital and largest city. Twelve female police officials were recruited for the Bangladesh Police Special Branch (SB)  in 1974 and inducted in the Dhaka Metropolitan Police in 1978. In 2004, Rapid Action Battalion (RAB) was raised comprising of personnel of the Military of Bangladesh, Border Guard Bangladesh (BGB) and the Bangladesh Ansar and VDP. The Bangladesh Police Special Branch was established to assist in maintaining national security and also performs the functions of intelligence-gathering and counterintelligence. In 2008, Bangladesh police established the Special Women Police Contingent (SWPC) to fight prostitution, drug smuggling and human trafficking. Composing entirely of female officers, the SWPC would be used to gather intelligence on criminal activities and specifically track down female criminals.

Judiciary:

Bangladesh judiciary is organized and governed according to the constitutional and legal provisions and from this section enumerate the system and about what ‘judicial independence’ really means. It also elaborates types of judge, including where they sit, the types of cases they hear and how they are appointed. It has been separated and recognized by the constitution as an organ of the state.

 How the judiciary is governed:

The Chief Justice of Bangladesh decides where Justices sit, and the type of cases they hear, while the Ministry of Law (MOL) decides the judges, magistrates and tribunals affairs.

The Chief Justice of Bangladesh in the Supreme Court decides where Justices shall sit, and the type of cases they hear. His lord ship normally constitutes Benches of the Appellate and the High Court Division.
In the Appellate Division he normally constitutes the Bench with three Appellate Division Justices or with five Justices including himself.

In the High court Division the chief Justice constitutes Benches with one or two justices known as Single Bench and Division Bench respectively. In a special case the Chief Justice may constitute Special Bench with Three Justices, called Full Bench or Larger Bench with Five Justices to hear and dispose off a referred case by him. The Chief Justice may withdraw any case from the bench of any Justice without ant assigned reason and transfer it to any other Bench. The chief justice reshuffles the benches of the High Court Division regularly The Ministry of Law (MOL) decides the subordinate  judges, magistrates and tribunals affairs after consultation with the Supreme Court in accordance with the provision of Article 116 of the constitution which runs as follows :

The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court.

Followings are also governed by the judiciary in judicial system by the judiciary:

 Courts holidays & Vacations: The legal year traditionally begins in October and courts sit for four terms during the year.

 Judicial accountability and independence: The importance of judicial independence and the consequences of that independence on the notion of judicial accountability

 Law professional bodies: There are various Advocates Associations and a Bar Council to control the law professionals.
Judicial Training authorities: Training of the subordinate judicial officers is imparted by authority run by the MOL.

Bangladesh Public Service Commission (PSC):

Preamble: 

The Bangladesh Public Service Commission (BPSC) is a quasi judicial body established in 1972 under the Constitution of the People’s Republic of Bangladesh. It works under the provisions of the Article 137 – 141 of the Constitution of Bangladesh and certain other rules and regulations made by the government from time to time. The Chairman and such other members as shall be prescribed constitute the commission. There is also a full fledged Secretariat to assist the Commission. The Chief Justice of the country administers the oath for Chairman and the members of the commission. The tenure of the Chairman and members of the commission is 5 (five) years or 65 years of age whichever comes earlier. If the age permits the tenure can be renewed for one more term. The chairman and the members are appointed by the Hon’ble President of the Republic.

Objective:

To help Govt. to establish an appropriate civil service for the 21st century through selection of capable & efficient officials for the Republic who would be endowed with high level of integrity and dynamism.

 Mission:

It would generate its resources and energy for (a) selecting suitable candidates for the services of the Republic (b) help the govt. in formulating a welfare oriented service condition for its employees, and (c) to help the govt. in maintaining discipline in the service.

Law Commission:

The Government felt it necessary to make the Commission a permanent one under a regular statute. Steps were taken and the Law Commission Bill of 1996 was passed by the Parliament. Upon receipt of assent of the Hon’ble President on September 9, 1996 it became an Act of Parliament (The Law Commission Act 1996 Act no. XIX of 1996).

 Composition of the law commission:

As per section 5 of the Law Commission Act, 1996, the Commission consists of a Chairman and two Members. Under the law the Government has got the power to increase the number of its Members, if it deems necessary. The Chairman and Members of the Commission hold their respective offices for a term of three years from the date of their respective appointments. The Chairman or a Member may be re appointed by the Government for the prescribed term after the expiry of the said term. From the very beginning the Chairman of the Commission has been appointed from amongst the retired Chief Justices of Bangladesh and Members have been appointed from retired judges of Supreme Court of Bangladesh except on one occasion on which a Member was appointed from amongst legal academics. Very recently another Member from the legal academics is appointed in the Commission. The Commission is presently supported by two Senior Research Officers, one Senior Assistant Secretary and one Research Officer. There are also some Ministerial Staff to support administrative works of the Commission.

 Functions of the Commission:

The functions of the Commission have been described in Section 6 of the Act. Under the Section the functions of the Commission will be as follows:

(a)  To identify the causes of delay of civil and criminal cases in various courts and with a view to accelerate their disposal and ensure justice as quickly as possible:

(1)  to recommend amendment of laws concerned or enactment of new laws in appropriate cases after examination;
(2) to recommend necessary reforms in order to modernize the judicial system;

(3) to recommend training and other measures for the improvement of the efficiency of the persons involved with the judicial system such as judicial officers, staff, law officers and lawyers;

(4) to recommend necessary measures for improvement of the entire judicial system and specially to prevent the abuse of the application of the laws concerned:
(5) to recommend modernization of different aspects of court management, such as, distribution of works among judges, supply of copies, transmission and preservation of records, service of notices and other relevant matters;
(6)  to recommend, an acceptable measure regarding the feasibility of introducing a more efficient and accountable system in place of the present system for conducting the various government cases properly and establishing a separate investigating agency for the investigation of the criminal cases;

b)  Keeping in mind the attraction of domestic and foreign investment and necessity of free market economy-

(1)  to recommend amendment of relevant laws including company law or legislation of new law in appropriate cases in order to create competitive atmosphere in the field of trade and industry and to avoid monopoly;
(2)  to recommend, after examination, measures with regard to relevant laws especially copyright, trademarks, patents, arbitration, contract, registration and similar other matters;
(3) to recommend necessary measures for the establishment of separate courts for disposal of cases arising out of commercial and bank loan matters;

(c) to recommend necessary and timely amendments and reforms of the existing electoral laws administered by the Bangladesh Election Commission;

(d) to recommend, after examination, necessary reforms of the existing laws and  women and children and prevent repression of women;

(e) to recommend reforms of existing laws, enactment of new laws in appropriate cases and taking of other acceptable measures for the proper implementation of legal- aid programs;

(f)  to identify the various laws which conflict with each other on the same subject and in probable cases, to recommend codification and unification of various laws on the same subject;

(g)  to recommend repeal of existing laws which are inconsistent with the fundamental rights and in appropriate cases making amendments with regard thereto;

(h) to recommend, after identification repeal of obsolete and unnecessary laws and in case of necessity, legislation of laws on any subject;

(i)   to recommend acceptable measures for the upgrading of legal education, and

(j)   to recommend with regard to other legal matters referred by the government from time to time.

 Working Methodology of the Commission:

On the basis of Section 6A of the Law Commission Act 1996, the Commission prepares a work plan for each two-year on the conduct of its affairs in which laws are taken on priority basis for review. The said plan is sent to the Government. The Government sends its opinion/recommendations if any on the work plan.  The Commission after considering the opinion/recommendations made by the Government finalizes the work plan and informs the Government. The Commission in its meeting discusses the priorities of laws of the work plan and reference if any, made by the Government. In the Commission’s meeting each member is assigned to prepare a working paper/report with the assistance of a Research Officer. Then the Research team considering the nature and scope of the research of the law adopts different methodologies for collection of data and in appropriate cases studies foreign system of law to see how they meet similar problems. The team in the working paper delineates different deficiencies and drawbacks of the law and suggests provisional recommendations regarding removal thereof. The working paper prepared by the team is placed before the Commission for consideration and approval. After approval the paper is widely circulated among the different stakeholders for comments and suggestions. The team scrutinizes different views received from the stakeholders and thereafter the Commission prepares final report and draft bill if necessary, and sends them to the government for necessary action. In addition to the work plan the Commission also works and recommends on the matters referred by the government from time to time.

Provided that The Commission’s recommendations for reform of law will bring the desired result only if they are made into Acts of Parliament. The Law Commission can make research and recommendations, but Parliament alone can change the law for the welfare of the people. As a result of the Commission’s ongoing work, large areas of the law has been the subject of systematic research and improvement.

The Anti Corruption Commission:(DUDOK):

The Anti Corruption Commission (ACC) Bangladesh was created through an act promulgated on 23 February 2004 that into force on 09 May 2004. The first set of office bearers were appointed on 21 November 2004. The following day, it commenced its journey with a mission, a vow to make a difference to the Nation’s anti corruption initiatives and a fresh mandate. “Anti Corruption Commission” (ACC) in the Bangla language “DUDOK.

 Vision:

The Commission has formulated some forms of corruption in Bangladesh, for everyone to know, understand and prepare ourselves to completely erase corruption from our lives, if not reduce it.

  • Bribery: It is the offering of money, services or other valuables to persuade someone to do something in return. Synonyms: kickbacks, baksheesh(tips), payola, hush money, sweetener, protection money, boodle, and gratuity.
  • Extortion: Demanding or taking of money, property or other valuables through use of coercion and/or force. A typical example of extortion would be when armed police or military men exact money for passage through a roadblock. Synonyms include blackmail, bloodsucking and extraction.

Abuse of discretion: The abuse of office for private gain, but without external inducement or extortion. Patterns of such abuses are usually associated with bureaucracies in which broad individual discretion is created, few oversights or accountability structures are present, as well as those in which decision-making rules are so complex as to neutralise the effectiveness of such structures even if they exist.

Improper political contributions: Payments made in an attempt to unduly influence present or future activities by a party or its members when they are in office.[

Mission:

It controls corruption by identifying hot spots and areas of vulnerabilities for targeted investigative and prosecution action, prevention and curative treatment beside preventive education and advocacy.

It ultimately suppresses corruption through the effective and cumulative effects of its combating, controlling and prevention efforts enumerated above.

 Functions of the commission

  • To enquire into and conduct investigation of offences mentioned in the schedule
  • To file cases on the basis of enquiry or investigation and conduct cases
  • To hold enquiry into allegations of corruption on its own motion or on the application of aggrieved person or any person on his behalf
  • To perform any function assigned to Commission by any Act in respect of corruption
  • To review any recognized provisions of any law for prevention of corruption and submit recommendation to the President for their effective implementation
  • To undertake research, prepare plan for prevention of corruption and submit to the President, recommendation for action based on the result of such research
  • To raise awareness and create feeling of honesty and integrity among people with a view to preventing corruption
  • To organize seminar, symposium, workshop etc. on the subjects falling within the functions and duties of the Commission
  • To identify various causes of corruption in the context of socio-economic conditions of Bangladesh and make recommendation to the President for taking necessary steps
  • To determine the procedure of enquiry, investigation, filing of cases and also the procedure of according sanction of the Commission for filing case against corruption and
  • To perform any other duty as may be considered necessary for prevention of corruption.

 Power to make rules

  • The Commission for carrying out the purpose of Anti Corruption Act, 2004 has been vested with the power to make rules by notification published in the official Gazette with the prior approval of the President.

Observation through some criminal cases in Bangladesh

This is a title attempt to find out some defects or problems visible or arise while adjudicating Criminal cases corresponding to Criminal Justice system of Bangladesh, going through some criminal cases. Thus the studies object to find out some problems which obstruct the fair and natural Justice. Here we are about to observe some criminal cases which have been either dismissed or failed to seek remedy to the victim in lieu of defects of laws or other technical problem.

Case No-01:

1. Title and section of laws for Accusation:

The case has it name as Pallabi Police station Case no-17(12)12 corresponding to GR case no-130/12 between the State Vs Ashraf Ali and others as the case was filed by Mr.Abdur Rahman under section – 143/323/435/506  of Bangladesh Penal Code 1860.

 2. Facts of the case:

Here the plaintiff filed a GR case in Pallabi police station for hurting him with an unlawful Assembly and Putting fire on his car in Road side. He mentioned name of persons by name which he saw at that place during commission of that offence in the Ajahar.

 The case against the accused was brought under section-143/ 323/ 435/ 506 of the Penal Code. He filed the case on 03/12/2012 and the case sent to the court in 04/12/2012 for Trial.

 3. Present stage of the case:

The case is fixed for 06/09/2013 after several dates. Yet No police report has been founded under section 173 of code of criminal procedure.

Several accused has already got bail from the court by surrendering themselves at different date after filing the case. Yet several offenders are out of Jurisdiction of the Court or Judicial capacity.

 4. Observation:

Though 9 months already passed out after the filing of the suit but yet the Punishment or no Reasonable step has been got for its adjudication or seeking the Remedy to the plaintiff. From a deep analysis and observation it is seen to me that following are the main case for the pendency or delaying of this very case—

a)     Negligence by the police whose duty is to submit police report either charge- sheet or Final Report under section 173 of the code of Criminal Procedure.

b)     No adequate step has been taken by the law enforcement body to bring the co-offender with in judicial capacity or the execution body is incapable on doing so.

c)     No such direction has been given by the court to provide police report.

Case No-02:

1. Title and section of Accusation:

This case is between Md.Rubel Sordar Vs Md. Summon and others.

The case is introduced as Rupnogor Police Station case no- 21(12)12 corresponding to GR no—98/ 12 in lieu of section—143/ 323/ 326/ 379/ 441/ 506 of the Penal code 1860.

2. Facts of the case:

Md.Rubel Sordar was passing through eastern housing Bridge along with his two friends. Md. Summon with hockey, Iron, knife and left them Bringing there mobile phone and cash 10,000/= taka as they previously claim money from the victim plaintiff and he denied.

Md.Rubel Sordar filed a GR case on 21st day of December 2012 under section-143/ 323/ 326/ 379/ 441/ 506 of Penal Code and sent to the court on the next day by the police.

3. Present stage of the case:

The magistrate ordered  no 06/05/2013 for warrant and attachment of the property of the accused sent in charge-sheet sent by the police under section—173 of the criminal procedure code as one of the accused abscond himself from Judicial Capacity .

The other offenders surrendered themselves before the learned court and took bail at different date.  Before the police sent charge- sheet mentioning accused but the section – 379 is replaced with section –385 of the penal Code and the accused who committed offence under- section- 379 has been not sent up. The accused desire him to sent up But no Naraji has been filed.

Thus the case is kept for next working on 29/09/2013.

4. Observation:

This cases within ten months almost reasonably overcome. Its pre- trial stage but from studying the case following cases of delaying or incapacity of criminal

Judicial System is observed:–

a)     It took much time to complete its pre- trial stage.

b)     Police officer in charge of the case either took pecuniary benefit or biased in case of an accused or suffered from incapacity during investigation.

c)     For seeking the offender around the capacity of law the executive body showed its incapacity.

d)     The staff of the court is shortening from man power to send the order for warrant and attachment of the property to the executive body without any delay.

e)     The plaintiff either threatens or has reasonably lost his will to file Naraji or not interested in seeking Remedy after a case has been duly filed.

 Case No-03:

1. Title and Laws:

This case is between Mofizure Rahman Vs Golam Morshed and others.

Here the case Pallabi Police station case no – 32(5) 2013, arise out of GR case no—87/13 under section-379 of the Penal Code, 1860.

 2. Facts of the case:

Here Mofizure Rahman rent a flat of the Accused Golam Morsheds house.

On 3rd May of 2013 he failed a case suspecting owner of the Flat Golam Morshed and the care-taker Ershad Ali under section- 379 for stealing Jewellary and cash 48,000/= taka claiming total 3,48, 000/= taka while they were not at home believing that the owner has the duplicate key of this Flat.

The case filed on 03/05/2013 and police sent it to the learned Magistrate Court arresting and demanding 7 days remand of the caretaker Ershad Ali on 04/05/2013.

3. Presents of the case:

After fixed 2 dates the police sent final report true (FRT) under section- 173 of the code Criminal Procedure and the court Accepted the final Report 20/07/2013

As the court accepted the final Report as a result the case meets to an end.

4. Observation:

Thus the case showing a criminal case meets an end but the question that thus Justice ensured. A case just ended but Justice and more how far Criminal Justice System ensured Justice?

Tried to find out on following observation:

a)     How far the police report is correct? It may be police took pecuniary benefit or biased or otherwise suffering from incapability in inquiry.

b)     Why no step from plaintiff taken? Either the case was false or threatened by the accused. Thus false case hardly obstructs judicial system and also prevent from enjoying his lawful rights and other from seeking justice as the court is normally about to sink in burden of cases.

 Case No- 04:

1. Title and laws:

This case is filed by A father Mr. kaimujjaman against Abdus Satter and others on accusation of murdering his son Kamrujjaman, know as State Vs Abdus Satter and others, bearing sessions case no- 1303/ 09, arise out of GR case no- 73/07 and Sorail police station case no- 18(06) 07 in Brahmanbarian jilla under section- 302 of the penal code 1860.

2. Facts of the case:

Md. Kamrujjaman was a farmer and worked in the land belong to his father and there exists dispute in relation to the title of that land with Abdus Satter. They engaged themselves in fighting for the possession and afterwards at evening Abdus Satter and his man jointly committed murder Md. Kamrujjaman near the Bazaar in presence of several persons some of them were made witnesses afterwards. Md. Kaimujjaman filed case on 27th may 20007 under section- 302 of the Penal Code, 1860 and sent by the police to the court on the next day.

 3. Present of the case:

26th November, 2013 is fixed for summing up by the defence under section- 265(j) of the Code of Criminal Procedure.

The accused along with the principle accused got bail from the High Court.

 4. Observation:

The case is now fixed for summing up by the defence. It’s almost 7years passed a case has not yet seen the Justice. It took 2years to complete its pre- trial stage and after sending to the session court it’s took 4years to reach to this stage.

The case or findings by observation through this case is that the following are the main reason as to delaying or not getting remedy yet and in large sense obstructs to the criminal legal system:-

a)     Taking too much time on pre- trial stage.

b)     Incapacity or negligence of the execution body to bring the accused within judicial capacity without reasonable delay.

c)     Burden of cases in the courts because of this a case got next working after long time.

d)     Incapacity and good will of lawyers sometimes to quicker the procrdings. Sometimes taking time without reasonable cause as it may for delaying justice.

e)     Failure to do necessary examine by the laboratory or other responsible institution without any reasonable delay.(e.g. Finger print, Blood).

f)      Good will of the other peoples authority who has duty regarding the case.

g)     Getting Bail in case of non- Billable offence seek to fail the justice and remove respect and threat from the offender and common citizens of the country.

Case No-05:

1. Title and Alleged Laws:

The plaintiff filed a case at the Learned Nari O Shishu Nirjaton Tribunal-2 Nari O Shishu  case no- 120/ 13 under section –  4 of Nari O Shishu Nirjaton Domon Ain 2000(Amendment/ 02).

2. Facts of the case:

Mehrine Akter (12) was residing as a home worker at the defendants House for last 6 months. Her father Latif Sorkar alleged that her child has been badly beaten and torched by fire of cigarette and a case against all members of that family mentioning Mubarak Hussein as principle offender. The case was filed on 22nd, January 2013 under section– 4 of the Nari o Shishu Nirjaton Domon 2000(Amendment/ 02).

 3. Present of the case:

The suit had been sent to the Nari o Shishu Nirjaton Domon tribunal no-2 for trial. The plaintiff had applied to withdraw the complaint under section- 248 of  the code of criminal procedure 1898 on the ground that was a misunderstanding and the plaintiff doesn’t want the case to be continued and the court accepted it as consequences the case has been dismissed.

 4. Observation:

From the analysis of this case it is visible that following ground is the obstructer to the criminal justice system:

a)     False accusation or misunderstanding.

b)     Mediation between the parties which always indicates to pecuniary compensation, so that the offenders as well as the people feels no worry that money can change everything.

c)     Plaintiff or the person seeking remedy becomes inpatient or threatened for seeking justice.

d)     Indirectly poverty changes the victim to settle his mind on getting money in the theory that ‘No gain in punishing but the money’.

e)     Sometime Bail in case of non- Bailable section, other than due course of law but the Biasness or Bribery by the judges, discourage propels from seeking remedy.

A.          Lists of practical cause of failure to provide justice found in observation of some criminal cases:

Thus from the observation of the above criminal cases we can marked the following issues as the problem or obstrucle to the criminal legal justice system of Bangladesh in practical perspective:

1)                 Incapability, incapacity, biasness, bribery of the body e.g. police.

2)                 Incapability and incapacity of the lawyers in some legal issues and scarcity of good will to seek justice quickly to his client.

3)                  Incapability, Incapacity, Biasness and Bribery of the judges which while presiding over the court.

4)                 Scarcity of staffs of the court and sometimes there corruption and Biasness while sitting in the post relating to justice system.

5)                 Over burden of cases in the court also delay justice.

6)                 Illiteracy, poverty and safety of the plaintiff sometimes take far away from seeking and ensuring justice.

7)                 Scarcity of the qualified doctor, laboratory, forensic laboratory or other institution required for necessary examine in criminal cases.

8)                 Lengthy process, of bringing the offender within judicial capacity and on completion of pre- trial stage as well as post trial stage.

9)                 Fail to provide safety to the plaintiff, witness and other whose performance in important.

10)            Bail and free movement in non Bailable offender discourage desire to seek justice.

11)            Withdrawal of complaint after getting money or other Facilities believing in that ‘No gain in Punishing but the money”.

12)            Withdrawal of cases in political thinking and imposing political pressure over judicial system. Even forgiving the convicted offender encourages crime in the society.

13)            Pendency of a case for long time make believes that no punishment would be made as ‘delay denied justice’.

14)            Filing false cases may sink the court in burden of cases and may be threatened to the judicial system.

15)            Old and 2nd generation laws sometimes obstruct or prevent legal justice system.

Experts Opinion

The research is about criminal justice system of Bangladesh is depended on vast knowledge in criminal justice system. Without complete knowledge of criminal justice system it is not possible by mere saying rather its needed hard field work.

For gathering the problems and doings to ensure administration of criminal justice the research had gone through and suggested through different character who has or had the connectivity in any way with the criminal justice system.

Remarkable default, suggestion as to solution and various definitions are founded while communication with the personnel made. The entire findings may be classified in two heads:

  1. Opinion as to fault of criminal justice system
  2. Opinion or suggestion as to solution or development

 Opinion as to fault of criminal justice system:

1. Opinion of Judges:

For the completion of the research and to gain some knowledge as to practical problems and as well as problems arise out of law I had communicate with two Magistrates of the country and with a former Additional Session judge.

They give their speech as following on the question how far Criminal justice ensured?

Learned Magistrate Mr. Samsuddin Badal states,

“Bangladesh had conferred or enacted the best laws except some but still it could not establish natural justice because of its enforcement, dishonesty of the peoples includes court staff, police etc. and political pressure also.”

Former Additional session judge Mr. Hasnat Kobir stated much strictly in his answer,

“Constitution of the country had ensured provision as to separation of judiciary but it is till now exist in the papers but the real situation is dangerous. The laws enacted by the country is enough but their execution is in question. E.g. appointment of the judges, staffs of the court, executive body (police or others) and members of others organization have not been yet doing in fair way.

Eventually appointments of unqualified person and disability as to ensure qualified training are also responsible to failure to the criminal justice system.”

Though they showed that the criminal justice system is yet not been ensured but they express that they are hopeful and believe the country will surely develop and will be able to ensure criminal justice

 2. Opinion of the Lawyers:

The present condition of the judicial system of the country becomes much defected in the language of some lawyers. Almost every lawyer stated that the seeking justice becomes much harder. One of them stated,

“The justice is going to hide from the country behind the money and political pressure.”

Learned advocate Md. Junayedullha Shoeb that,

“Justice is going far away from the reach of the poor people. The costs are unbearable for the person who is victimized by any act of other person. Usually poor people are suffering for commission of an offence but they can’t claim justice only because of poverty though government in papers operate suit for the poor.”

Learned Advocate P.M.Mahady Hasan expresses himself,

“Appointment of the corrupted judges, staffs, police, political unrest, dishonesty and disqualification of them and as well as some lawyers are liable for the failure to criminal justice system.”

Learned Advocate Md. Emdadul Hanif stated differently,

“The dishonesty of the citizens, Institution of false cases, to gain political benefit filing cases against opposite party have made jam to the courts and judicial system is sinking to adjudicate them and so remedy to the real victim is denied or delayed. And the corruption, bribery etc are along with them.”

 3. Opinion of the Police:

S.I Golam Rabbani a member of the Bangladesh police serving for 16 years state,

 “Without giving money the appointment and promotion is not possible besides the facilities or remuneration given by the Govt. is not adequate for his family. So taking bribery is essential.”

 Former warrant officer Jahangir Bhuiyan—

“The police man of the country can work freely. Political pressure, scarcity of weapon, man power and less remuneration is liable for non performance of police.”

 4. Opinion of the Courts staff:

Monir Hossain Working in the courts for 3 months. He claimed,

“5, 00000 taka had to give for the job. I borrowed it from his relatives and will have to pay them. I am only the boy of my family so i need some benefits out of the remuneration given by the Government”

Opinion or suggestion as to solution or development:

They have suggested to the development of the following matters as following are the main problem of the criminal justice system besides ambiguity of laws:

  1. Disability of the Victim to seek remedy because of poverty as well as non performance of the organization whose duty is to assist poor people.
  2. Bribery or taking benefit of the post (judges, staffs, police)
  3. Appointment of unqualified peoples as judge, police or staff
  4. Appointment by taking money.
  5. Burden of cases
  6. Shorten of man power. (Police, court staff etc.)
  7. Political pressure over the judiciary
  8. Dishonesty of the peoples related with the justice system
  9. certain limitation to train the judges and police

10. false and vogue cases filing

11. efficient working of the Body related to criminal justice system.e.g law commission, judiciary, police etc

Chapter- Ten

Problems or Obstacle to the criminal justice system of Bangladesh

Bangladesh is a unitary, independent, sovereign Republic to be known as the People’s Republic of Bangladesh has enacted various criminal laws procedural and penal laws for administration of criminal justice. After the independence of the country it is hard working to reach to the top stage of success. It is bounded by Corruption, bribery, poverty etc. so that the country has not yet got reasonable development it should have. The main reason behind stepping back is the criminality of the citizens and non punishment for the commission offence. Whenever criminal justice system is secured and absolute the development become mandatory and it should be because criminal justice system enter fear in the mind that’s why everyone participate equally on the development and no one can escape himself from harming the public property or tranquility.

But the dishonesty, corruption, bribery, omission from giving tax etc. are the main cause for the present situation of the country which are criminal in there nature. So if criminal administration of justice be ensured the development will come to the door definitely.

But it is very matter of sad that we have the laws and all other body require for administration of justice but yet it has not reasonably face to light.

Following are some practical issues behind non administration of criminal justice:

 1. Laws:

Laws of the people’s republic of Bangladesh especially Criminal laws are well but its enforcement cause the criminal system failure. The country yet enforces death penalty as capital punishment whilst other developed country keeps them away from such severer punishment.

There exist some laws which should be reconsidered for the present time being. For example where any offence punishable with imprisonment or fine, if fine is awarded for that offence by the court the fine is so small in amount e.g. 500tk, 1000tk.

 2. Lengthy process of trial:

The second main cause of failure to the administration of criminal justice in Bangladesh is its lengthy process of trial. Though the country itself full of crimes the adjudication should be hurry. In adjudicating a criminal case in the present time it takes almost 5 to 10 years, depended on nature of the case, which impliedly allow the criminal that he can find any way to get rid of the charges alleged against him.

 3. Incapacity and incapability of the judges:

Incapacity or incapability of the judges here means limitation to the judges in functioning their work. They are subjected to certain limitation either imposed by law or by the local and political pressure. Besides they are deprived of training on judicial system and deprived from using good conscience as they always kept in pressure. It is held in many case that the judges try themselves to use good conscience but failed to ensure justice. The root cause of this failure is lake of training as well as international training on judicial system.

 4. Appointment of judges:

Power of appointment of the judges is provided by the constitution of the country and the process of appointment is directed and selected by the examination hold by the Bangladesh Judicial Service Commission. The appointment and selection of judges must have to be fair. It is often claim appointment made out of money and political thinking which allow less qualified person to a judge where the more qualified person are deprived so the qualification of the brilliance become waste which may reasonably develop the criminal justice system and in large development of the country.

It is hard to believe “a judge appointed in a way other than the fair way can adjudicate fair.”

 5. Bribery or biasness of the judges:

Bribery and biasness of judges is also liable for the failure to administration of criminal justice. It’s often claimed that the magistrates or judges of the judicial system are engaged in bribery. They take pecuniary benefit and give judgment towards them or by taking money for granting bail or not granting bail also.

Biasness in its sense may be economical, political or relational in its nature.

Whatever, the judgment given by taking pecuniary benefits or biased in other way the ultimate cause is failure to criminal justice system.

 6. Incapacity of the lawyers:

Incapacity of lawyers means role of some unqualified lawyers. The enrolment process of the earlier time had allowed various numbers of incapable or unqualified people to be enrolled as an advocate. It is often told that whoever have unsuccessful professional carrier has just ensured a degree in law and in any way get enrolled it means they consider law profession as the last choice..

 8. Enrolment as an advocate:

It is also claim that enrolment can be got by political linking, giving money and many other way though the enrolment is followed by the procedure of Bar Council Order, 1972.

 7. Dishonesty of the lawyers:

Dishonesty of the lawyers is also a vital cause of failure of justice. In many case it is observed the lawyers are dealing dishonestly. In that case they are also violating Canons of Professional Conduct and Etiquette as enacted for fixing duty of the advocates by The Bangladesh Legal Practitioners and Bar Council Rules, 1972

 8. Granting bail in non bailable offence:

Granting bail in case of non bailable offence is another root cause of failure to administration of criminal justice. The offender gets bail after commission of an offence from the court and habitually engaged themselves in other offence and as well as intimidation to the plaintiff who is seeking remedy. Bail in case of non bailable offence is the discretion of the court but in most of the cases it is seen that the judges took pecuniary benefit and apply their discretion in the wrong way or in considering the part of the accused in the offence consider wrong. Granting bail in case of non bailable offence using discretion power of the judges in corrupt manner is another vital cause for the failure to criminal justice.

 9. Incapacity and incapability of the police:

Police is the most important part of criminal justice system. This is the main body which enforce the laws and as well as who brings the offender within judicial capacity. The police of Bangladesh are working hard on ensuring criminal justice but it is suffering from various incapacity and incapability. They are suffering from lake of weapons and high qualified training on crime.

 10. Appointment of the police:

Appointment of the police is largely connected with the administration of criminal justice. It is often seen that the appointment is made out of money or political thinking. In every term of the government it becomes visible that the persons of the government side is appointed and as well as promotion is also given by breaking all the rules. Thus it can not be desired that a police man appointed in a corrupt or illegal way can work legally.

 11. Bribery and biasness of the police:

Taking bribery and working with biasness are the other obstruct to the prevention of crime and in large criminal justice system. Corruption of the police man, releasing accused on taking money, harassing common people for money, cruelty to the accused, rude behavior with the plaintiff or victim, torturing in remand for money etc are some function done by some corrupted police officer which are opposed to natural criminal justice. Though it is often claim lower standard of remuneration is the cause of corruption by the police.

 12. Appointment of the staffs of the court:

Staffs of the court have unbeaten role in judicial system. There are empowered to deal with the judicial documents and so far s every dealings with this documents is over their hand. Any conspiracy or wrong to the documents may destroy a case infact judicial system. Appointment or the staffs are subjected to question form the earlier time. It is often claim that they are appointed on his post by providing brinbary or money. They have to count a big amount for the post which renders judicial system to fail. Relation to powerful man or political support is also allowed during appointment.

 13. Bribery of the court staffs:

Bribery of the staff of the court may injure judicial system. Bribery of the staffs may give unlawful facilities to the offender which may cause failure to eh criminal justice system.

 14. Shorten of Man power:

The court is suffering from shorten from of man power. Where the courts of the country are about to sink on burden of cases but It is suffering from shorten of man power.

 15. Efficient working of the body related to criminal justice system e.g. Law commission:

Efficient work of the body or organization related to criminal justice system for example Law Commission, Bangladesh Judicial Service Commission etc. is largely related to the justice system of Bangladesh. Whenever they are interfered or they are used for benefit of any group the justice system gets it leg to be cut off.

 16. Poverty of the victim is also liable for seeking justice. This is in the way that whenever any criminal act is done against him he can not claim remedy only thinking that”  the case or justice is only for the rich people”.

 17. Low trust on the judicial system by the common people is another cause of failure to criminal justice system. People’s in the mean time going to believe traditionally that nothing can be done to the offender.

 18. Failure to give security to the Plaintiff and Witnesses are most important cause for failure to justice. Generally offender is more powerful than the victim or plaintiff. After filing a case it often found the plaintiff or witnesses of the case are threatened to participate in judicial proceeding but security of the plaintiff or victim or witnesses can not be guaranteed.

 19. Institution or filing of false and vogue case are also liable to failure to ensure criminal justice in the country. False and vogues cases are often filed whereas the trial of real offence are pending for long times.

 20. Burden of cases in the criminal courts of the country is also liable to failure to administer criminal justice.

 21. Withdrawal of complaint in consideration of money or in force is made in many cases which refer no trust over the judicial system and impliedly give strength to the offender that money can withdrawn complain”.

 22. Unqualified laboratory and Forensic department or hospitals are specifically connected with the criminal judicial system. In criminal case by an authentic report of that institution may specify or give the nature of the offender. But unfortunately Bangladesh is not much advanced in this matter. Even for a simple DNA test the sample shall have to send to the foreign country which delay the judicial procedure and at large cause harm to the criminal judicial system.

 23. Withdrawal of cases in political thinking is also a vital cause to the failure of ensuring criminal justice. The Constitution of Bangladesh has expressed no one is over the law. But in real the cases can be withdrawn by political thinking which dis encourages the natural criminal justice.

 24. The judiciary one of the fundamental organs of the state though in papers works independently but in real aspect the judicial proceedings are yet interfered by the political impact or pressure.

 25. Forgiving the convicted:

After completion of a case passing though a lengthy process a conviction is made but he get rid from the conviction by the president in political thinking which give strength to the habitual offender(political leader)

Chapter-Eleven

Remedial Measures

1. Correction or reconsideration of laws:

The laws of the nation should be reconsidered as to their punishment or fine or for their enforcement. The law has given the procedure but it can not be enforced because of the poor process of its enforcement. Besides law, the procedure of the laws how can be followed or enforced more efficiently and quickly should be considered in considering the present condition of the country.

 2. Trial process should be completed as early as possible:

Trial process of the criminal cases are too lengthy and that why the criminal got opportunity to find way to rid him from the alleged charges. The trial process should be ensured more quickly by enactment of laws or by inspecting on it. We are known to the well familiar principle that “delay deny justice”

 3. Taking steps to remove incapacity and incapability of the judges:

High qualified training and international training are required to be held because of gaining knowledge of judicial system of the other developed country to ensure development of the judicial system of our judicial system. Whenever the judges of the country can work without any pressure after having a good qualified national as well as international training the criminal judicial system of the country shall get its life.

 4. Fair appointment of judges must be ensured:

Appointment of less qualified and also corrupted, biased man as a judges can totally break judicial system of the country as he will decide everything defectively for his disqualification and his decision shall not be pleasant because of his corruption or biasness. So fair appointment of the judges must have to ensure and qualification should be valued.

5. Strict steps and observation against bribery and biasness of the judges:

Strict observation and steps should have to take as the bribery and biasness of the judges may break down natural justice. Strict observation over the judges should keep always for preventing them from allowing bribery and from giving any judgment by biasness.

 6. Taking steps to remove incapacity of the lawyers:

Necessary steps or training should be given to the advocates to build up them so that they can seek remedy to the victim. Specially international and national training should ensure for the government pleader as they are the pleaders who act on behalf of the plaintiff and in most cases plaintiffs are the sufferer. Steps should be taken to develop law profession so that the qualified people get interested in this profession.

 7. Ensuring fair enrolment procedure for being advocate:

The process for enrolment as an advocate must be completed in fair way. No political linking or pressure, money and any other unfair process should not to be allowed.

 8. Prevent judges to use discretionary power in corrupt way:

Reasonable steps should be taken to prevent use of discretionary power of the judges in corrupt way. Also High qualified investigation should be done regarding the connection of the accused, when any person is brought before the court in charge of any non bailable offence so that the court in granting bail to non bailable offender can administer justice.

 9. Taking steps to reduce incapacity and incapability of the police:

High qualified training and availability of necessary weapon should be produce as require for ensuring criminal administration justice system. Police the law enforcing body should keep out of any pressure e.g. political pressure and everyone of the country should assist them in functioning their work.

10. Strict steps and observation against bribery and biasness of the police:

Observation to the function of the corrupted police officer should be made and if found guilty for such kind of corruption strict steps should be taken for their punishment. Remuneration of the police should be fixed to a minimum standard, other facilities as required for living should ensure so that they can run their family normally and pleasant atmosphere should given for seeking their performance.

11. Fair appointment of police should ensure:

Fair appointment of the police must ensure for the development of criminal justice system. Police is the main executive body which enforce laws and takes preventive measures against commission of crime so if the appointment of the members of this very important body is not made in fair way then fair criminal justice is impossible

 12. Fair appointment of staffs of the court

As staffs of the court are hardly connected with judicial system the appointment of the staffs must to be done in fair way. No allowance or Biasness should be taken in case of appointment because a person come through legal process is bind by duty to work legally.

 13. Strict steps to prevent bribery of court staffs:

Reasonable measures should be taken to stop taking bribery by the court staffs. Observation over their work or conduct and punishment for such bribery should be ensured.

 14. Efficient working of the body related to criminal justice system e.g. Law Commission must be ensured.

 15. Security to the Plaintiff and Witnesses must be ensured because the part of the plaintiff or witnesses is very much important for the natural criminal justice system.

16. Necessary action should be taken against false and vogue case. In case of filing false case the punishment procedure should be followed and precedent to be made so that no case shall be filed only for harassing others.

 17. Steps should be taken to reduce burden of cases. For example by appointing man power as much it needed, by responsible duty abeyance by the judges, police and lawyers etc.

 18. Qualified laboratory and Forensic department should be established or constructed. High qualified training for the doctor or other person who may hold the post on that kind of institution.

 19. Political pressure over judicial system will have to remove. As the judiciary or judicial system is a separate organ of the state it should given to work on its own way. No interference should be done in respect of judicial service.

 20. Further and reconsidering the admissibility and acceptance in case where convicted prisoners are to be pardoned.

Criminal Justice System in Bangladesh

Related Law Paper: