A-Z: The Code of Criminal Procedure [CrPC]

۩ Introduction:-

"Justice delayed is justice denied" is a legal cliché meaning that if legal redress is available for a party that has suffered some injury, but is not forthcoming in a timely fashion, it is effectively the same as having no redress at all. This principle is the basis for the right to a speedy trial and similar rights which are meant to expedite the legal system, because it is unfair for the injured party to have to sustain the injury with little hope for resolution. The phrase has become a rallying cry for legal reformers who view courts or governments as acting too slowly in resolving legal issues either because the existing system is too complex or over burdened, or because the issue or party in question lacks political favor.

We will discuss about the delay in the Administration of Criminal Justice and it’s impact on Judiciary: Bangladesh perspective.

۩ Meaning of ‘Delay’

Delay-

ü cause to be slowed down or delayed; "Traffic was delayed by the bad weather"; "she delayed the work that she didn't want to perform"

ü act later than planned, scheduled, or required; "Don't delay your application to graduate school or else it won't be considered"

ü time during which some action is awaited; "instant replay caused too long a delay"; "he ordered a hold in the action"

ü check: slow the growth or development of; "The brain damage will retard the child's language development"

ü the act of delaying; inactivity resulting in something being put off until a later time

۩ Administration:-

ü Administration means an act of something [Here something means may be an institution or legal institution or others ]

ü Management and settlement of anything [Here anything means Legal provisions ]

ü The management of all activities that allow a system or organization to function [System means steps cases/ Organization means Court. Suppose in the case of court ]

۩ Criminal Justice:-

Justice means exercise of authority (power) in maintenance of right or use of to preserve right.” The concept of justice requires that:

ü it must be done in a just, fair and reasonable manner,

ü it must be seemed to be done, and

ü it must be ‘felt’ to be done.

Thus, unless this third element of ‘felt to be done’ is satisfied, the concept of justice is not complete because this third element is the most important component of justice delivery system.” The public at large should have to have a great faith and reliability on judiciary and justice ‘felt to be done’ is absolutely essential to maintain and preserve that faith and confidence. “A court of law cannot render justice unless the ultimate decision is based on the contemporary law as prevailing in the society. In such a situation the efforts of the courts should be to give the law a ‘purposive, updating and an ongoing interpretation’. This position makes the interface of justice delivery system with the information technology inevitable and unavoidable.

Criminal justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime.

# Criminal justice system:-

The criminal justice system consists of three main parts:

ü law enforcement (police);

ü adjudication (courts); and

ü Corrections (jails, prisons, probation and parole).

In the criminal justice system, the People are represented by two separate yet equally important groups: the police, who investigate crime, and the district attorneys, who prosecute the offenders. Criminal justice agencies are intended to operate within the rule of law.

Criminal justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, and sanctioning those who violate laws with criminal penalties and rehabilitation efforts.

۩ Administration of Justice:-

The management of all activities that allow a system or organization to function for exercise of authority (power) in maintenance of right.

Administration of Justice—

ü Right establishment;

ü Place- Court;

ü The activities of court runs systemically;

ü Through Ad. Of Justice –Court will be proceed.

۩ Judiciary of Bangladesh:-

Judiciary is the one of the main organ of this State among the three organs i.e. Executive; Judiciary and Legislative. The main function of the Judiciary is to adjudicate the disputes between the parties.

# Courts Structure:-

Supreme Court of Bangladesh:-

ü Appellate Division [Judges-7][At present 11 Judges]

ü High Court division [Judges-72]

О Civil Courts;

О Criminal courts.

# Criminal law Courts in Bangladesh:-

Constitution of Criminal Courts in Bangladesh [Before and After Amendment of the Code of Criminal Procedure 1898]:-

[Before Amendment]

# SUPREME COURT:-

ü APPELLATE DIVISION:

ü HIGH COURT DIVISION.

# HIGH COURT DIVISION:-

ü CRIMINAL COURT

ü CIVIL COURT

# CRIMINAL COURT:-

ü COURTS OF SESSIONS→

ü METROPOLITAN MAGISTRATE→

ü MAGISTRATE OF FIRST CLASS→

ü MAGISTRATE OF SECOND CLASS→

ü MAGISTRATE OF THIRD CLASS.

After Amendment by the Code of Criminal Procedure (Amendment) Act 2009
[Effective 1 Nov. 2007]
SECTION: 6 of CrPC 1898:-

# CRIMINAL COURTS:-

ü COURTS OF SESSIONS ;

ü COURTS OF MAGISTRATES.

# COURTS OF SESSIONS:-

ü SESSIONS JUDGE →

ü ADDITIONAL SESSION JUDGE →

ü JOINT SESSION JUDGE.

# COURTS OF MAGISTRATES:-

ü JUDICIAL MAGISTRATE →

ü EXECUTIVE MAGISTRATE.

# JUDICIAL MAGISTRATE:-

ü CHIEF METROPOLITAN MAGISTRATE (in Metropolitan area) AND CHIEF JUDICIAL MAGISTRATE (outside of metropolitan area) and including ADDITIONAL CHIEF;

ü .METROPOLITAN MAGISTRATE (in metropolitan area ) AND MAGISTRATE OF FIRST CLASS (outside metropolitan area );

ü .MAGISTRATE OF SECOND CLASS;

ü MAGISTRATE OF THIRD CLASS.

# COURTS OF SESSIONS:-

For the purpose of administration of criminal justice, Bangladesh consists of sessions divisions and session division consists of one or more districts. A court of sessions for a metropolitan area is called Metropolitan Courts of Sessions.

In accordance with the BANGLADESH JUDICIAL SERVICE [POSTING, PROMOTION, LEAVE, CONTROL, and DISCIPLINE AND OTHER CONDITIONS OF SERVICE] RULES 2007, the members of the Bangladesh judicial service are appointed as Session Judge, Additional Session Judge and Joint Session Judge.

# JURISDICTION OF SESSIONS JUDGE:-

A session judge exercises ORIGINAL, APPELLATE AND REVISIONAL jurisdiction.

In ORIGINAL jurisdiction, a session judge can try offences accordance with the SCHEDULE II of CrPC 1898. The offences includes

ü WAGING OR ATTEMPTING TO WAGE WAR AGAINST BANGLADESH [sec.121 of The Penal Code 1860]

ü SEDITION [sec.124A]

ü MURDER [sec.300]

ü CULPABLE HOMICIDE [sec.299] etc.

In APPELLATE jurisdiction, A session’s judge can hear and determine appeals against the judgment of Joint session judge, Metropolitan Magistrate, any Judicial Magistrate of first class.

But when Joint session judge passed any sentence of imprisonment for exceeding 5 years. And when a Metropolitan Magistrate or judicial Magistrate passed any sentence for SEDITION [sec.124A], THE Sessions judge cannot exercise appellate jurisdiction. In such cases, appeals lie to the HIGH COUET DIVISION only.

In REVESIONAL jurisdiction, A Sessions judge can revise, correction, legality any judgment passed by any inferior courts.

# JURISDICTION OF ADDITIONAL SESSION JUDGE:-

The jurisdiction of additional session judge is similar to that of a session judge.

He cannot hear appeals or a revision from any inferior court without the direction or transferred by the session judge. For administrative purpose, additional session judge is subordinate to session judge but in exercising judicial powers, an additional session judge is not subordinate to session’s judge.

# JURISDICTION OF JOINT SESSION JUDGE:-

A joint session judge has only ORIGINAL jurisdiction. A joint session judge can try cases by the order of Govt. or direction, order of session judge. Joint session judge is subordinate to session judge.

# JUDICIAL MAGISTRATES / METROPOLITAN MAGISTRATE:-

In every metropolitan area the CMM, additional CMM and other MM and in outside metropolitan area, CJM, additional CJM and other JM are appointed from the persons employed in the BANGLADESH JUDICIAL SERVICE.

# JURISDICTION OF CMM AND MM:-

A CMM AND MM has ORIGINAL jurisdiction. He or she can try offences accordance with the SCHEDULE II of CrPC 1898 including:-

ü SEDITION [sec.124A],

ü RIOTING [sec.146] ,

ü AFFARY [sec.159],

ü BRIBERY [SEC.161],

ü THEFT [sec.378] etc.

# JURISDICTION OF CJM and other MAGISTRATES:-

A CJM and JM have ORIGINAL jurisdiction by SCHEDULE II of CrPC 1898.

A CJM may hear appeals from sentence passed by a magistrate of second class or third class. He or she may transfer such appeals to an Additional CJM.

۩POWERS OF CRIMINAL COURTS :[ As to Trial:]-

Under section 29C of CrPC 1898, The Govt. may, in consultation with the HCD, invest:

ü The CMM, CJM or any additional CJM with the power to try all offences not punishable with DEATH.

ü .ANY MM or MAGISTRATE OF FIRST CLASS with the power to try all offences not punishable with DEATH or with IMPRISONMENT FOR LIFE or A TERM EXCEEDING 10 YEARS. Moreover, HCD, COURTS OF SESSIONS, AND ANY OTHER COURTS may try offences by the SCHEDULE II of CrPC 1898.

۩ POWERS OF CRIMINAL COURTS : [ As to Punishment:- ]

**HCD and SESSIONS JUDGE and ADDITIONAL

# SESSIONS JUDGE:-

The HCD and SESSIONS JUDGE and ADDITIONAL SESSIONS JUDGE may pass any sentence authorized by law .But, any sentence of DEATH passed by a session judge and ADDITIONAL SESSIONS JUDGE must be subject to confirmation by the HCD.

# JOINT SESSIONS JUDGE:-

A JSJ may pass any sentence authorized by law but except a sentence of DEATH or an imprisonment for a term exceeding 10 YEARS.

# METROPOLITAN MAGISTRATE AND MAGISTRATE OF FIRST CLASS:-

The MM and MAGISTRATE OF FIRST CLASS may impose the following sentences:-

ü IMPRISONMENT UP TO 5 YEARS including SOLITARY CONFINEMENT.

ü FINE UP TO 10,000 TAKA and WHIPPING.

# MAGISTRATE OF SECOND CLASS:-

ü IMPRISONMENT UP TO 3 YEARS including solitary confinement.

ü FINE UP TO 5,000 TAKA

# MAGISTRATE OF THIRD CLASS:-

ü IMPRISONMENT UP TO 2 YEARS

ü FINE UP TO 2,000 TAKA.

# SPECIAL TRIBUNAL:-

According to sec. 26 of the SPECIAL POWERS ACT 1974, SPECIAL TRIBUNALS are established. These tribunals are authorized exclusively to try offences under different STATUTES including THE ARMS ACT 1878, and THE EXPLOSIVE SUBSTANCES ACT 1908.

The offences including UNLICENSED MANUFACTURE, CONVERSION, SALE, IMPORTATION, EXPORTATION, POSSESSION OF ANY ARMS etc.

ALL SESSIONS JUDGES, ADDITIONAL SESSIONS JUDGES are act as JUDGES of the SPECIAL TRIBUNAL.JUDGES of SPECIAL TRIBUNALS may impose any sentence authorized by law.

ADDITIONAL SPECIAL TRIBUNAL consists of MM and MAGISTRARTE OF FIRST CLASS. And they impose any sentence EXCEPT DEATH, IMPRISONMENT FOR LIFE, and IMPRISONMENT EXCEEDING 7 YEARS AND FINE EXCEEDING 10,000 TAKA.

# DRUTO BICHAR TRIBUNAL:-

According to the DRUTO BICHAR TRIBUNAL AIN 2004, THE DRUTO BICHAR

TRIBUNAL [SPEEDY TRIAL TRIBUNAL] is recently established. Its status is similar to the COURTS OF SESSIONS JUDGE.

The judges of DRUTO BICHAR TRIBUNAL are appointed among the DISTRICT JUDGE. This court is responsible for adjudication of certain cases transferred by the Govt.

# COURT OF SPECIAL JUDGE:-

According to the CRIMINAL LAW AMENDMENT ACT, 1958, THE COURTS OF SPECIAL JUDGE are established to try and punished special kind of offences including CORRUOTIN. The special judge may be appointed from among session judge, additional session judge, metropolitan magistrate or magistrate of first class.

# EXECUTIVE MAGISTRATES:-

In every district and in every metropolitan area, the GOVT. Appoints as many persons as it thinks fit to be executive magistrates and appoints one of them to be district magistrate. The executive magistrate exercises powers and perform duty imposed by the CrPC 1898.Now-a-days, the main functions of executive magistrate are minister’s protocol, relief etc.

According to the sec. 190(4) of CrPC 1898, The Govt. may also, by an order specifying the reasons and the period therein, empower any Executive Magistrate to take cognizance of offences and such Executive Magistrate will send it for trial to the court of competent jurisdiction.

۩ Causes of delay of Administration of Criminal Justice:-

There are many causes among them, some causes discussed below:-

ü Section: 167 of CrPC 1898:-[Investigation cannot be completed in 24 hours]

ü Section: 190 of CrPC 1898:-[Transfer on application of accused.]

ü Section: 192 of CrPC 1898:-[Transfer of cases by Magistrates.]

ü Section: 202 of CrPC 1898:-[Postponement for issue of process]

ü Section: 230 of CrPC 1898:-[Stay of proceedings if prosecution of offence in altered charge require previous sanction]

ü Section: 249 of CrPC 1898:-[Power to stop proceedings when no complainant]

ü Section: 344 of CrPC 1898:-[Power to postpone or adjourn proceedings]

ü Section: 508 of CrPC 1898:-[Adjournment of inquiry or trial]

ü Section: 525A-528 of CrPC 1898:-[Transfer of Criminal Cases]

ü Section: 492-495 of CrPC 1898:-[ Public prosecutor transfer]

Besides these there are hues causes remain, such as, -

ü Evidence Act;

ü Inadequate separation of Judiciary;

ü Lack of Justice/Magistrates;

ü Political interfere on Judiciary;

ü Executives interfere on Judiciary ;

ü Difficulties of laws;

ü Lack of proper utilize of Statute ;

ü Court management system ;

ü Lack of good lawyers. The attitude of some of the lawyers is also to some extent responsible for delay;

ü Accumulation of cases;

ü Lack of proper observation of the provisions of the Codes;

ü A large number of cases that come before the Supreme Court cannot be concluded hastily due to interpretation of legislative enactment in question;

ü Delay in proper investigation or inquiry in a litigation;

ü Variety of laws on a particular issue;

ü Inadequate office equipment and machinery;

ü Unreasonable absence of witnesses;

ü Cumbersome execution procedure of decrees in civil cases;

ü Lack of utilization of modern technology in keeping records and documents etc.

# Prolonged Judicial Process and Justice:-

The traditional justice delivery system and the legal procedure in the court are very complex. Therefore, it forced the judicial system to be a delayed one. “If we try to trace out the root causes for the prolonged judicial process and of the delay in the court system of Bangladesh then we will see that the real problem lies in the management system. Here management system includes the total management comprising the quality from top to bottom. The whole system has been suffering from lots of defects and is captured by intricacy.”

Lack of adequate resources and misuse of available resources are two important reasons behind administrative mismanagement in court house. Lack of proper management knowledge, in fact, is a common problem in many other sectors as well. Moreover, judges are few in number and overloaded with works. Therefore, the shortage of judges is considered as one of the important causes of inordinate delay in the final adjudication of cases. Also some judges have to deal with both civil and criminal matters. Consequently, there is always an impediment in giving judgments and it causes pendency of suits and cases.

“On an average 250 cases including applications are filed at the Filing Counter of the High Court Division. The Daily Cause List is generated by the respective court clerks sent to the Listing Section for getting it published by the Government Printing Press. As of 1997, there were 84,609 cases pending inn the High Court Division for adjudication.”

High Court Division

Total Filing, Disposition and Pending Cases

1993-1997

YEAR	FILINGS	DISPOSITION	PENDING
1997	21,500	14,222	84,609
1996	20,203	12,626	77,430
1995	17,955	11,308	69,853
1994	15,056	8,584	63,206
1993	13,744	7,899	56,734

“In terms of Case Flow, the situation of the subordinate courts is quite alarming. There is a huge backlog of cases in each of the district courts in Bangladesh. From1994 to 1996, backlog of cases rose by 6 percent while disposition declined by 17 percent even though during the period filing of cases had declined by 18 percent.”

Subordinate Courts

Total Filing, Dispositions, and Pending Cases

1993-1997

YEAR	FILINGS	DISPOSITION	PENDING
1997	-	-	429,810
1996	188.234	157,989	418,706
1995	212,951	185,449	416,739
1994	228,598	189,992	394,337
1993	186,937	177,290	379,524

Now we will discuss the reasons behind the problems regarding case filing, disposition and pending in the justice delivery system.

Though there are systematic procedures which are provided by the law, there is some complexity in issuing of the ‘summons’, especially in the civil suits. “The rule prescribes that the process should be served after taking signature of the defendant.” There are some internal corrupt practices within the court administration like giving false report and issuing summons in false names.

“Another reason for delay in the justice delivery system is that the evidences are not properly produced before the court in due time. There is almost more than forty thousand evidence kept in the Dhaka Judge court” however, there is no systematic arrangement to manage those evidences according to their nature and class. There is a cumbersome situation in File handling and transfer procedures. It is evident that when a file passes from one agency (Police) to another (the Court) for prosecution, the whole procedure is very time-consuming and it causes immense delay. Moreover, Corruption is always a big issue in Bangladesh. There are several examples of lack of transparency and accountability in judiciary due to political biasness.

Frequent case adjournment is another common Problem for both civil and criminal Cases. If an adjournment is granted, it may be several months before space can be found for the court's calendar to reschedule the matter.

Fair hearing for all accused individuals and the right to legal representation is a constitutionally recognized fundamental right. A delay in Appointing Defence Lawyers is another problem. This has led to trials being delayed, the backlog of cases increasing and congestion in the prisons.

۩ Impact of delay on Judiciary:-

'Justice delayed is justice denied' is a very common adage in the judicial domain. It is one of the most burning problems in the administration of justice. This system of justice is so ambiguous and miserable for the mass people that it cannot be explained in a word. There are many instances that poor people who went to court to address their grievances after selling off their lands and property to meet the expenses of the court, but did not get justice in their lifetime. At present, the only demand of mass people is the speedy approach to justice. Certainly 'speedy approach to justice' is gradually getting the status of an important human right which is also denied by some administrators in justice and the underprivileged people continue to be dominated by them. This day, the judiciary organ is an independent organ in our country from the executive. So, it is high time to adopt effective steps to dispense our justice as early as possible.

How much pain the delay process of justice involves need not be explained. This picture of justice is very much dreadful for our poor citizens. It is generally seen that a case is still hanging in court, which began more than one decade ago. There are many victims who don't easily think of going to court seeking justice because they know it will take years to prove a clearly visible wrongdoer is the actual criminal. Moreover, the impact of this unusual delay in disposal of cases falls on the victims. Due to delay in litigation, people become annoyed to obtain proper justice at any stage and also develop a negative outlook in their mind about the total judiciary schemes including judges, lawyers, associates and the administration of justice etc.

The process of delay in litigation is equally known to all and nevertheless it may sound inconsistent with due process of law. The fact remains that the very cases are misused and abused in order to delay cases for an indefinite period and ultimate success in the cause often proves false. Now, law is an effective weapon in the hands of the state to mitigate the social needs by ensuring proper justice in time. Such effort of law is liable if justice fails to mitigate the misery of the mass people due to delay in litigation only and the faith in justice can never be instilled in the mass people if the state doesn't ensure the speedy process of justice.

In the field of justice, delay in litigation is traditionally practiced in our country as like at the same time as denying due process of law. The result is that cases are piled up in all the courts hugely day by day. Basically, the delay in litigation is incredibly practiced in civil courts. Our civil courts are governed by the Civil Procedure Code 1908 which was enacted during the British reign. But, after the independence, the government of Bangladesh had taken an attempt to accelerate the civil procedure system. The problem of delay in litigation including arrears of cases has been engaging the attention of the Law Commission for a long time and as a result of its recommendations made from time to time, reasonably wide changes have been made in the provisions of the Code in 1983 by making an Ordinance with a view to removing the causes of delay. Before such amendment Ordinance, there was no limitation to submit the court-fees and other relevant documents. But, by this Ordinance, the parties to a suit have to submit the proper court-fees with all relevant documents within 21 days after issue of summons and the plaintiffs have to submit all documents at the time of institution of the suit to focus on the cause of action. On the other hand, there was no specific time for examination of the defendants/witnesses and in framing of issues before such amendment. But, after promulgation of the Ordinance, no time is be allowed for examination of the defendants/witnesses after 2(two) months and the court is bound to frame the issues within 15 days after examination of the defendants/witness. However, by the blessing of this Ordinance, the court is also bound to give the judgment of a case within 127 days from the framing of issues. While 120 days is fixed for hearing and after hearing, rest 7 days is fixed for giving the judgment. But, these changes seem to have had little impact.

Actually, delay in litigation is still prevailing in the field of civil justice. On the other hand in criminal area, it is usually seen that a person, from the date of arrest, is in custody without any trial for many days though it is not proved whether he is an offender or not. Crime increases only when the justice is delayed or do not take place. So, it is obviously a vital issue to change the present scheme of our legal procedure. A number of causes seem to be responsible for creating this crippling situation in the way of our justice

۩ Recommendations:-

Actually, delay in litigation is practiced in our judicial domain for many days. So, it can't be removed in a day. But, it is as much crucial an issue that our Government has to take immediate steps to diminish this problem. However, from my view, following steps can be adopted to change the current character of administration of justice:

ü The atmosphere of justice must be corruption free;

ü Adequate number of judges should be ensured;

ü Justice administration system should be easy and not much expensive. Although the Constitution guaranteed equal rights for all citizens in getting justice, in practice a vast majority of the people, who are economically weak, do not enjoy this right. Even, the poor and disadvantaged groups in the rural areas cannot think of moving to higher courts to seek justice and get remedy for violation of their rights because of expensive higher judiciary;

ü Justice should not become the hostage of a class;

ü In preserving various records of the courts modern technology should be widely used;

ü Multiplicity of laws on a particular issue should be evaded;

ü It also seen that the lawyers may not be ready to argue the case and hence regularly submit 'time petitions'. So, frequent taking of time by the lawyers must be stopped. In Bangladesh constitution, there is a provision for getting speedy trial of every accused person of criminal offence as per Article 35(3). Besides, as per Article 22 of this constitution the judiciary is separated from executive organ, which has already been executed from 1st Nov, 2007. Now, our expectation is much more from the judiciary than before. So, we are looking forward to see that the judiciary organ is how far responsible to accelerate our prior procedure in litigation to remove the misery of the inhabitants of Bangladesh.

۩ Conclusion:-

The rule of law is almost non-existent in Bangladesh due to the increasing trend in corruption. The law is not applied equally here. For the weak and the strong, supporters and opponents of the ruling party, the applications of law vary. In many developed countries of the world, there exist independent commissions to combat corruption. There is no such commission in Bangladesh.

If delay is existent in Administration of Criminal Justice then the trial will not be fair and impartial and its impact obviously blows on the Judiciary. So, the application of the Statutes will be properly and the lacings of Judiciary will be fulfilled and at last ensured the Justice.

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A-Z

মঙ্গলবার, ২৭ ডিসেম্বর, ২০১১

The Code of Criminal Procedure [CrPC]

# Criminal justice system:-

৩টি মন্তব্য: