CRIMINAL PROCEEDINGS

 

If a person is charged with the commission of a crime which is being inquired into or tried, and the court or tribunal enquiring into or trying the same, has power to punish such an offence, the court or tribunal would be described as being engaged in conducting criminal proceedings. The object of criminal proceeding is to punish wrongs. All criminal proceedings in Bangladesh are regulated under the provisions of the Code of Criminal Procedure, 1898 unless otherwise excluded.

 

Under the present Code, a summons case is one in which the maximum punishment which may be awarded is two years imprisonment. When the accused is brought before a magistrate, the substance of the allegation against him is explained. If he admits liability, he may be sentenced forthwith. If he does not, the prosecution witnesses are heard and the court examines the accused. The defense witnesses are next heard, and the advocate (lawyer) if present, addresses the court before judgment. If maximum punishment exceeds two years, and if the offence alleged is triable by a magistrate, and the magistrate's power admit of passing an adequate sentence, the case is tried as a warrant case, and a more elaborate procedure mast be followed. Sufficient evidence to establish a prime facie ease must be given by the prosecution witnesses. The court then examines the accused and if he cannot offer an adequate exculpatory explanation of the evidence recorded, a charge is framed. If he pleads guilty, he may be convicted. If he does not, the remaining prosecution witnesses are examined. The accused may recall and cross-examine farther the prosecution witnesses examined before charge. He is again examined by the court, and called upon to enter on his defense, and examine his defense witnesses.

 

In all criminal proceedings, the essential paid is that accused is presumed to be innocent and the onus is always on the prosecution to prove the charge beyond all reasonable doubt. The court for the purpose of ensuring that he understands the case against him, and giving him an opportunity to answer them must put alt relevant facts against the accused in the evidence of the prosecution witnesses to him. An omission to give the accused the opportunity to answer any allegation of substance made against him, may vitiate the proceedings.

 

The examination of the accused must be recorded verbatim, in the form of question and answer, and, if practicable, in the language in which he is examined. Except in minor cases, the depositions must be recorded in full, but in narrative form and read out to the witnesses. The judgment, which must be written, must set out the points for determination, the decisions thereon, and the reasons.

 

When a case is instituted on a police report or otherwise the accused appears or is brought before the Magistrate and it appears to him that the case is triable exclusively by the Court of Sessions, he sends the case to the Court of Sessions together with record of the case and the documents and articles if any, which are to be produced in evidence. Besides, the Magistrate gives intimation of such transfer to the Public Prosecutor. The Law Reforms Ordinance has introduced this provision, 1978, in lieu of commitment proceedings.

 

Before the Court of Sessions, when the accused appears or is brought, the Public Prosecutor opens his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submission of the accused and the prosecution, the court considers that there is no sufficient ground for proceeding against the accused, the accused is discharged by recording reasons thereof. But if after such consideration and hearing as aforesaid, the court is of opinion that there is a ground foe presuming that the accused has committed an offence, appropriate charge is framed against him in writing. When a charge is framed, it is read and captained to the accused and he is asked as to whether he pleads guilty of the offence charged or claims to be tried. If he pleads guilty, the court records the plea and may, at its discretion convict him thereon. If the accused does not plead or claims to be tried or is not convicted, the court on a date fixed by it, takes evidence produced in support of the prosecution, and at its discretion permit cross-exam'-nation of any witness to be deferred until any other witness has been examined or recall any witness for further cross examination. If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defense the court find that there is no evidence of commission of the offence, the accused is acquitted. But if a prima facie case is made out against the accused, in the next step, he is called upon to enter on his defense and adduce any evidence he may have in his support. If the accused puts in any written statement, the court files the same with the record. If the accused applies for issue of any process for compelling the attendance of any witness or production of any document or thing, the court issues such process. The court may refuse such a prayer of the accessed on the ground that it is made for delay or foe defeating the ends of justice. When examination of the defense witness is complete, the public prosecutor sums up his case and advocate for the defense replies. The Judge then gives judgment considering all points in the case and giving reasons for his decision. The decision results either in acquittal or conviction followed by appropriate sentence either of imprisonment or fine or both.

 

Criminal proceedings before a Magistrate's Court takes six months and before a Court of Sessions a year to conclude, but delays mostly on account of accumulation of cases is not rare.

 

In Bangladesh, a person, whether personally affected or not, may set the machinery of criminal justice in motion, but courts cannot take cognizance of certain offences, except on the complaint of, or with the sanction of a specified person or authority. Most of the cases of contempt of the authority of a public servant require a complaint of the officer concerned or his superior officer. The offences of giving false evidence, using false documents and other offences against public justice, require a complaint from the court before which they were committed. A court cannot take cognizance of an offence relating to marriage except on the complaint of specified persons aggrieved. A limited number of less heinous offences may be compounded and, some only with the leave of the court.

 

Some magistrates are empowered to open criminal proceedings on their own knowledge or suspicion. A private person may initiate proceedings by presenting a complaint to a magistrate. Crimes in Bangladesh are either non-cognizable, in which case a complaint to the magistrate is normally the only way in which an enquiry into them can be started, or cognizable, in which case it is possible to set the machinery of law in motion by reporting the matter to a police station, for the police have a duty to investigate cognizable offences and the power to arrest without warrant any person reasonably suspected of being concerned in a cognizable offence. All crimes designed to caviar public alarm or to prejudice the maintenance of public order are cognizable.

 

 

When a report of cognizable offence is mode to a police station, a written record is made, and the informant is required to Sign it. This report is called the 'First information Report. The investigating officer may summon and examine any person, who appears to know anything about the case, and such person is obliged to answer, but there is no penalty for not telling the truth. The investigating officer notes the progress of the investigation in a special diary, and records statements made by the persons he examines, if the case is subsequently sent up for trial, prosecution witnesses, may be contradicted bat not corroborated by the statements recorded by the investigating officer. The investigating officer, if he thinks a search is necessary, must record his reasons, and then conduct the search in the presence of two respectable inhabitants of the locality, who attest the record he prepares of the things found and the places in which they were found.

 

Bail

 

Bail means to liberate or deliver the accused from arrest or out of the custody, to the keeping of other persons, on their undertaking to be responsible for his appearance at a certain day and place to answer to charges against him. These persons are called his sureties.

 

According to the criminal law of the country, the magistrates exert free discretion in the matter of grant of bail and are governed by the Criminal Procedure Code. The bulk of bait applications are filed before the magistrates. Their power to refuse bail ate generally restricted to eases where the defendant is accused of a serious offence or is likely to commit further offences or to abscond or where remand in custody is necessary for the defendant's protection.

 

An order on a bail application does not finally determine the guilt or innocence of a person accused or convicted of an offence. All that such on order postulates is that pending an inquiry or trial and in the case of a convicted person, pending an appeal by bliss, it is not necessary that his liberty should be curtailed.

 

The Magistrates can make to the Court of Sessions and to the High Court Division against refusal of bait applications. In granting bait the canes concerned has to consider the seriousness of charge, nature of evidence, severity of punishment prescribed for the offence and character, means and standing of the accused.

 

On the recommendation of the Law Committee of 1976, the law relating to bait has been liberalized so as to give an opportunity to a person who wishes to avoid the ignominy of an arrest to apply for and obtain an Anticipatory Bail from the court. Under the Law of Criminal Procedure'5 when a person has a reasonable apprehension that he may be arrested on an accusation of having committed a non-bail able offence, he may apply to the High Court Division of the Supreme Court of Bangladesh or the Court of Sessions, or the Sub-divisional Magistrate, concerned for a direction that, in the event of his arrest, he shall be released on bail and that the Court or the Magistrate, if it or he thinks fit, direct that in the event of such arrest, he shall be released on bait. Since it is not feasible to enumerate the situations when such a direction may be justified, the Law leaves the matter to the discretion of the court moved for the purpose.