Preface Among the procedural law the Code of Criminal Procedure is very important. The Code was come into force in first July, 1898. The Code was enacted with a view to regulate the procedure concerning inquiry, investigation and trial of criminal acts. As a procedural law it contains the procedure of the criminal law. The Code has several aspects. Social is one of them. The concern of the Code becomes clear from its provisions on protection and maintenance of women, children and persons otherwise handicapped.
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Part 01: History & General Concept of the Code
A Brief Discussion on Code, Codification and the Cr.P.C, 1898: The main purpose of legislation is to create or amend law in a manner which implements policy accurately and effectively. One aspect of legislation which distinguishes it from almost all other types of written work is the use of textual amendment as a mechanism to change or repeal existing law. The ultimate form of restating legislation is consolidation. Consolidating all existing legislation in a topic brings with it the opportunity to consider how it can best be recast for the benefit of those who will use it. Legislation can also be codified although codification is more usually associated with formalizing the common law. Codification means bringing all amendments to a given law adopted at different times into one law. Codifying is distinguishable from consolidating in that codification can change the substance of the law on a topic when it brings it together. There is undoubted value in having all the law on a particular topic included in a single document. The processes of consolidating and codifying can be used to free the law from constrictions imposed by the existing legal framework. Different Types of Statutes: There are different types of statutes existing in law. Article 152 of our Constitution provides that, “Law means any Act, ordinance, order, rule, regulation, bye-law, notification or other legal instrument, and any custom or usage, having the force of law in Bangladesh.” So, all kinds of statutes are included as law. Different types of statutes are stated as following: $ Consolidating Statute: Consolidating statute is one which collects the statutory provisions relating to a particular topic, and embodies them in a single Act of Parliament making only minor amendments and improvements. $ Codifying Statute: According to Oxford Dictionary “Code is a systematic collection of statutes, body of laws, so arranged as to avoid inconsistency and overlapping.” Code is of three kinds:
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Creative Code: A Creative code is that which makes a law for the first time without any reference to any other law. It is law-making by legislation. The Indian Penal Code belongs to this category. Consolidating Code: A consolidating code is that code which consolidates the whole law-statutory, customary and precedent-on a particular subject and declares it. The Transfer of Property Act, 1882 belongs to this category.
Bothe Creative and Consolidating Code: A code may be both creative and consolidating. It may make new law as well as consolidate the existing law on a particular subject. Hindu Law is such type of law. Special Statute: Special statute means a statute which deals with a particular subject matter and is enacted by the parliament, for example, Special Power Act, 1974; Acid Violation Prevention Act, 2002; Women and Child Repression Prevention Act, 2000; Courts Fees Act, 1870 etc. Principal Statute: When a statute is initially enacted by the legislature and it contains all the relevant elements of legislation, it is called principal statute.
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Different Parts of a Statute: According to section 3(17) of the General Clauses Act, 1897 an ‘enactment’ shall include a Regulation and shall also include any provision contained in any Act or in any such regulation as aforesaid. Generally the drafters follow the following guideline at the time of enacting a law, $ Preamble (objects and purposes of the law); $ Short title, commencement and extent (date and jurisdiction); $ Definition; $ Savings; $ Divide into various parts or chapters; $ Chapters or parts are also divided into sections or articles; $ Sections or articles are also divides into rules, regulations, sub-sections, clauses, heading/marginal or side notes etc.; $ An exceptions relates to CPC which is divided into orders and sections and orders are divided into various rules; $ Rulemaking power/proviso/exceptions etc.; $ Repeal of previous Acts; $ Schedule. Code: As mentioned in the Wikipedia, code means, (1) a set of rules which are accepted as general principles, or a set of written rules which state how people in a particular organization or country should behave. (2) A set of principles that are accepted and used by society or a particular group of people. So, code means the whole body of law; whether of a complete system of law e.g. the Roman Law Code of Justinian, or a relating to a particular subject or branch of law e.g. the Sale of Goods Act, 1930. Legal Code: A legal code is a body of law written and enforced by a state. In addition to a body of substantive law, a legal code also specifies certain court procedures and rules of evidence. The Penal Code, 1860; The Code of Criminal Procedure, 1898; The Code of Civil Procedure, 1908 etc. ate legal code. Criminal Code: A Criminal code is a compilation of government laws that outline a nation’s laws regarding criminal offences, and the maximum and minimum punishments that Courts can impose upon offenders when such crimes are committed. On the other hand, criminal law is the body of law that defines criminal offences, regulates the apprehension, charging, and trial of suspected offenders, and fixes punishment for convicted persons. Substantive criminal law defines particular crimes, and procedural law establishes rules for the prosecution of crime. Criminal law in most jurisdictions is divided into two fields: $ Criminal procedure regulates the process for addressing violations of criminal law; $ Substantive criminal law details the definition of, and punishments for, various crimes. Criminal procedure is entirely regulated by the statute which is mainly guided by the Code of Criminal Procedure (CrPC).
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Origins of Criminal Law: Criminal law in the United States, Canada, Australia, Bangladesh and many other commonwealth countries is based on English common law. The British established colonies and imposed their criminal law upon the inhabitants of those colonies. However, these, and other legal systems, are also influenced by early written codes, such as the Roman Twelve Tables. There was no criminal law in uncivilized society. Every man was liable to be attacked in his person or property at any time by any one. The person attacked either succumbed or overpowered his opponent. A tooth for a tooth, an eye for an eye, a life for a life was the forerunner of criminal justice. As time advanced, the injured person agreed to accept compensation, instead of killing his adversary. Subsequently, a sliding scale came into existence for satisfying ordinary offences. Such a system gave birth to archaic criminal law. For a long time, the application of these principles remained with the parties themselves, but gradually this function came to be performed by the State. The germs of criminal jurisprudence came into existence in India from the time of Manu. In the category of crimes Manu has recognized assault, theft, robbery, false evidence, slander, criminal breach of trust, cheating, adultery and rape. In that period the king administered justice himself, and, if busy, the matter was entrusted to a judge. Later on the Criminal law of India was regulated by the Islamic sharia law as it was conquered by the Muslim Sultans and Mughals. Criminal Procedure Code: The word ‘criminal’ is derived from Latin word ‘crimin’ (a judgment or accusation) and means “belonging to an accusation”. The word ‘procedure’ means the mode or manner of moving on. Lord Penzance says, “Procedure is but the machinery of law after all the channel and means whereby law is administered and justice reached.”1 Sir James Stephen says that the Code is inadequately described by the name of ‘Criminal Procedure Code’, because it is a complete body of law on three distinct but related subjects: “the constitution of criminal courts, the conduct of criminal proceedings and the prevention of crimes by interference beforehand”. Construction of the Criminal Procedure Code: The Code of Criminal Procedure id a procedural penal statute and it provides for machinery for punishment and prevention of offences. Since it is a penal statute in nature, it must be construed strictly as opposed to liberal interpretation. This means in case of ambiguity, this Code should be interpreted in favor of the individual or subject. Criminal Procedure in British India and Independent Bangladesh: On July 10, 1833, an aspiring young English lawyer named Thomas Babington Macaulay stood before the Parliament and presents an impassioned argument about the future role of British governance in India and “to give good government to a people to whom we cannot give a free government.” Later that year, Macaulay set sail for the subcontinent charges with the momentous task of codifying the law of India, creating in his words “one great and entire work symmetrical in all its parts and pervaded by one spirit.” It was Macaulay’s aim to bring order to this unwieldy and confusing system. Around the same time that Macaulay set his hand to codify the Indian Law, the Royal Commission on the Criminal Law also began its review of the English Penal Law. By the late nineteenth century, the production of legal codes in India had become so prolific that many administrators questioned its expense and utility. In 1881, a colonial official in the Central Provinces remarked “codes are like arithmetic books which no one is required to learn,” 1
L.R. 4 A.C. 525
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The codification of law in India (where there was no common law) was deeply marked by the culture of colonialism, by its ideology of difference, and by the opportunities provided to an authoritarian regime of power that did not depend on public opinion or popular support. The First Law Commission was composed of T.B. Macaulay (as Chairman) and four members. The members of the Commission prepared a draft Pena Code which they submitted to Lord Auckland, the Governor-General, on 2nd May, 1837 which did not become law till 1860. A Code of Criminal Procedure was passed in 1861 (XXV of 1861). The first Criminal Code of 1861 was amended in 1872 which is known as 2nd Criminal Code. The 3rd Criminal Code was made in 1882 changing the previous one. Thereafter 16 amendments were made to it and later on a Select committee was constituted. Based on the report of the select committee the existing Criminal Procedure Code was passed in the year of 1898. In 1923 a severe change was made to it based on the recommendation of a Joint-Committee. A great change was made to the CrPC in the year of 1982 after the independence of Bangladesh. Recently in 2007 the Government has enacted an amended Criminal Code as a part of its commitment to the separation of judiciary. Contents of CrPC at a Glance: There were 565 sections in the original Code but afterwards a lot of sections have been repealed such as sections — 206 to 220, 251 to 259, 2, 3, 23, 24, 26, 27, 29-A, 30, 34, 34-A, 111, 138, 139, 141, 184, 194, 197-A, 205-A, 205-B, 226, 246, 262, 370, 411, 411-A, 416, 432 to 434, 437, 443 to 463, 472, 477 to 479, 491-A, 497-A, 526-A, 527, 532, 534, 536, 542, 553, 562 to 564. In the Code there are five schedules of which schedule-1 was repealed. Schedule-2 gives a chart of offences; punishments; by whom it will be adjudged; nature of offences etc. Schedule-3 states the ordinary jurisdictions of the Magistrates. Schedule-4 states about the extra-ordinary jurisdictions of the Magistrates and schedule-5 gives various forms of summon, warrant, proclamation of arrest, bail bond etc. The Code deals with the constitution of criminal courts, classifies them, defines their powers, lays down the procedure for criminal proceedings, inquiries or trials, prescribes the duties of the police in arresting offenders and investigating offences and also contains provisions for their prevention. Is CrPC a Code? Though termed as a code, the CrPC is basically a consolidating and amending Act and not a codifying statute. The term ‘Code’ may be used in two sense. In strict and proper sense a Code is compilation not of just existing statutes, but also of much of the unwritten law like customs, judicial decisions etc. on a subject2. On the other hand, consolidated legislation purports to collect only preexisting statutes on a particular subject. It does not include common law or customary rules and judicial precedent. CrPC is not a code in the proper sense of the term. This is more fully clear from the long title of the Act. Though the short title of CrPC uses the term ‘Code’ [Criminal Procedure Code (Act No. V of 1898)], the long title, i.e. the preamble of it states that this is an Act to consolidate and amend the law relating to the Criminal Procedure.
2
Black’s Law Dictionary, 7th edn.
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Part 02: Basic Concept of code of criminal procedure, 1898
Nature and Object of CrPC, 1898 CrPC is a branch of procedural law. Adjective of procedural criminal law provides machinery for criminal cases and 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. Object of the CrPC, 1898: 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 sections 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 crates another offence with punishment for non-attendance by a witness in obedience to summons. If any witness fails, without just excuses, to appear before which the witness is to appear may try him summarily and sentence him to fine not exceeding two hundred taka and fifty. Thus although CrPC is generally a procedural law deals with matters of substantive law also. The object, purpose, or design of all procedural law is to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The application of Criminal Procedure Code is not limited to cases of offence under the Penal Code. It extends to other proceedings of Criminal or Quasi-Criminal nature. The objects and application of the Code of Criminal Procedure are as following, $ To ensure that an accused person gets a full and fair trial along certain well established and well under stood lines that accord with notions of natural justice. $ Where an accused is tried by a Court, the court must be a competent court under the law vested with jurisdiction to try such cases. $ The accused must be told and made to understand the nature of the offence of which he is being tried, $ His plea must be recorded. $ He is provided with full and fair opportunity to defend himself against the charge; it is substantial compliance of the outward form of law. Where the accused alleges and shows substantial prejudice caused to him the compliance of law is not substantial. $ In the former case, if there is an error or omission in the trial it is called a curable irregularity which does not vitiate the trial. $ In the latter case, where prejudice is caused to the accused and it is a substantial prejudice, such error, omission or mistake in trial is called incurable illegality and the consequence of it is vitiating the trial. $ Justice is to be done and not denied. Justice is to be shown to have been done according to law and it is not sacrificed at the altar of the procedure.
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Trial in Criminal Cases The words “try” and “trial” have no fixed or universal meaning, but they are words which must be construed with regard to the particular context in which they are used and with regard to the scheme and purpose of the measure concerned.3 The word “trial” is not defined in the Code of Criminal Procedure, 1898. According to Wharton’s Law Lexicon, a trial is the examination of a case, civil or criminal, before a judge who has jurisdiction over it, according to the law of the land. 4 According to the Oxford Dictionary a trial is the examination and determination of a cause by a judicial tribunal; determination of the guilt or innocence of an accused by a Court. When some competent authority directs that an accused person shall be tried, the trial that is to take place can end only in one or other of the recognized forms in which the trial can terminate under the Code of Criminal Procedure, 1898 such forms are,
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Conviction; Acquittal; discharge.
Trial is neither an investigation nor an inquiry. Investigation is the power vested in the police and inquiry is the power vested in a Magistrate. It is a stage prior to trial. Trial begins when the charge is framed, read out and explained to the accused and his plea is recorded. Trial of the criminal cases is one of the basic fields of application of the CrPC, 1898. The Code deals with the proceedings of trial in the criminal cases. Trial in the criminal cases is discussed under two heads under the CrPC, 1898, which are thus,
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Trial in the Magistrate Court; and Trial in the Sessions Court.
Under the Code the nature of the procedure of trial of these two courts are different. Trial procedures of the two courts are discussed as under.
Trial in the Magistrate Court Trial in the Magistrate court takes two forms, which are discussed in two different chapter of the CrPC, 1898. These are,
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Regular trial; and Summary trial.
About these two forms of trial in the Magistrate court are discussed as under.
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Jibon v. Emperor 34 Cr. L.J. 684; 144 IC 90; 37 CWN 906; AIR 1933 Cal 551; 1933 Cr. C. 911. In Re RamSawami, 27 Madras 510.
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Regular Trial in the Magistrate Court: Regular trial in the Magistrate court is the regular procedure of trial in the Magistrate court. The procedure of Regular trial in the Magistrate court is enunciated in chapter XX of the CrPC, 1898. Though the regular trail ordinarily starts with the framing of the charge but before the framing of the charge there is a pre-trial hearing stage. $ Discharged of the Accused before the Framing of the Charge: Before framing of the charge the Magistrate has power to discharge the accused if he becomes satisfied, after
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considering the record of the case; examining the documents submitted with it; and
hearing the prosecution and the accused. The provision enjoins the Court to discharge the accused when there is no ground or proceeding with the case but the order must record reasons thereof. But when the Court framed charge it is not required of the Court to record reason.5 An order of discharge must contain the reasons for such discharge. And order of discharge is subject to revision by the High Court Division or the Court of Sessions. Before passing an order of discharge the Magistrate should first take into consideration,
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In police case, the prosecution case as given in FIR, charge-sheet, statements of witnesses record by police and the documents produced including medical certificate; In complaint case, the petition of complaint, statement of witnesses recorded during judicial enquiry, report of inquiry officer and medical certificate if produced.
Case Study:
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15 MLR (HC) 23-Nazrul Islam Mollah vs. State-Discharge of the accused when no prima facie case is made out from the materials on record-The FIR discloses the initial intention to deceive and the learned judges found prima facie case disclosed from the allegation made in the FIR and as such found no ground at this stage to quash the proceedings. 45 DLR 533-H.M. Ershad vs. The State-This provision casts a duty on Judge to discharge accused when there is no ground for proceeding with the case and his order must record reasons thereof. The Court has jurisdiction to pass an order of discharge if it was satisfied that the charge was groundless for which it was to give reasons but if it framed charge it was not required of the court to record reasons. Framing of the Charge: The formal stage of the trial actually starts by framing of the charge. The Magistrate before taking any evidence but considering the provision of section 241A CrPC shall frame charge. A charge under this section should allege all that is necessary to constitute the offence charged. The framing of charge needs the following conditions namely,
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the existence of a prima facie case on the basis of materials before the court; the offence being triable under Chapter XX of the CrPC; the Magistrate’s competency to try; and
the Magistrate’s power to inflict adequate punishment. On the fulfillment of these conditions, charge should be framed.
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45 DLR 533.
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Case Study: 64 DLR 192-Abur Razzak vs. State-Trial Court has to form “an opinion that there is ground for presuming that the accused has committed offence….” An opinion on the basis of presumption and a finding in a judicial proceeding are two distinct concepts. A finding about commission of offence must be based on evidence. 45 DLR 722-Shariful Islam vs. Billal Hossain-The trail court has a wide power to frame charges and this cannot be interfered with by Revisional Court by way of giving direction for altering a charge or framing charge (Ref: 13 BLD 392). Plea and Conviction: A very important feature of the trial procedure is that the chance of admission of truth by the accused. After the framing of the charge the Magistrate shall ask the accused whether he admits his guilt or not. And if the accused admit his guilt the Magistrate may convict him according to law. A plea of guilty is an admission of all the facts on which the charge is founded as well as an admission of guilt in respect of them. It is important that the exact words of the accused, as nearly as possible, should be recorded. Magistrates have to remember that a conviction on admission is not final. It is open to revision and the superior court has to be satisfied that what was thought to be an admission was really so and for that purpose the must be recorded in own words of the accused. The Magistrate has discretion to accept the plea of guilty or not to accept. Accused cannot be convicted on his admission unless the facts admitted amount to an offence.6 Case Study: 46 DLR 238-Saheb Ali Miah vs. State-He alleged admission of guilt was not recorded as nearly as possible in the words used by the accused. Section 243 CrPC is mandatory, the violation of which causes prejudice to the accused and is not curable under section 537 CrPC. [Ref: 3 BLT (HC) 110] 40 DLR 398-Ali Newaj Bhuiyan vs. The State-Violate on of the mandatory requirements of Section 243 in recording the individual statements of the accused either in their language or in words as nearly as expressed by them is not curable by section 537. Conviction and sentence are not sustainable in law accordingly (Ref: 20 DLR 461). 14 DLR 121-The State vs. Satyapda Biswas-Conviction is legal solely on the confession of the accused. If the accused himself admits his guilt there is no necessary to enter into the whole gamut of a legal trial. Hearing/Taking Evidence: If the Magistrate dose not convicts the accused after the admission of truth by him or if the accused does not make such admission, the next step the Magistrate is to take is to hear the case and take and examine the evidence. Here under this provision it is merely said that the Magistrate shall hear the complainant. It does not say that the complainant is to be examined. Non-examination of the complainant does not vitiate the proceedings. Moreover, the Magistrate is bound to hear the accused and his witnesses. The Magistrate has no discretion in this matter. The right of cross-examination is exercised under this procedure. Case Study: 21 DLR 62 (WP)-MD. Sadiq Javeed vs. The State-Magistrate is competent to abandon subsequently a defense witness who though considered by him to be unnecessary, was nevertheless summoned.
Ref: 10 DLRn346.
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Acquittal & Sentence: The consequence of most of the trial is either acquittal or conviction and sentencing. These are very important provisions of the trial procedure under the Magistrate court. Acquittal is ordered by the Magistrate when the Magistrate does not find any guilt against the accused. But it is not open to the Magistrate to refuse to examine the witnesses produced by the complainant and the acquittal of the accused, without recording any evidence is clearly illegal.7 The Code makes no provision for acquittal of accused persons without examining witnesses. A Magistrate, who does not find the accused guilty, must record an order of acquittal. No order of discharge can be passed under this provision. On the other hand if the Magistrate finds the accused guilty and convicts the accused, he is bound to pass some sentence. Case Study: 38 DLR 311 (AD)-Muslimuddin vs. The State-Accused presumed to be innocent of the charge till guilt is established by legal evidence. No particular number of witnesses legally required to prove the offence. 49 DLR 36 (AD)-Mobarak Ali and Others vs. Mobaswir Ali and Others-The prosecution having not taken any steps the learned Magistrate rightly acquitted the respondents under section 245(1) of the Code of Criminal Procedure. [Ref. 1 MLR (AD) 23] 9 MLR 235-238-Mosharraf Hossain Sheikh (Md.) vs. Abdul Kader and OthersRelease of accused under section 249 is not an acquittal-When there are case and counter case over the same occurrence both the cases should be tried simultaneously by the same court. Proceedings stopped under section 149 CrPC can well be revived since the release thereunder is neither acquittal nor discharge as provided under section 245 CrPC.
Summary Trial in the Magistrate Court: Summary trial by dispensing with unnecessary formalities of delay. Chapter XXII of the CrPC, 1898 enunciated the provisions regarding to summary trial. Though the object of summary trial is to shorten the record and the work of the court but it is not intended to deprive the accused person of any of the rights given by law. The proceedings are to be conducted with the same procedure as in the regular, perhaps with more care so that the accused may not entertain any apprehension of failure of justice on account of the procedure. The responsibility in the case of summary trial is very great. The court will take care that the procedure is not made more summary than is laid down. Summary trials are improper in serious cases.8 $ Magistrate Who Can Try Summarily: Every Magistrate cannot try summarily. Only the specified Magistrate under chapter XXII of the CrPC, 1898 can try summarily. According the provisions of the chapter the following types of Magistrate can try summarily,
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the Metropolitan Magistrate; any Magistrate of the first class; and
any Bench of Magistrates invested with the powers of a Magistrate of the first class.9 Where Summary Trial not Possible: According to the provision of chapter XXII of the CrPC, 1898, cases in which a Magistrate exercises the special powers conferred by section 33A cannot be tried in a summary way.10
33 CrLJ 274. 33 CrLJ 210. 9 Sec. 260 of the CrPC, 1898. 10 Ibid. 8
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Cases which are to be Tried Summarily: All kinds of cases cannot be tried summarily. Only the cases enunciated by chapter XXII of the CrPC, 1898 can be the subject matter of summary trial. The cases which can be tried summarily are stated as below:
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offences not punishable with death, transportation or imprisonment for a term exceeding two years; offences relating to weights and measures under sections 264, 265 and 266 of the Penal Code; hurt, under section 323 of the same Code; theft, under section 379, 380 or 381 of the same Code, where the value of the property stolen does not exceed ten thousand taka; dishonest misappropriation of property under section 403 of the same Code, where the value of the property misappropriated does not exceed ten thousand taka; receiving or retaining stolen property under section 411 of the same Code, where the value of such property does not exceed ten thousand taka; 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; mischief, under sections 426 and 427 of the same Code; 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; 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; offence of bribery and personation at an election under sections 171E and 171F of the same Code; abetment of any of the foregoing offences; an attempt to commit any of the foregoing offences, when such attempt is an offence;
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. Procedure in Summary Trial: Unlike regular trials the court in summary trials has to simplify and shorten trial procedure by dispensing with the recording of evidence and not allowing many adjournments. In summary trials the Magistrate has to follow all the steps of a regular trial but the difference between the two is that is summary trial of offences where no appeal lies the Magistrate need not have to record the evidence of the witnesses or frame a formal charge. On the other hand, in case of summary trials of offences where appeal lies, the Magistrate has to record the substance of evidence. In summary trials the following particular is needed to be enter in the form as the Government may direct:
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the serial number; the date of the commission of the offence; the date of the report or complaint; the name of the complainant ( if any);
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the name, parentage and residence of the accused; the offence complained of and the offence (if any) proved, and in cases coming under clause (d), clause (e), clause (f) or clause (g) of sub-section (1) of section 260 the value of the property in respect of which the offence has been committed; the plea of the accused and his examination (if any); the finding, and, in the case of a conviction, a brief statement of the reasons therefor; the sentence or other final order; and
the date on which the proceedings terminated. Limitation of Imprisonment in Summary Trial: Though there is nothing in Chapter XXII of the CrPC, 1898 limiting the amount of fine that may be imposed in a summary trial, but there is limitation of imposing of imprisonment under this chapter. According to the provision of this chapter, the limitation of imprisonment shall not exceed 2 years.
Distinctions between Regular Trial & Summary Trial: Trial is the main procedure of commencing a case. A trial can be both regular and summary. Both of the trial procedures have some similarities as well as some distinctions. The distinctions between regular and summarily trial is stated as under, Regular Trial Subject Matter Summary Trial A trial is the examination of As to definition Summary trial means short a case, civil or criminal, trials avoiding the regular before a judge or Magistrate lengthy procedure. 11 who has jurisdiction over it. Regular trial is complex. As to simplicity Summary trial is simple. Regular trial is full-fledged. As to the length of the Summary trial is short. procedure In regular trial recording of As to the record of evidence In summary trial in case evidence of the witnesses is where no appeal lies where no appeal lies, the must, whether appeal lies or Magistrate or Bench of not. Magistrate need not record the evidence of the witness. In regular trial framing of the As to the framing of the In summary trial, in case charge is must, whether charge where no appeal lies where no appeal lies the appeal lies or not. Magistrate or Bench of Magistrate need not frame the charge. Regular trial is the genus of As to the genus and species Summary trial is the species summary trial. of regular trial. Regular trial can be tried by As to triable by Judge or Summary trial can only be both judge and Magistrate. Magistrate tried by the Magistrate. In regular trial it is As to the recording of the In summary trial cases compulsory to record the evidence recording of the evidence is evidence in full. not necessary, only gist suffices. In regular trial the whole As to the preservation of In summary trial where evidence is to be recorded evidence where appeal lies appeal lies the Magistrate with full opportunity to cross must preserve the original examine and thereafter even notes of evidence so that the 11
Wharton’s Law Lexicon.
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the arguments on both sides ate to be heard by the Magistrate. In regular trial separate record is to be made in each witness’s deposition’s.
appellate or Revisional court may see the error. As to the separate record of the evidence of the witness
In regular trial reasons both for finding and sentencing are to be given by the Magistrate. Regular trial is the formal procedure for trial. Regular trial is the regular procedure of trial system. All types of Magistrate can try regular trial.
As to giving of the reasons for the sentence
Sections 241-249 enunciated the procedures of regular trial. Any kinds of case can be tried in regular trial.
As to the sections postulating the procedure
The limitation of power sentence of imprisonment in regular trial is stated in section 32 of the CrPC, 1898. A Magistrate of 1st class in regular trial can impose imprisonment which may extent to 5 years. The procedure of investing powers to the Bench of Magistrate is stated in sec. 15 and 19 of the CrPC, 1898.
As to the section limiting the power of imprisonment
As to the formality As to the regularity of the procedure As to the triable types of Magistrate
As to the triable offence
As to the extent of imprisonment
As to procedure of investing powers to Bench
In summary trial only substance of the witnesses’ evidence is to be stated generally, not a separate record of each witness is to be kept. In summary trail reasons for the sentence are not to be given. Summary trial is not formal procedure of trial. Summary trial is the special procedure of trial system. Only the specific types of magistrate under sec. 260 of the CrPC, 1898 can try summarily. Sections 260-265 enunciated the procedure relating to summary trial. Only the offences specified in sec. 260 can be the subject matter of summary trial. The limitation of power of sentencing imprisonment in summary trial is enunciated in sec. 262(2). In summary trial the magistrate can only impose imprisonment which may extent to 2 years. The procedure of investing powers to the Bench of Magistrate is summary trail is stated in sec. 161.
Trials before Court of Session Trial in Session Court is more formal and lengthy compared to those in the Court of Magistrate. Unlike in the Magistrate Court there are formal opening, argument and closing of every case in Session Court. The procedure of trials in the Session Court is discussed in chapter XXIII of the Penal Code.
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Trial to be Conducted by the Public Prosecutor (P.P): Under the provision of chapter XXIII of the CrPC, 1898, in every case before a Session Court, the prosecution shall be conducted by the Public Prosecutor (P.P). Definition of P.P is postulate in the Code of Criminal Procedure, 1898 as, “any person appointed under section 492, and includes any person acting under the directions of a Public Prosecutor”.12 So, unlike trial before a Court of Magistrate, in a trial before a Court of Session, the case of the prosecution shall be conducted by the P.P. The duty of P.P is to represent not the police but the State and this duty should be discharged by him fairly and fearlessly and with a full sense of the responsibility that attaches to his position. After framing of the charge, a complaint case becomes a State case and therefore it has to be conducted by the Public Prosecutor.13 So, as long as the P.P leads and guides the advocate for a private party, no objection can be entertained. Case Study: 12 DLR 324-The Superintendent and Remembrance of Legal Affairs, vs. Aminul Huq-Public Prosecutor includes Asst. Public Prosecutor and any other person who conducts a Prosecution under the direction of Public Prosecutor. Opening of the Case: Under the provision of chapter XXIII of the CrPC, 1898, a case is always open by the P.P. At the first hearing the P.P shall open the case by describing the charge and stating the evidence on which the prosecution relies to prove the charge. The prosecutor’s duty is not to secure a conviction but simply to lay the facts of the case before the court. In a criminal trial it is of great importance for the accused to know as to what the exact prosecution case, is in opening the case the Prosecutor can only state all that is proposed or intended to prove so that the Judge may see if there is any discrepancy between the opening statement and the evidence adduced. Case Study: 36 CrLJ 344-Trial before the Sessions Court practically commences when the case is opened by the prosecutor. Accused when to be Discharged: As like the trial before the Magistrate Court, in the trial before the Court of Session the Judge can discharge the accused if he finds no sufficient grounds for proceeding against the accused. There is no scope for examination of any witness, but there is scope for both sides to argue their case in favor of framing charge or discharge. The Judge shall also record reasons of discharge. The Judge is not bound to pronounce a definite judgment on the question whether the accused is guilty or not. Case Study: 63 DLR 156-Md. Lokman vs. State-The accused has no scope to have any shelter under section 265C of the Code since a case has already been disclosed against him. Ref: 31 BLD 60 (AD). Framing of the Charge: The same provisions like the trial in the Magistrate Court, is applicable in the Session Court as regard to framing of the charge. But here as the trial procedure in Session Court is more formal than the trial in the Court of Magistrate, the charge shall frame more formally. The charge-sheet to which 12 13
Sec. 4(1) (t). 1980 Pak. CrLJ 438.
14
the accused is called upon is a very important document. It should be drawn up and considered with extreme care and caution, so that accused may have no doubt whatever as to the offences to which he is called upon to answer and the Judge of the Appellate Court also may have no doubt upon the matter. Case Study: 46 DLR 524-State vs. Auranga@ K. M. Hemayet Uddin-Statements made under sections 164 and 161 CrPC are documents on record within the meaning of section 265D. Plea and Conviction: It has been stated before that a very important feature of the trial procedure is that the chance of admission of truth by the accused. After the framing of the charge the Judge shall ask the accused whether he admits his guilt or not. And if the accused admit his guilt the Judge may convict him according to law. It is upon to the court to accept or not, the plea of guilt. Conviction on a plea of guilty is not sustainable when the facts alleged or proved by the prosecution do not amount to an offence. A plea of guilty should not be accepted in capital sentences. Where an accused person pleads guilty, the court should record his confession and forthwith convict him therein. Fixing Date for Taking of Evidence and Taking and Examining of Evidence: Accused may pleaded guilty or remain silent or may claim to be tried. So, after fixing date for the hearing and taking evidence from the prosecution, the Judge shall take the evidence the prosecution may produce as to support the allegation against the accused. The court may permits the cross examination of any witness. But it is a discretionary power of the court. Case Study: 37 DLR 107-Md. Taheruddin vs. Abul Kashem-After a charge is framed and the accused pleads not guilty to the charge and claims to be tried, the Session Court shall fix a date for the examination of witnesses. The Sessions Judge may, on the application of the prosecution issue any process for compelling the attendance of any witness or the production of any document or other things under section 256F CrPC. Acquittal order by Sessions Judge invalid when such order is passed on the ground of PWs absence on the date of trial. Acquittal: When after taking the evidence, examining the accused, hearing the prosecution and the defense point, if the Judge considers that there is no sufficient evidence against the accused to prove that the accused is guilty, the court shall record an order of acquittal. This provision applies only where there is no evidence, and would not cover cases where the court considers that the charge is itself, improper. Defense, Arguments and Judgment: If the accused does not acquitted under the mentioned provision, he shall enter upon his defense, and shall provide his witnesses or documents (if any), and the prosecution shall sum up his case and the accused or his advocate shall be entitled to reply. After hearing the arguments and points of law the Judge shall give his judgment.
15
Distinction between Discharge and Acquittal: Both the terms discharge and acquittal has been used in the trial procedure of the Magistrate and Session Court. Both the terms are distinct from each other. The distinctions between the two are as under, Discharge Subject Matter Acquittal Discharge means to relieve As to definition Acquittal means the legal and an accused person from formal certification of the allegation and to release him innocence of a person who from custody for not prove has been charged with a the allegation through crime. evidence after investigation or inquiry. Discharge occurs before the As to taking place Acquittal occurs at time of start of actual trial. the actual trial. An order of discharge is not As regard to judgment An order of acquittal is judgment judgment. A man who is discharged As regard to charge again A man who has been may again be charged with acquitted cannot be put on the same offence. trial again for the offence of which he has been acquitted. An order of discharge is not As to final order An acquittal is always final. final order. It leaves the matter at large for all purpose of judicial inquiry. Sec. 241A of the Trial in the As to the section postulating Sec. 245 of the Trial in the Magistrate Court and sec. the procedure Magistrate Court and sec. 265C of the Trial in the 265H of the Trial in the Session Court enunciated the Session Court discuss about provisions as regard to the provisions as regard to discharge. acquittal.
16
Time for Disposal of Cases Time for disposal of case is a very important feature of the CrPC, 1898. Time is very important fact in any case, especially if it is a criminal case. Speedy trial is very effective in criminal case. A case which has been hanging for long period cannot bring justice; in fact it will hamper the system of regular trial procedure and even bring injustice, because killing of time in trial procedure can sometime even hide the proper evidence. So, in case of criminal case speedy trial is desirable under the Code of Criminal Procedure. Time for Disposal of Case: The provision as regard to the time of disposal of time is enunciated in chapter XXIV of the CrPC, 1898. The provision of the chapter limited the time for the trial procedure. According to law, criminal action must be commenced within the period of limitation. According to the chapter the time for disposal of case is, $ In case of Trial before Court of Magistrate: According to the provision of chapter XXIV of the CrPC, 1898, a criminal case in the Court of Magistrate shall be concluded within one hundred and eighty days from the date on which the case is received by the Magistrate for trial14. $ In case of Trial before Court of Session: It is postulated in Chapter XXIV of the CrPC, 1898, a criminal case conducted before the Session Court by the,
7 7 7
Session Judge; Additional Session Judge; or
Assistant Session Judge Shall be concluded within three hundred and sixty days from the date on which the case is received by mentioned Judges for trial. It shall be noted that, transfer of case does not expand the time of disposal of case. On the other hand, it shall also be noted that, the limitation of time as regard to trial procedure under this chapter is not applicable to any offences relating to belonging to any gang of dacoits or thieves. If the accused is released in bail the days spent on account of the absence of him is not counted. If a trial cannot be concluded within the time specified under these provisions, the accused if charged under a non-bailable offence may be released on bail, to the satisfaction of the court. If the court does not grant the bail, the reasons for doing so shall be so recorded in writing. Case Study: 48 DLR 6 (AD)-Abdul Wadud vs. State-The whole purpose of unamended section 339C was to whip up the prosecution and activise the trial Court so as not to delay the trial of a case unnecessarily. 47 DLR 24-Abdul Motaleb Shaque vs. State-Non-working days of a particular judge for reasons beyond his control like unsuitable working condition in the Court room should be excluded while computing the working days. The days on which the case was adjourned due to default of the
14
Sec. 139C (1).
17
accused should not be considered as working days, otherwise it will be easy for the accused to stretch the trial beyond the statutory period. 45 DLR 610-Abu Sufian vs. The State-Provisions of this section is not merely a procedural law. It is a law vesting the accused with a right which could not be taken away by a subsequent amendment of the law. [Ref: 19 DLR 242 (SC); 20 DLR 315 (SC) 38 DLR 240 (AD)]. 17 BLD 35 (AD)-Master Giasuddin and others vs. The State-It required the trial Court to conclude trial within the statutory period from the date the case was received by it and not from the date of framing of the charge. [2 BLC (AD) 87].
18
Appeal The word “appeal” means the right of carrying a particular case from an inferior to a particular case from an inferior to a superior court with a view to ascertaining whether the judgment is sustainable. An appeal is a creature of law and there is no inherent right of appeal.15 An appeal is a continuation of the trial of the lower court.16 In law, an appeal is a process for requesting a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and interpreting law.17 Although appellate courts have existed for thousands of years, common law countries did not incorporate an affirmative right to appeal into their jurisprudence until the nineteenth century. The right of appeal is another important feature of the Code of Criminal Procedure, 1898. The Code has ensured the right of appeal by providing provisions of appeal in Chapter XXXI of the Code. The chapter has provided the right of appeal and other to which court the appeal shall lie and other necessary provisions as regard to appeal. Some necessary provisions as regard to appeal which are provided under this Code are discussed briefly as under. Appeal is not an Inherent Right: Though appeal is said to be a right but is not an inherent right as it is provide in the Code of Criminal Procedure that appeal cannot lie from any judgment or order of the court unless the right of appeal is ensured by the Code. On the other hand the right of appeal is created by the state so it is not an inherent right. That is why it is called that appeal is a creature of law. So appeal does not lie as a matter of course being merely a creature of law. Case Study: 10 DLR 123-Hari Meah vs. The State-Appeal does not lie as a matter of course, being merely a creature of law. The provisions of section 8 of Food Act, 1956 do not confer a right of appeal. Previous state of law cannot be taken into account. A Special Magistrate under the Act is not a Magistrate under the CrPC and his orders are not appealable. 5 DLR 161 (FC)-S. M. K. Alvi vs. The Crown-Appeal by Government under Chapter XXXI against acquittal by a Special Judge acting under Criminal Law Amendment Act, 1948 is competent. Special Judge’s Court is a “Criminal Court” within the meaning of section 404 CrPC. Appeal is the Continuation of the Trial of the Lower Court: Appeal is the continuation process of the trial of the lower court. In case of right of revision, when there is right of appeal under the CrPC, 1898, as regard to any case, and the party failed to brought an appeal, there shall be no right of appeal18 the right of revision will be extinct, because as appeal is a continues process of the trial, it is not possible to break the chain of processes and jump to another process.
15
AIR 1941 Lah. 414). 37 Mad 119. 17 Keenan D. Kmiec, The Origin & Current Meanings of Judicial Activism, 92 Cal. L. Rev. 1441, 1442. 18 Sec. 439 (5). 16
19
Where Appeal Lies to Which Court: Appeal as a creature of law does not lie in every court. The Code has enunciated the procedure as regard to which court appeal shall lie. Appeal lies to which court is postulated as under, $ Appeal against an order rejecting for the delivery of property or the proceeds of the sale under section 89 will lie to the court to which appeals ordinarily lie from the sentence of the former court. $ Appeal against an order requiring security for keeping the peace or for good behavior by a Magistrate will lie to the Court of Sessions. $ Appeal against an order refusing to accept or rejecting a surety under section 122, if made by, the Chief Metropolitan Magistrate to the Court of Session; the Chief Judicial Magistrate to the Court of Session; the District Magistrate to the Court of Session; the Metropolitan Magistrate other than CMM, to the CMM; any other Magistrate whether Executive or Judicial to the District Magistrate or to the Chief Judicial Magistrate. $ Appeal from sentence of Magistrate of the second and third class will lie to the Chief Judicial Magistrate. $ Appeal from sentence of Joint Session Judge or Metropolitan Magistrate or any Judicial Magistrate of the first class will lie to the Court of Session $ Appeal against sentence of imprisonment for a term exceeding 5 years or any sentence of transportation will lie to the High Court Division. $ Appeal against conviction for sedition under section 124A of the Penal Code by Magistrate shall lie to the High Court Division. $ Appeal from sentence of Court of Session or Additional Session will lie to the High Court Division. Where Appeal does not Lie: As appeal is not an inherent right, so it is clear that appeal cannot lie in every order or Judgment of the Court. The code has mentioned certain matter on which appeal shall not lie. This are postulated as under,
7
19 20
No Appeal in certain Cases when Accused Pleaded Guilty: The right of appeal under the provision, when accused pleaded guilty, is limited to such matter as may be a special ground of complain with respect to the sentence, whether on the ground that the sentence is beyond what the circumstances of the case required, or that the sentence is illegal or not authorized by law. But where no sentence was passed the right of appeal is absolutely barred.19 The plea of guilty is regarded as a waiver of the right to appeal except as to the severity or legality of the sentence. The principle is sound. Where the facts alleged by the prosecution do not amount to an offence, the plea of guilty of an accused person cannot stand in the way of his acquittal and this section cannot bar an appeal from his conviction.20 Under the provision of the Code, persons who plead guilty can only appeal on the ground of, Extent; and legality of sentence.
18 CrLJ 401. AIR 1965 MP 137.
20
They are entitled to satisfy the court that there was in fact no plea of guilty. A plea obtained by trickery is not a plea of guilty within the meaning of the Code and would not preclude from asking for any relief except reduction of sentences.21 This provision does not apply to a conviction by Magistrate of the second and third class.22 Case Study: 22 DLR 217-District Council, Kushtia vs. Abdul Gani-Accused can be convicted on his pleading guilty, but such conviction is not proper without materials on record to support it [Ref: 5 BCR 265 (AD)]. 58 DLR 393-Sheikh Mujibur Rahman Razibulla vs. State (Criminal)-An accused person who pleads guilty and is convicted has no right of appeal except as to the extent or legality of the sentence. Where the facts alleged by the prosecution do not amount to an offence, the plea of guilty of an accused cannot stand in the way of his acquittal and section 412 of the Code cannot bar an appeal from his conviction.
7
21
No Appeal in Petty Cases: The provision of this Code also takes away the right of appeal in certain petty cases. Under the provision of the Code, no appeal can be laid by a convicted person, $ in case where, a Court of Session passes a sentence of imprisonment one exceeding one month; or $ in case where, O a Court of Session; or O Chief Judicial Magistrate; O Metropolitan Magistrate; or O other Magistrate of the first class passes a sentence of fine not exceeding fifty taka only The Code also takes away the right of appeal in default of payment of fine where no substantive sentence of imprisonment has also been passed. Once a sentence exceeding the limits prescribed by the provision is passed an appeal will lie, as of right, whether the sentence was legal or not. Two conditions must exist in order to make the provision applicable to the Magistrates, $ the sentence must be of fine only; and $ the amount of fine imposed on the convicted person must not exceed taka fifty. If the sentence is not of fine only in the sense that besides fine, some other kind of punishment also is inflicted, this section does not apply.23 In the case of Court of Session, fine may be combined with imprisonment, hence, two conditions are to be satisfied for the application of the provision, namely, $ the sentence is not the one exceeding the prescribed limit; and $ it is passed by a court specified in the provision.24
AIR 1944 Cal. 120. Ref AIR 1943 Pat. 380. 23 AIR 1954 All 642. 24 AIR 1947 Cal 394. 22
21
7
No Appeal from Certain Summary Conviction: According to the provision of the Code, any appeal can be laid in case of certain summary cases. There is two conditions as regard to this provision, namely, $ it must be a summarily triable case; and $ the sentence passes by the Magistrate must not exceed two hundred taka. But if the fine exceed the said amount, it will be appealable.
Special Right of Appeal: The Code recognizes the right of appeal on behalf of an accused person against whom a nonappealable sentence is passed in trial in which an appealable judgment is passed against any of the accused persons.25 The only condition is that, more than one person must be convicted in one trial. Provision of Second Appeal: Unlike the Civil appeal, there is no provision of second appeal or leave to appeal in criminal appeal. The judgment and order of an appellate court shall be final except on two cases: $ Appeal in case of acquittal; and $ Appeal against inadequacy of sentence. But, the only condition is that, the appeal must be filed by the Government. That means, only the Government can file a petition of second appeal in any criminal case. Appeal in Case of Acquittal: In case where the accused has been acquitted, the Government or the complainant can file an appeal against such order of acquittal. $ The Government may direct the public prosecutor to present an appeal, To the High Court Division—an original or appellate order of acquittal—passed by any Court of Sessions. To the Court of Sessions—an original or appellate order of acquittal—passed by the any Magistrate. $ If the case is a complainant case, the complainant may present an appeal, but the only condition is that there must an error of law occasioning failure of justice. In case of such appeal the complainant may present an appeal, To the High Court Division—an original order of acquittal—passed by any Court of Sessions. To the Court of Sessions—an original order of acquittal—passed by any Magistrate. If the appeal against an acquittal is refused there shall be no appeal from that order of acquittal. Case Study: 42 DLR 12 (AD)-Mostoshir Ali vs. Arman Ali-State filed a leave petition against the order of acquittal by the High Court Division which was dismissed after hearing-Subsequently the informant filed another leave petition. It was held that, there is no scope for hearing the second petition at the instance of the informant. [Ref: 42 DLR 13]
25
AIR 1935 Mad, 157.
22
40 DLR 286 (AD)-Mafizuddin vs. The State-A finding of acquittal can be converted into conviction only in an appeal under section 417 CrPC which being in accord with section 423 CrPC is the correct view. [Ref: 27 DLR 652, 21 DLR 206 (SC), 8 PLD 139 Kar] 55 DLR 568-Dilruba Aktar vs. AHM Mohsin-An appeal from acquittal, the appellate Court in exercise of its appellate authority is not entitled to interfere with the decisions unless those suffer from manifest illegality, legal infirmity and perversity rendering a positive miscarriage of justice. Limitation of Appeal against Acquittal: There are certain limitation as regard to the appeal against acquittal. These are, $ The period for filling an appeal by the Government under this Code is six months as prescribed by Act 157 of the Limitation Act. $ The period of limitation of file an appeal is sixty days if it is presented by a complainant under the provision of the Code. Appeal Against Inadequacy of Sentence: If in any case, it seems that, the sentence passed by any Court as regard to any convicted person is not sufficient punishment, the Government or the in case of complaint case the complainant can file an appeal against such inadequacy of sentence. The Government may direct the P.P to present an appeal against the sentence on the grounds of inadequacy from any court to the High Court Division. A complainant may present an appeal in case of conviction against the sentence on the grounds of inadequacy to the appellate Court. The appellate Court shall not enhance any sentence without giving opportunity to the accused to hear and showing causes against such enhancement, and the accused may also show causes or may plead for his acquittal or reduction of punishment. The limitation of such appeal is sixty days from the date of conviction. Case Study: 44 DLR 594-Abdul Aziz vs. The State-Appeal by informant-Competence-The contention that an appeal at the instance of an informant from an inadequate sentence lies under section 417A has no substance. [Ref: 8 PLD 517 Lah] Appeal in What Matters Admissible? Under the provision of the Code of Criminal Procedure, appeal is admissible on a matter of fact as well as matter of law. Procedure of Appeal: The Code has described the procedure of file an appeal and the procedure of hearing an appeal. These procedure under this code are enunciated as under, O Petition of Appeal: The Code has postulated that, every appeal must be made in the form of petition in writing. It must be presented by the appellant or his advocate. The petition of appeal must accompanied by a copy of the judgment or order appeal against, unless otherwise directed. O Procedure when the Appellant is in Jail: If the appellant is in jail, he can also file an appeal under this Code. The appellant can present his appeal petition with the copy of the judgment
23
O
O
O
O
O
O
O
or order appeal against, to the officer in charge and such officer shall forward such petition to the proper Appellate Court. Summary Dismissal of Appeal: After perusing the petition of appeal, the appellate Court has power to dismiss the appeal summarily, if it consider that there is no sufficient ground to interfere. But the appellate Court cannot dismiss the appeal petition without giving the appellant or his advocate, a reasonable opportunity to being heard. Before dismissing the court may call for the record of the case. But the court is not bound to do it. It is a descritionary power of the Court. Notice of Appeal: If the appeal dismiss summarily, then the appellate Court shall send notice to the appellant or his advocate and such office as the Government may appoint in this behalf about the time and place where such appeal will be heard. The appellate court shall send a notice to the accused too. Powers of the Appellate Court in Disposing of Appeal: After sending the notice of the appeal the Appellate Court will send for the record of the case. After perusing such record, if the appellate Court thinks that there is no sufficient ground to interfere, the appellate Court can dismiss the appeal. The appellate Court can reverse the order appealed against and order for further inquiry or order for retrial, reverse the nature the of the sentence or finding, etc. Other Procedures as regard to Appeal: The appellate Court can order the appearance of the accused and the appellate Court can suspend the sentence as long as the appeal is pending and order that the appellant shall release on bail. In case of appeal against acquittal, the appellate court may order the arrest of the accused and commit him to prison until the disposal of the appeal. The appellate court can take further evidence or order any other lower court or Magistrate to take the evidence. Procedure where Judges of Court of Appeal are Equally Divided: In case of bench, sometime the Judges can divide in equal opinion as regard to the decision of the appeal. In this case, their opinions shall be presented before another Judge of the same Court, and such Judge after hearing, shall deliver opinion as he thinks fit, and such opinion in this regard shall be final. Finality of Orders on Appeal: The decision delivered by the Appellate Court as regard to any appeal is final, except in two cases, namely, appeal against an order of acquittal file by the Government; and Appeal against an order of inadequacy of sentence file by the Government. Abatement of Appeal: Everything has an end. So does the appeal. Every appeal against an order of acquittal and inadequacy of sentence will finally abate on the death of the accused, and every other appeal (except an appeal from a sentence of fine) will finally abate on the death of the appellant.
Powers of the Appellate Court: The Code of Criminal Procedure has given certain powers to the Appellate Court, in disposing of an appeal. This power of an appellate criminal Court is the same whether the appeal is on law only or both on law and fact.26 Various aspect of this power is described as below: O Power of Dismissal: After sending the notice of the appeal the Appellate Court will send for the record of the case. After perusing such record, if the appellate Court thinks that there is no sufficient ground to interfere, the appellate Court can dismiss the appeal.
26
40 CWN 692 PC.
24
O Power in an Appeal from an Order of Acquittal: The appellate court, in case of an appeal from a sentence of acquittal, may, $ reverse such order; or $ direct to make further inquiry; or $ sent for trial; or $ find him guilty and passes sentence in accordance with law. O Power in an Appeal from Conviction: The Appellate Court may, in an appeal from a conviction, $ reverse the sentence and, acquit; or discharge the accused; or $ sent the accused to be retried by a court competent to the jurisdiction and subordinate to such appellate court; or $ sent for retrial; or $ alter the findings maintaining the sentence; $ with or without altering the finding, reduce the sentence; or $ with or without altering the finding or with or without reducing such sentence alter the nature of the sentence but shall enhance the sentence. O Power in an Appeal for Enhancement of Sentence: The appellate court may, in an appeal for enhancement of sentence, $ reverse the finding and sentence; or $ acquit or discharge the accused; or $ order him to be retried in a court competent to try it; or $ alter the finding maintaining the sentence; or $ with or without altering the finding alter the nature or extent or nature and extent or the sentence so as to enhance or reduce the same; $ however, the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement; $ a further condition in enhancing sentence is that the appellate court shall not inflict greater punishment for the offence which in its opinion the accused for that offence by the Court passing the order of sentence under appeal. O Power in an Appeal from any other Order: The appellate Court may, in an appeal from any other order, $ alter or reverse such order; $ make any amendment or any consequential or incidental order that may be just or proper. Time for Disposal of Appeal: The Code of Criminal Code, 1898, has limited the time limit for the disposal of an appeal. According to the Code an Appellate Court shall dispose of an appeal filed before it within ninety days from the date of service of notice upon respondents.
25
Criminal Revision Revision is a purely discretionary remedy granted by a higher court with a view to correcting miscarriage of justice. This is a kind of supervisory jurisdiction exercised by the superior courts over inferior courts. Conditions of Criminal Revision: There are certain conditions as regard to the criminal revision, which are postulated in the Code of Criminal Procedure. These conditions are,
$
$ $ $ $
where an appeal lies but no appeal is brought, no proceedings by way of revision shall entertained. Thus, application for revision may be made against a non-appealable order straightway. However, where an order is appealable, application for revision will not until the appeal is heard and decided; the decision against which revision is sought must be of an inferior criminal court; in deciding the case the inferior court appears to have committed any error of law resulting in an error in the decision occasioning failure of justice or resulting miscarriage of justice; application for revision may be made either in the Sessions Court or in the High Court Division. A court having power of revision shall dispose of a proceeding in revision within ninety days from the date of service of notice upon the parties.
High Court Divisions Revisional Power: The Code of Criminal Procedure has enunciated that, the High Court Division shall have power to dispose an application of revision. In exercising the Revisional power the High Court Division has the same power of the Appellate Court.
$
Source of Revisional Power of the High Court Division & Sessions Court: The Code has enunciated that, the High Court Division may be activated for Revisional power from any of the following sources, the of the case has been called for by the High Court Division suo motu; or on the application by the parties; the case has come to its knowledge by any other sources.
Extent of the Revisional Power:
$ $ $ $
The High Court Division or Sessions Court can examine the correctness, legality or propriety of any finding, sentence or order passed by any inferior courts. It can examine the regularity of any proceedings of inferior courts. When calling for record it may direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. In Revisional jurisdiction the High Court Division or Sessions Court may exercise all or any of the powers of an appellate court. Thus the High Court Division may reverse and order of
26
$ $
$ $
inferior court, direct that further inquiry be made, or that the accused be retried or sent for trial, enhance the sentence etc. No order under revision shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence. Where the sentence dealt with under this section has been passed by a Magistrate the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed than might have been inflicted for such offence by a Metropolitan Magistrate or a Magistrate of the first class. By way of revision power the High Court Division or Sessions Court cannot convert a finding of acquittal into one of conviction. By way of revision power the High Court Division cannot entertain any proceedings in revision with respect to an order made by the Sessions Judge. Thus a second revision is not possible.
Procedure when Judges are Equally Divided: When the Judges composing the Court of Revision are equally divided in opinion, in such case, their opinions shall be presented before another Judge of the same Court, and such Judge after hearing, shall deliver opinion as he thinks fit, and such opinion in this regard shall be final. Distinctions between Appeal & Revision: There are certain discharge between appeal revisions though both are part of the criminal procedure. Distinctions between appeal and revision are enunciated as below: Appeal Subject Matter Revision It means an application or As to definition It means to revise a judgment or petition filed to the superior order, passed by any court against the judgment subordinate court when there is passed by the subordinate court an error occasioning failure of on the grounds of mistake of justice. law or mistake of fact to ascertain whether the judgment shall sustain or not. Sections 404 to 431 deal with As to the sections dealing with Sections 439 to 439A deal with the provisions of appeal. the provisions the provisions of revision/ It can be claimed as a matter of As regard to right It is a discretionary power of the right. superior Court. nd Second appeal is allowed in As regard to 2 appeal or There is no provision as to certain specified ground. revision second appeal, in the Code of Criminal Procedure. When there is provision of No appeal no revision Where there is provision of appeal one must file it within appeal but one fails to file it the stipulated time. within the specific period, he cannot file a revision. Appeal is considered as the As regard to continuation of It is a different procedure. continuation of procedure. procedure Appeal can never be suo motu. As regard to suo motu The Revisional jurisdiction may The aggrieved party must have be exercised by the court suo to invoke appellate jurisdiction. motu. The subject matter of appeal Subject matter The subject matter of revision can be both matter of fact and can only be matter of law. matter of law.
27
It has similar jurisdiction as a court of original jurisdiction and it can reverse, alter, and modify any judgment. The District Magistrate, CMM, Sessions Judge or HCD have the jurisdiction. After the fulfilment of conditions of an appeal the appellate court cannot reject the appeal. In case of appeal, the appellant is heard. The courts have extensive powers of interference in criminal appeals. There is only one procedure involved in appeal.
As regard to judgment
As regard to court having jurisdiction As regard to rejection
As to the hearing As regard to power
As to the procedure
It has similar jurisdiction as a court of appeal but it cannot convert an acquittal into conviction. Only the HCD and the Sessions Court has the jurisdiction. Revision being purely discretionary remedy, the HCD may not interfere after the fulfillment of all the conditions of revision. In case of revision the hearing of appellant is not necessary. The power of courts is very limited in revision. There are two procedures involved in case of revision, i.e., preliminary and final.
28
Bail The concept of bail emerges from the conflict between the ‘police power’ and to restrict the liberty of a man who is alleged to have committed a crime and the presumption of innocence in his favor. ‘Bail’ is derived from the old French verb ‘baillier’ meaning to ‘give or deliver’. Bail in English common law is the freeing or setting at liberty a person arrested or imprisoned on security or on surety being taken for his appearance on certain day and placed 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. The basic concept of the word bail is release of a person from the custody of police and delivery into the hands of sureties, who undertake to produce him in court whenever required to do so. The provisions of bail is postulated in chapter XXXIX of the Code of Criminal Procedure. Objects or purposes Bail: The objects of keeping an accused person in detention prior to, or during the trial is not punishment but,
$ $
to prevent repetition of offence with which he is charged; and to secure his attendance at the trial.
However, every criminal proceedings is based on a prima facie assumption of guilt and again there is a presumption of innocence in favor of the accused. Bail serves the purpose of presumption of innocence. And at the same time, the conditions of bail like appearance in the court on fixed date and time serves the purpose prima facie assumption of guilt against the accused. There are various purposes of bail, namely,
$ $ $ $
Appearance before a court. For presenting appeal. For pending reference or revision. For the purpose of giving evidence etc.
Categories of Bail: There are certain categories of bail under the Code of Criminal Procedure, 1898. These categories of bail are postulated as under,
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Bail during inquiry and investigation: Bail by the Police. Bail by the Magistrate or Court. Bail after investigation but before conviction: Bail by the Magistrate or the Court. Bail after conviction: Bail pending appeal. Bail pending revision. Bail in bailable offence.
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Bail in non-bailable offence. Anticipatory bail.
Conditions for Granting Bail: There are certain conditions for granting a bail, under the Code of Criminal Procedure, 1898. These conditions are,
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appear at all times required until full and final disposition of the case; obey all further orders of the bail authority; give written notice to the bail authority if any change of address within 48 hours of the date of the change; not to interfere with the witnesses or other activities of the course of justice in relation this case; refrain from committing any further criminal conduct against the victim.
Grounds for Refusal of Bail: There are certain grounds when the petition of bail can be refused under the Code of Criminal Procedure, 1898. These grounds are,
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Where the person arrested and charged with murder or attempt to murder, bail should not be allowed (Naranji Premij 29cr LJ 901) Where it presumed that, the accused person punished with long term imprisonment should not release by bail. Where the person arrested of non-bailable offence should not release by bail (Bashiram 26cr LJ 4). If the court consider that there are reasonable grounds for believing that the accused is guilty (Jamini Mullick 36 Cal 174). Circumstances which disentitle an accused to gat bail. If the arrested person fails to furnishes the required security. The person seeking bail must surrender and appear before the court when the application for bail is being heard, otherwise bail application may be refused [14 DLR (SC) 321].
Right of Bail in Bailable Offence: A bailable offence such kind of offence where bail can be claimed as of right. As soon as it appears that the accused person is prepared to give bail bond, the police officer or the court before whom he offers to give bail as may appear to the officer or the court. Neither the court nor the officer can reject bail where the offence is bailable because the language of the Code is imperative. It is only the High Court Division which has power to order him to be arrested and remanded to custody in bailable offences. In every bailable offence bail is a right and not a favor. Accused of a bailable offence cannot be taken into custody unless the accused is unable or unwilling to offer bail bond or furnish moderate security. Case Study: 41 DLR 291-Abdus Samad vs. The State-To be released on bail a person must be in custody or in some short of confinement, therefore a person to be released on bail need to be in some sort of
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confinement or custody or otherwise it is not understood from what confinement or custody he would be released. 25 DLR 45 (SC)-Chowdhury Muhammad Khan vs. Sanaullah-First Judge of the High Court refused bail. Later on a fresh application for bail was moved before another Judge of the same High Court, who grants bail. Extreme impropriety that results from such a course. [Ref: 12 BLD 507]. Right of Bail in Non-Bailable Offence: When a person is arrested for a non-bailable offence and is brought before the court, the court may release him on bail. But unlike the bailable offence, the court is not bound to do so. It is just a discretionary power of the Court. Whatsoever, when it appears by the court that, the accused is guilty of an offence punishable with death or transportation of life, he shall not be released. But the court may release the accused in such case if the accused is under sixteen years or any woman or any sick or infirm person. Case Study: 53 DLR 43 (AD)-Section 497 of the CrPC is a procedural law and the accused having alleged to have committed a substantive offence of murder his liberty is entailed. Anticipatory Bail: When a person granted bail in apprehension of arrest, this is called anticipatory bail. This is an extra-ordinary measure and an exception to the general rule of bail. When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court Division or the Court of Sessions for a direction and the court may if it thinks fit, direct that in the event of such arrest, he shall be released on bail. The word anticipatory bail has not used in the Code of Criminal Procedure, 1898, though it has a common practice in our country. What are to be seen by the Judge before allowing Anticipatory Bail: In the case, The State Vs. Md. Monirul Islam alias Nirab and others, 19 BLT (AD) 144; 16 MLR (AD) 301; 16 BLC (AD) 53; 8 ADC 620, the Supreme Court has laid down certain conditions for the granting of anticipatory bail.
Held: The learned Judges ought to be satisfied before allowing anticipatory bail, ad interim or otherwise as under: i. ii. iii. iv. v. vi. vii.
the allegation is vague; no material is on record to substantiate the allegations; there is no reasonable apprehension that the witnesses may be tempered with; the apprehension of the applicant that he will be unnecessarily harassed, appears to be justified before the Court, on the materials on record; must satisfy the criteria for granting bail under section 497 of the Code; the allegations are made for collateral purpose but not for securing justice for the victim; there is a compelling circumstance for granting such bail.
Cancellation of Bail: When bail is granted in case of a non-bailable offence, the court granting the bail or the High Court Division or the Courts of Session may pass an order to arrest the person who was earlier released on bail and may commit him to custody. Whatsoever, under the following grounds bail may be cancelled:
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where the person on Bail, during the period on bail commit the very same offence for which he is being tried or has been convicted; if fail to surrender himself into custody in answer to their bail; interfere with witnesses or otherwise obstruct the course of justice; if he tempers with the evidence; if he hampers the investigation; if he runs away to a foreign country or goes beyond the control of his sureties; if he commit acts of violence in revenge.27
Bachhu Lal cr LJ 1505.
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Inherent Power of the High Court Inherent jurisdiction is a doctrine of English common law that a Superior Court has the jurisdiction to hear any matter that comes before it, unless the statute or rule limits that authority or grants exclusive jurisdiction to some other court or tribunal. In the English case of Bremer Vulkan Shiffbau and Maschinenafabrik vs. South India Shipping Corporation Ltd., Lord Diplock described the courts inherent jurisdiction as a general power to control its own procedure so as to prevent its being used to achieve injustice. The inherent jurisdiction is also given to the High Court Division of ours, in the Code of Criminal Procedure, 1898. The provision of the Code does not give any new power to the Court, it only saves the inherent power which the court possessed before the enactment of the Code. When the High Court Division can Exercise the Power? The Code envisages three circumstances or purposes for which the inherent power may be exercised, namely,
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to give effect to an order under the Code; to prevent abuse of the process of courts; and to otherwise secure the ends of justice.
The inherent power of the High Court Division preserved by the Code is vested in it by law within the meaning of Article 32 of the Constitution of Bangladesh. Case Study: 23 DLR 335-A. T. Mridha vs. State-The inherent jurisdiction of the High Court Division under Section 561A of CrPC is the legislative recognition of the inherent power and this power exists so long the High Court Division exists and this power is available for ancillary and auxiliary purpose for doing justice. Principle of Inherent Power: There are certain principle in regard to the use of inherent power of the High Court Division under the Code. These are,
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the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; it should be used very sparingly, carefully and with caution and in rare case to prevent abuse of process of any court or otherwise to secure the ends of justice; it should not exercise as against the express bat of law engrafted in any other provision of the Code.
In Ram Narayan AIR 1960 All 296, it was held that to seek interference under the provision of inherent power of the High Court, three conditions are to be fulfilled, which are as following,
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the injustice which comes to light should be of grave and not of a trivial character; it should be palpable and clear and not doubtful; and
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there exist no other provision of law by which the party aggrieve could have sought relief.
Instances of Use of Inherent Power of the High Court Division: The extent of power of inherent power of the High Court Division are as following,
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quashing of long-drawn proceeding; quashing of charge; quashing of proceeding in police investigation.
Inherent Power of the Lower Court: The Indian Supreme Court has held in Bindeswari Prasad Singh AIR 1977 SC 2432, that the subordinate courts have no inherent power and the Code of Criminal Procedure, 1898 only conferred this power only to the High Court alone. Distinction between Civil and Criminal Inherent Power: The power conferred by the Code of Criminal Procedure is same as the power conferred by the Code of Civil Procedure Code, 1908. But the only distinction between the two provisions is that, in CPC, 1908 the inherent power has been conferred to all the Court, but in CrPC, 1898 the inherent power is conferred to the High Court Division only.
The End
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Book References 6 6 6 6
The Code of Criminal Procedure, 1898 [Act No. V of 1898], Bare Act Text Book on Code of Criminal Procedure [7th Edition] by MD. Abdul Halim Law and Practice of Criminal Procedure [14th Edition] by Zahirul Huq The Code of Criminal Procedure with Rules and Orders by Justice Siddiqur Rahman Miah
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The Code of Criminal Procedure [3rd Edition] by A. R. M. Borhanuddin The Code of Criminal Procedure: Theory and Practice [1st Edition] by Ahamuduzzaman Trial of Civil Suits and Criminal Cases [2nd Edition] by Justice Mohammad Hamidul Haque
