Assignment of Criminal Justice System in BD
Assignment of Criminal Justice System in BD
MUGHAL PERIOD
During the Mughal period the Emperor was considered the fountain of
justice. The Emperor created a separate department of justice with a view to
regulating and observing the proper administration of justice. A systematic
gradation of courts with well-defined powers of the presiding Judges existed
all over the empire. They were as follows:
At Delhi, the capital of the Mughal Empire, three important courts were
established: the Emperors Court, the Chief Court of the empire and the Chief
Revenue Court. The Emperors Court, presided over by the Emperor, was the
highest Court of the empire. The Court had original and appellate
jurisdictions to hear civil and criminal cases. The Chief Court of the
empire,
presided over by the Qazi-ul-Quzat (Chief Justice) who was appointed by the
Emperor, was the second important Court at Delhi, the seat of the Capital.
The Court had the original and appellate jurisdictions to hear civil and
criminal cases. It also supervised the working of the provincial courts. The
Chief Revenue Court, presided over by the Diwan-e-Ala was the third
important Court established at Delhi. It was the highest Court of appeal to
decide revenue cases.
In each Province (Subah) there were three courts, namely, the Governors
Court and the Bench, the Chief Appellate Court and the Chief Revenue Court.
The Governor;s own Court (Adalat-e-Nazim-e-Subah), presided over by the
Governor (Nazim-e-Subah), had original jurisdiction to hear cases arising in
provincial capital. Sometimes the Governor presided over a Bench to hear
original, appellate and revisional cases. The Provincial Chief Appellate Court
was presided over by the Qazie-e-Subah. The Court had ortginal and criminal
jurisdiction.
In each district (Sarkar) there were four courts ,namely, the Chief Civil and
Criminal Court of the district , Faujdari Adalat, Court of Kotwali and
Amalguzari Kachehri.In each parganah there were three courts , Adalat-eparagana ,Court of Kotwali and Kachehri. At the village level the Mughal
retained the ancient system of the panchaets for the settlement of petty
disputes. Aarpanch, the village-headman, was the President of the panchact.
This system of law under the Mughals was effective and worked well for
some centuries. Its disintegrstion started when the control of the Mughal
Emperors over the provinces became less effective. Another cause of this
disintegration was the coming of the English and the infiltration of their legal
system into the country. The acquisition of sovereignty over India was slowly
made by imperceptible steps and the sudden application of a foreign law
was in the highest degree, improbable. But ultimately the English
established their sovereignty over Indian Sub-continent and made an
expansion of the common law in India.
* Mayor of Lyons v. East Indian Co., (1836)1 M.I.A. 175, per Lord
Brougham at p. 277.
BRITISH PERIOD
The condition of law at that period provoked comments and criticisms from
many leading people who put emphasis on the codification of law. The
creation of an All India Legislative Council in 1833 under the Charter Act of
1833 and creation of Law Commissions of 1835,1853,1861, and1879,were
the direct reflections of these comments and criticisms,and the promulgation
of the Indian Penal Code,1860(Act XLV of 1860), marked the beginning of
the period of codification of substantive law.
In 1872 the famous Indian Evidence Act (Act I of 1872) and Indian Contract
AIbid., at p. 551.ct (Act IX of1872 ) were passed. All these Acts were based
on the common law of England and made remarkably few departures from it.
Within a few years a number of Acts were passed which provided the laws
according to the provisions of which administration of justice was
maintained.
HINDU PERIOD
In ancient Bangladesh as well as in India the king was regarded as the
fountain-head of justice. His foremost duty was to protect his subjects. He
was respected as the lord of religion and was entrusted with the supreme
authority of the administration of justice in his kingdom. The kings Court
was the highest Court of appeal. It was also the original Court on the cases of
vital importance to the kingdom.
Next to the King was the Court of the Chief Justice. Apart from the Chief
Justice, the Court consisted of a board of Judges to assist him. In the district
headquarters the courts were presided over by the government officers
under the authority of the King for the administration of justice. In the
villages there existed panchaets (councols) consisted of a board of five or
more members to dispense justice to the villagers. The village panchaets
dealt with simple civil and criminal cases.
In ancient Bangladesh the law which was administered was customary.
Canon law was also recognized. Besides, dicta emanating from religion was
regarded as a major source of law. This system remained operative in the
country with some modifications here and there until the advent of Islam in
Indian Sub-continent
PAKISTAN PERIOD
During the Pakistan period except abolition of the jurisdiction of the Privy
Council and conferment of the same on the federal court established under
the Government of India Act 1935, there was no change in the structure and
constitution of the courts. By an amendment of the Act of 1935 the high
courts were given power to issue writs, but subsequently that amendment
was declared invalid by the federal court. The Constitution of Pakistan 1956
empowered the high courts to issue writs not only to enforce fundamental
rights, but also to declare any action of public authorities to be without lawful
authority and of no legal effect and other remedies.
The supreme court which replaced the federal court was given power to
issue writs to enforce fundamental rights in addition to the power to hear
appeals from the decision of the high courts. The supreme court and the high
courts could also declare null and void any laws which was inconsistent with
the fundamental rights. The laws made during British rule continued with
minor modifications. However, after the promulgation of martial law in 1958,
the Constitution was abrogated. Trial by jury was abolished in June 1959, and
in 1961 conciliation courts were constituted with the chairmen of the union
prishads and representatives of the disputing parties to decide petty civil and
criminal cases. The Constitution of 1962 as amended in 1964 gave power to
the high courts to enforce fundamental rights in addition to power to issue
writs, and the supreme court to hear appeals from the decisions of the high
courts. But the constitution was again abrogated in 1969 after the
promulgation of second martial law.
BANGLADESH PERIOD
After the emergence of Bangladesh in 1971, initially there was no change of
laws and the judicial system. But with the coming into force of the
Constitution of Bangladesh on 16 December 1972, the Supreme Court of
Bangladesh with two divisions, the High Court Division and the Appellate
Division, came into being. As the apex court the high court division has been
vested with the power to hear appeals and revisions from subordinate courts,
and also to issue orders and directives in the nature of writs to enforce
fundamental rights and to grant other reliefs available under the writ
jurisdiction.
The appellate division is vested with power to hear appeals from the
decisions of the high court division or from any other body under any statute.
The high court division has also powers of supervision and control of the
subordinate courts and tribunals. The supreme court is a court of record and
can punish any one for its contempt or contempt of the courts subordinate to
it. The laws declared by the appellate division is binding on the high court
division and law declared by either division is binding on all subordinate
courts. The high court division may declare any law inconsistent with the
fundamental rights as null and void. The President of the republic controls
the judicial officers of the subordinate courts in consultation with the
supreme court.
There are labour courts and labour appellate tribunals to decide labour
disputes, administrative tribunals and administrative appellate tribunal to
decide service disputes of public servants, income tax appellate tribunal to
decide income tax disputes, custom, excise and VAT Appellate tribunal to
decide disputes regarding custom and excise duties and VAT, court of
settlement to decide disputes about abandoned properties, special judges to
try corruption cases against public servants, special tribunals to try criminal
cases under the Special Power Act 1974 and Nari-o-Shishu Nirjatan Daman
Adalats to decide cases of crimes committed against children and women. To
decide election disputes the election tribunals are constituted with judicial
officers. Other tribunals follow the some procedure. Family courts have been
constituted with assistant judges to decide family disputes. To decide money
claims of the banks and other financial institutions Artha Rin Adalats have
been set up presided over by judges, and insolvency courts have been set up
presided over by district or additional district Judges to declare defaulting
borrowers as insolvent. To try offences committed by children below the age
of 16 years, juvenile courts have been formed with the magistrates and
sessions judges, and juvenile courts follow the special procedure laid down in
the childrens Act.
Court martial formed under the provisions of the Army Act, Air Force Act, and
Navy ordinance, tries the offences committed by the members of the armed
forces, and the decision of such a court cannot be challenged in the supreme
court. There are village courts in the rural areas and municipal conciliation
boards in the urban areas to decide petty civil and criminal cases. The land
appeal board is the highest authority to hear revenue appeals from the
decisions of the subordinate land revenue authorities, and the national board
of revenue decides tax, duty, excise and VAT cases at the highest level.
Almost all the substantive laws creating rights and obligations are those
enacted during the British period, and are still in operation with modifications
from time to time. The most important modifications of the Code of Criminal
3. Guilt of the accused must be proved beyond any reasonable doubt. This is
the criminal standard of proof.
4. In criminal proceeding, the basic rule is that the prosecution bears the
legal burden of proving every fact in issue. The burden of proof as to any
particular fact lies on that person who wishes the Court to believe in its
existence.
5. Criminal Justice System consists in the punishment of wrongs. Normally in
a criminal justice, the injured person claims no right, but accuses the
defendant of wrong.
Section 6 of the Cr.P.C provides the following two types of courts1. Court of Sessions and
2. Court of Magistrates.
The Court of Sessions is presided over by the following three types of judges1. Session Judge,
2. Additional Judge,
3. Joint Session Judge.
accused guilty, he shall pass the sentence. Trial in Sessions Court starts with
the opening of the prosecution case. The Public Prosecutor (PP) opens the
case by describing the charge brought against the accused and starting by
what evidence he will prove the guilt of the accused. Then the Session Judge
will give both the sides chance to argue in favour of framing charge or
discharge. After such hearing and considering the record of the case, if the
judge finds no sufficient ground he will discharge the accused. But if the
Judge is of opinion that there is a prima facie case, he will frame a formal
charge. After framing formal charge, if the accused pleads the guilt, he will
be convicted. If the accused does not plead his guilt, the PP will first examine
all prosecution witnesses. Cross examination and re-examination will also be
held accordingly. After considering prosecution evidence and arguments, the
court will pass the order of acquittal or conviction.
Article 35(3) ensures the right to speedy justice as fundamental rights. But
due to some unavoidable circumstances, it is impossible to ensure the right
of speedy disposal of cases. From the analysis of the disposal procedure of
cases, the following causes of delay can be remarked1. Absence of completion of trial of criminal cases within time.
2. Inadequate number of judges.
3. Non attendance of witness at trial.
4. Absence of skilled and experienced regular prosecution.
5. Absence of exclusive criminal courts of session.
6. Absence of regular inspection of the subordinate session court by the
Session judges or
Supreme Court.
References
i. Akhtaruzzaman Md, Conflict Resolution: Introducing ADR in Criminal Justice
Administration in Bangladesh, Journal of 10th Human Rights Summer School
(ELCOP), 2009.
ii. Samad Md. Atickus, A Text Book on ADR & Legal Aid, National Law
Publications, First edition, 2013, p.185.
iii. S.R. Dr. Myneni, Alternative Dispute Resolution, Asia Law House,
Hyderabad, Second edition, 2012, p.10.
iv. S.C. Dr. Tripathi, Alternative Dispute Resolution System (ADR), Central Law
PublicationsAllahabad, First edition, 2012, p.01.
v. Akhtaruzzaman Md, Concept and Laws on Alternative Dispute Resolution
and Legal Aid, Shabdakoli Printers, Fourth edition, 2011, p.09.
xxiv. Huq Zahirul, Law and Practice of Criminal Procedure, Bangladesh law
Book Company, Dhaka, 2003.
xxv. Akhtaruzzaman Md, Conflict Resolution: Introducing ADR in Criminal
Justice Administration in Bangladesh, Journal of 10th Human Rights Summer
School (ELCOP), 2009.
xxvi. Halim Md. Abdul, ADR in Bangladesh : Issues and Challenges, CCB
Foundation, Second edition,2011,p.194.
xxvii. Akhtaruzzaman Md, Concept and Laws on Alternative Dispute
Resolution and Legal Aid, Shabdakoli Printers, Fourth edition, 2011, p.173.
xxviii. Akhtaruzzaman Md. 2011, p.203.
xxix. Rediff O & A, Meaning of Compounding Offences
xxx. Section 345(3) of the Cr.P.C, 1898.
xxxi. Section 345(4) of the Cr.P.C, 1898.
xxxii. Section 345(5) of the Cr.P.C, 1898.
xxxiii. Section 345(5A) of the Cr.P.C, 1898.
xxxiv. Section 345(7) of the Cr.P.C, 1898.
xxxv. Akhtaruzzaman Md, Conflict Resolution: Introducing ADR in Criminal
Justice Administration inBangladesh, Journal of 10th Human Rights Summer
School (ELCOP), 2009.
Special Thanks to
1. Dr. Md. Emran Parvez Khan, Chairman, Department of Law, Z. H. Sikder
University of Science & Technology.
2. Md. Abdul Karim, lecturer, Department of LAW, Z. H. Sikder University of
Science & Technology.