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RIGHTS OF THE ACCUSED AT ALL TIME–Criminal Law System

Double jeopardy

Double jeopardy is a commonly-known term for the principle that a person shall not be prosecuted and punished for the same offence more than once. This principle is enshrined in the Constitution of Bangladesh as a fundamental right.

s.403(1) of the CrPC defines this right more specifically as a right not to be liable to be tried again for the same offence of which the person has once been convicted or acquitted. The same section further provides that the accused shall not be liable to be tried against for any other offence for which a different charge might have been made under s.236 or s.237. s.236 allows the prosecution to charge the accused with several offences which it thinks the facts can be proved to constitute, while s.237 allows for the possibility of convicting an accused of a different offence than the offence with which he is charged. However, s.403(4) provides that the double jeopardy principle does not apply if the court which originally tried the accused was not competent to try the offence with which he is subsequently charged.

Legality principle

Legality principle prohibits convicting a person of violating a law that was not in force at the time of the commission of the act for which the person was charged. This principle is enshrined in s.35(1) of the Constitution as a fundamental right.

Presumption of innocence

The right to be presumed innocent until proven guilty is guaranteed by Article 14, Section 2 of the Covenant.

Procedure with witnesses

On the application of either the complainant or the accused, the Magistrate taking cognizance of the case may issue a summon to any witness directing him/her to come before the court and produce any document or other evidence.

Once the accused enters upon his defence, he can apply to the Court for an issue of any process for compelling the attendance of any witness or the production of any document or thing.

Capital punishment

Certain criminal offences in the Penal Code of Bangladesh are punishable by death. A Court of Session has power to hand down sentence of death, but the death sentence shall not be executed unless and until it is confirmed by the High Court Division.

When a Court of Session sentences an accused to death, the case is submitted to the High Court Division, who may, pursuant to s.376 of CrPC, confirm the sentence, annul the conviction, or a new trial, or acquit the accused.

Fair Trial Rights

Freedom from prolonged pre-trial detention
s.33 of the Constitution provides a number of safeguards as to arrest and detention. Clause (2) provides that a person under arrest and in custody shall be produced before a magistrate without 24 hours of the arrest (excluding the time spent on the journey from the place of arrest to the court) and shall not be detained beyond the said period without the authority of a magistrate. The same safeguard can also be found in s.61 of the CrPC. However, the foregoing constitutional provision does not apply to two specified classes of persons: enemy aliens at the time of the arrest, s.33(1)(3)(a); persons arrested under any law providing for preventative detention, s.33(1)(3)(b). Concerning the latter class, Clause (4) of Section 33 provides that the period of preventative detention shall not exceed six months unless an Advisory Board finds sufficient cause for prolonged detention after hearing the accused in person.

Right to counsel

As previously discussed, s.33 of the Constitution and s.340(1) of the CrPC both codify the fundamental right to counsel.

Right to habeas corpus

s.491 of the CrPC provides for the right to habeas corpus—that a person detained in public or private custody be brought before the court in order to determine whether he/she is legally or properly detained. If not, the detainee shall be released from custody. The administration of this right is subject to the discretion of the High Court, who “may, whenever it thinks fit, direct” the writ of habeas corpus (s.491(1)). Also, the Clause (3) of the Section provides that the Section does not apply to person detained under any law providing for preventative detention.

Right to notice of charges

This right is provided in Article 14, Section 3 of the Covenant.

Right to a speedy trial

s.35(3) of the Constitution provides that “every person accused of a criminal offence shall have the right to a speedy and public trial.”

Right to independent and impartial court

s.35(3) of the Constitution also provides that the “speedy and public trial” to which every person accused of a criminal offence is entitled shall be “by an independent and impartial Court or tribunal established by law.” The strength of this constitutional guarantee, however, is diminished by Clause (6) of the same section, which provides that Clause (3) shall not affect the operation of any existing law which prescribes any punishment or procedural for trial.

Right to a fair trial

Although the word “fair” does not appear in s.35(3) of the Constitution, it is implicit in the guarantee of the right to a public hearing by an independent and impartial court or tribunal. Moreover, Article 14, Section 1 of the Covenant provides for a right to “a fair and public hearing.”

Right to non self-discrimination

The Constitution guarantees, in s.35(4), that no person accused of any offence shall be compelled to be a witness against himself. s.340(3)(a) of the CrPC provides that an accused shall not be called as a witness except on his own written request. Clause (b) provides that the failure of the accused to give evidence shall not give rise to any presumption against him.

Freedom from punishment

s.35(5) of the Constitution guarantees every person a right not to be subjected to torture or cruel, inhuman, or degrading punishment or treatment. However, the strength of this guarantee is cast in doubt by Clause (6), which immunizes the operation of any existing law which prescribes any punishment or trial procedure from any effect of Clause (5).

Right to appeal

There is no general right to appeal under the CrPC. Rather, Chapter 31 of the CrPC enumerates the types of court orders or judgments that are appealable: –

Order under s.89 rejecting application for restoration of attached property (s.405) – Order under s.118 requiring security for keeping the peace or for good behaviour (s.406) – Order under s.122 refusing to accept or rejecting a surety (s.406A) – Conviction by a Magistrate of the second or third class (s.407). The appeal lies with the Chief Magistrate – Conviction on trial by a Joint Sessions Judge or any Magistrate of the first class (s.408). The appeal generally lies with a Sessions Judge or, in certain cases, with the High Court Division. – Conviction on trial by a Sessions Judge (s.410). The appeal lies with the High Court Division.

Posted from Advocate Shoaibur Rahman Shoaib

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