By Advocate Shoaibur Rahman Shoaib
Every person, aware of the commission of or intention of any person to commit any offence punishable under an enumerated list of sections of the Penal Code, is legally bound, unless a reasonable excuse exists, to report such commission or intention to the nearest Magistrate or police officer
The provision that follows provides that village-headmen,village-accountants, village watchmen, village police officers, and landholders have a legal duty to report any information respecting the presence of a criminal (e.g. thieves, thugs, robbers, escaped convict) in their villages, commission of or intention to commit any criminal offence, or occurrence of death/discovery of a corpse, or any matters likely to affect the peace, order or safety of the community.
Police officers authorized to make an arrest have the power to “actually touch or confine the body of the person to be arrested,” unless that person submits to the custody by word or action. However, s.50 circumscribes this power by providing that “the person arrested shall not be subjected to more restraint than is necessary to prevent his escape.”
A police officer to arrest without a warrant on any of the following grounds:
(1) the person arrested has been concerned in a criminal offence:
(2) a reasonable complaint has been made against him;
(3) credible information has been received of his having been so concerned; and
(4) a reasonable suspicion exists of his having been so concerned
Furthermore, if a police officer knows of a design to commit a criminal offence, he is authorized under s.151 of the Code to arrest, without orders from a Magistrate or a warrant for the purpose of preventing the commission of the offence.
After an arrest has been made without a warrant, s.60 requires the police officer to take the person arrested before a Magistrate having jurisdiction in the case or before the officer in charge of a police station “without unnecessary delay.”
s.61 of the CrPC provides that a person arrested without warrant shall not be detained for a longer period than is reasonable under the circumstances of the case.<s.61, Bangladesh Code of Criminal Procedure. In the absence of a special order issued by a Magistrate under s.167 of the Code, the period of detention shall not exceed 24 hours.
Search of a person under arrest is permitted if:-
The arrest is made with a warrant which does not provide for the taking of bail;
-The arrest is made with a warrant which does provide for the taking of bail but the arrested person is unable to furnish bail;
-The arrest is made without a warrant and the person arrested “cannot legally be admitted to bail;” or
-The arrest is made without a warrant and the person arrested is unable to furnish bail. The police offer making the search will place in safe custody all articles, other than necessary clothing, found upon the person under arrest.
s.165 of CrPC confers power on the police to search a place. The lawful exercise of this power requires three conditions to be met:
(1) the officer conducting the search is authorized to investigate into the offence;
(2) the place must be within the limits of the police-station of which the officer is in charge;
(3) he must have “reasonable grounds” for believing that something necessary for the investigation into the offence may be found in the place, and that this thing “cannot be otherwise obtained without undue delay”.
If these conditions are met, the police officer may record the grounds of his belief in writing and the object of the search, and conduct the search in person if at all possible.
The power of the police to investigate a case may or may not be subject to judicial authorization depending on whether the offence concerned is cognizable. Where the case concerns a non-cognizable offence, a police officer must receive a order of a Magistrate of the first or second class having jurisdiction to try the case or send it for trial before commencing investigation.Where the case concerns a cognizable offence, such an order is unnecessary and the police officer shall proceed to investigate the facts and circumstances of the case, and send a report to a Magistrate who is empowered to take cognizance of the said offence Cognizable offences are described in Chapter III of the Code.
Under s.25 and 26 of the Evidence Act of 1872, no confession made by a person to a police officer, or in police custody, is admissible in evidence. A confession to any person other than a police-officer shall be admissible only if made “in the immediate presence of a Magistrate.” Facts discovered in consequence of information received from an accused while in police custody may be admissible.
s.164 of the CrPC further defines the manners in which the Magistrate is to record confessions made in the course of pre-trial investigation. Before recording such confession, the magistrates must explain to the accused that he is not bound to make such a confession and that if he does so, the confession will be used as evidence against him. Moreover, the magistrate shall not record any such confession if he has reason to believe that the confession was not made voluntarily
Enforcing the rules against illegal interrogation
Unders s.342 of the CrPC, the Court has discretion to put questions to the accused at any stage of any inquiry or trail without prior warning to him. The accused may refuse to answer such questions or answer falsely without being liable to punishment, though the court may draw such inference from such refusal or false answer as it thinks just.
s.364 of the CrPC prescribes the manners in which any Magistrate or any Court other than High Court Division shall examine the accused. Measures, such as reading back and translation, shall be taken to ensure that the record accurately accords with the statements by the accused.
Right to Counsel
s.33(1) of the Constitution guarantees every person “the right to consult and be defended by a legal practitioner of his choice”
Specifically in the criminal law context, a person accused of a criminal offence has a right to be defended by a pleader<s.340(1), Bangladesh Code of Criminal Procedure.
Initial court appearance
A criminal case can be instituted either on a complaint or on a police report. Court proceedings commence when a Magistrate, upon receiving the complaint or the police report, takes cognizance of the said offence. The accused is entitled to have the case tried by another Court, and the Magistrate shall inform the accused of this right before any evidence is taken.
Upon taking cognizance of the offence on complaint, the Magistrate shall immediately examine the complainant on oath, and have the examination reduced to writing and signed by the complainant as well as by the Magistrate.
The procedure for preliminary hearings is set out in Chapter XX of CrPC. After the accused is produced before a Magistrate, if the accused admit having committed the offence, the Magistrate may convict him accordingly if he shows no sufficient cause why he should not be convicted. If the accused makes no such admission of guilt, or if the Magistrate does not convict him under s.243 of CrPC, the Magistrate shall proceed to a preliminary hearing, wherein the complainant and the accused each make submissions and produces evidence. After hearing the submissions and considering the evidentiary record, the Court determines whether there is ground for presuming that the accused has committed an offence (s.242 for trial by Magistrates, s.265C for trial by Courts of Session). If the answer is no, the Court shall discharge the accused. If the answer is yes, the Court shall frame in writing a charge against the accused.
Pursuant to s.260 of CrPC, certain offences may be tried summarily, including offences punishable by imprisonment for a term not exceeding two years, theft where the value of the property stolen does not exceed ten thousand taka, criminal trespass, to name a few. The procedure for a summary trial is the same as that for a preliminary hearing as provided in Chapter XX of CrPC.
The procedure for trials before the Courts of Session is provided in Chapter XXIII of CrPC. Every trial before a Court of Session is to be conducted by a Public Prosecutor. The prosecutor opens his case by describing the charge brought against the accused and adduce evidence in support of the prosecution’s case. The witnesses for the prosecution are then examined. As previously mentioned, the court may examine the accused without prior warning before the accused is allowed to enter into defence. If the accused refuses to answer the questions put to him by the court, the court is allowed to draw adverse inferences.
After hearing the prosecution’s case and examining the accused, the court is to decide whether the accused should be acquitted for lack evidence that the accused committed the offence.If the accused is not acquitted, he or his pleader is then allowed to present his case and call witnesses to the stand to be examined.
After all the witnesses for the defence are examined, the prosecutor sums up his case and the accused or his pleader is entitled to reply. The trial is complete when the court renders a judgment.
When the court has to form an opinion upon a point of foreign law, science or art, or in questions as to identity of handwriting or finger impressions, it can call upon persons specially skilled in such matters, known as experts, to give opinions, and use the same as relevant facts.
Pursuant to s.366 of CrPC, the judgment in every criminal trial must be pronounced either immediately after the termination of the trial or at some subsequent time with notice given to the parties. Whether or not in custody, the accused is required to attend the sentencing hearing, unless his/her personal attendance during the trial has been waived and the sentence is a fine or the judgment is acquittal. Once a court signs its judgment, the same court cannot alter or review the same unless otherwise provided by the CrPC or any other law.
Any death sentence must be submitted to the High Court Division for its confirmation. If the same court thinks it necessary to make further inquiry or take additional evidence, it may so direct the Court of Session.
In non-capital cases, the High Court Division has the power to confirm or annul the conviction and sentence by the Court of Sessions.However, such confirmation cannot be made until the period allowed for filling an appeal has expired, or, if an appeal is filed within such period, until the appeal is disposed of.Where a bench of two or more judges on the High Court Division pass a new sentence or order, the confirmation of the same requires the signatures of at least two judges (s.377 of CrPC). If the judges are equally divided in opinion, their opinions together with the case shall be submitted to another judge, who shall make the final decision.
The Government of Bangladesh retains the power to suspend the execution of a sentence or remit the same in part or whole at any time, with or without conditions.A convicted person may petition the Government for suspension or remission of his/her sentence, in which case the Government may require the judge responsible for passing or confirming the sentence to state his reasons together with his opinion as to the application. This power is distinct from and does not affect the power of the President to grant pardons.
s.418 of CrPC provides that matters of fact as well as matters of law may constitute grounds of appeal. Severity of sentence is considered to be a matter of law. Every appeal shall be presented in the form of a petition and be accompanied by a copy of the judgment or order appealed against. Upon receiving the petition, the appellate court determines, as a threshold issue, whether there is sufficient ground for hearing the appeal. If the answer is no, the court may dismiss the appeal summarily. If the answer is yes, the court causes a notice to be given to the appellant, and also to the respondent along with a copy of the grounds of appeal.