Judicial Proceedings in Bangladesh
CHAPTER-1
1. INTRODUCTION
Judicial proceeding, be it criminal or civil, means the way or form in which a legal action is brought or defended in a court of law. It largely encompasses the whole process of beginning to end of litigation. Judicial proceedings refer to any proceedings that take place in a court of law in which a judge presides. The proceedings can be either criminal or civil. The judge need not even be the one making the final decision on the case in order for proceedings to be considered judicial proceedings, as long as the action is occurring in a court room where the judge has authority.
Civil litigation is also considered a form of judicial proceeding. Unlike criminal law, the state is not involved in bringing a civil lawsuit. An individual who was wronged by another individual, corporation or legal entity, brings the lawsuit in civil cases. The defendant is summoned to court after a plaintiff sues and the trial is heard in front of a judge. Again, the judge may not be the one to make the decision on whether the defendant is guilty or not, as a jury trial is common in civil litigation as well.
2. Nature of Civil Proceeding
2.1 Adversarial Process: The civil litigation process in Bangladesh is, essentially, adversarial or accusatorial in nature meaning that the whole process is a contest between two parties. As regards civil litigation, these two parties are the plaintiff on the one hand and the defendant on the other hand. In the process court takes a non-partisan role; court plays no significant role in preparation of a case; the trial itself is not an inquiry into events but rather a hearing to decide within a complex set of rules, whether the plaintiff is entitled to the right which the defendant denies.
2.2 Balance of Probabilities: As opposed to criminal standard of proof (beyond reasonable doubt), in civil litigation the standard of proof is balance of probabilities, i.e., more probably true than false. Thus if the plaintiff can establish a prima facie case before the court in favour of his claim and the other party does not adduce any evidence in his defence, the judge should find for the plaintiff. Making a prima facie case (more than 50% truth) is enough for the plaintiff and this is civil standard of proof. On the other hand, if the plaintiff fails to raise a prima facie case in relation to his claim, a defence submission of ‘no case to answer’ is likely to be successful.
2.3 The expression ‘civil proceeding’ covers all proceedings in which a party asserts civil rights conferred by a civil law. Civil justice consists in the enforcement of civil rights while criminal justice consists in the punishment of wrongs-doers. In a civil proceeding the affected person claims a right which has been denied by the defendant. He is thus a claimant for redress and the court makes an attempt to constrain the defendant to perform a duty or to respect a right.
2.4. All civil proceedings in Bangladesh are regulated under the Code of Civil Procedure Code 1898 unless otherwise excluded.
2.5. Generally three types of laws are involved in a civil proceeding: the CPC, the CRO (Civil Rules and Orders) and Civil Suits Instruction Manual.
3. Stages in a Civil Proceeding:
The stages may be divided into four periods:
(1) Pre-Proceeding Stage;
(2) Proceeding Stage;
(3) Trial Stage;
(4) Judgment, and
(5) Enforcement and execution
3.1Pre-Proceeding Stage
This is the initial stage of conciliation and mediation with a view to resolving the dispute amicably between the parties. However, unlike the system in the UK there are no statutory provisions for mediation in civil proceedings as a pre-proceeding step. The only available mandatory mediation process is in the family matters under the Muslim Family Law Ordinance 1961 and the Family Court Ordinance, 1985. As per section 10 of the Family Court Ordinance, 1985 after filing the written statement, the court is to fix a date within 30 days for a pre-trial hearing. On that date the court after examination of the plaint and written statement shall ascertain the issues and attempt to effect a compromise or reconciliation between the parties, if possible. Apart from reconciliation proceeding under the Family Court Ordinance there has, however, been a recent change in the CPC adding the provision of ADR in all civil cases which has been discussed in this chapter. However, this is also not a pre-proceeding step.
3.2The Proceeding Stage
3.2.1. Institution of Suit/ Issue of Plaint: According to section C26Jof the CPC every suit shall be instituted by the presentation of a plaint. Once the plaint is ready, it is to be filed in the court which has both territorial and pecuniary jurisdiction. According to section 15 of the CPC a suit tribal by a civil court must be instituted in the court of the lowest grade competent to try it. Once a plaint is taken to the court, the court officer, i.e. the Sheristadar shall examine, inter alia, if the relief claimed has been properly valued and the court fees paid etc. After such examination he puts a serial (consecutive) number of the suit and will enter the suit into a Register called the Register of Suits. The date of filing shall also be stamped on the plaint as soon as it is filed. Once this is done a civil suit is said to have been started. The machinery of a court is set in motion by the presentation of a plaint, which is the first stage in a civil suit.
3.2.2. Issue of Process: Once the suit is filed and registered, the next step is to issue of process, i.e., issue of summons2 by the court to the defendant to appear and answer the claim (section 27, Order V/CPC).
3.2.3. Service of Summons: Summons with a copy of the plaint which is served on the defendant states the nature of the plaintiffs claim against the defendant and the remedy he seeks to obtain, which may be damages or the recovery of debt, or recovery of possession of property, or an injunction etc. Normally service of summons is done by the court officer and the normal method is by registered post (Order V/CPC).
3.2.4. Return of Summons/ Filing Written Statement etc: On the summons a date is put by the court for the appearance of the defendant. Once the defendant receives the summons and he intends to contest the claim, he is to appear in the court on the day fixed in the summons to appear. On this day the defendant either submits his written statement or ask for time to file the same in some future date the defendant has to file his written statement either on or before the date of first hearing (Order VIII/R-1). Again, on this date if the court finds that the plaintiff has failed to pay the required court fee or postal charges for service of summons, the court may dismiss the suit on that day (Rule 2/Order IX).
3.2.5. Alternative Dispute Resolution (ADR): Once pleading is complete, the disputes between the parties become clear and the court normally fixes a date for first hearing. However, in 2003 a new method of ADR was introduced in the CPC in sections 89A and 89B and chapter V of the Artha Rin Ain,2003. ‘in sections 89A and 89B two methods of ADR has been enacted- ‘mediation’ and ‘arbitration’. The term ‘mediation’ has been used in section 89A which lays down that except in a suit under the Artha Rin Ain, 1990 after filing of written statement, if all the contesting parties are in attendance in the court or in person or by their respective pleaders, the court may by adjourning the hearing, mediate in order to settle the dispute in the suit or refer the dispute in the suit to the engaged pleaders of the parties, or where no pleader or pleaders have been engaged, to a mediator from the panel as may be prepared by the District Judge under sub-section 10 of section 89A, for undertaking efforts for settlement through mediation.
As far as arbitration in section 89B is concerned, it is stipulated that if the parties to a suit at any stage of the proceeding, apply to the court for withdrawal of the suit on the ground that they will refer the dispute in the suit to arbitration for settlement, the court shall allow the application and permit the suit to be withdrawn; and the dispute shall be settled in accordance with Salish Ain, 2001.
3.2.6. First Hearing and the Examination of Parties by the Court:
If the system of ADR is undertaken and it is successful, the dispute will end there. However, if ADR fails, the court shall proceed with hearing of the suit from the stage at which the suit stood before the decision to mediate. Given that an ADR is not undertaken or fails, the court will fix the date for first hearing. The first hearing of a suit means the day on which the court goes into the pleadings of the parties in order to understand their contentions. At the first hearing of the suit the court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement. The court will record such admission or denials (R-l/Or-X). Issues are normally framed at this first hearing.
3.2.7. Framing of Issues: Issues are of two kinds- issues of fact and issues law. Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. Thus no issues arise in regard to admitted facts. At the first hearing of the suit the court shall, after reading the plaint and the written statements and after examination of the parties, if required, ascertain upon what material propositions of fact or law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. The duty to frame issues primarily rests with the court. However, the advocates appearing for both the parties also should assist the court in framing issues. Issues must be confined to the material questions of law or fact and not on subordinate facts or evidence by which the material questions fact or law are proved or disproved. If the court is of the opinion that the issues cannot be framed without the examination of some person not before the court or without the inspection of some document not produced in the court, it may adjourn the framing of issues to a future date (Order XIV). In cases in which no issues need be framed, e.g. a small cause suit, the first hearing would be the day on which the trial starts.
3.2.8. Section 30 Steps and Settling of Date for Hearing (SD):
Though these two steps are known in civil suits, they are not that much followed by the courts now a day. Section 30 steps is related to the orders with regard to the delivery “and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence. Apart from the section 30 steps, once the issues are framed, the court will fix a date for settling the date of final or peremptory hearing, i.e. the trial. On this ‘settling date’ (SD) the court insists on the parties for filing their lists of witnesses and applying for any commission that may be required for examination of witnesses. On the SD the presiding judge should fix the date of peremptory or final hearing. After a peremptory hearing date has been fixed, no further adjournment is normally granted except for the most urgent and special reasons.
3.3. Trial Stage
3.3.1. Opening of the Case: The plaintiff will have the right to start his opening speech first but occasionally it might be the right of the defence to start the trial with a speech. It really depends upon who bears the burden of proof on the matters in issue in the trial (Order XVIII/ Rule 1). In the opening speech the opening advocate will state the following things:
(i)State the nature of the case, e.g. claim for damages, breach of contract, negligence etc;
(ii) State the issues in the case, i.e. the areas of dispute between the parties;
(iii) Summaries the fact in issue or the theory of the case, i.e., the facts which have been established or will be established during the trial;”
(iv) State briefly the evidence of the witnesses, i.e. how the issues in the case will be proved.
The opening of the case is very important since it sets the course of the trial in right and transparent track but unfortunately in most civil trials in subordinate courts the provisions of Order 18 and Rule 1 and 2 are seldom followed. If the party does not open the case and state exactly the line which he proposes to take, he will have an opportunity to change the case which he originally had in his mind. Secondly, he will not only call witnesses whom he had originally intended to call, but also call other witnesses on different points to support different case if he sees that the case which he had in his mind is not progressing as satisfactorily as he wanted. Thirdly, if the case is not opened, a party cannot be confined to his original case, for the judge does not know what the original case is.
3.3.2. Peremptory Hearing (P.H.)/ Examination in Chief/ Producing Evidence in Support of the Case: As soon as the case is opened by the plaintiff, he will call the witnesses on the plaintiffs side one after another and will examine them in line with the plaintiffs case. If there is any documentary evidence to produce this is the stage to present the same to the court. The evidential rule of burden of proof requires that the plaintiff has to discharge his burden by raising a prima facie case in relation to the relevant issue. Where the plaintiff fails to discharge his burden on a balance of probabilities, i.e. fails to raise a prima facie case in relation to his claim, the suit should be dismissed at once by the judge and it would not be proper to call for the defence evidence (25 CWN 409 words, where the plaintiff fails to raise a prima facie case, it is the duty of the defence lawyer to raise the point of ;no case to answer for the defendant’. If the judge is convinced that the plaintiff has really failed to prove a prima facie case in favour of his claim, he will dismiss the suit. It is to be remembered that if the defendant has to give any opening speech, it will come after the evidence of the plaintiff has been presented to the court. Any defence opening speech should, therefore, concentrate on the matters which it is intended to establish through the evidence to be tendered on behalf of the defence, together with a summery of the case theory for the defence.
3.3.3. Cross-Examination and Re-examination: After a party examines his witnesses in chief, his opponent has the right to cross-examine him. The cross-examination usually follows immediately upon the examination-in-chief. After cross-examination is complete, a party calling a witness may recall him to re-examine. The purpose of re-examination is to clarify, explain or develop matters arising out of cross-examination so as to limit, where possible, any damage to the case.
3.3.4. Summing Up/ Closing Speech/ Argument: As soon as evidence is closed, i.e., after hearing of both the evidences for the plaintiff and the defendant, the pleaders will he. called upon to argue their cases. The party beginning will have his argument at the and (Order XVIII/Rule 2 and Part-XIII of the Civil Suit Instruction Manual). Thus usually the defendant’s counsel goes first with his closing speech. In a closing speech of a civil trial the counsel will normally substantiate the following points:
· reinforcing the client’s story into a coherent whole in so far as the evidence has backed it up. This is to persuade the judge of the merits of the of the case (but definitely not by misleading the court);
· Burden or proof and standard of proof.
· an argument on law and legal principles if any on the point, e.g. referring to case laws, authorities etc.
3.4. The Judgment
3.4.1. Pronouncement of Judgment: One the hearing is complete, the court will pronounce judgment at one) will reserve the judgment for a future date. If a judgment is reserved, a definite date should be fixed by the court for its delivery and notice of such date should be given to the parties. The essential elements of a judgment are that there should be statements of grounds of decision. Every judgment other than of a court of Small Causes should contain (i) a concise statement of the case; (ii) the points for determination; (iii) the decision thereon; and (iv) the reason for such decision. A judgment of a court of Small Causes may contain only points (ii) and (iii).
3.4.2. Decree and Order: The adjudication of a court of law may be of two types: (i) orders; and (ii) decrees. Decree has been defined in section 2(2) of the Code.
3.5. Enforcement and Execution of Decree
3.5.1. Application for Execution: Execution is the enforcement of a decree by a judicial process which enables the decree-holder to realise the fruits of the decree passed by the competent court in his favor) All proceedings in execution commence with the filing 01 an application for execution. Such application should be made to the court which passed the decree or where the decree has been transferred to another court, to that court. Once an application for execution of decree is received by the court, it will examine whether the application complies with the requirements of Rules 11 to 14. If they complied with, the court must admit and register the application.
3.5.2. Hearing of the Application: The court on which the application is pending may fix a date for hearing on the execution application. When the application is called out for hearing and the applicant is not present, court may dismiss the application. On the other hand, if the applicant is present and other party is absent, then the court may hear the application ex parte and pass such order as it may thinks fit. Rules 106 lays down that if the application is dismissed for default or ex parte order is passed, then the aggrieved party may apply to the court to set aside the order.
3.5.3. Show Cause Notice for Execution; Rule 22 provides for the issue of show cause notice to the person against whom execution is applied for in certain cases. As a general rule, law does not require any notice to be issued for execution.
3.5.4. Procedure after Notice: If the person to whom the notice is issued does not appear or does not show causes against the execution, the court may issue process for execution of the decree.
3.5.5. Mode of Execution: By delivery of any property specified in the decree or by attachment and sale or by sale without attachment, or by arrest and detention in civil prison of the judgment debtor or by appointing a receiver, or by affecting a partition, or in such other manner as the nature of the relief may require.
CHAPTER-2
CRIMINAL PROCEEDINGS
4. VARIOUS STAGES
Having described the structure of different ordinary criminal courts and their jurisdiction, we shall be now considering the procedure in those major courts which leads to a prosecution fore. Judicial proceeding, be it criminal or civil, means the way or in which a legal action is brought or defended in a court of law. It largely encompasses the whole process of beginning to end of a ignition. However this chapter will discuss only up to trial-stage of a criminal suit; appeal, review, revision or reference etc. which are post-trial steps will be discussed in separate chapters.
5. Nature of Criminal Proceeding
5.1. Adversarial Process: The criminal process in Bangladesh is, essentially, adversarial or accusatorial in nature meaning that the whole process is a contest between two parties. As regards crime, these two parties are the state on die one hand and the person accused of the crime concerned on the other hand. In the process court takes a non-partisan role; court plays no significant role in preparation of a case; the trial itself is not an investigation into events or allegation but rather a hearing to decide within a complex set of rules, whether the accused is proved to be guilty of the particular offences which the prosecution have charged him with*.
5.2. Presumption of Innocence/ Criminal Standard of Proof:
A person accused of a crime is presumed to be innocent until the prosecution proves his guilt beyond every reasonable doubt. If there is a little doubt in proving the elements of the offence concerned, the accused will be set free. This is the criminal standard of proof, i.e., proof of guilt beyond reasonable doubt.
5.3 Criminal justice consists in the punishment of wrongs whilst civil justice consists in the enforcement of rights. In a criminal proceeding the injured person claims no right but accuses the defendant of wrong. He is thus not a claimant for redress but an accuser and the court makes no attempt to constrain the defendant to perform a duty or to respect a right but penalises him for the duty already disregarded and for any right already violated. It is the function of the state to prosecute the-offender, even if there is not other accuser, in the case of grave and serious offences.
5.4. All criminal proceedings in Bangladesh are regulated under the Code of Criminal Procedure Code 1898 and Criminal Rules and Orders unless otherwise excluded or specifically provided for.
5.5 Four agencies are involved in a criminal administration of justice: Police, Prosecution, Courts, Jail and Probation authority.
6. Stages in a Criminal Proceeding
The stages maybe divided into four periods:
6.1 Pre-Proceeding Stage;
6.2 Proceeding Stage (Court);
6.3 Trial Stage (Court); and
6.4 Post-trial Stage (Police or Jail authority or Probation authority etc).
6.1 Pre-Proceeding Stage
This is the initial stage of inquiry or investigation and preparation of a criminal case and this stage maybe discussed under the following sub-heads:
6.1.1.FIR in Cognizable Offence : First any individual may file an FIR (First Information Report) under section 154 about the commission of a cognizable offence to police station; may come to know about the commission of a cognizable offence from any other source, e.g. on a phone call, from hearsay source or oil their own section 157) (there after taking cognizance of an offence, cognizable or non-cognizable, under section 190 a Magistrate may send the same to a police station for investigation and report (sections 155(3) and 156(3) (also see Regulation 245 of the Police Regulation, Bengal, 1943); (fourthly having accepted a complaint under section 200 a Magistrate may send the same under section 202 to a police station for inquiry, Having received information from any of the above sources the officer- in charge must record the same in a book to be kept at every police station and this written information will be treated as First Information Report.
6.1.2. Complaint in Non-Cognizable and Cognizable Offence:
On the other hand, when a police officer receives information as H.Q the commission of a non-cognizable offence, he cannot investigate it without the order a Magistrate; he just makes a case entry in the General Diary and forwards the informant to the Magistrate and then the Magistrate examines the informant under oath (sections 155 and 200) Secondly any person may Complain into the Magistrate in writing about the commission can non-cognizable offence. The Magistrate having received such information will examine the complainant upon oath under section 200. Upon such examination, the Magistrate may take cognizance of the case; or he may dismiss it or he may order) for inquiry or investigation on the matter. If cognizance is taken the complaint is registered as a Complaint Registered Case (CR. Case). On the other hand, if inquiry to investigation is ordered before cognizance is taken, the complaint is entered as a petition (Complaint Registered Petition (C.R.P.) with a CRP case number).
6.1.3 Reporting to the Magistrate (P.S case, G.R. case and C.R. case): other hand, if it is a complaint case, it starts with a CR.P.
(Complaint Registered Petition Case) number or GR. Case number (Complaint Registered Case) in the Magistrate court and there is no corresponding P.S. Case number as it does not start with filing an FIR in the police station. After receiving the report upon complaint, if the magistrate sees (reason for preceding the complaint petition case tunas into)”
case.
6.1.4 Reporting to the Magistrate (P.S case, G.R case and C.R. case): As soon as an FIR is filed in the police station number is put against every FIR to be called as FIR No. 4, 5 etc or Police Station (PS) Case No. 4, 5 etc. Almost every criminal case except complaint cases starts with a Police Station Case number. One and IRjs recorded in the police station the original copy of it has to be sent without any delay (within 24 hours) to the Magistrate through the court office;
6.1.5. Investigation and maintaining Case Diary: If the offence a cognizable one, the police may investigate the same as per requirement of section 157 of the CrPC2. Once the Magistrate court receives any such report, a number is put against the case and this number is called G.R Case number (General Registered Case number). This is purely administrative and automatic as the Magistrate does not see the papers or anything or does not examine anything. On the other hand, if it is a complaint case without any order of a Magistrate (section 156). On the other hand, if the offence is non-cognizable2 one, a police officer can investigate only after a Magistrate has given him an order to do so section 156). An investigation relates to the steps taken by an investigating officer (IO) or a person other than a Magistrate who is authorized by a Magistrate for this purpose. An investigation consists of the following steps: (in proceeding to the spot; JM/ ascertainment of facts and circumstances of the case; (discovery and the arrest of the suspected offender or offenders; UrvJVollection of evidence relating to the commission of the offence alleged which may consist of (examination of various persons including the accused and the reduction of their statements into writing if the officer thinks fit; (b) me search of places or seizure of things considered necessary for the investigation and to be produced at the trial; and (v) formation of opinion as to whether on the materials collected there is a case to place the accused before a court for trial and if so, taking the necessary steps for the same by filling of a charge-sheet under section 173 (Mosharraf Hossain v State, 30 DLR (SQ 112); vi) making a case diary (CD.) containing the record of facts ascertained by the officer during investigation and action he has- taken showing the time and date against every action he has taken. The Case Diary is of crucial importance for both the court and the prosecuting authority. It gives a pen-picture of facts, circumstances and other activities of the officer in respect of a crime and also his findings. If any arrest is made during the investigation and the investigation could not be completed within 24 hours of arrest, the police officer must produce the arrested person before a Magistrate and may seek police remand1 for the arrested person for more interrogation.
6.1.6. Final Report/ Charge Sheet : Police enjoys an unfettered right on an investigation to submit either a charge sheet or a final report in a particular case and without any interference from the court. On conclusion of investigation the Investigating Officer is required to submit either Final Report or Charge Sheet (section 173) (Final report maybe as many as five types. For details, see chapter VII pages 103-104. If final report is given, it means that no case of the offence has been made out of the investigation and as such the accused should be released from the custody or discharged from the bail bond as the case may be. On the other hand, if charge sheet is given, this means that there is a recommendation for prosecuting the offender. The charge sheet or final report as case may be, .shall be forwarded to the Magistrate empowered to take cognizance of the offence (section 173).
6.1.7. Final Report and Naraji Petition: If police submits a final report recommending that there is no case against the accused, the Magistrate after carefully scrutinising the report may accept or reject it. After rejecting the final report he may order for further investigation2. He may direct inquiry and after examination of the complainant if satisfied may take cognizance of the case (Munshi Lai v Khan Abdul] alii, 5 BLD 24). If the Magistrate accepts the final report, the aggrieved informant can file a naraji petition in the court. Naraji petition is considered a complaint and the Magistrate if upon examination of the complainant or other witnesses if any, is satisfied may issue process upon the accused or he may direct inquiry into it by any other Magistrate (syed Azbarul Kabir u Syed Ebsan Kabir, 4 MLR (AD) 343).
6.2. Proceeding Stage/ Commencement of a Proceeding
This stage consists of taking cognizance of an offence by the court, commencement of a criminal proceeding and transfer etc though taking cognizance as such does not always mean the commencement of a criminal proceeding. A criminal proceeding commences either on taking cognizance of the offence or on issuing process. This stage has been broken into following steps:
6.2.1. Taking Cognizance: Taking cognizance indicates the point when a Magistrate or a Judge takes first judicial notice of an offence. It is different from the initiation of proceedings by Magistrate; it is rather the condition precedent to the initiation of proceedings. Under section 190 any CMM, Metropolitan Magistrate, or Chief Judicial Magistrate or Magistrate of the First Class or any other Magistrate specially empowered in this behalf may take cognizance of an offence. Any of these five officers may take cognizance of an offence on the basis of any of the three sources- (i) upon a police report in the form of a charge sheet; (ii) upon a complaint; or (iii) upon own knowledge or private information.
6.2.2 How Cognizance is taken: Cognizance may be taken in front of the accused person or in the absence of the accused as the case may be. If the accused is not arrested, the Magistrate has to first take cognizance and then issue process, i.e., either summon or warrant to compel the attendance of the accused. When the accused is before the Magistrate, the Magistrate will examine the record of the case and will see if there is any basis for initiating any judicial proceeding. To avoid confusion, for a complaint case, cognizance is taken in the absence of the accused as specified in section 200. This matter has been explained more in chapter VII pages 118.
6.2.3. Start of a Criminal Proceeding:
of a Criminal Proceeding: If cognizance is taken on the basis of a charge sheet, a criminal proceeding starts at once in the eye of law. On the other hand, if cognizance is taken either on basis of a complaint or private information, there are still some steps left for a proceeding to start. This is because of two reasons: first, after taking cognizance the Magistrate may order for an investigation which will determine whether to start proceeding or not; second, a close scrutiny of sections 200-2004 with regard to complaints reveals that though cognizance is taken under section 200, proceeding as such does not start until the issue of process under section 204. When a police officer receives information as to the commission of a non-cognizable offence, he makes a case entry in the General Diary and forward the informant to the Magistrate and then die Magistrate examines the informant under oath (section 200); then the Magistrate may dispense with the issue of process and proceed to an inquiry1 or order for investigation. If this is the case, then the proceeding starts once the investigation or inquiry is finished and the Magistrate has issued the process under section 204. Issue of process means that the Magistrate shall issue either summons or warrant2 for causing the accused to be brought or to appear at a certain time before the Magistrate.
6.2.4 Transfer for Trial to an Appropriate Court: Once cognizance has been taken or proceeding commences, either on the application of the accused under section 191 or by a Magistrate under section .192, or under section 205C when the case is exclusively triable by the Court of Session, or under section 205CC when the case is triable by CMM or CJM the case is to be transferred accordingly. Once transfer is complete to an appropriate court, another number is usually put against the case, e.g. Special Case No. 5 of 2003 etc, or Sessions Case No. 6 of 2003 etc. Once this is done the case becomes ready for trial.
6.3. Trial Stage
The trial stage will be discussed in two heads: trial in the Magistrate Court and trial in the Sessions Court. This is because the nature and procedure of trial in these two courts are different.
6.3.1. Trial in the Magistrate Court
Trial in the Magistrate court takes two forms: summery trial and regular trial. Section 260 and 261 outline cases which shall be tried summarily by Magistrates. Unlike in regular trials the court in summery trials has to simplify and shorten trial procedure by dispensing with the recording of evidence and not allowing many adjournments. There is a limit of imprisonment in summary trial and this is that a Magistrate cannot impose a sentence exceeding two years. In summery trials the Magistrate has to follow all the steps of a regular trial but the difference between the two is that in 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 (section 263). Secondly, in case of summary trials of offences where appeal lies, the Magistrate has to record the substance of evidence (still not the full evidence) (section 264).
Steps of a Regular Trial in Magistrate Court
6.3.1.1. Pre-trial Hearing/ Discharge before Framing of Charge: On the day fixed for the trial to begin the accused, if he has been detained in custody, will be brought from the prison. If he is on bail he must appear in the court or he must surrender to his bail and will be then placed in the cell to await his trial. It may be that the accused has been on bail and does not appear, in which case the court of trial may issue warrant, called a ‘bench warrant’ for the arrest of the accused. Whatever the way, when the accused appears, or is brought before the Magistrate, the Magistrate will first the Magistrate and he will hear the record of the case and he will first consider the record of the case done that if he considers the charge to be groundless, he may discharge the accused’ section 241A). This is when the defence lawyer may raise the point of ‘no case to answer’2. It means that if the prosecution does not raise a prima facie case in favour of their allegation against the accused, there may be ‘no case to answer’ for the defence and in that case the judge or Magistrate will discharge the accused before framing of charges.
6.3.1.2 Framing of Charges: If on the other hand, the Magistrate is of the opinion that there is a prima facie case for the accused; and he is competent to try the case, he shall frame a formal charge. The charge must contain sufficient particulars as to time, place, person and circumstances, so that the accused may have notice of the matter with which he is charged (section242). It is very important to note that formal trial with the framing of charge.
6.3.1.3. Plea and Conviction: Once the charge is framed, the accused will be asked whether he admits that he has committed the offence with which he is charged. If the accused pleads guilty to the charge, i.e., admits his guilt to the chargehe Magistrate may convict him accordingly (section 24).
6.3.1.4. Hearing/ Taking Evidence: If the Magistrate does not convict the accused on plea or if the accused does not make admission, the Magistrate shall proceed to hear the case on the basis of evidence. The accused and all witnesses will be examined and cross-examined according to the law of evidence and CrPC (section 244).
6.3.1.5. 342 Steps/ Examination of the Accused: After the witness for the prosecution have been examined and before the accused is called for his defence, the court may without previously warning the accused asked high any question for the purpose of enabling him to explain any circumstances appearing in the evidence against him. The accused may answer such question or refuse to answer and the court may draw such inferences from such refusal or answers as it thinks just.
6.3.1.6. Acquittal: If after hearing evidence and examining the accused the Magistrate finds the accused not guilty, he shall “order of acquittal.
6.3.1.7.Sentence and transfer for Sentence: On the other hand, if the Magistrate finds the accused guilty, he shall pass the sentence. However, if he finds that the accused is guilty and he ought to receive a punishment different in kind from, or more severe than what he can inflict, he will forward his proceedings to the CJM or Magistrate of the First Class to whom he is subordinate (section 349).
6.3.2. Trial Stage in Sessions Court
Trial in Sessions Court is more formal and lengthy compared to those in the Court of a Magistrate. Unlike in the Magistrate Court there are formal opening, argument and closing of every case.
6.3.2.1. Opening of the Prosecution Case: When the accused appears or is brought before the court, the Public Prosecutor opens the case by describing the charge brought Tgainsf the Accused and stating by what evidence he will prove the guilt of the accused (section265B).
6.3.2.2. Pre-trial Hearing/ Discharge before framing of Charge: After the opening of the prosecution case, the Session Judge will give both the sides chance to argue in favour of framing charge or discharge. (There will be no scope for examination of witnesses at this stage). After such hearing and considering the record of the case if the Judge considers that there is no sufficient ground or prima facie case for proceeding against the accused, he shall discharge the accused and record the reason for so doing (section 265C). This is when for the first time the defence lawyer avails the opportunity to raise the point of ‘no case to answer’. It means that if the prosecution does not raise a prima facie case in favour of their allegation against the accused, there may be no case to answer for the defence and in that case the judge will discharge the accused before framing of charges.
6.3.2.3. Framing of Charge: If, on the other hand, the Judge considers that there is a prima facie case against the accused, it shall frame a charge (section 265D). Formal trial starts with the framing of charge.
6.3.2.4. Plea and Conviction: After the charge is framed, it shall be read and explained over to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. If the accused pleads guilty, the Court shall record the plea and may convict him accordingly (section 265E).
6.3.2.5. Prosecution Evidence: Examination-in-Chief and Cross Examination: If, on the other hand, the accused refuses to plead, or does not plead or claims to be tired, or the judge dose not accept his plea, the court shall fix a date for the examination of witnesses. The PubUc Prosecutor will first examine all prosecution witnesses. After prosecution witnesses are examined, cross-examination by the accused and re-examination, if any, will follow immediately (sections 265F and 265G).
6.3.2.6. Acquittal on the basis of Prosecution Evidence: If, after considering the prosecution evidence and the defence on the point, the Court considers that there is no evidence that the accused committed the offence, it shall record an order of acquittal (section 265H).
6.3.2.7. Defence Evidence: Examination in Chief and Cross: Ifthe accused is not acquitted, he shall be called upon to enter on his defence and adduce any evidence in his favour. The defence counsel will examine all defence witnesses. After defence witnesses are examined, cross-examination by the Public Prosecutor and re-examination, if any, will follow immediately (section 265I).
6.3.2.8. Summing Up/ Closing of the Prosecution and Defence Case: After hearing of both the defence and prosecution evidence, the prosecutor will first sum up his prosecution case highlighting particularly the strength of the prosecution case and weaknesses of the defence case. This is because the prosecution bears the burden of proving beyond all reasonable doubt that the offence was committed by the accused. In other words, the prosecution closing speech should contain two important things:
· a summery of the evidence which shows that the defendant is guilty, and
· an explanation of the burden and standard of proof.
Once the prosecution summing up is complete, the defence counsel will have his reply, he will sum up the strength of the defence evidence and weakness of the prosecution evidence. His objective would be to convince the court that the prosecution has failed to prove the guilt of the accused beyond every reasonable doubt (section 265J). In particular the defence closing speech should contain the following things:
· a summery of the defence case;
· a summery of the weaknesses in the prosecution case;
· any answers to the questions in cross-examination which prosecution witnesses gave which suggest that the accused is not guilty.
· an explanation of any evidence which damages the defence case, eg that the prosecution witness is mistaken etc.
· an explanation of the burden and standard of proof,
6.3.2.9. Judgment of Acquittal or Conviction: After hearing arguments and summing up the judge will normally not deliver the judgment at once; it will rather fix a date for judgment. On the day fixed for judgment the judge would declare the judgment in open court and in front of the accused, if not tried in absentia (section 366). A sentence may be of different types: imprisonment, fine, probation, death sentence etc.
6.4. Post-trial Stage
6.4.1. A criminal judgment ends either with acquittal or conviction. If it is an acquittal and the accused is in jail, a copy of the judgment will be passed to the jail authority that will release the acquitted offender as per the judgment.
6.4.2 .On the other hand, if it is a conviction of imprisonment, the accused will be taken from the court to jail and will be serving the sentence as per the judgment unless his sentence is suspended or remitted by the Government.
6.4.3. When a sentence is fully executed, the officer executing it shall return the warrant to the court from which it was issued, with an endorsement under his hand certifying the manner in which the sentence has been executed (section
400).
6.4.4. If it is death sentence, the proceedings shall be submitted tot he High Court Division and the sentence shall not be executed unless confirmed by the High Court Division (section 374).
6.4.5. When a person under the age of sixteen is sentenced by a criminal court, the court may direct that such person, instead of being imprisoned in a criminal jail be confined in any reformatory establishment or in any training centre or be serve in a probation etc (section 399).
CHAPTER-3
How is Sentence Imposed? Any Guideline for Magistrates?
Every Magistrate has specific sentencing power and that power is in between an upper and lower limit. For example, a Magistrate of the i liird class has power to impose sentence up to two years; a Second (lass Magistrate has power to impose sentence up to three years; a First Class Magistrate has power to impose sentence up to five years.
I low will he impose sentence in between the limits? What will he consider in imposing sentence? There is no guideline set either by the (government or the Supreme Court for the Magistrates to follow. In I1 lost of the developed countries like the UK, USA there is a specific guidelines for the Magistrates to follow before imposing any sentence.