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.
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.
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.
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.
. All civil proceedings in Bangladesh are regulated under the Code of Civil Procedure Code 1898 unless otherwise excluded.
Generally three types of laws are involved in a civil proceeding: the CPC, the CRO (Civil Rules and Orders) and Civil Suits Instruction Manual.
The stages may be divided into four periods:
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.
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
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:
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
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*.
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.
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.
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.
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:
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;
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.
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).
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:
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.
: 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.
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
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,
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
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.
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
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).
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).
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.