Causes of Delay in disposing Criminal Cases in Bangladesh

Moohammad Tajul Islam

Talking about justice system in a society readily involves how a basic functionary of the system works and what its framework is. No system is devoid of problem, no exception occurs in the case of Criminal Justice System (CJS). It has been argued by different scholars that the present mode of Criminal Justice in Bangladesh is a legacy of the British colonial system.

Imperial philosophy of the then authority developed a repressive mechanism, which externally tried to maintain public order and resolving disputes by making codified (yet, alien) law. This led them to forming an authoritative agency of police and punitive judiciary. It was an imposition on the local colonized people because it was hardly adopted by them. As a result, without a broad community support, the Criminal Justice System at that time was only able to punish the “criminals”. But it remained with enough doubt that whether the CJS was effective to control crime or deviant behaviors. This gap between people and legal and justice system has snow balled over the centuries and now has brought us in today’s anarchic situation where people no more have any confidence in any of the criminal justice institutions – police, courts and correction ( in this context, prison).

For a better understanding, we now try to pin down the problems of existing CJS specially delay in disposing the criminal cases; then in the second phase, we shall bring some recommendations are included in the last chapter.

Problems of our Criminal Justice System which causes delay in disposing the criminal cases:

Our traditional criminal justice system has lot to overcome. Let us say, the existing Criminal Codes and Procedures in Bangladesh were derived from the period of British rule, as amended by Pakistan and Bangladesh. Similarly, the basic documents such as the Bangladesh Penal Code, first promulgated in 1860 as the Indian Penal Code; The Police Act of 1861; The Evidence Act of 1872; the Code of Criminal Procedure of 1898; the Criminal Law Amendment Act of 1908; and the Official Secrets Act of 1911, Bengal Jail Code of 1864, the Muslim Personal Law (Sharia) Application Act, 1937 relating to Muslim Family Affairs are still in operation in Bangladesh. Reforms in the criminal justice system nowadays become a substance of frequent debate and review. The criminal codes and procedures in effect in Bangladesh derive from the period of British rule, as amended by Pakistan and Bangladesh. These key legislations regarding the criminal justice system of Bangladesh include the Penal Code, first promulgated in 1860 as the Indian Penal Code; the Police Act of 1861; the Evidence Act of 1872; the Code of Criminal Procedure of 1898; the Criminal Law Amendment Act of 1908; Evidence Act and the Official Secrets Act of 1911.

Let us now chronologically consider the problems in our Criminal Justice System (CJS) as reasons or causes of delay in disposing criminal cases:

a. Traditional Criminal Justice System: We are still far away to amend our traditional judicial system. Though we were the British colony with other countries of Indian Sub continent but we are still follower of the same laws which were the reflection of British colony. Our Judicial system is very much inconsistent with the needs of present day. So we should to consider the matter that modern State policy always faces new trends of criminality and new mood of criminal activity.

b. Politicization of Criminal Justice Agencies: Political control of criminal justice agencies especially the police institution and lower courts remains a major problem in Bangladesh. In Bangladesh police institutions are not autonomous. Instead, the State exercises strong control over police agencies. As a consequence many policy decisions regarding police are instigated for political purposes. Evidence suggests that politicians even influence preparation of charge sheets and final reports; as a result “fall out” rate of arrest is high. Similarly, the influence on the politics on the judiciary has accelerated in recent years. There are many instances where the Judges of the Supreme Court are being appointed on the basis of their political affiliation. Also, the Judges of few cases have generated wide political controversy. For example, the change in the retirement age and the appointment of the judges of the Supreme court ignoring seniority has created an opportunity for politically motivated appointments. Research suggests that political influence, patronization and victimization are main problems for the police force and that must be stopped in order to ensure efficient services from the government.

c. Transformation in the Justice System: Evidences suggests that in Bangladesh, the higher level of Judiciary displayed a significant degree of independence and often ruled against the government in criminal, civil and even politically controversial cases. However, there have been allegations that against these offenders because of a dysfunctional legal system and other extra legal system.

d. Crime Control Politics: Enactment of Various anti-crime legislations:

In response to growing crime rates many Western countries have increased the costs of crime by raising penalties (e.g. “three strikes law” in California, U S A) . In Bangladesh, sentences are not harsh enough for most of the offenders who are responsible for the vast majority of crimes. It is learnt that if these groups of offenders could be arrested and adjudicated, crime rates would substantially decrease. Given their linkage with ruling parties and the absence of fairness on the part of the police in most of the cases police are unable to arrest them. In addition to that if arrested prosecution fails to win conviction against these offenders because of a dysfunctional legal system and other extra-legal factors. It has been observed that every elected government in Bangladesh enacted a various anti-crime were found guilty in the latest investigation. According to the CID report, investigators obtained confessional statements using force as per the desire of the past government. (The daily Star, June12, 2008) laws in order to combating crime and terrorism. However, to combat the increasing rate of crimes, the successive government in Bangladesh has passed a number of anti- crime legislations.

e. Crime Control and Human Rights: There has been allegation those two specific laws that facilitate endemic human rights violations in Bangladesh: I) the Special Powers Act, 1974 (SPA); II) Section 54 of the Code of Criminal Procedure, 1898; Political parties have repeatedly promised to repeal the law when in opposition, but the law has been maintained so far. Each year, thousands of people are arbitrarily detained under SPA, which deny them access to judicial remedies.

f. Role and organization of Bangladesh Police: The police in Bangladesh are a centralized national force. The ministry of Home Affairs controls its functions while the operational responsibilities are vested in Police Headquarters. Inspector General is the chief executive of the police departments. Bangladesh Police follow the British police system of colonial era with some modifications. During the British rule the police was a repressive institution and their main purpose was to serve the interest of ruling class.

g. Problems of the Court system: A major problem of the court system was them overwhelming backlog of cases. As a result many accused persons remained in prison for many years. It has been observed that the corruption encountered in the judicial process, effectively prevented many persons from obtaining a fair trial. A survey of the world

Bank 2005 found that the performance of judiciary is the worst among the participating countries in the survey. The average duration of civil case in the district court in

Bangladesh on an average takes nearly five years to resolve excluding the time taken foe appeal process. In some cases it is more than 15 to 20 years from filing in the trial court to decision by the appeal court.

h. Prosecution: Disposable Prosecutorial Service: Bangladesh does not have a permanent prosecution service. The attorney General is the principal law officer of the government. They represent the State in Supreme Court and conduct cases at courts on behalf of the State. On the other hand, at the sub-ordinate courts the prosecution wing consists of Public Prosecutor (PP) , Government Pleader (GP) and Special Public Prosecutor (SPP).

All these law officers are accompanied by assistants, whose numbers vary depending on the numbers of courts they must cover, and the size and population of the district. They represent the State in the sub-ordinate civil and criminal courts in the district and conduct cases in these courts on behalf of the State. All these law officers are appointed on the basis of their political affiliations. That is, recruitment process is based on the political choice of the ruling political party. As a result whenever a new political has taken over government, all prosecutors have been removed from their offices and new group has replaced them.

i. Problems of Criminal Investigation: The most common preliminary step in seeking justice in Bangladesh is to lodge a complaint either with a police station o Magistrate’s court in the jurisdiction where the offense allegedly occurred. Complaints lodged with police are referred to as GR cases; those on the Government Register. However, in any cases lodging complaints with police stations is difficult for the poor and politically weak, especially if the complaints relate to wealthy and politically connected persons.

Such cases are identified CR cases; those on the complaint register. In either type of cases police investigate, collect evidence and take necessary steps. It has been argued that successful prosecution of criminal cases requires a thorough and professional police investigation. But experience show that in our country police are highly biased while they are conducting investigation.

Some salient features for causes of delay in disposing the criminal cases:

After going through a number of books and journal I have observed some major and minor flaws both in investigation and trial stages which causes of delay in the speedy disposal of criminal cases.

Deficiency at the stage of investigation:

Unfortunately, due to flaws in the investigation, prosecution finds it difficult to prove its case and ultimately these flaws are responsible to a large extent for acquittal of a large number of accused. It has been remarked that –

The investigating officers, in many cases, are found to be not discharging his duty properly due to lack of skill or negligence; it is highly unfortunate that the investigating staff has not been able to be successful the confidence of the public.
The investigating officer deliberately, being influenced by the accused, makes unnecessary delay in starting the investigation and recording statements of the witnesses
Sometimes they do not record the statements while examining the witnesses, but make a synopsis of what the witnesses said to him at the time of examinations. Then at his leisure, he prepares a record of those statements. Naturally, many vital points or facts then do not find place in the statements of those witnesses;
Sometimes the witnesses, at that early stage of investigation (when most of the accused are at large) are afraid of exposing the truth before the Investigating officers. They feel a bit more secure in the court where they may not delay to tell the truth

Deficiency at the stage of trial:

The Code of Criminal Procedure, the Evidence Act also provides that the entire onus is upon the prosecution except in few cases such as, where the accused pleads alibi, the accused shall be required to prove the same. There is no onus upon the accused. It is not good in all cases.
The courts mainly follow the principle that the prosecution must prove its case beyond “reasonable doubt” and whenever the courts find any flaw in the evidence of the prosecution, for the sake of “fair trial” give acquittal to the accused persons by resorting to “benefit of doubt”. Neither the expression “reasonable doubt” nor the expression “benefit of doubt” are defined or explained in any law.
Sometimes while delivering a judgment in a criminal case, the Judges are confused due to conflicting decisions of the superior courts. Some Judges give emphasis on the old precedents but some take into consideration the changes which have taken place in the society especially in the law and order field.
There is little co-ordination between the Investigating officer and the Public Prosecutor not even after a case is fixed for trial. I have noticed that most of the Investigating officers and other police officers who appear before the court as witnesses have little idea about the rules of evidence, about how evidence is taken in a criminal case, what are the defects and loopholes in the evidence which leads to acquittal, on what grounds normally acquittal is given, how defence conducts the case, what evidence are to be led in the particular case, on what points prosecution evidence is likely to be attacked by the defence etc.
During investigation stage and in cases pending for trial before Magistrates records are called for, disposal of applications for bail in the Sessions Courts and then undue delay occurs in returning these records back to the Magistrate’s Courts.
after submission of charge-sheet in sessions triable cases the Magistrates do not dispatch the records to the Sessions Judges expeditiously.
after submission of charge-sheet incomplete records are sometimes sent to the sessions courts by the Magistrates.
non-attendance of witnesses, particularly, of Government officials, such as, the medical witnesses, the investigating officer, or other police officers connected with investigation, the handwriting or the finger-print expert, etc., on the date of trial.
Huge number of backlog of cases in comparison to number of Judges and courts.
Failure of police in ensuring the attendance of prosecution witness during trial under section 171 (2) of Cr.P.C. inspite of repeated issuance of processes.
Lack of proper knowledge of magistrates, judges and conducting lawyers about connected substantive and procedural laws.
Lack of initiative of judges and magistrates to try cases in a speedy manner.
Non execution of writ of proclamation and attachment under section 87 and section 88 of Cr.P.C. for appearance of the absconding accused and thereby causing delay in getting a case ready for hearing.
Absence of efficient, knowledgeable public prosecutors and defence lawyers.
Absence of full and sincere co-operation of conducting lawyers towards the end of speedy trial.
Frequent adjournments of cases at trial stage on less important pleas.
Outdated and time consuming mode of recording evidence of witness.
Paucity of accommodation, trained manpower, machinery and other paraphernalia of courts.
Lack of sense of responsibility and accountability of judges, magistrates, conducting lawyers and connected staffs.
Absence of proper control, supervision and monitoring by the superior courts and authority over respective subordinate courts.

In the aforesaid backdrop, I would face all the lacking and loopholes through different method of data analysis and finally I will put forward my recommendations for doing away with those loopholes and a new model so far it is practicable for speedy and expeditious justice.

Therefore, the present work will identify the loopholes at the investigation and trial stage of the criminal justice system in Bangladesh based on critical analysis of relevant statutes, newspaper reports, and interviews with public prosecutors, defence lawyers, trial-judges/magistrates, and some key persons whose role is very crucial during pre-trail stages, e.g. polices, magistrates and investigation officers. Peshker, Nazir, Peon to the judicial officers, victim of criminal cases, accused and experts on the subjects will also be interviewed.

Conclusion:

Liberal democracy in Criminal Justice System in Bangladesh can bring spectacular changes in order resolve some of the century old problems in our Criminal Justice System. It will surely challenge the existing discipline and punishment apparatus in our colonial CJS and prescribe for some timely reforms in police, courts and correction. We believe, the recommendations presented in this paper, are to advocate for social equality and justice and uphold human rights. Our argument also focused on the necessity to internalize law and order in a society through an active participation of both CJS agencies as well as the public. Along with that, we stressed on the benefits of a Liberal Criminal Justice System which can bring many favorable outcomes like making Criminal Justice system more people oriented, winning public confidence on CJS as well as reduce State’s expenditure on CJS. However, we do not encourage the policy makers to follow any model being blind folded; rather we establish that any model of CJS needs to be cross examined based on the environment of the very society where the system shall be integrated.

The writer is Md. Tajul Islam presently working as Joint District Judge of Bangladesh Judicial Service. Email-tajul_jdjbd71@yahoo.com