A Brief Discussion On Code, Codification and The CR.P.C, 1898
A Brief Discussion On Code, Codification and The CR.P.C, 1898
A Brief Discussion On Code, Codification and The CR.P.C, 1898
Code:
As mentioned in the Wikipedia, code means, (1) a set of rules which are accepted as general
principles, or a set of written rules which state how people in a particular organization or country
should behave. (2) A set of principles that are accepted and used by society or a particular group of
people.
So, code means the whole body of law; whether of a complete system of law e.g. the Roman Law
Code of Justinian, or a relating to a particular subject or branch of law e.g. the Sale of Goods Act,
1930.
Legal Code:
A legal code is a body of law written and enforced by a state. In addition to a body of substantive
law, a legal code also specifies certain court procedures and rules of evidence. The Penal Code, 1860;
The Code of Criminal Procedure, 1898; The Code of Civil Procedure, 1908 etc. ate legal code.
Criminal Code:
A Criminal code is a compilation of government laws that outline a nation’s laws regarding
criminal offences, and the maximum and minimum punishments that Courts can impose upon
offenders when such crimes are committed.
On the other hand, criminal law is the body of law that defines criminal offences, regulates the
apprehension, charging, and trial of suspected offenders, and fixes punishment for convicted persons.
Substantive criminal law defines particular crimes, and procedural law establishes rules for the
prosecution of crime. Criminal law in most jurisdictions is divided into two fields:
$ Criminal procedure regulates the process for addressing violations of criminal law;
$ Substantive criminal law details the definition of, and punishments for, various crimes.
Criminal procedure is entirely regulated by the statute which is mainly guided by the Code of
Criminal Procedure (CrPC).
Origins of Criminal Law:
Criminal law in the United States, Canada, Australia, Bangladesh and many other commonwealth
countries is based on English common law. The British established colonies and imposed their
criminal law upon the inhabitants of those colonies. However, these, and other legal systems, are also
influenced by early written codes, such as the Roman Twelve Tables.
There was no criminal law in uncivilized society. Every man was liable to be attacked in his
person or property at any time by any one. The person attacked either succumbed or overpowered his
opponent. A tooth for a tooth, an eye for an eye, a life for a life was the forerunner of criminal justice.
As time advanced, the injured person agreed to accept compensation, instead of killing his adversary.
Subsequently, a sliding scale came into existence for satisfying ordinary offences. Such a system gave
birth to archaic criminal law. For a long time, the application of these principles remained with the
parties themselves, but gradually this function came to be performed by the State.
The germs of criminal jurisprudence came into existence in India from the time of Manu. In the
category of crimes Manu has recognized assault, theft, robbery, false evidence, slander, criminal
breach of trust, cheating, adultery and rape. In that period the king administered justice himself, and,
if busy, the matter was entrusted to a judge. Later on the Criminal law of India was regulated by the
Islamic sharia law as it was conquered by the Muslim Sultans and Mughals.
Is CrPC a Code?
Though termed as a code, the CrPC is basically a consolidating and amending Act and not a
codifying statute. The term ‘Code’ may be used in two sense. In strict and proper sense a Code is
compilation not of just existing statutes, but also of much of the unwritten law like customs, judicial
decisions etc. on a subject 2. On the other hand, consolidated legislation purports to collect only pre-
existing statutes on a particular subject. It does not include common law or customary rules and
judicial precedent.
CrPC is not a code in the proper sense of the term. This is more fully clear from the long title of
the Act. Though the short title of CrPC uses the term ‘Code’ [Criminal Procedure Code (Act No. V of
1898)], the long title, i.e. the preamble of it states that this is an Act to consolidate and amend the law
relating to the Criminal Procedure.
2
Black’s Law Dictionary, 7th edn.
Part 02: Basic Concept of code of criminal procedure, 1898
$ Conviction;
$ Acquittal;
$ discharge.
Trial is neither an investigation nor an inquiry. Investigation is the power vested in the police and
inquiry is the power vested in a Magistrate. It is a stage prior to trial. Trial begins when the charge is
framed, read out and explained to the accused and his plea is recorded. Trial of the criminal cases is
one of the basic fields of application of the CrPC, 1898. The Code deals with the proceedings of trial
in the criminal cases. Trial in the criminal cases is discussed under two heads under the CrPC, 1898,
which are thus,
About these two forms of trial in the Magistrate court are discussed as under.
3
Jibon v. Emperor 34 Cr. L.J. 684; 144 IC 90; 37 CWN 906; AIR 1933 Cal 551; 1933 Cr. C. 911.
4
In Re RamSawami, 27 Madras 510.
Regular Trial in the Magistrate Court:
Regular trial in the Magistrate court is the regular procedure of trial in the Magistrate court. The
procedure of Regular trial in the Magistrate court is enunciated in chapter XX of the CrPC, 1898.
Though the regular trail ordinarily starts with the framing of the charge but before the framing of the
charge there is a pre-trial hearing stage.
$ Discharged of the Accused before the Framing of the Charge: Before framing of the
charge the Magistrate has power to discharge the accused if he becomes satisfied, after
7 considering the record of the case;
7 examining the documents submitted with it; and
7 hearing the prosecution and the accused.
The provision enjoins the Court to discharge the accused when there is no ground or
proceeding with the case but the order must record reasons thereof. But when the Court
framed charge it is not required of the Court to record reason. 5 An order of discharge must
contain the reasons for such discharge. And order of discharge is subject to revision by the
High Court Division or the Court of Sessions.
Before passing an order of discharge the Magistrate should first take into consideration,
7 In police case, the prosecution case as given in FIR, charge-sheet, statements of
witnesses record by police and the documents produced including medical certificate;
7 In complaint case, the petition of complaint, statement of witnesses recorded during
judicial enquiry, report of inquiry officer and medical certificate if produced.
Case Study:
15 MLR (HC) 23-Nazrul Islam Mollah vs. State-Discharge of the accused when no
prima facie case is made out from the materials on record-The FIR discloses the initial
intention to deceive and the learned judges found prima facie case disclosed from the
allegation made in the FIR and as such found no ground at this stage to quash the
proceedings.
45 DLR 533-H.M. Ershad vs. The State-This provision casts a duty on Judge to
discharge accused when there is no ground for proceeding with the case and his order must
record reasons thereof. The Court has jurisdiction to pass an order of discharge if it was
satisfied that the charge was groundless for which it was to give reasons but if it framed
charge it was not required of the court to record reasons.
$ Framing of the Charge: The formal stage of the trial actually starts by framing of the charge.
The Magistrate before taking any evidence but considering the provision of section 241A
CrPC shall frame charge. A charge under this section should allege all that is necessary to
constitute the offence charged. The framing of charge needs the following conditions namely,
7 the existence of a prima facie case on the basis of materials before the court;
7 the offence being triable under Chapter XX of the CrPC;
7 the Magistrate’s competency to try; and
7 the Magistrate’s power to inflict adequate punishment.
On the fulfillment of these conditions, charge should be framed.
5
45 DLR 533.
Case Study:
64 DLR 192-Abur Razzak vs. State-Trial Court has to form “an opinion that there is
ground for presuming that the accused has committed offence….” An opinion on the basis of
presumption and a finding in a judicial proceeding are two distinct concepts. A finding about
commission of offence must be based on evidence.
45 DLR 722-Shariful Islam vs. Billal Hossain-The trail court has a wide power to
frame charges and this cannot be interfered with by Revisional Court by way of giving
direction for altering a charge or framing charge (Ref: 13 BLD 392).
$ Plea and Conviction: A very important feature of the trial procedure is that the chance of
admission of truth by the accused. After the framing of the charge the Magistrate shall ask the
accused whether he admits his guilt or not. And if the accused admit his guilt the Magistrate
may convict him according to law.
A plea of guilty is an admission of all the facts on which the charge is founded as well as
an admission of guilt in respect of them. It is important that the exact words of the accused, as
nearly as possible, should be recorded. Magistrates have to remember that a conviction on
admission is not final. It is open to revision and the superior court has to be satisfied that what
was thought to be an admission was really so and for that purpose the must be recorded in
own words of the accused. The Magistrate has discretion to accept the plea of guilty or not to
accept. Accused cannot be convicted on his admission unless the facts admitted amount to an
offence.6
Case Study:
46 DLR 238-Saheb Ali Miah vs. State-He alleged admission of guilt was not recorded
as nearly as possible in the words used by the accused. Section 243 CrPC is mandatory, the
violation of which causes prejudice to the accused and is not curable under section 537 CrPC.
[Ref: 3 BLT (HC) 110]
40 DLR 398-Ali Newaj Bhuiyan vs. The State-Violate on of the mandatory
requirements of Section 243 in recording the individual statements of the accused either in
their language or in words as nearly as expressed by them is not curable by section 537.
Conviction and sentence are not sustainable in law accordingly (Ref: 20 DLR 461).
14 DLR 121-The State vs. Satyapda Biswas-Conviction is legal solely on the
confession of the accused. If the accused himself admits his guilt there is no necessary to
enter into the whole gamut of a legal trial.
$ Hearing/Taking Evidence: If the Magistrate dose not convicts the accused after the
admission of truth by him or if the accused does not make such admission, the next step the
Magistrate is to take is to hear the case and take and examine the evidence.
Here under this provision it is merely said that the Magistrate shall hear the complainant.
It does not say that the complainant is to be examined. Non-examination of the complainant
does not vitiate the proceedings. Moreover, the Magistrate is bound to hear the accused and
his witnesses. The Magistrate has no discretion in this matter. The right of cross-examination
is exercised under this procedure.
Case Study:
21 DLR 62 (WP)-MD. Sadiq Javeed vs. The State-Magistrate is competent to abandon
subsequently a defense witness who though considered by him to be unnecessary, was
nevertheless summoned.
6
Ref: 10 DLRn346.
$ Acquittal & Sentence: The consequence of most of the trial is either acquittal or conviction
and sentencing. These are very important provisions of the trial procedure under the
Magistrate court. Acquittal is ordered by the Magistrate when the Magistrate does not find
any guilt against the accused. But it is not open to the Magistrate to refuse to examine the
witnesses produced by the complainant and the acquittal of the accused, without recording
any evidence is clearly illegal. 7 The Code makes no provision for acquittal of accused persons
without examining witnesses. A Magistrate, who does not find the accused guilty, must
record an order of acquittal. No order of discharge can be passed under this provision.
On the other hand if the Magistrate finds the accused guilty and convicts the accused, he
is bound to pass some sentence.
Case Study:
38 DLR 311 (AD)-Muslimuddin vs. The State-Accused presumed to be innocent of the
charge till guilt is established by legal evidence. No particular number of witnesses legally
required to prove the offence.
49 DLR 36 (AD)-Mobarak Ali and Others vs. Mobaswir Ali and Others-The
prosecution having not taken any steps the learned Magistrate rightly acquitted the
respondents under section 245(1) of the Code of Criminal Procedure. [Ref. 1 MLR (AD) 23]
9 MLR 235-238-Mosharraf Hossain Sheikh (Md.) vs. Abdul Kader and Others-
Release of accused under section 249 is not an acquittal-When there are case and counter case
over the same occurrence both the cases should be tried simultaneously by the same court.
Proceedings stopped under section 149 CrPC can well be revived since the release thereunder
is neither acquittal nor discharge as provided under section 245 CrPC.
$ Where Summary Trial not Possible: According to the provision of chapter XXII of the
CrPC, 1898, cases in which a Magistrate exercises the special powers conferred by section
33A cannot be tried in a summary way.10
7
33 CrLJ 274.
8
33 CrLJ 210.
9
Sec. 260 of the CrPC, 1898.
10
Ibid.
$ Cases which are to be Tried Summarily: All kinds of cases cannot be tried summarily.
Only the cases enunciated by chapter XXII of the CrPC, 1898 can be the subject matter of
summary trial. The cases which can be tried summarily are stated as below:
7 offences not punishable with death, transportation or imprisonment for a term
exceeding two years;
7 offences relating to weights and measures under sections 264, 265 and 266 of the
Penal Code;
7 hurt, under section 323 of the same Code;
7 theft, under section 379, 380 or 381 of the same Code, where the value of the
property stolen does not exceed ten thousand taka;
7 dishonest misappropriation of property under section 403 of the same Code, where
the value of the property misappropriated does not exceed ten thousand taka;
7 receiving or retaining stolen property under section 411 of the same Code, where the
value of such property does not exceed ten thousand taka;
7 assisting in the concealment or disposal of stolen property, under section 414 of the
same Code, where the value of such property does not exceed ten thousand taka;
7 mischief, under sections 426 and 427 of the same Code;
7 criminal trespass, under section 447, and house trespass, under section 448, and
offences under sections 451, 453, 454, 456 and 457 or the same Code;
7 insult with intent to provoke a breach of the peace, under section 504, and criminal
intimidation, under section 506 and offences under sections 509 and 510 of the same
Code;
7 offence of bribery and personation at an election under sections 171E and 171F of the
same Code;
7 abetment of any of the foregoing offences;
7 an attempt to commit any of the foregoing offences, when such attempt is an offence;
7 offences under section 20 of the Cattle-trespass Act, 1871: Provided that no case in
which a Magistrate exercises the special powers conferred by section 33A shall be
tried in a summary way.
$ Procedure in Summary Trial: Unlike regular trials the court in summary trials has to
simplify and shorten trial procedure by dispensing with the recording of evidence and not
allowing many adjournments. In summary trials the Magistrate has to follow all the steps of a
regular trial but the difference between the two is that is 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. On the other hand, in case of summary trials of offences where appeal lies, the
Magistrate has to record the substance of evidence. In summary trials the following particular
is needed to be enter in the form as the Government may direct:
7 the serial number;
7 the date of the commission of the offence;
7 the date of the report or complaint;
7 the name of the complainant ( if any);
7 the name, parentage and residence of the accused;
7 the offence complained of and the offence (if any) proved, and in cases coming under
clause (d), clause (e), clause (f) or clause (g) of sub-section (1) of section 260 the
value of the property in respect of which the offence has been committed;
7 the plea of the accused and his examination (if any);
7 the finding, and, in the case of a conviction, a brief statement of the reasons therefor;
7 the sentence or other final order; and
7 the date on which the proceedings terminated.
$ Limitation of Imprisonment in Summary Trial: Though there is nothing in Chapter XXII
of the CrPC, 1898 limiting the amount of fine that may be imposed in a summary trial, but
there is limitation of imposing of imprisonment under this chapter. According to the provision
of this chapter, the limitation of imprisonment shall not exceed 2 years.
11
Wharton’s Law Lexicon.
the arguments on both sides appellate or Revisional court
ate to be heard by the may see the error.
Magistrate.
In regular trial separate As to the separate record of In summary trial only
record is to be made in each the evidence of the witness substance of the witnesses’
witness’s deposition’s. evidence is to be stated
generally, not a separate
record of each witness is to
be kept.
In regular trial reasons both As to giving of the reasons In summary trail reasons for
for finding and sentencing for the sentence the sentence are not to be
are to be given by the given.
Magistrate.
Regular trial is the formal As to the formality Summary trial is not formal
procedure for trial. procedure of trial.
Regular trial is the regular As to the regularity of the Summary trial is the special
procedure of trial system. procedure procedure of trial system.
All types of Magistrate can As to the triable types of Only the specific types of
try regular trial. Magistrate magistrate under sec. 260 of
the CrPC, 1898 can try
summarily.
Sections 241-249 enunciated As to the sections postulating Sections 260-265 enunciated
the procedures of regular the procedure the procedure relating to
trial. summary trial.
Any kinds of case can be As to the triable offence Only the offences specified
tried in regular trial. in sec. 260 can be the subject
matter of summary trial.
The limitation of power As to the section limiting the The limitation of power of
sentence of imprisonment in power of imprisonment sentencing imprisonment in
regular trial is stated in summary trial is enunciated
section 32 of the CrPC, 1898. in sec. 262(2).
A Magistrate of 1st class in As to the extent of In summary trial the
regular trial can impose imprisonment magistrate can only impose
imprisonment which may imprisonment which may
extent to 5 years. extent to 2 years.
The procedure of investing As to procedure of investing The procedure of investing
powers to the Bench of powers to Bench powers to the Bench of
Magistrate is stated in sec. 15 Magistrate is summary trail
and 19 of the CrPC, 1898. is stated in sec. 161.
Case Study:
12 DLR 324-The Superintendent and Remembrance of Legal Affairs, vs. Aminul Huq-Public
Prosecutor includes Asst. Public Prosecutor and any other person who conducts a Prosecution under
the direction of Public Prosecutor.
Case Study:
36 CrLJ 344-Trial before the Sessions Court practically commences when the case is opened by
the prosecutor.
Case Study:
63 DLR 156-Md. Lokman vs. State-The accused has no scope to have any shelter under section
265C of the Code since a case has already been disclosed against him. Ref: 31 BLD 60 (AD).
12
Sec. 4(1) (t).
13
1980 Pak. CrLJ 438.
the accused is called upon is a very important document. It should be drawn up and considered with
extreme care and caution, so that accused may have no doubt whatever as to the offences to which he
is called upon to answer and the Judge of the Appellate Court also may have no doubt upon the
matter.
Case Study:
46 DLR 524-State vs. Auranga@ K. M. Hemayet Uddin-Statements made under sections 164
and 161 CrPC are documents on record within the meaning of section 265D.
Fixing Date for Taking of Evidence and Taking and Examining of Evidence:
Accused may pleaded guilty or remain silent or may claim to be tried. So, after fixing date for the
hearing and taking evidence from the prosecution, the Judge shall take the evidence the prosecution
may produce as to support the allegation against the accused. The court may permits the cross
examination of any witness. But it is a discretionary power of the court.
Case Study:
37 DLR 107-Md. Taheruddin vs. Abul Kashem-After a charge is framed and the accused
pleads not guilty to the charge and claims to be tried, the Session Court shall fix a date for the
examination of witnesses. The Sessions Judge may, on the application of the prosecution issue any
process for compelling the attendance of any witness or the production of any document or other
things under section 256F CrPC. Acquittal order by Sessions Judge invalid when such order is passed
on the ground of PWs absence on the date of trial.
Acquittal:
When after taking the evidence, examining the accused, hearing the prosecution and the defense
point, if the Judge considers that there is no sufficient evidence against the accused to prove that the
accused is guilty, the court shall record an order of acquittal. This provision applies only where there
is no evidence, and would not cover cases where the court considers that the charge is itself, improper.
Case Study:
48 DLR 6 (AD)-Abdul Wadud vs. State-The whole purpose of unamended section 339C was to
whip up the prosecution and activise the trial Court so as not to delay the trial of a case unnecessarily.
47 DLR 24-Abdul Motaleb Shaque vs. State-Non-working days of a particular judge for
reasons beyond his control like unsuitable working condition in the Court room should be excluded
while computing the working days. The days on which the case was adjourned due to default of the
14
Sec. 139C (1).
accused should not be considered as working days, otherwise it will be easy for the accused to stretch
the trial beyond the statutory period.
45 DLR 610-Abu Sufian vs. The State-Provisions of this section is not merely a procedural law.
It is a law vesting the accused with a right which could not be taken away by a subsequent amendment
of the law. [Ref: 19 DLR 242 (SC); 20 DLR 315 (SC) 38 DLR 240 (AD)].
17 BLD 35 (AD)-Master Giasuddin and others vs. The State-It required the trial Court to
conclude trial within the statutory period from the date the case was received by it and not from the
date of framing of the charge. [2 BLC (AD) 87].
Appeal
The word “appeal” means the right of carrying a particular case from an inferior to a particular
case from an inferior to a superior court with a view to ascertaining whether the judgment is
sustainable. An appeal is a creature of law and there is no inherent right of appeal. 15 An appeal is a
continuation of the trial of the lower court.16 In law, an appeal is a process for requesting a formal
change to an official decision. Appeals function both as a process for error correction as well as a
process of clarifying and interpreting law. 17 Although appellate courts have existed for thousands of
years, common law countries did not incorporate an affirmative right to appeal into their
jurisprudence until the nineteenth century.
The right of appeal is another important feature of the Code of Criminal Procedure, 1898. The
Code has ensured the right of appeal by providing provisions of appeal in Chapter XXXI of the Code.
The chapter has provided the right of appeal and other to which court the appeal shall lie and other
necessary provisions as regard to appeal. Some necessary provisions as regard to appeal which are
provided under this Code are discussed briefly as under.
Case Study:
10 DLR 123-Hari Meah vs. The State-Appeal does not lie as a matter of course, being merely a
creature of law. The provisions of section 8 of Food Act, 1956 do not confer a right of appeal.
Previous state of law cannot be taken into account. A Special Magistrate under the Act is not a
Magistrate under the CrPC and his orders are not appealable.
5 DLR 161 (FC)-S. M. K. Alvi vs. The Crown-Appeal by Government under Chapter XXXI
against acquittal by a Special Judge acting under Criminal Law Amendment Act, 1948 is competent.
Special Judge’s Court is a “Criminal Court” within the meaning of section 404 CrPC.
15
AIR 1941 Lah. 414).
16
37 Mad 119.
17
Keenan D. Kmiec, The Origin & Current Meanings of Judicial Activism, 92 Cal. L. Rev. 1441, 1442.
18
Sec. 439 (5).
Where Appeal Lies to Which Court:
Appeal as a creature of law does not lie in every court. The Code has enunciated the procedure as
regard to which court appeal shall lie. Appeal lies to which court is postulated as under,
$ Appeal against an order rejecting for the delivery of property or the proceeds of the sale under
section 89 will lie to the court to which appeals ordinarily lie from the sentence of the former
court.
$ Appeal against an order requiring security for keeping the peace or for good behavior by a
Magistrate will lie to the Court of Sessions.
$ Appeal against an order refusing to accept or rejecting a surety under section 122, if made by,
the Chief Metropolitan Magistrate to the Court of Session;
the Chief Judicial Magistrate to the Court of Session;
the District Magistrate to the Court of Session;
the Metropolitan Magistrate other than CMM, to the CMM;
any other Magistrate whether Executive or Judicial to the District Magistrate or to the
Chief Judicial Magistrate.
$ Appeal from sentence of Magistrate of the second and third class will lie to the Chief Judicial
Magistrate.
$ Appeal from sentence of Joint Session Judge or Metropolitan Magistrate or any Judicial
Magistrate of the first class will lie to the Court of Session
$ Appeal against sentence of imprisonment for a term exceeding 5 years or any sentence of
transportation will lie to the High Court Division.
$ Appeal against conviction for sedition under section 124A of the Penal Code by Magistrate
shall lie to the High Court Division.
$ Appeal from sentence of Court of Session or Additional Session will lie to the High Court
Division.
19
18 CrLJ 401.
20
AIR 1965 MP 137.
They are entitled to satisfy the court that there was in fact no plea of guilty. A plea obtained by
trickery is not a plea of guilty within the meaning of the Code and would not preclude from
asking for any relief except reduction of sentences. 21 This provision does not apply to a
conviction by Magistrate of the second and third class.22
Case Study:
22 DLR 217-District Council, Kushtia vs. Abdul Gani-Accused can be convicted on
his pleading guilty, but such conviction is not proper without materials on record to support it
[Ref: 5 BCR 265 (AD)].
7 No Appeal in Petty Cases: The provision of this Code also takes away the right of appeal in
certain petty cases. Under the provision of the Code, no appeal can be laid by a convicted
person,
$ in case where, a Court of Session passes a sentence of imprisonment one exceeding
one month; or
$ in case where,
O a Court of Session; or
O Chief Judicial Magistrate;
O Metropolitan Magistrate; or
O other Magistrate of the first class
passes a sentence of fine not exceeding fifty taka only
The Code also takes away the right of appeal in default of payment of fine where no
substantive sentence of imprisonment has also been passed.
Once a sentence exceeding the limits prescribed by the provision is passed an appeal will
lie, as of right, whether the sentence was legal or not. Two conditions must exist in order to
make the provision applicable to the Magistrates,
$ the sentence must be of fine only; and
$ the amount of fine imposed on the convicted person must not exceed taka fifty.
If the sentence is not of fine only in the sense that besides fine, some other kind of
punishment also is inflicted, this section does not apply. 23 In the case of Court of Session, fine
may be combined with imprisonment, hence, two conditions are to be satisfied for the
application of the provision, namely,
$ the sentence is not the one exceeding the prescribed limit; and
$ it is passed by a court specified in the provision.24
21
AIR 1944 Cal. 120.
22
Ref AIR 1943 Pat. 380.
23
AIR 1954 All 642.
24
AIR 1947 Cal 394.
7 No Appeal from Certain Summary Conviction: According to the provision of the Code,
any appeal can be laid in case of certain summary cases. There is two conditions as regard to
this provision, namely,
$ it must be a summarily triable case; and
$ the sentence passes by the Magistrate must not exceed two hundred taka.
But if the fine exceed the said amount, it will be appealable.
Case Study:
42 DLR 12 (AD)-Mostoshir Ali vs. Arman Ali-State filed a leave petition against the order of
acquittal by the High Court Division which was dismissed after hearing-Subsequently the informant
filed another leave petition. It was held that, there is no scope for hearing the second petition at the
instance of the informant. [Ref: 42 DLR 13]
25
AIR 1935 Mad, 157.
40 DLR 286 (AD)-Mafizuddin vs. The State-A finding of acquittal can be converted into
conviction only in an appeal under section 417 CrPC which being in accord with section 423 CrPC is
the correct view. [Ref: 27 DLR 652, 21 DLR 206 (SC), 8 PLD 139 Kar]
55 DLR 568-Dilruba Aktar vs. AHM Mohsin-An appeal from acquittal, the appellate Court in
exercise of its appellate authority is not entitled to interfere with the decisions unless those suffer from
manifest illegality, legal infirmity and perversity rendering a positive miscarriage of justice.
Case Study:
44 DLR 594-Abdul Aziz vs. The State-Appeal by informant-Competence-The contention that an
appeal at the instance of an informant from an inadequate sentence lies under section 417A has no
substance. [Ref: 8 PLD 517 Lah]
Procedure of Appeal:
The Code has described the procedure of file an appeal and the procedure of hearing an appeal.
These procedure under this code are enunciated as under,
O Petition of Appeal: The Code has postulated that, every appeal must be made in the form of
petition in writing. It must be presented by the appellant or his advocate. The petition of
appeal must accompanied by a copy of the judgment or order appeal against, unless otherwise
directed.
O Procedure when the Appellant is in Jail: If the appellant is in jail, he can also file an appeal
under this Code. The appellant can present his appeal petition with the copy of the judgment
or order appeal against, to the officer in charge and such officer shall forward such petition to
the proper Appellate Court.
O Summary Dismissal of Appeal: After perusing the petition of appeal, the appellate Court has
power to dismiss the appeal summarily, if it consider that there is no sufficient ground to
interfere. But the appellate Court cannot dismiss the appeal petition without giving the
appellant or his advocate, a reasonable opportunity to being heard. Before dismissing the
court may call for the record of the case. But the court is not bound to do it. It is a
descritionary power of the Court.
O Notice of Appeal: If the appeal dismiss summarily, then the appellate Court shall send notice
to the appellant or his advocate and such office as the Government may appoint in this behalf
about the time and place where such appeal will be heard. The appellate court shall send a
notice to the accused too.
O Powers of the Appellate Court in Disposing of Appeal: After sending the notice of the
appeal the Appellate Court will send for the record of the case. After perusing such record, if
the appellate Court thinks that there is no sufficient ground to interfere, the appellate Court
can dismiss the appeal.
The appellate Court can reverse the order appealed against and order for further inquiry
or order for retrial, reverse the nature the of the sentence or finding, etc.
O Other Procedures as regard to Appeal: The appellate Court can order the appearance of the
accused and the appellate Court can suspend the sentence as long as the appeal is pending and
order that the appellant shall release on bail. In case of appeal against acquittal, the appellate
court may order the arrest of the accused and commit him to prison until the disposal of the
appeal. The appellate court can take further evidence or order any other lower court or
Magistrate to take the evidence.
O Procedure where Judges of Court of Appeal are Equally Divided: In case of bench,
sometime the Judges can divide in equal opinion as regard to the decision of the appeal. In
this case, their opinions shall be presented before another Judge of the same Court, and such
Judge after hearing, shall deliver opinion as he thinks fit, and such opinion in this regard shall
be final.
O Finality of Orders on Appeal: The decision delivered by the Appellate Court as regard to
any appeal is final, except in two cases, namely,
appeal against an order of acquittal file by the Government; and
Appeal against an order of inadequacy of sentence file by the Government.
O Abatement of Appeal: Everything has an end. So does the appeal. Every appeal against an
order of acquittal and inadequacy of sentence will finally abate on the death of the accused,
and every other appeal (except an appeal from a sentence of fine) will finally abate on the
death of the appellant.
26
40 CWN 692 PC.
O Power in an Appeal from an Order of Acquittal: The appellate court, in case of an appeal
from a sentence of acquittal, may,
$ reverse such order; or
$ direct to make further inquiry; or
$ sent for trial; or
$ find him guilty and passes sentence in accordance with law.
O Power in an Appeal from Conviction: The Appellate Court may, in an appeal from a
conviction,
$ reverse the sentence and,
acquit; or
discharge the accused; or
$ sent the accused to be retried by a court competent to the jurisdiction and subordinate
to such appellate court; or
$ sent for retrial; or
$ alter the findings maintaining the sentence;
$ with or without altering the finding, reduce the sentence; or
$ with or without altering the finding or with or without reducing such sentence alter
the nature of the sentence but shall enhance the sentence.
O Power in an Appeal for Enhancement of Sentence: The appellate court may, in an appeal
for enhancement of sentence,
$ reverse the finding and sentence; or
$ acquit or discharge the accused; or
$ order him to be retried in a court competent to try it; or
$ alter the finding maintaining the sentence; or
$ with or without altering the finding alter the nature or extent or nature and extent or
the sentence so as to enhance or reduce the same;
$ however, the sentence shall not be enhanced unless the accused has had an
opportunity of showing cause against such enhancement;
$ a further condition in enhancing sentence is that the appellate court shall not inflict
greater punishment for the offence which in its opinion the accused for that offence
by the Court passing the order of sentence under appeal.
O Power in an Appeal from any other Order: The appellate Court may, in an appeal from any
other order,
$ alter or reverse such order;
$ make any amendment or any consequential or incidental order that may be just or
proper.
$ where an appeal lies but no appeal is brought, no proceedings by way of revision shall
entertained. Thus, application for revision may be made against a non-appealable order
straightway. However, where an order is appealable, application for revision will not until the
appeal is heard and decided;
$ the decision against which revision is sought must be of an inferior criminal court;
$ in deciding the case the inferior court appears to have committed any error of law resulting in
an error in the decision occasioning failure of justice or resulting miscarriage of justice;
$ application for revision may be made either in the Sessions Court or in the High Court
Division.
$ A court having power of revision shall dispose of a proceeding in revision within ninety days
from the date of service of notice upon the parties.
$ Source of Revisional Power of the High Court Division & Sessions Court: The Code has
enunciated that, the High Court Division may be activated for Revisional power from any of
the following sources,
the of the case has been called for by the High Court Division suo motu; or
on the application by the parties;
the case has come to its knowledge by any other sources.
$ The High Court Division or Sessions Court can examine the correctness, legality or propriety
of any finding, sentence or order passed by any inferior courts.
$ It can examine the regularity of any proceedings of inferior courts.
$ When calling for record it may direct that the execution of any sentence be suspended and, if
the accused is in confinement, that he be released on bail or on his own bond pending the
examination of the record.
$ In Revisional jurisdiction the High Court Division or Sessions Court may exercise all or any
of the powers of an appellate court. Thus the High Court Division may reverse and order of
inferior court, direct that further inquiry be made, or that the accused be retried or sent for
trial, enhance the sentence etc.
$ No order under revision shall be made to the prejudice of the accused unless he has had an
opportunity of being heard either personally or by pleader in his own defence.
$ Where the sentence dealt with under this section has been passed by a Magistrate the Court
shall not inflict a greater punishment for the offence which, in the opinion of such Court, the
accused has committed than might have been inflicted for such offence by a Metropolitan
Magistrate or a Magistrate of the first class.
$ By way of revision power the High Court Division or Sessions Court cannot convert a finding
of acquittal into one of conviction.
$ By way of revision power the High Court Division cannot entertain any proceedings in
revision with respect to an order made by the Sessions Judge. Thus a second revision is not
possible.
Bail
The concept of bail emerges from the conflict between the ‘police power’ and to restrict the
liberty of a man who is alleged to have committed a crime and the presumption of innocence in his
favor.
‘Bail’ is derived from the old French verb ‘baillier’ meaning to ‘give or deliver’. Bail in English
common law is the freeing or setting at liberty a person arrested or imprisoned on security or on
surety being taken for his appearance on certain day and placed named. In other words, bail is the
delivery of arrested person to his sureties upon their giving security for his appearance at a designated
place and time, to the jurisdiction and judgment of the court.
The basic concept of the word bail is release of a person from the custody of police and delivery
into the hands of sureties, who undertake to produce him in court whenever required to do so. The
provisions of bail is postulated in chapter XXXIX of the Code of Criminal Procedure.
However, every criminal proceedings is based on a prima facie assumption of guilt and again there is
a presumption of innocence in favor of the accused. Bail serves the purpose of presumption of
innocence. And at the same time, the conditions of bail like appearance in the court on fixed date and
time serves the purpose prima facie assumption of guilt against the accused. There are various
purposes of bail, namely,
Categories of Bail:
There are certain categories of bail under the Code of Criminal Procedure, 1898. These categories
of bail are postulated as under,
$ appear at all times required until full and final disposition of the case;
$ obey all further orders of the bail authority;
$ give written notice to the bail authority if any change of address within 48 hours of the date of
the change;
$ not to interfere with the witnesses or other activities of the course of justice in relation this
case;
$ refrain from committing any further criminal conduct against the victim.
$ Where the person arrested and charged with murder or attempt to murder, bail should not be
allowed (Naranji Premij 29cr LJ 901)
$ Where it presumed that, the accused person punished with long term imprisonment should not
release by bail.
$ Where the person arrested of non-bailable offence should not release by bail (Bashiram 26cr
LJ 4).
$ If the court consider that there are reasonable grounds for believing that the accused is guilty
(Jamini Mullick 36 Cal 174).
$ Circumstances which disentitle an accused to gat bail.
$ If the arrested person fails to furnishes the required security.
$ The person seeking bail must surrender and appear before the court when the application for
bail is being heard, otherwise bail application may be refused [14 DLR (SC) 321].
Case Study:
41 DLR 291-Abdus Samad vs. The State-To be released on bail a person must be in custody or
in some short of confinement, therefore a person to be released on bail need to be in some sort of
confinement or custody or otherwise it is not understood from what confinement or custody he would
be released.
25 DLR 45 (SC)-Chowdhury Muhammad Khan vs. Sanaullah-First Judge of the High Court
refused bail. Later on a fresh application for bail was moved before another Judge of the same High
Court, who grants bail. Extreme impropriety that results from such a course. [Ref: 12 BLD 507].
Case Study:
53 DLR 43 (AD)-Section 497 of the CrPC is a procedural law and the accused having alleged to
have committed a substantive offence of murder his liberty is entailed.
Anticipatory Bail:
When a person granted bail in apprehension of arrest, this is called anticipatory bail. This is an
extra-ordinary measure and an exception to the general rule of bail. When any person has reason to
believe that he may be arrested on an accusation of having committed a non-bailable offence, he may
apply to the High Court Division or the Court of Sessions for a direction and the court may if it thinks
fit, direct that in the event of such arrest, he shall be released on bail. The word anticipatory bail has
not used in the Code of Criminal Procedure, 1898, though it has a common practice in our country.
Cancellation of Bail:
When bail is granted in case of a non-bailable offence, the court granting the bail or the High
Court Division or the Courts of Session may pass an order to arrest the person who was earlier
released on bail and may commit him to custody. Whatsoever, under the following grounds bail may
be cancelled:
$ where the person on Bail, during the period on bail commit the very same offence for which
he is being tried or has been convicted;
$ if fail to surrender himself into custody in answer to their bail;
$ interfere with witnesses or otherwise obstruct the course of justice;
$ if he tempers with the evidence;
$ if he hampers the investigation;
$ if he runs away to a foreign country or goes beyond the control of his sureties;
$ if he commit acts of violence in revenge. 27
27
Bachhu Lal cr LJ 1505.
Inherent Power of the High Court
Inherent jurisdiction is a doctrine of English common law that a Superior Court has the
jurisdiction to hear any matter that comes before it, unless the statute or rule limits that authority or
grants exclusive jurisdiction to some other court or tribunal. In the English case of Bremer Vulkan
Shiffbau and Maschinenafabrik vs. South India Shipping Corporation Ltd., Lord Diplock
described the courts inherent jurisdiction as a general power to control its own procedure so as to
prevent its being used to achieve injustice.
The inherent jurisdiction is also given to the High Court Division of ours, in the Code of Criminal
Procedure, 1898. The provision of the Code does not give any new power to the Court, it only saves
the inherent power which the court possessed before the enactment of the Code.
The inherent power of the High Court Division preserved by the Code is vested in it by law within the
meaning of Article 32 of the Constitution of Bangladesh.
Case Study:
23 DLR 335-A. T. Mridha vs. State-The inherent jurisdiction of the High Court Division under
Section 561A of CrPC is the legislative recognition of the inherent power and this power exists so
long the High Court Division exists and this power is available for ancillary and auxiliary purpose for
doing justice.
$ the power is not to be resorted to if there is a specific provision in the Code for the redress of
the grievance of the aggrieved party;
$ it should be used very sparingly, carefully and with caution and in rare case to prevent abuse
of process of any court or otherwise to secure the ends of justice;
$ it should not exercise as against the express bat of law engrafted in any other provision of the
Code.
In Ram Narayan AIR 1960 All 296, it was held that to seek interference under the provision of
inherent power of the High Court, three conditions are to be fulfilled, which are as following,
$ the injustice which comes to light should be of grave and not of a trivial character;
$ it should be palpable and clear and not doubtful; and
$ there exist no other provision of law by which the party aggrieve could have sought relief.
The End
Book eferences
6 The Code of Criminal Procedure, 1898 [Act No. V of 1898], Bare Act
6 Text Book on Code of Criminal Procedure [7th Edition] by MD. Abdul Halim
6 Law and Practice of Criminal Procedure [14 th Edition] by Zahirul Huq
6 The Code of Criminal Procedure with Rules and Orders by Justice Siddiqur Rahman
Miah
6 The Code of Criminal Procedure [3rd Edition] by A. R. M. Borhanuddin
6 The Code of Criminal Procedure: Theory and Practice [1st Edition] by Ahamuduzzaman
6 Trial of Civil Suits and Criminal Cases [2nd Edition] by Justice Mohammad Hamidul
Haque