“Causes of Delay in disposing Criminal Cases in the Criminal Justice System of Bangladesh: An Analytical study”

- Md. Tajul Islam

criminal justice

Published On - November 26, 2015 [Vol. 3, Jul - Dec, 2015]

Introduction:

William E Gladstone rightly observed about the delay in any disputes causes miscarriage of justice even he utters in this way; “Justice delayed is justice denied”[1] is a legal maxim meaning that if legal redress is available for a party that has suffered some injury, but is not forthcoming in a timely fashion, it is effectively the same as having no redress at all. The clients of justice desire uncorrupted, inexpensive and speedy justice without any delay. However, it will be not overstated to say that the present criminal justice system in Bangladesh is decaying justice seekers’ confidence. The reason for people’s lack of confidence in criminal justice mechanism is due to its faulty, non-scientific and perplexed state in present context. 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). Delay in disposing cases is one of the major problems in the CJS of Bangladesh. There is a maxim in equity “Delay defeats equity”. 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 with some recommendations.

  • 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 (Shariat) 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.[2]

The basic principle which is followed in criminal justice system under these Codes is that the accused should be presumed as innocent and the prosecution, by adducing cogent and reliable evidence, shall have to prove that the accused is guilty of the offence alleged. In other words, there is onus upon the prosecution. Further, the courts also 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 alleged accused by resorting to “benefit of doubt”. However, neither the expression “reasonable doubt” nor the expression “benefit of doubt” are defined or explained in any law (4 MLR (HC) 87 Para 12).[3]

These practices are not good in all cases. 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 alleged accused. 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: Evidence 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 legislationsIn 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.[4] (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.[5]

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.

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

Very few earlier studies made real efforts to find out the causes of delay in courts so far it relates to criminal justice system in the history of Bangladesh Judiciary. For example, Zahir (1988, p.8), in his empirical research on the causes of delay in courts, indicated ‘adjournments [are] responsible for about 50 per cent of delay’ (Zahir 1988, pp. 8-9). In his research, ‘judges uniformly held [that] the lawyers of both parties and absence of witnesses [are] responsible for causing adjournments’ and consequent delay in disposal of cases. In most of the cases judges blamed lawyers for delaying disposal of cases (Zahir 1988). Though Zahir (1988) identified some causes of delay in courts, he did not indicate the deficiency during investigation and trial stages.[6]

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:

Regrettably, 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.
  • 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.[7]
  • 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.
  • 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. in spite 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.
  • Shortage 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.

Some measures to be taken considering with the above causes of delay to resolve the problems in the Criminal Justice System:

There are some recommendations for resolving the delay in criminal cases which are to be applicable for our Criminal Justice System:

1. Young assistance Wing: There has been a “Young Assistance Wing” which is to be formed with the young generation from the whole country to assist the police or law enforcing authority or poor litigant people. Because we know that young generations are normally honest and sincere in their duty and responsibility.[9]

2. Law enforcing authority should properly train to become humanitarian to perform their duties and responsibilities to the greater interest of the people.

3.“Community involvement” of the litigant people may help them to become conscious about their judicial rights.

4. Sufficient number of judges should be appointed for speedy disposal of cases.

5. Have to mitigate the accommodations problems for the Judges, Lawyers and the Court Staffs.[10]

6. We may apply the “reformation of old Procedural criminal Laws” policy of Indian and Chinese criminal justice policy in our country.

7. “Vocational Training Course” may be introduced among the lawyers, Court staffs, special police I. e PBI (police bureau of investigation) so that they can do something for mitigating the delay in disposing the cases.

8. Political involvement in our Criminal Justice System is badly affected our smooth criminal management and interrupt the daily activities of the criminal justice organ. It is very necessary to take the criminal justice organs outside the political interference.

9. Corruption is one of the main problems of our Criminal Justice System that should be controlled through “check and balance” and then thinking about the reducing of delay.

10. Amendment of traditional criminal law is very necessary to take the challenge twenty first century.

11. There must have a “monitoring board” to monitor and supervise the activities of the of the criminal justice organs of the State on regular basis.

12. There needs to be research wing under the concerned ministry and even under the Apex Court which shall be responsible for research in changing trends in finding out the causes of delay and mitigation process and even in crime, corruption and correction.

Conclusion:

Causes of delay is a barrier of Speedy disposal of criminal cases in Criminal Justice System in Bangladesh but by reducing delay in the disposal of cases can bring spectacular changes in order to resolve some of the backlog case problems in our Criminal Justice System as well as can attract the mind of the justice seekers and can win the public confidence. 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 with amendment of century back old criminal laws. We believe, the recommendations presented in this paper, are to advocate for reducing delay in the case disposal 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 initiatives in the filed of Case Management by finding out causes of delay, ADR, Speedy Disposal of Cases 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 by speedy disposal of the backlog of cases.

References:

  • Suzy Platt (ed.). Entry 954. William Ewart Gladstone (1809–98) Respectfully Quoted: A Dictionary of Quotations Requested from the Congressional Research Service. Library of Congress 1989. (Attributed to WILLIAM E. GLADSTONE. — Laurence J. Peter, Peter’s Quotations, p. 276 (1977). Wikipedia, The free Encyclopedia
  • Patwary, ABM Mofijul Islam, Legal System Of Bangladesh, Dhaka, 1991
  • (4 MLR (HC) 87 Para 12, 7 BLD (AD) 265, 11 BLD (AD) 2 para 135, 15 BLT (AD) 101, 12 BLT 481
  • The daily Star, June12, 2008), Dhaka, Bangladesh.
  • Jahan , Ferdous and Kashem, Mohammed B. “ Law and order Administration in Bangladesh”. Working Paper, Dhaka, Bangladesh. Center for Governance Studies, BRAC University, 2006.
  • Zahir M., Delay in courts and court management, Bangladesh Institute of Law and International Affairs (BILIA), Dhaka, 1998.
  •    Ratanlal & Dhirajlal, The Code of Criminal Procedure, Eighteenth Edition, 2006,  Wadhwa and Company Nagpur.
  •    Islam Tajul, Joint district Judge, Thakurgaon ( unverified) own create chart MSS Criminology and Criminal Justice System From Dhaka University Session 2011-12
  • Cohen, Jerome,; ( 1982), “ Chinese Criminal Code Symposium”. The Journal of Criminal law and Criminology 73:135-203
  • Banglapedia, National Encyclopedia of Bangladesh, Legal System, Dhaka: Asiatic Society of Bangladesh, 2006

[1] Suzy Platt (ed.). Entry 954. William Ewart Gladstone (1809–98) Respectfully Quoted: A Dictionary of Quotations Requested from the Congressional Research Service. Library of Congress 1989. (Attributed to WILLIAM E. GLADSTONE. — Laurence J. Peter, Peter’s Quotations, p. 276 (1977).

[2] Patwary, ABM Mofijul Islam, Legal System of Bangladesh, Dhaka, 1991

[3] (4 MLR (HC) 87 Para 12, 7 BLD (AD) 265, 11 BLD (AD) 2 para 135, 15 BLT (AD) 101, 12 BLT 481

[4] The daily Star, June12, 2008)

[5] Jahan , Ferdous and Kashem, Mohammed B. “ Law and order Administration in Bangladesh”.Working Paper, Dhaka, Bangladesh. Center for Governance Studies, BRAC University, 2006.

[6] Zahir M., Delay in courts and court management, Bangladesh Institute of Law and International Affairs (BILIA), Dhaka, 1998.

[7] Ratanlal & Dhirajlal, The Code of Criminal Procedure, Eighteenth Edition, 2006, Wadhwa and Company Nagpur.

[8] Tajul Islam, joint district judge, Thakurgaon( unverified) own created chart.

[9] . Cohen, Jerome,; ( 1982), “ Chinese Criminal Code Symposium”. The Journal of Criminal law and Criminology 73:135-203

[10] Banglapedia, National Encyclopedia of Bangladesh, Legal System, Dhaka: Asiatic Society of Bangladesh, 2006.

Other References:

  1. Bangladesh Gazettes
  2. Bangladesh Code

About The Writer

Article Author Image

Md. Tajul Islam

Joint District Judge, Judge Court, Thakurgaon.

The author is a Joint District Judge, Judge Court, Thakurgaon .

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