Legal Procedure
2 years ago 993
General Terms
| PENAL CODE: It defines offenses and prescribes punishments. |
| Oath is a declaration required by the law, which is compulsory and holds the witness responsible for the consequences of his evidence. He should take the oath as follows: "I do swear in the name of God, that what I shall state shall be the truth, the whole truth, and nothing but the truth". If the witness is an atheist, he has to "solemnly affirm" instead of "swearing in the name of God. A child below 12 years is not required to take an oath. |
| CRIMINAL LAW deals with offenses that are considered to be against the public interest, such as offenses against the person, property, public safety, security of the State, etc. Here the State is a party represented by the public prosecutor, and the accused is the other party. |
| CIVIL LAW deals with disputes between two individuals or parties. The party bringing the action in a civil case is called "plaintiff". The accused is called the "defendant" in both criminal and civil cases. |
| JURY: Jury is a group of responsible, educated persons of a good social position called "jurors". It is composed of an uneven number of persons. |
| Scene of crime: It refers to the place or scene, where a crime has been committed. It helps in identifying the cause & manner of crime |
(From Selim Reza)
| Affidavit means a written declaration under oath. |
| Crime means social harm that has been defined and made punishable by law. |
| Open verdict means an announcement of the commission of a crime without naming the criminal. |
| The party bringing the action in a civil case is called "plaintiff". The accused is called the "defendant" in both criminal and civil cases. |
| Testimony means evidence, oral or written, of a witness under oath. |
| Deposition is an oral or written statement on oath made by a witness in a judicial preceding and signed by witness & magistrate. |
| Warrant means a written order from the legal authority regarding the arrest of the accused or for forcible production in court as a witness. |
| Summon case means a case relating to an offense punishable with imprisonment for 1 year or less than that. |
| Warrant case means a case relating to an offense punishable with death, imprisonment for life, or for a term exceeding one year. |
INQUEST:
An inquest is an inquiry or investigation into the cause of death.
Two types of inquests are held in Bangladesh
1. POLICE INQUEST:
Conducted by a police officer, not below the rank of sub-inspector (SI). The officer-in-charge (usually sub-inspector) of a police station conducts the inquest. The police officer making the inquest is known as Investigating Officer.
In cases of suspected foul play or doubt, the body is sent for postmortem examination to the nearest authorized Government doctor, together with a requisition and a copy of the inquest. The report is forwarded to the Magistrate.
2. MAGISTRATE'S INQUEST:
This is conducted by a District Magistrate (Collector/Deputy Commissioner).
It is done in the case of
1) death in police custody, and while under police interrogation,
2) death due to police firing,
3) death in prison, reformatories, Borstal school,
4) death in a psychiatric hospital,
5) dowry deaths,
6) exhumation.
7) Any person dies or disappears, or rape is alleged to have been committed on any woman, while such person or woman is in the custody of the police or in any other custody authorized by the court.
Other Types of Inquest
3. CORONER'S INQUEST:
This is a type of inquest done in the U.K., some States in the U.S.A., and some other countries, but not in India.
4. MEDICAL EXAMINER'S SYSTEM:
This is a type of inquest conducted in most of the States in the United States of America, Japan, Canada, etc. but not in India. A medical practitioner known as Medical Examiner is appointed to perform the functions of a Coroner.
As the doctor visits the scene of the crime and conducts the inquest, it is superior to Coroner and police inquest.
Difference Between Magistrate/Coroner's Inquest & Police Inquest (Ref Nandy)
| Magistrate/Coroner’s inquest | Police inquest |
| Can hold an inquest in all cases of the suspicious death | Cannot hold an inquest in all cases of death eg. Dowry death, death in prison |
| They need not inform anybody. | The police must inform the magistrate about the incidence |
| They can give requisition for chemical analysis of viscera | Cannot do so |
| Can order for exhumation of the dead body | Cannot order for exhumation |
| Can issue warrant of arrest of accused | Cannot issue a warrant |
| Can summon a person to give evidence in the court | Cannot give summons |
| It is superior to a police inquest | It is inferior to magistrate inquest |
Inquest Report/ Surat-hal Report (Ref Nandy)
It is the investigating report made by an investigating office about the unnatural, sudden, suspicious death of the person.
Parts of an Inquest Report (Ref Nandy)
- Time & Police Station
- Particulars of the victim
Name, Parents, Age, Residence
- Place where the dead body was found
- Description about the cases
- Position of the body
- About the surrounding
- Apparent injuries & marks on the body
- Description of clothes & other articles found on or near the dead body
- Opinion of witness as to cause of death
- Opinion of police officers as to the cause of death
- Signature of witness (at least two)
- Signature of a police officer
Chalan: (Ref Nandy)
Chalan is the written requisition from an authorized person (Magistrate, Coroner, or Police Officer) to an authorized Government medical officer (doctor) to perform a medicolegal autopsy.
Difference between Chalan & Inquest Report (Ref Nandy)
| Inquest/ Inquest Report | Chalan |
| An inquest is an inquiry or investigation into the cause of death | It is a written requisition by an investigating officer, to a doctor to perform an autopsy |
| Presented in white paper | Presented as printed/tabulated format |
| Contain a brief history about the dead body | Does not contain a brief history of the dead body |
| Signature of witness is present | Signature of witness is absent |
| It is of 4 types | No further classification |
A model of Chalan (Ref- Nandy)
Chalan no: ……………..
| Religion & caste of deceased | Sex & Age | Residence | Where body was found | Date & hour of despatch & distance from place of postmortem | Means of dispatch | Name of identifying police officer | Marks of body | Causes of death as far as known | Remarks notice what clothes & articles were certified with the body |
Offense
Offense means any act or omission made punishable by any law.
Offenses are classified as
1. COGNISABLE OFFENCE
It is an offense in which a police officer can arrest a person without a warrant from the magistrate, e.g., rape, murder, dowry death, ragging, death due to rash or negligent act, etc.
2. Non-cognizable Offence:
In a non-cognizable offense, the accused cannot be arrested without a warrant issued by the magistrate. E.g assault
SUBPOENA OR SUMMONS: (sub = under; poena= penalty)
A subpoena is a document compelling the attendance of a witness in a Court of law under penalty, on a particular day, time, and place, for the purpose of giving evidence.
It is issued by the Court in writing, in duplicate, signed by the presiding officer of the Court, and bears the seal of the Court. The crime number and name of the accused person are mentioned.
The witness will be excused from attending the Court if he has a valid and urgent reason.
If the witness fails to attend the Court:
1. In a civil case, he will be liable to pay damages.
2. In criminal cases, the Court may issue the notice under and after hearing the witness, if it finds that the witness neglected to attend the Court without any justification, may sentence him to a fine, or imprisonment, or the Court may issue bailable or non-bailable warrants to secure the presence of the witness. Non-attendance in obedience to an order from the court of law intentionally i.e. summons (imprisonment up to six months or fine up to one thousand rupees, or both.
Priority order of Summon:
| Criminal Courts have priority over Civil Courts. If a witness is summoned by two Courts on the same day, one of which is criminal and the other civil, he should attend the Criminal Court and inform the Civil Court of his inability to attend, giving his reasons. |
| If both cases are criminal: Higher Courts have priority over the lower. |
| If he is summoned from two Courts of the same status, he must attend the Court from where he received the summons first, informing the other Court about it. He can attend the second Court after finishing his evidence in the first Court. |
MEDICAL EVIDENCE
Evidence means and includes: (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, (2) all documents produced for the inspection of the Court.
Types:
| 1. Oral Evidence A. Direct B. Indirect It is not the direct testimony of an eye witness but has a bearing upon the fact of the other and subsidiary facts C. Hearsay It is any statement made by any person about what he did not personally witness or evidence he obtained from a third party. |
| 2. Documentary Evidence A. Medical Certificates They refer to ill- health, insanity, age, death, etc.
B. Medicolegal Reports
C. Dying Declaration D. Dying Deposition |
DYING DECLARATION:
It is a written or oral statement of a person, who is dying as a result of some unlawful act, relating to the material facts of the cause of his death or bearing on the circumstances.
Procedure for Recording Dying Declaration
| Before recording the statement. the doctor should certify that the person is conscious and his mental faculties are normal (compos mentis). |
| If there is time, the Executive magistrate should be called to record the declaration. |
| If the condition of the victim is serious, and there is no time to call a Magistrate, the doctor should take the declaration in the presence of two witnesses. |
| While recording the dying declaration, an oath is not administered, because of the belief that the dying person tells the truth. |
| The statement should be recorded in the man's own words, without any alteration of terms or phrases. |
| The declarant should be permitted to give his statement without any undue influence, outside prompting, or assistance. |
| Leading questions should not be put. |
| If the dying person is unable to speak but is able to make signs in answer to questions put to him, this can be recorded and it is considered as a "verbal statement". |
| It should then be read over to the declarant, and his signature or thumb impression is taken. |
| The doctor and the witness should also sign the declaration. |
DYING DEPOSITION/ Bed-side Court:
It is a statement of a person on oath, recorded by the Magistrate in the presence of the accused or his lawyer, who is allowed to cross-examine the witness.
This procedure is not followed nowadays.
This procedure is not followed nowadays.
Difference between Dying declaration & Dying deposition (Ref Nandy)
| Dying Declaration | Dying Deposition |
| Recorded by magistrate or doctor | Always by a magistrate |
| Oath is not necessary | Oath is necessary |
| Presence of the accused/his lawyer is not necessary | Presence of the accused/his lawyer is necessary |
| Cross-examination is not permitted | Cross-examination is permitted |
| Its value is inferior to dying deposition | Its value is superior to dying declaration |
| No value if the patient survives | Has some value even if the patient survives |
Note: Difference can be made out from the definition of Dying Deposition
Note:
| Oral evidence is more important than documentary evidence, as it permits cross-examination. Documentary evidence is accepted by the Court only on oral testimony by the person concerned. |
EXCEPTIONS TO ORAL EVIDENCE:
(Where Oral Evidence is not Compulsory)
(Where Oral Evidence is not Compulsory)
| 1) Dying declaration |
| 2) Expert opinion expressed in a treatise (if the author is dead or cannot be found) |
| 3) Evidence of a doctor recorded in a lower Court |
| 4) Evidence given by a witness in a previous judicial proceeding (if witness is dead or cannot be found, or is incapable) |
| 5) Evidence of Mint officers |
| 6) Reports Qf certain Government scientific experts: a) Chemical Examiner or Assistant Chemical Examiner. b) Chief Inspector of Explosives. c) Director Fingerprint Bureau. d) Director, Central Forensic Science Laboratories or State Forensic Science Laboratories. e) Serologist to the Government |
| 7) Public records: A record kept in a public office, e.g., birth and death, certificates of marriage, etc., is admissible in evidence without oral testimony |
| 8) Hospital records: Routine entries, such as dates of admission and discharge, pulse, temperature, treatment given, etc., are admissible without oral evidence. |
Chain of Custody of Evidence:
It is a method to verify the actual possession of an object from the time it was first identified until it is offered as evidence in Court.
Witnesses:
A witness is a person who gives evidence regarding facts.
Types:
1) Common Witness
A common witness (witness of fact; occurrence witness) is a person who gives evidence about the facts observed or perceived by him.
A common witness (witness of fact; occurrence witness) is a person who gives evidence about the facts observed or perceived by him.
In a case of a traffic accident the person who witnessed the accident becomes a common witness.
2) Expert Witness
An expert witness is a person who has been trained or is skilled or has knowledge, experience or education in a technical or scientific subject, and capable of drawing opinions and conclusions from the facts observed by himself, or noticed by others, e.g., doctor, firearms expert, fingerprints expert, handwriting expert, etc.
A doctor can be both a common and expert witness. When he describes the wounds on the body, he acts as a common witness. But when he says that the wounds were antemortem or post-mortem or they were suicidal, homicidal, or accidental, or gives an opinion regarding the cause of death, he acts as an expert witness.
A hostile witness is one who is supposed to have some interest or motive for concealing part of the truth, or for giving completely false evidence.
The Court will declare a witness as hostile on the suggestion of the lawyer of the party who has summoned the witness or prosecution lawyer. On declaration of a witness as hostile (adverse), he can be cross-examined by the same side lawyer.
PERJURY:
Perjury means giving willful false/ fabricated evidence.
Imprisonment may up to seven years
Difference between Hostile witness & Perjury (Ref-Lecture)
| Hostile witness | Perjury |
| Hostile witness is one who is supposed to have some interest or motive for concealing part of the truth, or for giving completely false evidence. | Perjury means giving willful false/ fabricated evidence. |
| Oath is not taken | Oath is taken |
| No punishment or may vary ??? | Imprisonment may up to seven years |
| The Court will declare a witness as hostile on the suggestion of the lawyer of the party who has summoned the witness or prosecution lawyer. | Declared by court |
Procedure of giving evidence in court (Ref-Selim Reza)
1. Attendance in the Court
Attend the court as per summon. After arriving, the medical man should contact the lawyer for the party who summoned him or the Public prosecutor in Government prosecution cases.
2. Oath Taking
He should take the oath as follows: "I do swear in the name of God, that what I shall state shall be the truth, the whole truth, and nothing but the truth". If the witness is an atheist, he has to "solemnly affirm" instead of "swearing in the name of God.
3. Deposition:
Defined as any statement (oral or written) made by a witness on oath in a judicial proceeding and signed by witness & Magistrate.
It consists of the following.
- Examination in chief
- Cross-Examination
- Re-examination
- Questions by judge
4. Release from the Court
After his deposition is over, the medical man will put his signature on the written record of his deposition, receive the conduct money, take the court attendance certificate & then with the permission of the court he can leave the court.
Examination-in-chief (direct examination):
This is the first examination of a witness. It consists of questions put to him by the lawyer (counsel or advocate) for the side which has summoned him. In this leading questions (yes/no questions) are not allowed.
Cross-examination :
In this, the witness is questioned by the lawyer for the opposite party, i.e., the lawyer for the accused (defense lawyer). Leading questions are permissible during cross-examination.
Re-examination (Re-direct examination):
This is conducted by the lawyer for the side which has called the witness. The object is to correct any mistake or to clarify or add details to the statements the witness has made in cross-examination. Cross-examination has no time limit and may last for hours or even days. Leading questions are not allowed.
Questions by Judge :
The Judge may ask any question, in any form, about any fact. relevant or irrelevant, at any stage of the examination to clear up doubts.
CONDUCT MONEY:
It is the fee offered or paid to a witness in civil cases, at the time of serving the summons to meet the expenses for attending the Court.
In civil cases, it is paid by the party that has called him as a witness.
In criminal cases, no fee is paid to the witness at the time of serving the summons. He must attend the Court and give evidence because of the interest of the State in securing justice.
Punishments/Sentences Authorized by Law:
| Death |
| Imprisonment for life |
| Imprisonment: a) Rigorous, i.e., with hard labor, including solitary confinement b) Simple |
| Forfeiture of property |
| Fine |
Capital Punishment (Death Penalty):
The various methods of carrying out death sentences are:
| Hanging |
| Electrocution |
| Lethal injection a. (IV injection of sodium thiopental (unconsciousness), b. Pancuronium bromide (paralytic, stops breathing) and c. Potassium chloride (stops heart), |
| Shooting |
| Gas chamber |
| Garrotting |
| Guillotine (a method of decapitation) |
Court of Bangladesh: (Ref-Internet)
A. Supreme court
| Hight court division |
| Appellate division |
B. Subordinate Court
| District & Session judge court |
| Additional District & session judge court |
| Magistrate court |
| Assistant judge court |
Power of Different Courts (Ref-Endeavour)
Supreme Court
Supreme Court
Can deal any affairs
Can pass any verdict
Can sustain or alter the punishment approved or awarded by the high court
High court
Can try any cases
Can pass any sentence authorized by law, as a death sentence, life long imprisonment, and imprisonment with solitary confinement.
District & session judge court
Can deal with any cases
Can award any punishment provided in BPC
Can give death sentence but it must be approved by the high court
Additional District & session judge court
Can try any cases
Can pass any sentence authorized by law, except Death sentence & imprisonments for a period exceeding 10 years
Magistrate court
Can try any case
Can pass any sentence authorized by law, except Death sentence & imprisonments for a period exceeding 10 years
Magistrate of Bangladesh (From Selim Reza)
| Class of magistrate | Imprisonments | Fine |
| 1st Class Magistrate | 10 yrs | 10,000 Taka |
| 2nd Class Magistrate | 5 yrs | 5,000 Taka |
| 3rd Class Magistrate | 2 yrs | 2,000 Taka |
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