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Preface

Among the procedural law the Code of Criminal Procedure is very important.
The Code was come into force in first July, 1898. The Code was enacted with a
view to regulate the procedure concerning inquiry, investigation and trial of
criminal acts.

As a procedural law it contains the procedure of the criminal law.

The Code has several aspects. Social is one of them. The concern of the Code
becomes clear from its provisions on protection and maintenance of women,
children and persons otherwise handicapped.
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Part 01: History & General Concept of the Code

A Brief Discussion on Code, Codification and the Cr.P.C, 1898:


The main purpose of legislation is to create or amend law in a manner which implements policy
accurately and effectively. One aspect of legislation which distinguishes it from almost all other types
of written work is the use of textual amendment as a mechanism to change or repeal existing law.
The ultimate form of restating legislation is consolidation. Consolidating all existing legislation in
a topic brings with it the opportunity to consider how it can best be recast for the benefit of those who
will use it.
Legislation can also be codified although codification is more usually associated with formalizing
the common law. Codification means bringing all amendments to a given law adopted at different
times into one law. Codifying is distinguishable from consolidating in that codification can change the
substance of the law on a topic when it brings it together.
There is undoubted value in having all the law on a particular topic included in a single document.
The processes of consolidating and codifying can be used to free the law from constrictions imposed
by the existing legal framework.

Different Types of Statutes:


There are different types of statutes existing in law. Article 152 of our Constitution provides that,
“Law means any Act, ordinance, order, rule, regulation, bye-law, notification or other legal
instrument, and any custom or usage, having the force of law in Bangladesh.” So, all kinds of statutes
are included as law. Different types of statutes are stated as following:
$ Consolidating Statute: Consolidating statute is one which collects the statutory provisions
relating to a particular topic, and embodies them in a single Act of Parliament making only
minor amendments and improvements.
$ Codifying Statute: According to Oxford Dictionary “Code is a systematic collection of
statutes, body of laws, so arranged as to avoid inconsistency and overlapping.” Code is of
three kinds:
7 Creative Code: A Creative code is that which makes a law for the first time without
any reference to any other law. It is law-making by legislation. The Indian Penal
Code belongs to this category.
7 Consolidating Code: A consolidating code is that code which consolidates the whole
law-statutory, customary and precedent-on a particular subject and declares it. The
Transfer of Property Act, 1882 belongs to this category.
7 Bothe Creative and Consolidating Code: A code may be both creative and
consolidating. It may make new law as well as consolidate the existing law on a
particular subject. Hindu Law is such type of law.
$ Special Statute: Special statute means a statute which deals with a particular subject matter
and is enacted by the parliament, for example, Special Power Act, 1974; Acid Violation
Prevention Act, 2002; Women and Child Repression Prevention Act, 2000; Courts Fees Act,
1870 etc.
$ Principal Statute: When a statute is initially enacted by the legislature and it contains all the
relevant elements of legislation, it is called principal statute.
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Different Parts of a Statute:


According to section 3(17) of the General Clauses Act, 1897 an ‘enactment’ shall include a
Regulation and shall also include any provision contained in any Act or in any such regulation as
aforesaid. Generally the drafters follow the following guideline at the time of enacting a law,
$ Preamble (objects and purposes of the law);
$ Short title, commencement and extent (date and jurisdiction);
$ Definition;
$ Savings;
$ Divide into various parts or chapters;
$ Chapters or parts are also divided into sections or articles;
$ Sections or articles are also divides into rules, regulations, sub-sections, clauses,
heading/marginal or side notes etc.;
$ An exceptions relates to CPC which is divided into orders and sections and orders are divided
into various rules;
$ Rulemaking power/proviso/exceptions etc.;
$ Repeal of previous Acts;
$ Schedule.
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).
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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.

Criminal Procedure Code:


The word ‘criminal’ is derived from Latin word ‘crimin’ (a judgment or accusation) and means
“belonging to an accusation”. The word ‘procedure’ means the mode or manner of moving on. Lord
Penzance says, “Procedure is but the machinery of law after all the channel and means whereby law is
administered and justice reached.”1 Sir James Stephen says that the Code is inadequately described by
the name of ‘Criminal Procedure Code’, because it is a complete body of law on three distinct but
related subjects: “the constitution of criminal courts, the conduct of criminal proceedings and the
prevention of crimes by interference beforehand”.

Construction of the Criminal Procedure Code:


The Code of Criminal Procedure id a procedural penal statute and it provides for machinery for
punishment and prevention of offences. Since it is a penal statute in nature, it must be construed
strictly as opposed to liberal interpretation. This means in case of ambiguity, this Code should be
interpreted in favor of the individual or subject.

Criminal Procedure in British India and Independent Bangladesh:


On July 10, 1833, an aspiring young English lawyer named Thomas Babington Macaulay stood
before the Parliament and presents an impassioned argument about the future role of British
governance in India and “to give good government to a people to whom we cannot give a free
government.”
Later that year, Macaulay set sail for the subcontinent charges with the momentous task of
codifying the law of India, creating in his words “one great and entire work symmetrical in all its parts
and pervaded by one spirit.” It was Macaulay’s aim to bring order to this unwieldy and confusing
system. Around the same time that Macaulay set his hand to codify the Indian Law, the Royal
Commission on the Criminal Law also began its review of the English Penal Law.
By the late nineteenth century, the production of legal codes in India had become so prolific that
many administrators questioned its expense and utility. In 1881, a colonial official in the Central
Provinces remarked “codes are like arithmetic books which no one is required to learn,”
1
L.R. 4 A.C. 525
4

The codification of law in India (where there was no common law) was deeply marked by the
culture of colonialism, by its ideology of difference, and by the opportunities provided to an
authoritarian regime of power that did not depend on public opinion or popular support.
The First Law Commission was composed of T.B. Macaulay (as Chairman) and four members.
The members of the Commission prepared a draft Pena Code which they submitted to Lord Auckland,
the Governor-General, on 2nd May, 1837 which did not become law till 1860. A Code of Criminal
Procedure was passed in 1861 (XXV of 1861). The first Criminal Code of 1861 was amended in 1872
which is known as 2nd Criminal Code. The 3rd Criminal Code was made in 1882 changing the
previous one. Thereafter 16 amendments were made to it and later on a Select committee was
constituted. Based on the report of the select committee the existing Criminal Procedure Code was
passed in the year of 1898. In 1923 a severe change was made to it based on the recommendation of a
Joint-Committee. A great change was made to the CrPC in the year of 1982 after the independence of
Bangladesh. Recently in 2007 the Government has enacted an amended Criminal Code as a part of its
commitment to the separation of judiciary.

Contents of CrPC at a Glance:


There were 565 sections in the original Code but afterwards a lot of sections have been repealed
such as sections — 206 to 220, 251 to 259, 2, 3, 23, 24, 26, 27, 29-A, 30, 34, 34-A, 111, 138, 139,
141, 184, 194, 197-A, 205-A, 205-B, 226, 246, 262, 370, 411, 411-A, 416, 432 to 434, 437, 443 to
463, 472, 477 to 479, 491-A, 497-A, 526-A, 527, 532, 534, 536, 542, 553, 562 to 564.
In the Code there are five schedules of which schedule-1 was repealed. Schedule-2 gives a chart
of offences; punishments; by whom it will be adjudged; nature of offences etc. Schedule-3 states the
ordinary jurisdictions of the Magistrates. Schedule-4 states about the extra-ordinary jurisdictions of
the Magistrates and schedule-5 gives various forms of summon, warrant, proclamation of arrest, bail
bond etc.
The Code deals with the constitution of criminal courts, classifies them, defines their powers, lays
down the procedure for criminal proceedings, inquiries or trials, prescribes the duties of the police in
arresting offenders and investigating offences and also contains provisions for their prevention.

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 subject2. 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.
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Part 02: Basic Concept of code of criminal procedure, 1898

Nature and Object of CrPC, 1898


CrPC is a branch of procedural law. Adjective of procedural criminal law provides machinery for
criminal cases and punishment of offenders against substantive criminal laws, e.g. the Penal Code and
other statutes. However, CrPC is not the only procedural law for punishing offenders. It is the main
general law of procedure for criminal proceedings but any other statute or special law may determine
aspects of procedural law.

Object of the CrPC, 1898:


The CrPC though mainly an adjective or procedural law deals with many other aspects: it deals
with the constitution of criminal courts, classifies them, defines their powers etc. there are provisions
in the CrPC which provide for substantive law by creating offences. For instance, section 250 creates
a separate offence in case of false, frivolous and vexatious accusations in cases tried by Magistrates.
In addition to offences created by sections 203 and 211 in the Penal Code, section 250 of the CrPC
creates another offence of false accusation and punishment has been prescribed in that very section
also. Likewise, section 485A of the CrPC crates another offence with punishment for non-attendance
by a witness in obedience to summons. If any witness fails, without just excuses, to appear before
which the witness is to appear may try him summarily and sentence him to fine not exceeding two
hundred taka and fifty. Thus although CrPC is generally a procedural law deals with matters of
substantive law also.
The object, purpose, or design of all procedural law is to further the ends of justice and not to
frustrate them by the introduction of endless technicalities. The application of Criminal Procedure
Code is not limited to cases of offence under the Penal Code. It extends to other proceedings of
Criminal or Quasi-Criminal nature. The objects and application of the Code of Criminal Procedure are
as following,
$ To ensure that an accused person gets a full and fair trial along certain well established and
well under stood lines that accord with notions of natural justice.
$ Where an accused is tried by a Court, the court must be a competent court under the law
vested with jurisdiction to try such cases.
$ The accused must be told and made to understand the nature of the offence of which he is
being tried,
$ His plea must be recorded.
$ He is provided with full and fair opportunity to defend himself against the charge; it is
substantial compliance of the outward form of law. Where the accused alleges and shows
substantial prejudice caused to him the compliance of law is not substantial.
$ In the former case, if there is an error or omission in the trial it is called a curable irregularity
which does not vitiate the trial.
$ In the latter case, where prejudice is caused to the accused and it is a substantial prejudice,
such error, omission or mistake in trial is called incurable illegality and the consequence of it
is vitiating the trial.
$ Justice is to be done and not denied. Justice is to be shown to have been done according to
law and it is not sacrificed at the altar of the procedure.
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Trial in Criminal Cases


The words “try” and “trial” have no fixed or universal meaning, but they are words which must
be construed with regard to the particular context in which they are used and with regard to the
scheme and purpose of the measure concerned.3 The word “trial” is not defined in the Code of
Criminal Procedure, 1898. According to Wharton’s Law Lexicon, a trial is the examination of a case,
civil or criminal, before a judge who has jurisdiction over it, according to the law of the land. 4
According to the Oxford Dictionary a trial is the examination and determination of a cause by a
judicial tribunal; determination of the guilt or innocence of an accused by a Court. When some
competent authority directs that an accused person shall be tried, the trial that is to take place can end
only in one or other of the recognized forms in which the trial can terminate under the Code of
Criminal Procedure, 1898 such forms are,

$ 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,

$ Trial in the Magistrate Court; and


$ Trial in the Sessions Court.

Under the Code the nature of the procedure of trial of these two courts are different. Trial procedures
of the two courts are discussed as under.

Trial in the Magistrate Court


Trial in the Magistrate court takes two forms, which are discussed in two different chapter of the
CrPC, 1898. These are,

$ Regular trial; and


$ Summary trial.

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.
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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.
8

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.
9

$ 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.

Summary Trial in the Magistrate Court:


Summary trial by dispensing with unnecessary formalities of delay. Chapter XXII of the CrPC,
1898 enunciated the provisions regarding to summary trial. Though the object of summary trial is to
shorten the record and the work of the court but it is not intended to deprive the accused person of any
of the rights given by law. The proceedings are to be conducted with the same procedure as in the
regular, perhaps with more care so that the accused may not entertain any apprehension of failure of
justice on account of the procedure. The responsibility in the case of summary trial is very great. The
court will take care that the procedure is not made more summary than is laid down. Summary trials
are improper in serious cases.8
$ Magistrate Who Can Try Summarily: Every Magistrate cannot try summarily. Only the
specified Magistrate under chapter XXII of the CrPC, 1898 can try summarily. According the
provisions of the chapter the following types of Magistrate can try summarily,
7 the Metropolitan Magistrate;
7 any Magistrate of the first class; and
7 any Bench of Magistrates invested with the powers of a Magistrate of the first class.9
$ 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.
10

$ 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);
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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.

Distinctions between Regular Trial & Summary Trial:


Trial is the main procedure of commencing a case. A trial can be both regular and summary. Both
of the trial procedures have some similarities as well as some distinctions. The distinctions between
regular and summarily trial is stated as under,
Regular Trial Subject Matter Summary Trial
A trial is the examination of As to definition Summary trial means short
a case, civil or criminal, trials avoiding the regular
before a judge or Magistrate lengthy procedure.
11
who has jurisdiction over it.
Regular trial is complex. As to simplicity Summary trial is simple.
Regular trial is full-fledged. As to the length of the Summary trial is short.
procedure
In regular trial recording of As to the record of evidence In summary trial in case
evidence of the witnesses is where no appeal lies where no appeal lies, the
must, whether appeal lies or Magistrate or Bench of
not. Magistrate need not record
the evidence of the witness.
In regular trial framing of the As to the framing of the In summary trial, in case
charge is must, whether charge where no appeal lies where no appeal lies the
appeal lies or not. Magistrate or Bench of
Magistrate need not frame
the charge.
Regular trial is the genus of As to the genus and species Summary trial is the species
summary trial. of regular trial.
Regular trial can be tried by As to triable by Judge or Summary trial can only be
both judge and Magistrate. Magistrate tried by the Magistrate.
In regular trial it is As to the recording of the In summary trial cases
compulsory to record the evidence recording of the evidence is
evidence in full. not necessary, only gist
suffices.
In regular trial the whole As to the preservation of In summary trial where
evidence is to be recorded evidence where appeal lies appeal lies the Magistrate
with full opportunity to cross must preserve the original
examine and thereafter even notes of evidence so that the

11
Wharton’s Law Lexicon.
12

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.

Trials before Court of Session


Trial in Session Court is more formal and lengthy compared to those in the Court of Magistrate.
Unlike in the Magistrate Court there are formal opening, argument and closing of every case in
Session Court. The procedure of trials in the Session Court is discussed in chapter XXIII of the Penal
Code.
13

Trial to be Conducted by the Public Prosecutor (P.P):


Under the provision of chapter XXIII of the CrPC, 1898, in every case before a Session Court, the
prosecution shall be conducted by the Public Prosecutor (P.P).
Definition of P.P is postulate in the Code of Criminal Procedure, 1898 as, “any person appointed
under section 492, and includes any person acting under the directions of a Public Prosecutor”.12
So, unlike trial before a Court of Magistrate, in a trial before a Court of Session, the case of the
prosecution shall be conducted by the P.P. The duty of P.P is to represent not the police but the State
and this duty should be discharged by him fairly and fearlessly and with a full sense of the
responsibility that attaches to his position. After framing of the charge, a complaint case becomes a
State case and therefore it has to be conducted by the Public Prosecutor.13 So, as long as the P.P leads
and guides the advocate for a private party, no objection can be entertained.

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.

Opening of the Case:


Under the provision of chapter XXIII of the CrPC, 1898, a case is always open by the P.P. At the
first hearing the P.P shall open the case by describing the charge and stating the evidence on which
the prosecution relies to prove the charge. The prosecutor’s duty is not to secure a conviction but
simply to lay the facts of the case before the court. In a criminal trial it is of great importance for the
accused to know as to what the exact prosecution case, is in opening the case the Prosecutor can only
state all that is proposed or intended to prove so that the Judge may see if there is any discrepancy
between the opening statement and the evidence adduced.

Case Study:
36 CrLJ 344-Trial before the Sessions Court practically commences when the case is opened by
the prosecutor.

Accused when to be Discharged:


As like the trial before the Magistrate Court, in the trial before the Court of Session the Judge can
discharge the accused if he finds no sufficient grounds for proceeding against the accused. There is no
scope for examination of any witness, but there is scope for both sides to argue their case in favor of
framing charge or discharge. The Judge shall also record reasons of discharge. The Judge is not bound
to pronounce a definite judgment on the question whether the accused is guilty or not.

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).

Framing of the Charge:


The same provisions like the trial in the Magistrate Court, is applicable in the Session Court as
regard to framing of the charge. But here as the trial procedure in Session Court is more formal than
the trial in the Court of Magistrate, the charge shall frame more formally. The charge-sheet to which
12
Sec. 4(1) (t).
13
1980 Pak. CrLJ 438.
14

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.

Plea and Conviction:


It has been stated before that 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 Judge shall ask the accused
whether he admits his guilt or not. And if the accused admit his guilt the Judge may convict him
according to law. It is upon to the court to accept or not, the plea of guilt. Conviction on a plea of
guilty is not sustainable when the facts alleged or proved by the prosecution do not amount to an
offence. A plea of guilty should not be accepted in capital sentences. Where an accused person pleads
guilty, the court should record his confession and forthwith convict him therein.

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.

Defense, Arguments and Judgment:


If the accused does not acquitted under the mentioned provision, he shall enter upon his defense,
and shall provide his witnesses or documents (if any), and the prosecution shall sum up his case and
the accused or his advocate shall be entitled to reply. After hearing the arguments and points of law
the Judge shall give his judgment.
15

Distinction between Discharge and Acquittal:


Both the terms discharge and acquittal has been used in the trial procedure of the Magistrate and
Session Court. Both the terms are distinct from each other. The distinctions between the two are as
under,
Discharge Subject Matter Acquittal
Discharge means to relieve As to definition Acquittal means the legal and
an accused person from formal certification of the
allegation and to release him innocence of a person who
from custody for not prove has been charged with a
the allegation through crime.
evidence after investigation
or inquiry.
Discharge occurs before the As to taking place Acquittal occurs at time of
start of actual trial. the actual trial.
An order of discharge is not As regard to judgment An order of acquittal is
judgment judgment.
A man who is discharged As regard to charge again A man who has been
may again be charged with acquitted cannot be put on
the same offence. trial again for the offence of
which he has been acquitted.
An order of discharge is not As to final order An acquittal is always final.
final order. It leaves the
matter at large for all purpose
of judicial inquiry.
Sec. 241A of the Trial in the As to the section postulating Sec. 245 of the Trial in the
Magistrate Court and sec. the procedure Magistrate Court and sec.
265C of the Trial in the 265H of the Trial in the
Session Court enunciated the Session Court discuss about
provisions as regard to the provisions as regard to
discharge. acquittal.
16

Time for Disposal of Cases


Time for disposal of case is a very important feature of the CrPC, 1898. Time is very important
fact in any case, especially if it is a criminal case. Speedy trial is very effective in criminal case. A
case which has been hanging for long period cannot bring justice; in fact it will hamper the system of
regular trial procedure and even bring injustice, because killing of time in trial procedure can
sometime even hide the proper evidence. So, in case of criminal case speedy trial is desirable under
the Code of Criminal Procedure.

Time for Disposal of Case:


The provision as regard to the time of disposal of time is enunciated in chapter XXIV of the
CrPC, 1898. The provision of the chapter limited the time for the trial procedure. According to law,
criminal action must be commenced within the period of limitation. According to the chapter the time
for disposal of case is,
$ In case of Trial before Court of Magistrate: According to the provision of chapter XXIV of
the CrPC, 1898, a criminal case in the Court of Magistrate shall be concluded within one
hundred and eighty days from the date on which the case is received by the Magistrate for
trial14.
$ In case of Trial before Court of Session: It is postulated in Chapter XXIV of the CrPC,
1898, a criminal case conducted before the Session Court by the,
7 Session Judge;
7 Additional Session Judge; or
7 Assistant Session Judge
Shall be concluded within three hundred and sixty days from the date on which the case is
received by mentioned Judges for trial.
It shall be noted that, transfer of case does not expand the time of disposal of case. On the
other hand, it shall also be noted that, the limitation of time as regard to trial procedure under
this chapter is not applicable to any offences relating to belonging to any gang of dacoits or
thieves. If the accused is released in bail the days spent on account of the absence of him is
not counted.
If a trial cannot be concluded within the time specified under these provisions, the
accused if charged under a non-bailable offence may be released on bail, to the satisfaction of
the court. If the court does not grant the bail, the reasons for doing so shall be so recorded in
writing.

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).
17

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].
18

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.

Appeal is not an Inherent Right:


Though appeal is said to be a right but is not an inherent right as it is provide in the Code of
Criminal Procedure that appeal cannot lie from any judgment or order of the court unless the right of
appeal is ensured by the Code. On the other hand the right of appeal is created by the state so it is not
an inherent right. That is why it is called that appeal is a creature of law. So appeal does not lie as a
matter of course being merely a creature of law.

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.

Appeal is the Continuation of the Trial of the Lower Court:


Appeal is the continuation process of the trial of the lower court. In case of right of revision,
when there is right of appeal under the CrPC, 1898, as regard to any case, and the party failed to
brought an appeal, there shall be no right of appeal18 the right of revision will be extinct, because as
appeal is a continues process of the trial, it is not possible to break the chain of processes and jump to
another process.

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).
19

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.

Where Appeal does not Lie:


As appeal is not an inherent right, so it is clear that appeal cannot lie in every order or Judgment
of the Court. The code has mentioned certain matter on which appeal shall not lie. This are postulated
as under,
7 No Appeal in certain Cases when Accused Pleaded Guilty: The right of appeal under the
provision, when accused pleaded guilty, is limited to such matter as may be a special ground
of complain with respect to the sentence, whether on the ground that the sentence is beyond
what the circumstances of the case required, or that the sentence is illegal or not authorized by
law. But where no sentence was passed the right of appeal is absolutely barred.19 The plea of
guilty is regarded as a waiver of the right to appeal except as to the severity or legality of the
sentence.
The principle is sound. Where the facts alleged by the prosecution do not amount to an
offence, the plea of guilty of an accused person cannot stand in the way of his acquittal and
this section cannot bar an appeal from his conviction.20 Under the provision of the Code,
persons who plead guilty can only appeal on the ground of,
 Extent; and
 legality of sentence.

19
18 CrLJ 401.
20
AIR 1965 MP 137.
20

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)].

58 DLR 393-Sheikh Mujibur Rahman Razibulla vs. State (Criminal)-An accused


person who pleads guilty and is convicted has no right of appeal except as to the extent or
legality of the sentence. Where the facts alleged by the prosecution do not amount to an
offence, the plea of guilty of an accused cannot stand in the way of his acquittal and section
412 of the Code cannot bar an appeal from his conviction.

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.
21

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.

Special Right of Appeal:


The Code recognizes the right of appeal on behalf of an accused person against whom a non-
appealable sentence is passed in trial in which an appealable judgment is passed against any of the
accused persons.25 The only condition is that, more than one person must be convicted in one trial.

Provision of Second Appeal:


Unlike the Civil appeal, there is no provision of second appeal or leave to appeal in criminal
appeal. The judgment and order of an appellate court shall be final except on two cases:
$ Appeal in case of acquittal; and
$ Appeal against inadequacy of sentence.
But, the only condition is that, the appeal must be filed by the Government. That means, only the
Government can file a petition of second appeal in any criminal case.

Appeal in Case of Acquittal:


In case where the accused has been acquitted, the Government or the complainant can file an
appeal against such order of acquittal.
$ The Government may direct the public prosecutor to present an appeal,
 To the High Court Division—an original or appellate order of acquittal—passed by
any Court of Sessions.
 To the Court of Sessions—an original or appellate order of acquittal—passed by the
any Magistrate.
$ If the case is a complainant case, the complainant may present an appeal, but the only
condition is that there must an error of law occasioning failure of justice. In case of such
appeal the complainant may present an appeal,
 To the High Court Division—an original order of acquittal—passed by any Court of
Sessions.
 To the Court of Sessions—an original order of acquittal—passed by any Magistrate.
If the appeal against an acquittal is refused there shall be no appeal from that order of
acquittal.

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.
22

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.

Limitation of Appeal against Acquittal:


There are certain limitation as regard to the appeal against acquittal. These are,
$ The period for filling an appeal by the Government under this Code is six months as
prescribed by Act 157 of the Limitation Act.
$ The period of limitation of file an appeal is sixty days if it is presented by a complainant
under the provision of the Code.

Appeal Against Inadequacy of Sentence:


If in any case, it seems that, the sentence passed by any Court as regard to any convicted person
is not sufficient punishment, the Government or the in case of complaint case the complainant can file
an appeal against such inadequacy of sentence.
The Government may direct the P.P to present an appeal against the sentence on the grounds of
inadequacy from any court to the High Court Division.
A complainant may present an appeal in case of conviction against the sentence on the grounds of
inadequacy to the appellate Court.
The appellate Court shall not enhance any sentence without giving opportunity to the accused to
hear and showing causes against such enhancement, and the accused may also show causes or may
plead for his acquittal or reduction of punishment.
The limitation of such appeal is sixty days from the date of conviction.

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]

Appeal in What Matters Admissible?


Under the provision of the Code of Criminal Procedure, appeal is admissible on a matter of fact
as well as matter of law.

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
23

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.

Powers of the Appellate Court:


The Code of Criminal Procedure has given certain powers to the Appellate Court, in disposing of
an appeal. This power of an appellate criminal Court is the same whether the appeal is on law only or
both on law and fact.26 Various aspect of this power is described as below:
O Power of Dismissal: 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.

26
40 CWN 692 PC.
24

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.

Time for Disposal of Appeal:


The Code of Criminal Code, 1898, has limited the time limit for the disposal of an appeal.
According to the Code an Appellate Court shall dispose of an appeal filed before it within ninety days
from the date of service of notice upon respondents.
25

Criminal Revision
Revision is a purely discretionary remedy granted by a higher court with a view to correcting
miscarriage of justice. This is a kind of supervisory jurisdiction exercised by the superior courts over
inferior courts.

Conditions of Criminal Revision:


There are certain conditions as regard to the criminal revision, which are postulated in the Code
of Criminal Procedure. These conditions are,

$ 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.

High Court Divisions Revisional Power:


The Code of Criminal Procedure has enunciated that, the High Court Division shall have power to
dispose an application of revision. In exercising the Revisional power the High Court Division has the
same power of the Appellate Court.

$ 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.

Extent of the Revisional Power:

$ 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
26

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.

Procedure when Judges are Equally Divided:


When the Judges composing the Court of Revision are equally divided in opinion, in such 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.

Distinctions between Appeal & Revision:


There are certain discharge between appeal revisions though both are part of the criminal
procedure. Distinctions between appeal and revision are enunciated as below:
Appeal Subject Matter Revision
It means an application or As to definition It means to revise a judgment or
petition filed to the superior order, passed by any
court against the judgment subordinate court when there is
passed by the subordinate court an error occasioning failure of
on the grounds of mistake of justice.
law or mistake of fact to
ascertain whether the judgment
shall sustain or not.
Sections 404 to 431 deal with As to the sections dealing with Sections 439 to 439A deal with
the provisions of appeal. the provisions the provisions of revision/
It can be claimed as a matter of As regard to right It is a discretionary power of the
right. superior Court.
nd
Second appeal is allowed in As regard to 2 appeal or There is no provision as to
certain specified ground. revision second appeal, in the Code of
Criminal Procedure.
When there is provision of No appeal no revision Where there is provision of
appeal one must file it within appeal but one fails to file it
the stipulated time. within the specific period, he
cannot file a revision.
Appeal is considered as the As regard to continuation of It is a different procedure.
continuation of procedure. procedure
Appeal can never be suo motu. As regard to suo motu The Revisional jurisdiction may
The aggrieved party must have be exercised by the court suo
to invoke appellate jurisdiction. motu.
The subject matter of appeal Subject matter The subject matter of revision
can be both matter of fact and can only be matter of law.
matter of law.
27

It has similar jurisdiction as a As regard to judgment It has similar jurisdiction as a


court of original jurisdiction and court of appeal but it cannot
it can reverse, alter, and modify convert an acquittal into
any judgment. conviction.
The District Magistrate, CMM, As regard to court having Only the HCD and the Sessions
Sessions Judge or HCD have jurisdiction Court has the jurisdiction.
the jurisdiction.
After the fulfilment of As regard to rejection Revision being purely
conditions of an appeal the discretionary remedy, the HCD
appellate court cannot reject the may not interfere after the
appeal. fulfillment of all the conditions
of revision.
In case of appeal, the appellant As to the hearing In case of revision the hearing
is heard. of appellant is not necessary.
The courts have extensive As regard to power The power of courts is very
powers of interference in limited in revision.
criminal appeals.
There is only one procedure As to the procedure There are two procedures
involved in appeal. involved in case of revision,
i.e., preliminary and final.
28

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.

Objects or purposes Bail:


The objects of keeping an accused person in detention prior to, or during the trial is not
punishment but,

$ to prevent repetition of offence with which he is charged; and


$ to secure his attendance at the trial.

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,

$ Appearance before a court.


$ For presenting appeal.
$ For pending reference or revision.
$ For the purpose of giving evidence etc.

Categories of Bail:
There are certain categories of bail under the Code of Criminal Procedure, 1898. These categories
of bail are postulated as under,

$ Bail during inquiry and investigation:


 Bail by the Police.
 Bail by the Magistrate or Court.
$ Bail after investigation but before conviction:
 Bail by the Magistrate or the Court.
$ Bail after conviction:
 Bail pending appeal.
 Bail pending revision.
$ Bail in bailable offence.
29

$ Bail in non-bailable offence.


$ Anticipatory bail.

Conditions for Granting Bail:


There are certain conditions for granting a bail, under the Code of Criminal Procedure, 1898.
These conditions are,

$ 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.

Grounds for Refusal of Bail:


There are certain grounds when the petition of bail can be refused under the Code of Criminal
Procedure, 1898. These grounds are,

$ 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].

Right of Bail in Bailable Offence:


A bailable offence such kind of offence where bail can be claimed as of right. As soon as it
appears that the accused person is prepared to give bail bond, the police officer or the court before
whom he offers to give bail as may appear to the officer or the court. Neither the court nor the officer
can reject bail where the offence is bailable because the language of the Code is imperative. It is only
the High Court Division which has power to order him to be arrested and remanded to custody in
bailable offences. In every bailable offence bail is a right and not a favor. Accused of a bailable
offence cannot be taken into custody unless the accused is unable or unwilling to offer bail bond or
furnish moderate security.

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
30

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].

Right of Bail in Non-Bailable Offence:


When a person is arrested for a non-bailable offence and is brought before the court, the court
may release him on bail. But unlike the bailable offence, the court is not bound to do so. It is just a
discretionary power of the Court. Whatsoever, when it appears by the court that, the accused is guilty
of an offence punishable with death or transportation of life, he shall not be released. But the court
may release the accused in such case if the accused is under sixteen years or any woman or any sick
or infirm person.

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.

What are to be seen by the Judge before allowing Anticipatory Bail:


In the case, The State Vs. Md. Monirul Islam alias Nirab and others, 19 BLT (AD) 144; 16
MLR (AD) 301; 16 BLC (AD) 53; 8 ADC 620, the Supreme Court has laid down certain conditions
for the granting of anticipatory bail.
Held: The learned Judges ought to be satisfied before allowing anticipatory bail, ad interim
or otherwise as under:

i. the allegation is vague;


ii. no material is on record to substantiate the allegations;
iii. there is no reasonable apprehension that the witnesses may be tempered with;
iv. the apprehension of the applicant that he will be unnecessarily harassed, appears to be
justified before the Court, on the materials on record;
v. must satisfy the criteria for granting bail under section 497 of the Code;
vi. the allegations are made for collateral purpose but not for securing justice for the
victim;
vii. there is a compelling circumstance for granting such bail.

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:
31

$ 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.
32

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.

When the High Court Division can Exercise the Power?


The Code envisages three circumstances or purposes for which the inherent power may be
exercised, namely,

$ to give effect to an order under the Code;


$ to prevent abuse of the process of courts; and
$ to otherwise secure the ends of justice.

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.

Principle of Inherent Power:


There are certain principle in regard to the use of inherent power of the High Court Division
under the Code. These are,

$ 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
33

$ there exist no other provision of law by which the party aggrieve could have sought relief.

Instances of Use of Inherent Power of the High Court Division:


The extent of power of inherent power of the High Court Division are as following,

$ quashing of long-drawn proceeding;


$ quashing of charge;
$ quashing of proceeding in police investigation.

Inherent Power of the Lower Court:


The Indian Supreme Court has held in Bindeswari Prasad Singh AIR 1977 SC 2432, that the
subordinate courts have no inherent power and the Code of Criminal Procedure, 1898 only conferred
this power only to the High Court alone.

Distinction between Civil and Criminal Inherent Power:


The power conferred by the Code of Criminal Procedure is same as the power conferred by the
Code of Civil Procedure Code, 1908. But the only distinction between the two provisions is that, in
CPC, 1908 the inherent power has been conferred to all the Court, but in CrPC, 1898 the inherent
power is conferred to the High Court Division only.

The End
34

Book References
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 [14th 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

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