Topics

1

Law / How long is life imprisonment in Bangladesh?

« on: November 28, 2015, 04:08:16 PM »

 In our Penal Code there are five type of punishments i.e. 1. Death Sentence
                                                                                          2. Imprisonment for life
                                                                                          3. Imprisonment, which may be Rigorous or simple
                                                                                          4. Fine
                                                                                          5. Forfeiture of property
But  in the whole code no where it is clearly said how long a convicted person who is sentenced with imprisonment for life shall remain in custody/jail. The provisions relating to the imprisonment for life in Penal code are as follow:

Section 55-
In every case in which sentence of [ imprisonment] for life shall have been passed, [ the Government] may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding 22[ twenty] years.

This provision will apply after commutation of sentence by government but here it is not said if govt does not commute then what will be the term of Imprisonment for life?

Section 57-
In calculating fractions of terms of punishment, [ imprisonment] for life shall be reckoned as equivalent to [ rigorous imprisonment for thirty years].

 
   

2

English / Learning some law related terms Everyday

« on: September 30, 2015, 12:22:01 PM »

Blitzkrieg:-a swift intensive military attack, esp using tanks supported by aircraft, designed to defeat the opposition quickly .

3

Law / Hindu women's Right to Adoption

« on: July 29, 2015, 02:15:18 PM »

  Adoption is the transplantation of a son from the family in which he is born to another family where he is given by the natural parents by way of gift. The power of a Hindu female to adopt a son is very much restricted in Bangladesh. She can't adopt by herself but only with the consent of her husband. She has no right herself, she is deemed to act merely as an agent, or representative of her husband. A wife can but no other female can adopt. However, in India a woman enjoys a lot of rights conferred by the Hindu Adoption & Maintenance Act 1956. The Act has made the following changes in the law relating to adoption:

       1. A female may also be adopted(Sec:7&
       2.  A virgin, divorcee, or widow is entitled to adopt and wife can also adopt in certain circumstances.(Sec:
       3.  A male can adopt only with the consent of wife or wives, if any. (Sec:7)
       4. The father without the consent of mother can't give a child in adoption except in certain circumstances.(Sec:9)
       5.  The ceremony of “Datta Homam” is not essential. (Sec:11)                                                                                                                                                                           

4

Law / Impeaching the Credibility of a witness

« on: July 27, 2015, 05:03:00 PM »

 When a witness appear before the court for giving his testimony then the adverse party may try to impeach the credibility of the witnesses. section 155 of the Evidence Act Enumerate the process of impeaching the credibility of the witnesses-

The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:-

(1)   by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;

(2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;

(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;

(4) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.

If we notice the number four (4) among the above mentioned ways then we see that if any man is prosecuted for the rape or an attempt to ravish then the adverse party means the alleged Rapist may it shown to the court that the female who is Raped is a woman of immoral character. Under this section the position of the female is abrogated. it is the rule of common law system that until the guilt is proved the alleged person will be treated as innocent. then why in the case of sexual harassment the female will presume as immoral character?

5

Law / Competency of witnesses

« on: July 22, 2015, 03:24:25 PM »

 When suit is in a trial stage then both the parties submit evidences before the court to prove or disprove the case. the evidence may be produce in two ways one by producing relevant documents another by producing the person who are acquainted with fact of the case. these persons are called as witness. Every person are not competent to testify as a witness in the court of Law.

In The word of section 118 of Evidence Act 1872:
 All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

So, we can say that,
The competency of a witness depends upon the circumstances that exist when the testimony is given.  Age, mental power, and capacity to understand the nature and obligation of an oath are the tests that determine the competency of a witness.  An expert witness should possess special knowledge of the subject on which the jury’s knowledge would be inadequate without expert assistance.

A person can be a witness if s/he has sufficient intelligence to understand the nature of an oath and to give a reasonably accurate account of what the person has seen and heard regarding the matter in question.  A competent witness should be capable of receiving, remembering, and narrating impressions.  A witness should also be sensible to the obligation of an oath before the person can be permitted to testify.

Intoxication:

A witness cannot be considered incompetent because of intoxication.  However, if the person was virtually unconscious at the time of the event, the person can be considered incompetent.  Persons intoxicated at the time they are offered as witnesses are excluded from testifying.  Use of drugs also does not render a witness incompetent.  However, addiction to drugs can affect the credibility and weight of the person’s testimony.

Insanity:
When a person is insane or mentally ill, it does not automatically render him/her an incompetent witness[v].  The court tests whether the person affected with insanity has sufficient knowledge to apprehend the obligation of an oath and whether h/she is capable to give a correct account of the matters which the person has seen or heard, then the person can be considered a competent witness.  The person should also be capable to perceive and narrate.

Convicted person:

The testimony of a convicted felon cannot be considered inadmissible.  However, the weight of the evidence can be questioned.

Child witness:

A child can be a competent witness if the child has an understanding of the obligation to speak the truth on the witness stand, the mental capacity at the time of the occurrence concerning which s/he is to testify to receive an accurate impression of it, a memory sufficient to retain an independent recollection of the occurrence, the capacity to express in words his/her memory of the occurrence, and the capacity to understand simple questions about the matter.  A child of any age can testify if the child meets the statutory requirements of a competent witness.

Dump witness:
 A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible,

as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence.

  So it is not fact that the person who appear before the court to give his or her testimony but the fact is whether s/he is mature enough to understand the question put to him.

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Law / Dying Declaration

« on: July 22, 2015, 12:18:20 PM »

 Definition of dying declaration:

A statement by a person who is conscious and knows that death is imminent concerning what he or she believes to be the cause or circumstances of death that can be introduced into evidence during a trial in certain cases.

Statements made by a person who is lying at the point of death, and is conscious of his approaching dissolution, in reference to the manner in which he received the injuries of which he is dying, or other immediate cause of his death, and in reference to the person who inflicted such injuries or the connection with such injuries of a person who is charged or suspected of having committed them; which statements are admissible in evidence in a trial for homicide where the killing of the declarant is the crime charged to the defendant.
                                                                                                                                                                                                                                                                                                               
Admissibility of dying Declaration as Evidence:

Dying declaration is admitted by the court on the basis of a principle that,Nemo moriturus praesumitur mentiri — "no-one on the point of death should be presumed to be lying."
The conditions in which a dying declaration will be admissible

Although, the dying declaration can be considered as admissible evidence, there are certain conditions that must be met before the declaration can be tendered in court.

Owen J, in R v Golightly had to deal with the question of the admissibility of a dying declaration, and his Honour set out the following obligations that need to be met for a dying declaration to be considered as evidence in a trial:

• the person must be dead
• the trial must be for the person’s murder or manslaughter
• the statement must relate to the cause of death
• the person must be considered as a competent witness
• the declaration must be made “under a settled hopelessness of death”.

The heart of allowing the dying declaration to be admissible, really boils down to the questions of the competence of the witness before the death, and the surrounding facts of the case in order for the courts to make their decision.






 

7

Law / Trial in Absentia

« on: July 21, 2015, 03:31:24 PM »

 The trial in absentia means trial of the accused an recording evidences without his presence. it is the general rule that one accused must be tried in the open court and in the presence of him or his pleader. section 339 B , 87 and 88 of Code of Criminal Procedure discuss about the process of trial where the accused in not presence.

In addition section 339 B Section 512(1) Provides that if it is proved that an accused person has absconded, and that there is no immediate prospect to arrest him or her, the trial court may in his or her absence, examine the prosecution witnesses, record there depositions. Any such deposition may used against him as evidence in his trial.

It is to be noted that provision of section 512 is an exception to the general rule of recording Evidence only in the presence of the accused as discussed above.

Procedure of trial in Absentia:

Section 339 B says that,Where after the compliance with the requirements of section 87 and section 88, the Court has reason to believe that an accused person has absconded or concealing himself so that he cannot be arrested and produced for trial and there is no immediate prospect of arresting him, the Court taking cognizance of the offence complained of shall, by order 3[ published in at least two national daily Bengali Newspapers having wide circulation, direct such person to appear before it within such period as may be specified in the order, and if such person fails to comply with such direction, he shall be tried in his absence.

But it will not necessary to comply with the above mentioned procedure wherein a case after the production or appearance of an accused before the Court or his release on bail, the accused person absconds or fails to appear. in that case the Court competent to try such person for the offence complained of shall, recording its decision so to do, try such person in his absence.

The words of  the Section 87 are :

If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation

 The proclamation shall be published as follows:

(a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;   

(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village; and   

(c) a copy thereof shall be affixed to some conspicuous part of the Court-house.   

The provision of section 88:

The Court issuing a proclamation under section 87 may at any time order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person.

   If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the Government, be made through the Collector of the district in which the land is situate, and in all other cases-   

     (a) by taking possession; or   

      (b) by the appointment of a receiver; or   

      (c) by an order in writing prohibiting the payment of rent or delivery of property to the proclaimed person or to any one on his behalf; or

If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made-   

(a) by seizure; or   

(b) by the appointment of a receiver; or   

(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or   

(d) by all or any two of such methods, as the Court thinks fit.   


Only after comply the provisions of proclamation and attachment the court can try an absconded accused under section 339 B of the Said Code.

8

Law / Ten most incriminating types of Evidence

« on: July 20, 2015, 05:53:00 PM »

  Evidence refers to information or objects that may be admitted into court for judges and juries to consider when hearing a case. Evidence can come from varied sources — from genetic material or trace chemicals ​to dental history or fingerprints. Evidence can serve many roles in an investigation, such as to trace an illicit substance, identify remains or reconstruct a crime and from the circumstances of the offence committed also. from  all these source the following types of evidence may derive:

1. Fingerprints: Fingerprints are the most incriminating types of evidence used in criminal cases because it’s one of the most reliable forms of identification. No two people have the same fingerprint, making it a truly fundamental tool for accurate identification of criminals. Only when fingerprints can’t be traced back to a person with a criminal history do they have less power in an investigation. However, if the suspects can be narrowed down, their fingerprints can be tested to see which one matches.

2.Blood: Blood is an incriminating type of evidence for various reasons. DNA can be extracted from blood to find a criminal and blood type can be analyzed to help rule out suspects. Blood splatters can also help investigators piece together crime scenes and it provides more evidence to test.

3. Hair: Hair is another useful type of evidence that can bring police closer to a criminal. A strand of hair collected from a crime scene can be submitted for DNA testing. Forensic scientists may have a better chance at testing the DNA if the hair follicle is still intact. In addition, the color of a hair strand can also be used to rule out suspects whose hair does not match the recovered hair sample.

4.Skin: Although difficult to see at a crime scene, skin can be analyzed and tested to find a criminal. Like hair, skin samples can help determine the skin color of the person involved in the crime and DNA can be extracted for a more accurate identification of criminals. Skin can also be a harbinger of other evidence at the scene, which brings police closer to finding the criminal and understanding the crime in greater detail.

5.Witness Testimony: Testimony from a witness who was at the scene of the crime is one of the most incriminating types of evidence. How incriminating the testimony is depends on the credibility of the witness, which is determined by the jury. It can be the deciding factor in a case.

6.Written Documents: One of the worst things you can do as a criminal if you want to evade the law is write things down. Some criminals write in dairies, journals, letters and even e-mails to chronicle their plan of action or confess their guilt. Suspects may be in correspondence with others who can present these documents to police, or investigators may find such documents when searching a suspect’s home.

7.Semen: Semen can be used in several ways to verify rape accusations, as well as extract DNA to identify the criminal. Semen can also be analyzed and tested to determine if there was more than one person involved in a sexual crime.

8.Shoe Prints: Shoe prints are extremely useful in police investigations and they can be a very incriminating type of evidence. Police can tell by a lot about a shoe print, such as the make, model and size of a shoe, as well as the gender and approximate height of the person. Shoe prints also indicate the activity of the wearer when the print was made and, if the impressions are visible, police may be able to trace the criminal’s moves and follow their prints to the next destination, such as a nearby home or woods.

9.Videotapes/Photographs: Videotapes and photographs are both compelling and incriminating types of evidence. Whether the videos or photos capture the crime taking place or the people present during or after the crime, it is valuable evidence that can be used to rule out suspects and find the criminal.

10.Ballistics: Ballistics is the study of firearms and ammunition. This technical form of evidence includes shell casings, gun powder, bullets, gunshots and other firing characteristics of a weapon. Even the slightest remnants of a gunshot can be traced to a specific firearm, where it’s sold and its owner, if registered.

9

Law / Withdrawal of Criminal Cases by Prosecution/ by Public Prosecutor.

« on: July 13, 2015, 03:54:26 PM »

 Section 494 of the Code of Criminal Procedure is the source of the power of Public Prosecutor to withdraw a criminal case in the ground of political Harassment.

this section also said about the effect of such withdrawal after and before of framing charges against the accused. But this section is totally silent about the process  and ground of such withdrawal of criminal cases.


Any Public Prosecutor may, with the consent of the Court, before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and upon such withdrawal,-   



(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;   



(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences.


A Public Prosecutor can seek withdrawal of the prosecution only when instructed by the government in writing.


 Whether withdrawal of cases are inconsistent with the constitution?

Articles 26 and 27 of the constitution of Bangladesh provide equality before law and equal protection of law. First of all we need to scrutinize the provisions of Article 27 as to whether this provision of the constitution gives any exemption to the political activists or not. In this regard, Article 27 ensures equality before law by providing that all citizens are equal before law and are entitled to equal protection of law. So, it is evident that the political activists or leaders are no exception to Article 27 of the constitution. Rather the withdrawal of cases under section 494 of the Code of Criminal Procedure is inconsistent with the spirit of Article 27 and violation of the fundamental rights of equality before law and thereby liable to be ineffective. As Article 26 provides that all existing laws inconsistent with the provisions of this Part (Part-III: Fundamental Rights) shall, to the extent of such inconsistency, become void on the commencement of this constitution and the State shall not make any law inconsistent with any provisions of this Part and any law so made shall, to the extent of such inconsistency, be void.

Sometimes, withdrawal of a criminal case may be a matter of public concern particularly if it is done without lawful or reasonable grounds.
The prosecutor has to make out some grounds, which would show that the prosecution is sought to be withdrawn. A criminal case is supposed to be filed only when there is a likelihood of a successful prosecution. Thus, in principle, there can be no grounds for withdrawal. However, the prosecution might not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well-founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution, or a settlement arrived at in court or in a manner acceptable in law may be the grounds for withdrawal

In the case of Shamsul Alam vs State [(1995) 47 DLR 476], the High Court Division held that withdrawal on consideration of any cogent ground or materials is not only illegal but contrary to the well established principles of criminal justice and liable to be quashed. In Altab Hossain vs Kobed Ali [(1997) 49 DLR 589] it was disclosed that the Magistrate accorded permission for withdrawal simply on the ground that the government had instructed the Deputy Commissioner concerned for taking steps for withdrawal of the case. The High Court Division held that such mechanical order of withdrawal of the case is contrary to the provision of s 494 of the Code and then directed the magistrate to proceed with the case in accordance with law.

it is the prominent case regarding withdrawal of criminal cases.
Surjit Singh vs Raj Pal And Anr. on 20 December, 1965Equivalent citations: AIR 1966 P H 473, 1966 CriLJ 1327Bench: D Falshaw, H Khanna

10

Law / Appeal against the order of acquittal and inadequacy of sentences

« on: July 13, 2015, 03:03:39 PM »

 Section 417 and 417 A of Code of Criminal Procedure enumerate the the forum and the procedure of filling appeal if the prosecution is aggrieved against the order of acquittal or inadequate sentence.


1) Subject to the provisions of sub-section (4), the Government may, in any case, direct the Public Prosecutor to present an appeal-

(a)   to the High Court Division from an original or appellate Order of acquittal passed by any Court of Session;   



(b) to the Court of Session from an original or appellate Order of acquittal passed by any Magistrate.   



3 (2) But if such an order is passed in any case instituted upon complaint, and if the order involves an error of law occasioning failure of justice, the complainant may present an appeal-   



(a) to the High Court Division from an original order of acquittal passed by any Court of Session;   



(b) to the Court of Session from an original order of acquittal passed by any Magistrate.   



(3) No appeal by the complaint from an order of acquittal shall be entertained by the High Court Division  or a Court of Session after the expiry of sixty days from the date of the order of acquittal.   



(4) If, in any case, the admission of an appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section.


417A.(1) The Government may, in any case of conviction on a trial held by any court, direct the Public Prosecutor to present an appeal to the High Court Division against the sentence on the ground of its inadequacy.

(2) A complainant may, in any case of conviction on a trial held by any Court, present an appeal to the Appellate Court against the sentence on the ground of its inadequacy:

Provided that no appeal under this sub-section shall be entertained by the Appellate Court after the expiry of sixty days from the date of conviction.

(3) When an appeal has been filed against the sentence on the ground of its inadequacy, the Appellate Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence.

If we analyze the above mentioned section the we can see that in case of acquittal the appellate forum is normal but in case of inadequacy under section 417A except the case of complaint every appeal against the order passed by any court the public prosecutor shall prefer it to the High Court Division.

11

Law / FIR and its value as a Substantial piece of Evidence

« on: July 11, 2015, 05:14:48 PM »

FIR is A document by which a criminal case is initiated. it contained the fact of the prosecution case.  it can be used in the court of law to some extent. whether it can be the substantial evidence or not? it only can be in the trial for Contradicting the  previous statement of the informant under section 145 of the Evidence Act 1872 and also for the purpose of corroborating the statement under section 157 of the Evidence Act.

12

Law / Execution of Sentences under Code of Criminal Procedure, 1898

« on: July 11, 2015, 02:57:32 PM »

 
 According to section 53 of Penal Code there following five  types of punishment -       
53. The punishments to which offenders are liable under the provisions of this Code are,-   

Firstly,- Death;   

Secondly,- [ Imprisonment for life];   

   

Thirdly,-Imprisonment, which is of two descriptions, namely:-   

(1) Rigorous, that is, with hard labour;   

(2) Simple;   

Fourthly,- Forfeiture of property;   

Fifthly,- Fine.   

  We know that penal Code is  a Substantive Law Where the Code of Criminal is a procedural Law.The punishments or sentences given under Substantive Law is Executed according to the procedural Law.  from the above mentioned classification we came to know that there is no punishment named Whipping. But interesting matter is that  in our criminal Procedural Law Section 391 to section 394 stated the procedure of execution of Whipping. So we have to  think about this redundancy of the Criminal procedural Hence our law makers are very Busy.