Bangabandhu Sheikh Mujibur Rahman Science & Technology

University

Assignment on
The Criminal Courts of Bangladesh

Course Title: Criminal Procedure code

Course Code: Law 323

Submitted by: Submitted to

Md. Rifat khan Md. Humayun Kabir
ID: 18 Law 037 Lecturer, Dept. of Law
3rd year, 2nd semester BSMRSTU.
Session: 2018-19
Department of Law

Date of Submission: 28 February, 2023

 The Criminal Courts of Bangladesh

Introduction:

"Injustice anywhere is a threat to justice everywhere."

- Martin Luther King, Jr.

The judicial System of Bangladesh has not grown overnight or in any particular
period of history. The present legal and judicial system of Bangladesh owes its
origin mainly to 200 years British rule in the Indian subcontinent although some
elements of its remnants pre- British period tracing back to Hindu and Muslim
administration. It passed through various stages and has been gradually
developed as a continuous historical process.

The process of evolution has been partly indigenous and partly foreign and the
legal system of the present day emanates from a mixed system. This has a
structure, legal principles and concepts modeled on both Indo – Mohgal and
English law. The Indian subcontinent has a known history of over 500 years
with Hindu and Muslim periods, which proceeded the British period, and each
of these early periods had a distinctive legal system of its own.

The Judiciary of Bangladesh consists of a Supreme Court, subordinate courts

and tribunals. The Supreme Court of Bangladesh comprises of Appellate
Division and the High Court Division. It is the apex court of the country and
other courts and tribunals are subordinate to it. Here I have briefly discussed the
criminal courts of Bangladesh.1

1
https://www.studocu.com/row/document/the-university-of-asia-pacific/professional-practices-and-
communication/criminal-courts-in-the-subordinate-judiciary-in-bangladesh-autosaved/39851976
Judiciary of Bangladesh:

The People’s Republic of Bangladesh is a unitary, independent and a sovereign

state. Bangladesh achieved its independence in the year 1971 and subsequently
adopted the Constitution in the year 1972. According to Article 22 of the
Constitution, the state shall ensure the separation of judiciary from the executive
branch of the government.2

Early stage

The highest court of Bangladesh just after independence was the High Court
established under the High Court of Bangladesh Order 1972. It consisted of a
Chief Justice and as many as other judges that may be required to be appointed.
Thereafter, an Appellate Division was established which consisted of the Chief
Justice and two other judges appointed by the President after consultation with
the Chief Justice. The Supreme Court took over the High Court, which was
established under the Constitution of Bangladesh. The Supreme Court is the
highest court of the land, below which there are subordinate courts and tribunals
sitting throughout the country.

Current Judicial System

The judiciary of Bangladesh currently consists of the apex court and the
subordinate courts. The apex court is known as the Supreme Court of
Bangladesh, which comprises of the Appellate Division and the High Court
Division. There are two sets of subordinate courts which are the civil courts and
the criminal courts. There are however, some special courts created by virtue of
various special laws such as the small cause’s court, family court, financial loan
court, special tribunal, court of special judge and administrative/administrative
appellate tribunal, etc.

2
https://lcls-south.com/the-evolution-of-bangladeshs-court-structure-how-far-have-we-come/
Supreme Court of Bangladesh

The Supreme Court of Bangladesh is the highest court of the land which
comprises of the Appellate Division and High Court Division, respectively. It
was established under the Constitution of Bangladesh with Chapter I of Part VI
of the Constitution dealing with the Supreme Court. It is important to
understand that these two Divisions are ‘distinct and separate’ from each other
and separate appointments are made for each Division. The Supreme Court
must always have a Chief Justice, who shall be known as the ‘Chief Justice of
Bangladesh and the President may appoint to each Division as many judges as
he sees fit. Upon the advice of the Prime Minister, the President fixes the
number of judges of the Supreme Court. The Supreme Court shall have its
permanent seat at the capital (i.e. Dhaka); however, sessions of the High Court
Division may be held at such other place or places as the Chief Justice may
appoint from time to time, subject to the approval of the President.

Appellate Division

The jurisdiction of the Appellate Division of the Supreme Court of Bangladesh

is to ‘hear and determine appeals’ against the ‘judgments, decrees, orders or
sentences’ passed by the High Court Division. They have the power in any
cause or matter pending before it, to issue directions, orders, decrees and writs
as may be necessary for doing complete justice. It has been empowered to
review any judgment pronounced or order made by them. They also has an
advisory jurisdiction, where it appears to the President that a ‘question of law’
has arisen or is likely to arise, the nature of which is of such public importance
that it is ‘expedient’ to take the opinion of the Supreme Court, he may refer it to
the Appellate Division that ‘after such hearing as it thinks fit, reports its opinion
thereon to the President’

High Court Division

The jurisdiction of the High Court Division can be divided in four major heads
– Civil Jurisdiction, Criminal Jurisdiction, Constitutional or Writ Jurisdiction
and Special Statutory Jurisdiction, respectively. By virtue of the special
original jurisdiction, the High Court Division has the authority to enforce
fundamental rights of the citizens and has been empowered to issue certain
orders or directions in the nature of writs of prohibition, mandamus, certiorari,
habeas corpus and quo warranto. They exercise special and statutory original
jurisdiction, appellate jurisdiction, revisional jurisdiction, admiralty jurisdiction
and miscellaneous jurisdiction under several other laws.

Subordinate Courts

There are various subordinate courts and tribunals which have civil, criminal
and special jurisdiction below the High Court Division of the Supreme Court of
Bangladesh. It is important to note that after the landmark decision of the
Masdar Hossain case and the subsequent amendment of the Code of Criminal
Procedure, ‘the lower judiciary was separated from the clutches of the
executive’. However, the term ‘executive magistrate’ still appears in the Code
of Criminal Procedure; it has been argued that as their function is only
administrative in nature, they are no longer given any judicial functions.
Another imperative issue in this regard is that the executive magistrates were
still vested with some judicial powers by virtue of the Mobile Court Act 2009.
The High Court Division has very recently declared it unconstitutional,
mentioning that the Act is ‘directly in conflict with the spirit of the judgment’ in
the Masdar Hossain case.

Hierarchy of Criminal Court in Bangladesh:

The criminal cases are tried in the criminal courts and there are two
types of criminal courts – the Court of Sessions and the Magistrate’s
 Court. The Hierarchy of the criminal court of Bangladesh is given
below:

Appellate Division

High Court Division

Session Judge

Additional Session Judge Court of Session

Joint Session Judge

Trail Court
Chief Judicial Magistrate

Additional Chief Judicial Magistrate

Magistrate Court
Senior Judicial Magistrate

Judicial Magistrate Trail Court

Cognizance Court

Police Station

User
Classification of Criminal Court:
According to Section 6 of the Code of Criminal Procedure1898; Besides the
Supreme Court and the Courts constituted under any law for the time being in
force,

There shall be two classes of Criminal Courts in Bangladesh, namely:- 

(a) Courts of Sessions;

(b) Courts of Magistrates.

There shall be two classes of Magistrate, namely: -

(a) Judicial Magistrate; and

(b) Executive Magistrate.

There shall be four classes of judicial Magistrate, namely: -

(a) Chief Metropolitan Magistrate in Metropolitan Area and Chief judicial

Magistrate to other areas;

(b) Magistrate of the first class, who shall in Metropolitan area, is known as
Metropolitan Magistrate;

(c) Magistrate of the second class; and

(d) Magistrate of the third class.

"Chief Metropolitan Magistrate" and "Chief judicial Magistrate" shall include

"Additional Chief Metropolitan Magistrate" and "Additional Chief judicial
Magistrate" respectively.3

According to Section 9 of the Code of Criminal procedure 1898;

3
http://bdlaws.minlaw.gov.bd/act-75.html
The Government shall establish a Court of Session for every session’s division,
and appoint a judge of such Court and the Court of Session for Metropolitan
Area shall be called the Metropolitan Court of Session.

(2) The Government may, by general or special order in the official Gazette,
direct at what place or places the Court of Session shall hold its sitting; but,
until such order is made, the Courts of Session shall hold their sittings as
heretofore.

(3) The Government may also appoint Additional Sessions Judges and Assistant
Sessions Judges to exercise jurisdiction in one or more such Courts.

The members of the Bangladesh Judicial Service shall be appointed as Sessions

Judge, Additional Sessions Judge and Joint Sessions Judge in accordance with
the rules framed by the President under the proviso to Article 133 of the
constitution to exercise jurisdiction in one or more of such areas.

(4) A Sessions Judge of one session’s division may be appointed by the

Government to be also an Additional Sessions Judge of another division and in
such case he may sit for the disposal of cases at such place or places in either
division as the Government may direct.

(5) All Courts of Session existing when this Code comes into force shall be
deemed to have been established under this Act.4

Jurisdiction of Criminal Court:

Courts of session are presided over by 3 types of Judges; they are -

Session Judge,

Additional Session Judge and

Joint Session Judge.

4
http://bdlaws.minlaw.gov.bd/act-75.html
According to Section 31(2) of CRPC; a Session Judge or Additional Session
Judge may pass any sentence authorized by law but any sentence of death
passed by such judge shall be subject to confirmation by the High Court
Division.

According to Section 31(3) of CRPC; a Joint Session Judge may pass any
sentence authorized by law except a sentence of death or of transportation for a
term not exceeding 10 years or of imprisonment for a term not exceeding 10
years.

Court of Magistrate is presided over by 5 types of magistrates other than

Metropolitan Area; they are-

Chief Judicial Magistrate;

Additional Chief Judicial Magistrate;

Senior Judicial Magistrate or Magistrate of First Class;

Second Class Magistrate;

Third Class Magistrate;

Chief Judicial Magistrate and Additional Chief Judicial Magistrate

Chief Judicial Magistrate or Additional Chief Judicial Magistrate is empowered

with the power to try all offences not punishable with death.

Senior Judicial Magistrate or Magistrate of First Class

- Imprisonment for a term not exceeding 5 years;

- Such solitary confinement as authorized by law;
- Fine not exceeding 10 thousand taka;
- Whipping

Second Class Magistrate

- Imprisonment for a term not exceeding 3 years;

- Such solitary confinement as authorized by law;
- Fine not exceeding 5 thousand taka;

Third Class Magistrate

- Imprisonment for a term not exceeding 2 years

 - Fine not exceeding 2 thousand taka

Metropolitan Areas: In Metropolitan Area there are three types of magistrate,

they are;

Chief Metropolitan Magistrate

Additional Chief Metropolitan Magistrates

Metropolitan Magistrates

Chief Metropolitan Magistrate and Additional Chief Metropolitan

Magistrates

Chief Metropolitan Magistrate or Additional Chief Metropolitan Magistrates is

empowered to try as a magistrate all offences not punishable with death.

Metropolitan Magistrates

- Imprisonment for a term not exceeding 5 years;

- Such solitary confinement as authorized by law;
- Fine not exceeding 10 thousand taka;
- Whipping5

Function of Criminal Court:

The adjudicating authorities perform its proceeding through following two
stages

1. Proceeding Stage and

2. Trial Stage.

Proceeding stage consists of taking cognizance of a criminal proceeding and

transfer to an appropriate court. Under Section 190, any CMM, CJM,MM ,1 st
class magistrate or other Magistrate specially empowered may take cognizance
of an offence on the basis of any of the three sources.

a) Upon a charge sheet

b) Upon a complaint

c) Upon own knowledge or private information. Under Section 193, the Court
of Sessions can take cognizance of offence.
5
https:// www.slideshare.net/arnabbd/classes-of-criminal-courts-in-bangladesh
Trial stages has two phases

a) Trial in Magistrate Court and

b) Trial in Session Court.

This is because the nature and procedure of trial in these two courts are
different. Trial in Magistrate Court takes two forms-

1. Summery trial and

2. Regular trial.

In Summery trial, the Court shall try the accused in short. Here the Court is
dispensed with the recording evidence. The distinctive features of this system
are that the Magistrate can impose sentence not exceeding 2years. Strict rules of
evidence may not be followed here.

In Regular trial, the Magistrate will first consider the record of the case and he
will hear the parties. Having done that if he considers the charge is groundless,
he may discharge the accused. But if he is of opinion that there is a prima facie
case for the accused, he shall frame a formal charge. After framing charge, if
the accused pleads his guilt, he may convict him accordingly. If the accused
does not plead his guilt, magistrate shall proceed to hear the case on the basis of
evidence. If after hearing evidence, the Magistrate finds the accused not guilty,
he shall record an order of acquittal. But if the magistrate finds the accused
guilty, he shall pass the sentence.

Trial in Sessions Court starts with the opening of the prosecution case. The
Public Prosecutor (PP) opens the case by describing the charge brought against
the accused and starting by what evidence he will prove the guilt of the accused.
Then the Session Judge will give both the sides chance to argue in favour of
framing charge or discharge. After such hearing and considering the record of
the case, if the judge finds no sufficient ground he will discharge the accused.
But if the judge is of opinion that there is a prima facie case, he will frame a
formal charge.

After framing formal charge, if the accused pleads the guilt, he will be
convicted. If the accused does not plead his guilt, the PP will first examine all
prosecution witnesses. Cross examination and re-examination will also be held
accordingly. After considering prosecution evidence and arguments, the court
will pass the order of acquittal or conviction.6

Limitations in Criminal Court:

According to UNB, More than 34 lakhs cases are now pending with both the
higher and lower courts across the country. Among the cases pending with the
Appellate Division, 6351are criminal ones and 116 are other cases, including
contempt petitions, In order to know that, I've divided the challenges and
problems into several divisions.7

1. Infrastructure Challenges:

The infrastructural problem is one of the big issues for the Court. When I visited
our CMM (Chief Metropolitan Magistrate Court) Court, I've seen there are a
huge amount of people in the buildings that are more than the capacity. The
buildings are old fashioned and not well equipped. Recently an accident which
was in the lift of the Court occurred and that lift was of old.

Advocate Amjad Hossain told, "There are a huge amount of infrastructural

problems that are one of the biggest challenges for the Court. Our buildings are
venerable, the food in the cafeteria are not so hygienic. Moreover the washroom
facilities are unhygienic. Also the spaces for the lawyers, victims and Judges are
congested."

So, that's the recent scenario of the infrastructural problems of the Court.

2. Challenges for judge:

The duty of a judge is to hear both party (prosecution and defendant) and then
give the judgment. But there are a lot of problems and challenges. Firstly, there
are differences in the preliminary report and the report of investigation officer
or in the charge sheet and the autopsy report or in the police report and the
report of Magistrate sometimes. For this, the whole process becomes blurry
and creates doubt. According to our Penal Code, if there creates any doubt in a
case then the benefit of doubt will get the accused. Therefore, due to have a lot
of cases (about 40 – 50 cases per Judge), a Judge can't concentrate and analyze a
case properly.

6
https://www.scribd.com/document/319883529/Assignment-of-Criminal-Justice-System-in-BD#
7
https://www.academia.edu/39058977/The_Criminal_Court_of_Bangladesh
Advocate Arafat Tushar told," Judges cannot give justice sometimes for many
reasons. Sometimes the prosecutors make agreement with accused and don’t
supply enough witnesses in the Court. Sometimes police don’t give proper
charge sheet and the accused gets benefit of doubt. Sometimes a Judge gets
biased of renowned lawyers and gives judgment in favor of him." 

So, we can see there are many antecedents that put a Judge in challenging
situations

3.  Challenges for a prosecutor:

A prosecutor or a public prosecutor has also faced many challenges in our

judicial system. Many times we see that he/she couldn't find the physical
evidences, witnesses to testify and proper investigation report and so the victims
don't get justice. Like foreign countries, our police and prosecutors don't work
together to solve a case, that's why there are conflicts between both On the other
hand, the prosecutors sometimes make a deal with accused persons and take
bribes and don't get the testimony of witnesses and present evidences property.
On that point, Advocate Amjad Hossain told, “Our prosecutors, especially
public prosecutors don't get sufficient fees for their livelihood. That's why they
want to earn money by taking money from victims and bribes from accused.’’

4. Challenges for Victims:

A victim comes to the Court to get justice. It's an irony that many times
he/she doesn't get justice. There are many reasons behind that. We've discussed
about the reason of not getting justice to victim from the Judges and prosecutors
in the discussion mentioned above. Moreover, a victim is threatened to
withdraw his/her case, sometimes being tried to do negotiations outside of the
Court. On the other hand, there are some mistakes a victim does. In a rape case,
many times victims wash their wounds and take baths before the medical
investigation. That's why the physical evidences can't be found properly
and can't be presented in the Court and so the accused get released. Therefore,
due to caseloads in the Court, a victim has to get his/her justice after a very long
time. We see many cases that are pending for 30- 40 years and even after the
death of the victim. So, a victim has to face the biggest challenges because
he/she needs justice.

5. Advantages got by Defendants and Criminals:

Defense lawyers and criminals get many advantages for the weakness of our
judicial system. Criminals try to threaten the victims and their families so that
they would withdraw the case. They also try to bribe the prosecutors so that the
prosecutors don't show proper evidences and witnesses before the Court.
Mostly, in every case we can see that the defense lawyers try to create any
doubt in the case so that the benefit of doubt will get the accused. So, there are a
lot of loopholes in our judicial system and so the criminals get many
advantages.

Personal opinion and Recommendation:

We can see there are a lot of problems in the functioning of the criminal
Court. From my point of view, I believe that if we want to make our judicial
system a trustable and one of the most effective sectors of Government where
people get justice, we and Government have to take some necessary steps.

Firstly, the infrastructures of our Courts need to be developed so that the Judge,
lawyers and victims can run the Court procedures in a hygienic and comfortable
environment.

Secondly, Government needs to appoint more Judges so that the caseloads of

the Judges can be decreased and so they can concentrate and analyze the
materials of a case efficiently.

Thirdly, both Judges and lawyers need to be ethical to their works and their
objectives should be bringing the justice for the victim or the right person.

Fourthly, police and Court should work with collaboration so that case could be
solved swiftly and easily

So, I believe that if we want to get justice, then those measures should be taken.8

Conclusions:
From the above discussion, we come to know about the functions and
dysfunction of our criminal courts. We have also known some of the comments
of lawyers regarding the court. Moreover, we get some suggestions to make our
judicial system better. In the conclusion, I would love to end with a quotation,

“Someday I will be a lawyer

8
https://www.academia.edu/39058977/The_Criminal_Court_of_Bangladesh
 Someday I will bring justice to people who need it

Lawyers are either liars or saviors of the truth”

References:
1. https://www.studocu.com/row/document/the-university-of-asia-pacific/
professional-practices-and-communication/criminal-courts-in-the-subordinate-
judiciary-in-bangladesh-autosaved/39851976

2. https://lcls-south.com/the-evolution-of-bangladeshs-court-structure-how-far-
have-we-come/

3. http://bdlaws.minlaw.gov.bd/act-75.html

4. https:// www.slideshare.net/arnabbd/classes-of-criminal-courts-in-bangladesh

5. https://www.scribd.com/document/319883529/Assignment-of-Criminal-
Justice-System-in-BD#

6. https://www.academia.edu/39058977/The_Criminal_Court_of_Bangladesh

7. Halim, A. (2009) Text Book on Code of Criminal procedure. -3rd edition, 8;.
Dhaka( CCB foundation)