CASES AND COURTS OF BANGLADESH

 
CASES AND COURTS OF BANGLADESH

by-Asad Hossain Choudhury
Advocate, Supreme Court of Bangladesh

asadchoudhury@yahoo.com

cell-+8801715132784

Introduction: Law came out of the lawlessness of the society. And with the emergence of the State and the Government, Law has become the bulwark of the Society. Facts give rise to law but not the reverse is true. Similarly, Law is made for the man but man is not made for the law. The more a society becomes advanced and developed , the more of the laws pervade in a snowballing shape to have all the force and effect to discipline the society and its people by way of its proper implementation through courts and different forums of law pari passu with the Executive forces and hands while the breach of the law takes place . “Case means a set of circumstances or conditions; a situation requiring investigation or action by police or other agency; the object of investigation or consideration ; a suit or action in law or equity”( Webster’s Seventh New Collegiate Dictionary) Case means a trial , an action involving some point of law or fact between two or more parties . The expression ‘Case’ is not limited to its import to the entirety of the matter in dispute in an action . It includes a civil proceeding, a part of a proceeding (AIR 1970SC 406). A case is formal proceeding instituted in a court of law for the enforcement and prosecution of a right of a suitor, the enforcement of an obligation, the enforcement of an obligation binding another in favour of the suitor, the redress or prevention of a wrong or the punishment of a public offence ( Nirmal Dass Vs. State Transport(Appellate) Tribunal AIR 1972 All 200) . In criminal jurisdiction ‘case’ means ordinarily a proceeding for the prosecution of a person alleged to have committed an offence . In other context, the word may represent other kinds of proceeding( AIR 1970 SC 1153) . ‘Case’ in Sec. 193(2) of the Code of Criminal Procedure includes proceedings which are not necessarily confined to trial of offences. Bail applications and transfer petitions are cases which can be transferred to Additional Session Judge for disposal . ( Virjivan P. Seth v. Ratanlal – AIR1964 AP 59) .The word is of comprehensive import and includes civil proceedings other than suits ( S.S Khanna v. F.j Dillon(1964) 4 SCR 409).  
There is technical bearing between the words ‘Case’ and ‘Suit’. For representation through simple construction of the things under discussion to the laity , it may be said that the term ‘Suit’ is used to mean a proceeding arising out of an allegation brought by means of a plaint and not upon a ‘Complaint’ as is applicable for the criminal proceeding . To put it simply, for filing a suit in a civil court, court fees vary depending upon the nature of the proceeding arising out of different statutory civil laws but then in the Criminal Proceeding , any complaint at the instance of a party before the Magistrate can be lodged at a fixed court fee of Tk5/- . Just in the same token, like that of a Criminal Proceeding , a case in a civil court , that is, ‘Pre-emption case’ could be filed so long upon fixed court fee of Tk 5/-. But upon recent development, the court fee amount for the pre-emption case has undergone a change to Tk 300/-. Anyway, fixation of court fees is a variable phenomenon depending upon the executive fiat of the Government pursuant to Finance Act. But by the application of Section 141 of the Code of Civil Procedure we find that “ The procedure provided in this Code in regard to suits shall be followed , as far as it can be made applicable in all proceedings in any court of civil jurisdiction” So the procedure for seeking relief in appeal for a case shall be one and the same like that of a Suit by the above enabling provision. 
Be that as it may , the suits and cases are required to be filed in the courts of the original jurisdiction ; which means in the courts of the first instance or otherwise we call the courts of the first resort. It is premised upon the hierarchy of courts in the lower judiciary where not all courts but only the Courts such as the courts of the Assistant Judge and the Senior Assistant Judge in the first order and then the Sub-judge presently changed to a new name as the Joint District Judge in the second order are the only courts to entertain any case of civil nature depending upon the valuation of the suits being upto 1 lac for the Assistant Judge; exceeding 1 lac upto 2 lacs for the Senior Assistant Judge ; beyond that upto unlimited amounts , the Joint District Judge can take the filing for all suits and cases. The head of a lower judiciary in a district both in respect of civil and criminal matters is known as the District and Session Judge. When the judicial head of a district hears and adjudicates upon a civil dispute, he will be addressed as the District Judge but when he hears and adjudicates a criminal matter, he will be referred to as the District Session Judge. The word ‘Session’ connotes usually criminal matter. ‘ Session Court’ has the jurisdiction to try only the criminal offence of grave nature i.e., murder, Dacoity, Rape etc.; thus excluding from its jurisdiction to adjudicate upon a petty criminal offence like theft, for example , which is triable by the Magistrates of the varying grades, that is , Magistrate First Class , 2nd Class, 3rd Class. The Joint District Judge while discharging his duties in trying a case of criminal nature, he goes by the name of Assistant Session Judge; so is the case with the Additional District Judge who in dealing with criminal matter goes with name of Additional Session Judge . The District Judge save and except certain matter, such as transfer of suits/Cases, Probate etc., mostly acts as an Appellate Authority but while exercising criminal jurisdiction, he acts both as a Court of Original and Appellate Jurisdiction. The Additional District and Session Judge & Joint District and Session Judge(Previously known as Sub-judge & Assistant Session Judge) both exercise the jurisdiction of the District & Session Judge as appellate courts on transfer of the files by the District & Session Judge both in civil and criminal matters. In civil matters, the present position of the appellate jurisdiction is Tk 5 lacs and beyond that for any unlimited amount an appeal is preferred before the High Court Division . In Criminal Matter , the maximum punishment for an offence is death sentence but in murder case, to clear a person’s confusion, the normal punishment is death sentence not the sentence of life imprisonment. The sentence of life imprisonment is awarded qua a Session Judge by way of commutation upon mitigating circumstances. For the nonce , we can visualize two circumstances- one in criminal and another in civil case, e.g., for a murder case sentence of conviction passed by the District Session Judge is required to be confirmed by the High Court Division under Section 374 of the Code of Criminal Procedure and in the same token , a decree in Divorce Suit passed by passed by the District Judge under section 10 of the Divorce Act, 1869 needs to be confirmed under Section 17 of the said Act by the High Court Division.(54 DLR(AD) P-168. In matters of Succession and Probate , the original jurisdiction lies with the District Judge but on delegated power , the Joint District Judge and the Assistant Judge usually in practice exercise that power. When we talk of Succession Certificate, it may sound to a lay man or a neophyte in our profession as like any other certificate to be procured from any person in authority but actually it is to be obtained through a regular proceeding from the courts of the Joint District Judge or the Assistant Judge, as the case may be . Apart from this, the District Judge has got the original jurisdiction to exercise the ‘General power of Transfer and withdrawal’ under section 24 of the Code of Civil procedure. In passing it may be mentioned here that many courts go by different names to conduct certain special nature of cases under the special statutes, that is, Artha Rin Adalat by a Joint District Judge , Bankruptcy Court by the Additional District Judge, Family Court, Small causes Court are run by the Assistant Judge having special power conferred upon them in this in this respect. But then, we find another court having civil and criminal jurisdiction which is run by a Chairman of Union Parishad who may not be a law-knowing person.  
Different Courts go by the different names and the practitioners are supposed to identify those courts out of his practical knowledge and good perception of the things to avoid any confusion. But one thing is very important to note that every judge in his own right is free and independent in passing judgement and thus a judge of higher grade by law is prohibited to influence any judge of his lower grade .  
NEXT TOUCHING UPON THE ASPECTS OF CRIMINAL CASES AND COURTS : Criminal cases are set in motion either as a Police Case or a Complaint Case- the former one is initiated through lodging of FIR to the Police Station having jurisdiction over the place of occurrence but that will be run at the cost of the State and as such that is referred to as a State Case and alternatively for any penal offence a person upon his own option in his own initiative and cost can go for a complaint either in writing or orally before a Magistrate First Class having power to take cognizance of the offence complained of But in both categories of cases , the initial jurisdiction lies with the Magistrate as a Court of First Instance .If the offences are triable by a court of session , then until completion of investigation , only the said Magistrate has got jurisdiction to issue order of remand and grant bail in the first instance and after that upon submission of Police Report under Section 173 of the Criminal Procedure Code ( otherwise known as Charge-sheet by police parlance), the case is sent by the Magistrate to the Session Judge for trial. Magistrates are also in legal sense Judge. But the Magistrates are not required to have law degree as a pre-requisite to such position. In the Magisterial set up in a District, we find the District Magistrate as the head who is otherwise known as the Deputy Commissioner being the head executive functionary in a district, then comes in order Additional Deputy Commissioners (for short A.D.C) who being several in number without being independent post- holders are mere staff officers to the D.C to assist him in due discharge of his duty. And the power of the District Magistrate is usually in most cases exercised by the Additional District Magistrate(A.D.M). It is to be remembered that the seniormost A.D.C in a district functions as the A.D.M . A.D.M is a first class Magistrate invested with the powers to exercise the whole gamut of powers as contained under Section 190(a),(b),(c) of the Cr. P.C. In matters of adjudication and in judicial norms and practice too, the Assistant Session Judge who is otherwise known as the Joint District Judge is superior in rank than the A.D.M . The District Session Judge is superior in rank than the Chief Metropolitan Magistrate (C.M.M) in the sense that he sits in judgment as a revisional court under Section 439A of the Criminal procedure Code against the order passed by the C.M.M and the A.D.M.
A.D.C (Revenue) acts as the appellate authority over the Certificate Court ( which is though in legal sense not a court proper but adjudicates cases relating to recovery of Government’s revenue and on a later development recovery of bank’s loan) run by a novice Magistrate duly designated as a Certificate Officer upon investing certificate power by the Divisional Commissioner but practically seen to having no clear view and perception of a difficult quasi-judicial law being Public Demand Recovery Act, 1913 enacted as a speedy measure for recovery of money dues being the alternative procedure in compendium version to the Civil Procedure Code, 1908. In hearing revenue cases where many more lawyers of good standing appear to do cases before the Additional Divisional Commissioner who is the last appellate authority in each Divisional Head Quarter and against the order of Divisional Commissioner ( meaning Addl. Div. Commissioner) Land Appeal Board at Dhaka is the ultimate authority in appeal in this regard.  
On analysis, it stands out clearly to us that only under Section 439A the criminal revisional power concurrently with High Court Division is given to the Head of the lower judiciary in a District while exercising jurisdiction in criminal matters as the Session Judge but not as the District Judge to hold revising power in civil matters under Section 115 of the Code of Civil Procedure which is the exclusive domain of the High Court Division. Inherent power in criminal matter as is exercisable under Section 561A of the Code of Criminal Procedure is the exclusive jurisdiction of the High Court Division but the inherent power as is exercisable in civil matters under Section 151 of the Code of Civil Procedure belongs to both of the lower courts and the Apex court. The Section 115 of the C.P.C in the same way under Section 537 of the Cr. P.C cannot be invoked to cure a defect or irregularity or invalidate a thing in a finally adjudicated matter unless it has occasioned a failure of justice.
For challenging any judgment of civil and criminal nature of the court below we will have to come to the High Court Division, then to the Appellate Division of the Supreme Court of Bangladesh but in case of service matters against the order of Administrative Tribunal appeal lies before the Administrative Appellate Tribunal then not before the High Court Division but before the Appellate Division of the Supreme Court. 
CASES AT THE APEX COURT : Practice in the Supreme Court is, in effect, a practice of sophistication and definitely not of sophistry or pettifogging where not only absolute care is required for following the procedural means but also the stress is there for the befitting dress and manner not bordering on being a dandy or a fop. High Court Division exercises original jurisdiction in matters of cases such as Company , Admiralty and Writ in which matters the lower courts in the District lack power to entertain . In filing Civil Revision and Appeal no prior notice is to be given but in filing Criminal Cases in the High Court Division , prior notice is to be given to the Government through the Attorney General. Filing of cases of the nature of Revision and Writs takes place by way of motion (i.e. through moving of court) either as an enlisted or unlisted matter for onward obtaining of ‘Rule’ ( meaning thereby a ‘Show Cause’ notice to the adversary ) initially normally as an ex parte hearing by the petitioner on making out a prima facie case then the matter is disposed of by means of final hearing usually upon serving notice to the adversary and failing the appearance of either party the matter is disposed of on merit. In habeas corpus (meaning let the body be brought before the court)matter, we can seek relief in two alternative measures – one by way of filing Criminal Misc. Case under Section 491 of the Code of Criminal procedure or by invoking writ jurisdiction under Article 102 of our Constitution.
DIFFERENCE BETWEEN THE PRACTICE IN THE LOWER COURTS AND THE APEX COURT: Suits and Cases are filed in the lower courts at the District without scrutiny through hearing of the court and posting of dates after dates till peremptory or ex parte hearing concludes is given at the instance of the court management in the Daily Cause List maintained in a Register open to all but for the cases of the High Court Division, daily cause list is prepared at the desire of the court and /or by the prior mentioning of the counsels in the open court , printed by the court management and obtainable on payment on each court day. In the court below pleading though refers to either Plaint or Written Statement or both . And in the absence of Written Statement in case of civil matter , the proceeding is disposed of by ex parte . But in case of revision cases which are seen to be predominantly prevalent in the High Court Division , counter affidavit , that is , opponent’s reply against the petitioner’s cause is not necessary to the readiness of the final rule hearing . But then, in matters of writ , opponent’s reply what we may call Affidavit-in-opposition is mandatory to have the say-so of the adversary duly counted to receive acceptance of the court . Here at the apex court after issuance of the ‘Rule’, notice upon the Opposite party is to be served but in case of the lower court notice is to be compulsorily given at the time of filing of the matter . At the apex courts meaning thereby the Supreme Court, judgment and orders are passed in the open court and the concerned counsel (lawyer of the apex court is referred to) is required to receive it by sitting in the court until the pronouncement of the judgement comes to an end but in case of lower court, after hearing judgment is kept reserved for future delivery even in some cases found to be dragging on for months together and the learned judge having forgotten the matter needed further hearing anew.  
From lower courts upto High Court Division, filing of cases is done through the help of a clerk who is formally and official recognised but in the Appellate Division, which is the last court of resort to have acted as the ultimate forum to say the last word on point of law on any matter appealed against the judgement and order of the High Court Division, assistance of some category of lawyer known as Advocate-on-record is compulsorily needed to file a case in place of a clerk who will draft a case under the instruction of an Advocate of the Appellate Division, take necessary steps on dates, meeting all procedures prepare paper book to make it available to the engaged Appellate Division Advocate before he argues the case. Being an Advocate in the Appellate Division is for prestige and Advocate-on-record for the lure of the lucre. Because unlike an Advocate, he is in a vantage position to handle many more briefs of the many more Advocates of the Appellate Division – both categories of member regardless of the consideration as to whether he is an Advocate of the Appellate Division or not.. In usual procedure, straight appeal is not entertained but first off the leave to appeal(meaning thereby the permission to take appeal) is to be filed for taking up hearing unless it is a special case on law point and endorsed by the High Court Division. Like an Advocate of the High Court Division, the Advocate-on-record cannot straight way argue a case before the Appellate Division without prior permission from the Chief Justice of the Supreme Court. 
CONCLUSION: Due to procedural snags, sophistication and prolongation in the High Court Division, District court practitioners can hardly cope with the practice in the Supreme Court (meant to cover both or either of the Divisions) , but an Advocate of the High Court Division can maintain practice both in the Supreme Court and at least in the District Court of Dhaka with utmost efficacy and efficiency too through his logistic support of his juniors and clerks. In the conduct of cases an Advocate has the privilege and honour to represent the cases of the citizenry and foreigner, if the occasion arises, but always showing due respect to the courts coupled with the application of his pyrotechnics of forensic skill and neat advocacy.
The End