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Bangladesh University of Professionals

Term Paper

Course Title: LAW of Criminal Procedure-II

Course Code: LAW 3604

Submitted By:

Abdullah Faiaz
Roll: 2042951059
Section: A
Department of Law-05

Submitted To:

Md. Sadekul Islam

Assistant Professor
Bangladesh University of Professionals
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Time limit for giving publication of the full and complete

judgment in Bangladesh: A critical analysis of laws and
practice

Introduction:

Section 339C of CrPC deals with Time for disposal of Criminal Cases. This section is new.
Introduction of time-limit for disposal of criminal cases is absolutely new in this sub-continent.
According to law, criminal action must be commenced within the period of limitation. This
section may be read with section 167 of CrPC. The Constitution of Bangladesh in Article 35(3)
lays down that Every person accused of a criminal offence shall have the right to a speedy and
public trial by an independent and impartial Court or tribunal established by law. As such, delay
in disposal of cases can harm the Constitutional right of an accused person. But, although, it is
true that an accused in a criminal case is entitled to get a speedy trial, sometimes speedy remedy
may bring injustice.

Laws regarding the Time limit for giving publication of the full and
complete judgment in Bangladesh:

Section 339C of CrPC lays down provisions as to the time limit for disposal of Criminal Cases.
And the time limit provided in Section 339C is not mandatory1 rather directory as there is no
consequence provided in the section. Sub-section (1) of the section says that a Magistrate shall
conclude the trial of a case within on hundred and eighty days from the date on which the case is
received by him for trial. Sub-section (2) provides that for a Sessions Judge, an additional
Sessions Judge and an Assistant Sessions Judge the time limit for concluding the trial of a case is
three hundred and sixty days from the date on which the case is received by him for trial.

1
14 MLR 45 AD
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But where a person is accused in several cases and such cases are brought for trial before a
Magistrate or a Court of Session the time limit specified in sub-section 1 and 2 for trial of such
cases shall run consecutively.

The section also provides that even if a case is transferred from one Court to another Court, the
time specified in sub-section 1 & 2 shall be the time for concluding the trial of a case.

And in counting the time for trial the days spent on account of the absconsion of an accused after
his release on bail, if any, shall not be counted.

And if a trial cannot be concluded within the specified time, the accused in the case, if he is
accused of non-bailable offence, may be released on bail to the satisfaction of the court. And if
the court directs otherwise, the reason is to be recorded in writing.

The practice of the Time Limit in light of Case Laws:

Full & Complete judgment vs short order

As the presiding judge of the full bench of the Appellate Division, Justice ABM Khairul Haque
along with six other judges heard the case on ten separate dates between 1st March 2011 and 6th
April 2011. On 10 May 2011, a week before he retired from the office of the Chief Justice,
Haque pronounced a Short Order in the Supreme Court, declaring, among other things, that the
Constitution (Thirteenth Amendment) Act 1996 was void and ultra vires. He also ordered that
the ‘election to the Tenth and the Eleventh Parliament may be held under the provisions of the
above-mentioned Thirteenth Amendment on the notorious doctrine of necessity stating that
‘which otherwise is not lawful, necessity makes lawful.’

ABM Khairul Haque retired from judicial service on 17 May 2011, without completing the
writing of the full judgment of the 13th Amendment Case. On 16 September 2012, 16 months
after his retirement, Khairul Haque made the judgment available while he became an ordinary
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citizen. In the full text of the written judgment (Abdul Mannan Khan Vs. State2), Khairul Haque
deviated from the Short Order he had given on 10 May 2011. The written judgment did not
contain the provision for considering the following two Parliamentary elections to be held under
the caretaker government system as per the 13th Amendment to the Constitution. He also added
new suggestions that were not part of the original Short Order, including in it that judges should
not take for-profit offices/ positions after retirement.

The short order of the judgment delivered on May 10, 2011, directed for holding the next two
parliamentary elections under a non-party caretaker government in view of the age-old maxims
of necessity and safety of the people and the state. The court also observed that parliament might
bring necessary amendments by excluding the provisions for making the former chief justice or a
judge of the Appellate Division head of the non-party caretaker government.

In the full judgment released after sixteen months on September 16, 2012, Justice Khairul
Haque, in concurrence with the majority of the judges, directed that the caretaker government
could be formed only with elected representatives.

He said that the caretaker government might be composed of only MPs -- elected representatives
of the people -- as sovereignty and empowerment of the people, democracy, republicanism, and
independence of the judiciary constitute the basic structure of the constitution and this verdict
placed the highest importance on these factors.

Justice Haque also said the Jatiya Sangsad might be dissolved at an appropriate time, for
instance, 42 days before the polls, and a small cabinet could perform the routine work of the state
until a new cabinet took over.

About these observations, Justice Abdul Wahhab said, “These are not in conformity with the
short order.”

His fellow judges of the Supreme Court Appellate Division Bench termed Haque’s unilaterally
altered version ‘not in conformity with the short order’.

According to 369 of CrPC no Court when it has signed its judgment, shall alter, or review the
same, except to correct a clerical error. It shows that the spirit of law is that the Judgement is

2
64 DLR 169
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not to be altered be it short order or full judgement except to correct a clerical error. And a
judge cannot pronounce judgement after his retirement.

So, this kind of deviation without further hearing is unprecedented and alleged to be a
violation of the basic philosophy of justice. And as this deviation has been pointed out by the
three dissenting judges of the Appellate Division, their observation on this issue can be regarded
as a significant criticism of the judgment.

Because of Khairul Haque’s altered judgment, the incumbent government of Bangladesh

immediately promulgated the 15th Amendment to the Constitution, repealing the interim
caretaker system, for its totalitarian political benefit. The altered judgment played an important
role in weakening the electoral democracy in the country.

The pronouncement of the altered judgment can be seen as destructing the independence of the
Judiciary by altering judgment to favor the Executive branch of the State.

The Consequence in the Event of Failure to Conclude within the time limit:

A.H.M Mustafa Kamal & Lotus Kamal Vs Govt. of Bangladesh: Time limit for conclusion of trial
is held to be directory. As there is no consequence provided, in the event of the failure to
conclude the trial within the time specified the apex court held the provisions of 339C of CrPC,
1898, S.6A of the Criminal Law Amendment Act, 1958, and rule 19Ka of the Emergency Power
Rules, 2007 as directory and not mandatory. However, the apex court further advised taking
disciplinary action against the Judge concerned for his willful negligence in not complying with
the provisions of the law in appropriate cases.3

Ruhul Amin Vs. The State:

A case becomes a pending case as soon as cognizance is taken by a competent court.4

3
14 MLR 45 AD
4
38 DLR 166
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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.

The Sessions Judge made a mistake in holding that after receipt of records of the case for trial in
December 1988 by his predecessor, a fresh period of 270 days will start for him to complete the
trial since he had taken charge of the Sessions Division in January 1991. Section 339C referred
to an office, not a person.5

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.6

Moklesur Rahman Vs. The State:

This new law is not retrospective but prospective.7

Abdul Wadud Vs. The State:

In view of the repeal of sub-section (4) of section 389C CrPC followed by re-enactment of the
said sub-section the new procedural law will be applicable in the pending cases although
instituted when the old provision was in force and the pending cases are to be governed by the
new procedure under the amended law. In our considered opinion the provision of sub-section
(4) of section 339C of the Code of Criminal Procedure as amended by Act No. XLII of 1992 will
be applicable to the pending cases.

Babul Vs. The State:

Section 339C (4) provides that if the trial of a case cannot be concluded within the specified and
extended time i.e. within 270 working days, further proceedings in respect of the trial stand
stopped and the accused persons released. The provision of section 339C(4) meant for stopping
further proceedings in respect of the trial of a case and releasing the accused persons is a

5
48 DLR 6 AD
6
45 DLR 610
7
4 BLD 65
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mandatory provision. The subsequent amendment of law cannot take away the right of release of
the accused persons before the amendment of law.8

Rafiq Hasan alias Biplob Vs. State:

It was incumbent upon the Special Tribunal to allow the accused to go on bail when it could not
complete the trial within the time provided. 9

Section 339C and 339D:

The new Act was not given a retrospective effect, but in spite of repeal of section 339D of the
Code (provision of revival of a stopped proceeding), provision was made in section 6 of the new
Act for application of section 339D of the Code, as if it was not repealed, when, before the
coming into force of the new Act, (i.e., on the 1st November, 1992), a proceeding was already
stopped under the unamended provision of sub-section (4) of section 339C of the Code. If a
proceeding is now stopped after the coming into force of the new Act either by the High Court
Division or by this Court, the prosecution will not have any corresponding right of revival of the
proceeding under the repealed provision of section 339D of the Code.10

In Sirajul Islam Vs. State Case:

Proceeding was not stopped, and the accused was not released and therefore the accused
petitioner will not accrue any vested right to be released as the same is procedural law having
retrospective effects.11

Bangladesh Legal Aid and Services Trust Vs. Bangladesh and others:

Children are entitled to trial before the Juvenile Courts and positive step should have been made
to make their trial in accordance with law of Juvenile Court, not to be tried jointly with the

8
15 BLD 88
9
48 DLR 274
10
67 DLR (HC) (2015) 140
11
20 BLC HC 629
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adults. The respondents are directed to comply with the earlier direction and report compliance
within six months from date.12

If the hearing of the suit is adjourned due to the failure of the defendant, those days shall not be
counted as working days.13

The days on which the learned Judge conducts proceedings are called working days.14

Working day means the working day of a particular Judge or Magistrate and not the working day
of a particular Court.15

If the suit is commenced before the amendment of the Act, it shall be disposed of as if there had
been no amendment16

The investigation period is not mandatory:

The time limit for investigation by police in pending cases is not mandatory. Rather, it is only
indicative. If the investigation is not completed within the time limit, the accused is not entitled
to relief.17

If the trial is not completed:

If the trial is not completed within the time prescribed by law, bail is granted.18

Application of CrPC to the Special Powers Act

As the provisions of Section 339C are not inconsistent with the Special Powers Act, its
provisions are applicable in cases pending before the Special Tribunal.19

"Time limit" applies to litigation pending before the Special Tribunal.20

12
59 DLR 11
13
47 DLR 24
14
40 DLR 97 AD
15
40 DLR 144
16
36 DLR 111
17
3 BLD 168/8 DLR152
18
84 DLR 274, Captain Nurul Huda Vs State
19
42 DLR 214 AD
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Working day:

If a particular judge is unable to work for any reason beyond their control, those days will be
excluded from the calculation. For example, not being able to work in the courtroom.

Primary causes for not concluding Criminal Cases within Time Limit

Very few earlier studies made real efforts to find out the causes of delay in courts so far it relates
to criminal justice system in the history of Bangladesh Judiciary. For example, Zahir (1988, p.8),
in his empirical research on the causes of delay in courts, indicated ‘adjournments [are]
responsible for about 50 per cent of delay’ (Zahir 1988, pp. 8-9).

In his research, ‘judges uniformly held that the lawyers of both parties and absence of witnesses
are responsible for causing adjournments and consequent delay in disposal of cases. In most of
the cases judges blamed lawyers for delaying disposal of cases (Zahir 1988). Though Zahir
(1988) identified some causes of delay in courts, he did not indicate the deficiency during
investigation and trial stages.21 Actually, there are some major and minor flaws both in
investigation and trial stages which causes delay in the speedy disposal of criminal cases.

Deficiency at the stage of investigation:

Regrettably, due to flaws in the investigation, prosecution finds it difficult to prove its case and
ultimately these flaws are responsible to a large extent for acquittal of many accused. It has been
remarked that –

• The investigating officers, in many cases, are found to be not discharging his duty properly
due to lack of skill or negligence; it is highly unfortunate that the investigating staff has not
been able to be successful in gaining the confidence of the public.

20
42 DLR 97
21
Zahir M., Delay in courts and court management, Bangladesh Institute of Law, and International Affairs (BILIA), Dhaka, 1998.
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• The investigating officer deliberately, being influenced by the accused, makes unnecessary
delay in starting the investigation and recording statements of the witnesses
• Sometimes they do not record the statements while examining the witnesses but make a
synopsis of what the witnesses said to him at the time of examinations.
• Sometimes the witnesses, at that early stage of investigation (when most of the accused are at
large) are afraid of exposing the truth before the Investigating officers. They feel a bit more
secure in the court where they may not delay telling the truth.

Deficiency at the stage of trial:

• The Code of Criminal Procedure, the Evidence Act also provides that the entire onus is upon
the prosecution except in few cases such as, where the accused pleads alibi, the accused shall
be required to prove the same. There is no onus upon the accused. It is not good in all cases.22
The courts mainly follow the principle that the prosecution must prove its case beyond
“reasonable doubt” and whenever the courts find any flaw in the evidence of the prosecution,
for the sake of “fair trial” give acquittal to the accused persons by resorting to “benefit of
doubt”. Neither the expression “reasonable doubt” nor the expression “benefit of doubt” is
defined or explained in any law.

• Sometimes while delivering a judgment in a criminal case, the Judges are confused due to
conflicting decisions of the superior courts. Some Judges give emphasis on the old
precedents, but some take into consideration the changes which have taken place in the
society especially in the law-and-order field.

• There is little co-ordination between the Investigating officer and the Public Prosecutor not
even after a case is fixed for trial.

• During investigation stage and in cases pending for trial before Magistrates records are called
for, disposal of applications for bail in the Sessions Courts and then undue delay occurs in
returning these records back to the Magistrate’s Courts.

22 Ratanlal & Dhirajlal, The Code of Criminal Procedure, Eighteenth Edition, 2006, Wadhwa and Company Nagpur.
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• After submission of charge-sheet in sessions triable cases the Magistrates do not dispatch the
records to the Sessions Judges expeditiously.
• After submission of charge-sheet incomplete records are sometimes sent to the session’s
courts by the Magistrates.
• Non-attendance of witnesses, particularly, of Government officials, such as, the medical
witnesses, the investigating officer, or other police officers connected with investigation, the
handwriting, or the finger-print expert, etc., on the date of trial.
• Huge number of backlog of cases in comparison to number of Judges and courts.
• Failure of police in ensuring the attendance of prosecution witness during trial under section
171 (2) of CrPC. despite repeated issuance of processes.23
• Lack of proper knowledge of magistrates, judges and conducting lawyers about connected
substantive and procedural laws.
• Lack of initiative of judges and magistrates to try cases in a speedy manner.
• Non execution of writ of proclamation and attachment under section 87 and section 88 of
CrPC. for appearance of the absconding accused and thereby causing delay in getting a case
ready for hearing.
• Absence of efficient, knowledgeable public prosecutors and defense lawyers.
• Absence of full and sincere co-operation of conducting lawyers towards the end of speedy
trial.
• Frequent adjournments of cases at trial stage on less important pleas.
• Outdated and time-consuming mode of recording evidence of witness.
• Shortage of accommodation, trained manpower, machinery, and other paraphernalia of
courts.
• Lack of sense of responsibility and accountability of judges, magistrates, conducting lawyers
and connected staffs.
• Absence of proper control, supervision and monitoring by the superior courts and authority
over respective subordinate courts.

23
Tajul Islam, joint district judge, Thakurgaon (unverified) own created chart
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Recommendations:

There are some recommendations for resolving the delay in criminal cases which are to be
applicable for our Criminal Justice System:

1. Enough judges should be appointed for speedy disposal of cases.

2. Amendment of traditional criminal law is necessary to take the challenge of the twenty
first century.
3. There must have a “monitoring board” to monitor and supervise the activities of the of
the criminal justice organs of the State on regular basis.
4. There needs to be a research wing under the concerned ministry and even under the Apex
Court which shall be responsible for research in changing trends in finding out the causes
of not disposing of cases within time limit and even in crime, corruption, and correction.
5. “Vocational Training Course” may be introduced among the lawyers, Court staffs,
special police I. e PBI (police bureau of investigation) so that they can do something for
mitigating the delay in disposing the cases.
6. Law enforcing authority should be properly trained to become humanitarian to perform
their duties and responsibilities to the greater interest of the people.
7. “Community involvement” of the litigant people may help them to become conscious
about their judicial rights.
8. Political involvement in our Criminal Justice System has badly affected our smooth
criminal management and interrupted the daily activities of the criminal justice organ. It
is necessary to take the criminal justice organs outside the political interference.
9. Corruption is one of the main problems of our Criminal Justice System that should be
controlled through “check and balance”.
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Conclusion:

Although the code of Criminal Procedure prescribes a precise time limit for disposal of cases in
different Courts, there is no consequence given in the code if the time limit is not maintained. As
such the time limit becomes directory and not mandatory. And our constitution also says in
article 35 clause (3), that Every person accused of a criminal offence shall have the right to a
speedy and public trial by an independent and impartial Court or tribunal established by law. But
due to many reasons this right is not maintained in our Country.

References:

1. Ratanlal & Dhirajlal, The Code of Criminal Procedure (LexisNexis Publication, 22nd
edition)
2. Sarkar Ali Akkas, Law of Criminal Procedure (Initiative for Research and Access to
Justice, 5th edition, July 2019)
3. Zahirul Haq, Law and Practice of Criminal Procedure
4. http://www.humanrights.asia/news/ahrc-news/AHRC-STM-006-2020/
5. The Code of Criminal Procedure, 1898