Code of Criminal Procedure

This article seeks to give a brief discussion on the entire judicial system in regards to the court structure of Bangladesh. The purpose of this discussion is to visualise mostly every court of the country. It has tried to outline the jurisdiction of the proceedings of the courts. The aim is to show the transformation from the very early period including the British era and the Pakistan era to the concurrent court system of Bangladesh, with reference to the independence of judiciary. In present days, after two landmark decisions by the Appellate Division of the Supreme Court of Bangladesh in Secretary, Ministry of Finance vs. Md Masdar Hossain & Ors 52 DLR (AD) 82 and Government of Bangladesh & Ors vs. Advocate Asaduzzaman Siddique & Ors 2017 CLR (SpL), we have reasons to believe that the judiciary is independent, not only in theory but in practice as well

Crimes are usually defined by legislature specific acts performed with certain states of mind, usually termed as “mens rea” that must account for a punishment under law. But the question is about the psychology and sociolgy behind crimes and appropriate punishments. Measures to check crimes and human behaviour by way of punishments is the subject matter of this paper.

If in the words of Aristotle, a man is a 'social animal' then in Plato's words he is the most 'selfish animal'. But, for both the species, the center of all their activities is the society which makes it possible for them to live an orderly and secured life. Crime and criminal behavior, both being omnipotent and omnipresent have been associated with society and the individual since the history of human civilization and have created serious problems in the social order. To tackle it, State devised and introduced a sentencing policy. Out of the various forms of punishments inflicted by the State, 'capital punishment' or 'death penalty' stands distinct because of two main reasons, firstly, the punishment is irrevocable, and secondly, the punishment has a retributive nature due to which this punishment is a subject of intense debate all over the globe. An argumentative fight between Abolitionists and Retentionists is still going on this issue. One group questions its ethical and moral grounds whereas other put forward the theory of deterrence. But this debate, however, remains unresolved in the present time. Whereas the Constitution of India on one hand provides for the 'right to equality' and 'right to life and personal liberty' to the individuals respectively under Articles 14 and 21, on the other hand, individuals are asked to leave the membership of the society forever by tasting this sweetest lethal medicine in the name of 'procedure established by law' for the wrong done. The "rarest of rare" judicial phenomenon sometimes in a few cases is an alien notion the existence of which is hard to find in the contents. Many countries have abolished capital punishment completely but India is continuing with its retention policy like China.

This paper mainly seeks to answer the question, should capital punishment still have the same place in this contemporary criminal justice administration system where a 'State' has transformed into a 'Modern State' and the trends of the societies have also changed. And if so, then how far by inflicting this punishment, the State has maintained to secure an individual's right of 'right to be human'? How far the Code of Hammurabi and Mosaic Law is suitable to the modern society where a teacher teaches 'hate the sin not the sinner' and judiciary too accepts 'every saint has a past and every sinner has a future'. This paper also emphasizes its genesis and the debate between Retentionists and Abolitionists on this issue with their strong pro and con arguments to reach a concrete conclusion. The Law Commission's Report has also been mentioned as a response to this issue in India. The Constitutional basis of Capital Punishment and the judicial response have also been discussed in this paper.

A procedural law is the machinery to implement the substantive law or the mechanism or procedure or the ways and means to do so. The end of all law is to do justice, to protect rights of the people who are subject to it.

A bare look on the Code of Criminal Procedure, 1898 tells that it is a collection of certain laws that were in existence when it was passed, it deals with the subjects that relate to offences or crimes, and it was enacted in the year 1898. In the year Book, which is kept in the Legislature for record and convenience of consultation of the various Acts it passed, it has been given No. V. That means that in the year 1898 it was the 5th enactment the legislature passed that year. It was British tradition to show the number of an Act in Roman figures and the year of the Act in Arabic digits which are now called English digits.

The Code of Criminal Procedure, 1898 has a preamble which tells the object and reason for its passing. It has nine parts, 47 chapters, 564 sections and 5 schedules. Thus it is considered among the lengthiest laws in Pakistan legal corpus on the general criminal side. The word general indicates that there are also special enactments and in case of conflict between general and special law the special is to hold the field in the facts and circumstances dealt with by it.

The Preamble of the Code of Criminal Procedure, 1898 states that it is “ an Act to consolidate and amend the law relating to the Criminal Procedure”. What is meant by this statement? The Code of Criminal Procedure, 1898 was passed and made a law in the British India on 22 March 1898. The British rule was established in 1857. The intervening period (1857-1898) was not a period without any law. There was general Criminal Procedure Code of 1861 (Act XXV of 1861). It was replaced by Act X of 1872. After a decade in 1882 a uniform law of procedure came in the form of Act X of 1882 for the whole of the British India. It was supplemented by a new Code in 1898.

Consolidation means bringing the scattered law at one place. Consolidation speaks itself that the law existed in the sub-continent prior to the process of consolidation. Why consolidation? It is done in the interest and betterment of the people subject to law when seen expedient by the competent legislature.

Amendment means modification by way of making addition, omission, or substitution in the already made law. Law maker has the right to rescind or repeal or amend the law. The expediency is to be seen by the legislature for doing so. An amendment is effective prospectively unless the law maker shows its intention in the very law that it will have retrospectively or from any particular date.

There are numerous civil and criminal legal alternatives available in Texas for dealing with abuse between adult cohabitants.  Current and proposed systems may protect victims more effectively and deter abusers, and empirical studies can reveal the direction legal systems should take to pinpoint the flaws and shortcomings in present legal responses to abuse. 

The difficulty of assessing the extent of spousal abuse increases the difficulty of finding an effective legal remedy.  Abuse, like rape, is far less likely to be reported than other crimes.  In addition, spousal abuse is hard to define in any meaningful statistical manner because of the variety of forms it takes.  The unavailability or unreliability of statistics on the incidence of spousal abuse in Texas is largely due to a historical indifference to abuse as a major social concern.  It is clear, however, that the number of cases of spousal abuse in Texas alone may be in the millions.

The primary purpose of legal remedies addressing spousal abuse should be deterrence, protection, and compensation, in that order.  The law should deter the potential abuser, and this focus must remain primary.  When deterrence fails, effective protection of the potential victim becomes paramount.  If law and society fail in these goals, compensatory and rehabilitative measures must be available.  The essential challenge is to provide legal systems that are both effective, and accessible.  It is hard to imagine any larger class of victims in such urgent need who have traditionally received so little assistance from the law.