Criminal Justice System

RESEARCH
ON
Criminal Justice System: The Role of The Police And A Critical
Analysis
Course Title: A Research Monograph

Course Code: LLM- 6400
Submitted To :
Mr. Md. Zakir Hossain
Adjunct Faculty
Department of Law
Northern University Bangladesh
Submitted by
Sadiya Samanta
ID-LLM110300798
Department of Law
Date of Submission: 02.08.201
1
August 02, 201
Md. Zakir Hossain

Adjunct Faculty
Department of Law
Subject: Letter of Transmittal
Sir,
It is a matter of great pleasure for me to have the opportunity to submit the research paper on the topic
“Criminal Justice System: The Role of The Police And A Critical Analysis”. While I was
conducting my work, I tried my level best to make this research paper as a standard one. I here being
myself to think that my work will be able to make you satisfied and accomplish your expectation.
I do believe you are enough cordial to go through the entire of research paper and make me assured
with your absolute evaluation.
Out of my Knowledge if there is any faults remains, I will be grateful to you if you avail to know
knowledge my shortcomings.
Thanking you
------------------
Sadiay Samanta
ID-LLM110300798
Department of Law
2
DECLARATION
I am Sadiya Samanta, ID.LLM110300798, student of Department of Law, Northern University

Bangladesh, hereby declare that- this Research Monograph is the outcome of the investigation done by
me and also prepared by myself under the supervision of. Mr. Md. Zakir Hossain, Adjunct faculty,
Department of Law, Northern University Bangladesh. I also declare that this Research Paper or any
part, there of has not been or is not being submitted elsewhere for the award of any degree or Diploma.
------------------------- ---------------------------
Md. Zakir Hossain Sadiya Samanta

Adjunct Faculty ID-LLM110300798
Department of Law Department of Law
Northern University Bangladesh Northern University Bangladesh
3
DEDICATION
This Research Monograph

is dedicated to my
Parents
4
ACKNOWLEDGEMENT
This research is the fruit of my many days painstaking study. The work not an easier one, but the
cherished desire might not have come true, had I not been accepted originally to do research on the
subject by Northern University Bangladesh (NUB). I would like to express my great fullness to the
NUB for giving me also the opportunity to use its library and computer lab.
My heartiest with gratitude my indebtedness to my humble gratitude to Gazi Delwar Hosen, Senior
Assistant Judge, Jhenaidah and others whose long contribution in my Masters level enable or capable
me to this research paper. Besides, my special gratitude indebtedness to Mr. Md. Zakir Hossain,
Adjunct Faculty, Department of Law, Northern University Bangladesh who’s strict suggestions giving
me the opportunity to my destination of research.
5
Contents
Chapter-1: Introducing the research topic
1.2 Object of the research paper
1.3 Research methodology
1.4 Literature review
Chapter-2 Prelude
Chapter-3 Brief history of evolution of Magistracy in Bangladesh
Chapter-4 Expectation of Commonalty from Judiciary:
Chapter-5 Pole To Pole Gap Between Expectation and Attainment
Chapter-6 Prevailing Problems
Chapter-7 Causes of delay in Criminal Cases
Chapter-8 Frequent adjournment for prosecution witnesses
Chapter-9 Unwillingness of the advocates
Chapter-10 Negligence on the part of prosecutors
Chapter-11 Long Pendency of stay orders
Chapter-12 corrupt practice of the court staffs
Chapter-13 Avoiding tendency to face trial
Chapter-14 Absence of the prosecution witnesses
Chapter-15 motivated efforts
Chapter-16 motivated investigation
Chapter-17 Some other reasons
Chapter-18 Criminal administration of justice after separation of judiciary on 2007
Chapter-19 Challenges:
Chapter-20 Achievement
Chapter-21 Vulnerability of police investigation negates Justice
Chapter-22 Recommendations
Chapter-23 Concluding Remarks
6
Chapter-One
Introducing the research topic
1.1 Object of the research paper

The struggle for achieving a society for economic and social justice is an unending human
endeavor. In the Preamble of our constitution, we have pledged to realize an exploitation free
society where rule of law, fundamental human rights and freedom, equality and justice,
political, economic and social will be secured for all citizens. Unfortunately, the aspiration for
justice seems to be done, good governance, rule of law, accountability and transparencies are
still a mirage to millions of downtrodden hapless Bangladeshi. Within this pragmatism of
horizontal and vertical gap between expectation and achievement, this academic research is a
tiny effort to find out the resolution/way out for a just society devoid of corruption,
malgovernance, lawlessness but full with rule of law, justice, accountability and
transparency. The free, fair and impartial function of an office of ombudsman in Bangladesh
is a sine qua non to get the flavor of independence as achieved through countless sacrifices. In
this benign endeavor, I tried to demonstrate the importance of an office of ombudsman in
Bangladesh along with sketching out the efficacy of ombudsman in various parts of the world
which are pioneers in the history of good governance and rule of law as a feasible step to
eradicate/ alleviate the challenges in the path of justice for the establishment of just society
free from undue encroachment in the functions of state machineries, mal practices,
bureaucratic complexities and might is right norms. In this paper, an attempt is made to
analyze the role of police in criminal administration of justice and why it is needed and how it
can be reformed for better performance pertaining to their involvement for smooth and
appropriate functioning of criminal administration of justice in Bangladesh.
1.2 Research methodology

Both the primary and secondary Methodology of research of research would be followed. For
primary data and information, I have randomly surveyed 10 interviewees from civil society
members. For secondary data and information, I have gone through and consulted plethora of
books, journals, articles and multifaceted websites.
7
1.3 A glimpse of the research paper
This profound research work would seek out the outline of ombudsman along with its
concept, historical development, its prolific outcome in various parts of the world, its
importance in the perspective of Bangladesh and how can a model office of ombudsman be
set up here in Bangladesh to establish corruption free just society with rule of law,
fundamental human rights, equality, justice, accountability and transparency in consonance
with right based approach and utilitarianism as ulterior motto of modem nation state.
1.4 Literature review

For the sake of convenience, literature review pertaining to “Need for an office of
ombudsman in Bangladesh” might be divided into faces. Such as----
1. International phase and
2. National phase.
In both the national and the international phases, I would consult with the constitution of the
people’s republic of Bangladesh, the (non gazette) Ombudsman Act, 1980 and various
research findings of NGOs, books, success stories of ombudsman in various parts of the
world and articles as published by various authors in multidimensional medias.
2. Prelude:
endeavor. In the Preamble of our constitution we have pledged to realize an exploitation free
society-a society in which Rule of law, fundamental human rights and freedom, equality and
justice, political, economic and social will be secured for all citizens1.
The legal profession and the judiciary now stand at a crossroad of history. So long the
Judiciary functioned almost beyond the gaze of public eyes, but with the concept of
accountability growing currency by the day, the legal profession and the judiciary can no
1
Kahkonen, Satu, “Decentralization and Governance: Does decentralization improve public service delivery?”
World Bank: PREM Notes. No. 55, June 2001
8
longer function behind and beyond public scrutiny. We have a storehouse of problems to face
and solve2.
In recent years the judiciary has been under constant criticism external as well as internal
which seems to whisper “court is dead; rest in peace.” In fact, the colossal management
failure in judicial administration makes the court look a dinosaur and the citizens seem to
withdraw their confidence which is the greatest asset and strongest weapon in the armoury of
the judiciary. It is to be remembered that the courts of justice are the creation of sovereign
authority and their majesty rest in public confidence3.
In this is an urgent need to devise some more effective mechanisms for judgment the
performance of the Judges first. In fact, various safeguards, prevailing in the country, have
proved ineffective and the entire institution of judiciary is in crisis and also facing threats
from within. The Judges have been critical of the system of which they are an integral part,
Some Judge have even blamed the existing system for their own failure4.
In fact, justice is what justice does, and the people, being the consumer of justice, are
appropriate critics, having reasonable findings5. Today, more than ever judicial misconduct is
subject to popular criticism and absence of legal correction has assigned for judicial power to
be called to order. Accountability is the social essence of the power process rendering its dues
to its true masters the sovereign people. Incidences of torture in Bangladesh have increased
alarmingly over the years. Police related human-rights abuses are plentiful - unlawful
detention, excessive use of force, torture, deaths in custody stories abound in the media and
else where. Death, rape, sexual harassment, and blackmail are endemic problems. Though it is
the duty of the police to protect citizens against violence, they themselves have allegedly
killed many people and destroyed many lives in custody. Remand has become synonymous
2
Shivji, G. Issa (2004): “Good Governance, Bad Governance and the Quest for Democracy in Africa: An
Alternative Perspective” in Hakielimu Working Papers. Dares-Salaam
3
Wright Stewart (1996): “Billions believed lost in East Cape Corruption”.Sunday Times July 21.
4
Miranda v. Arizona (consolidated with Westover v. United States, Vignera v. New York, and California v.
Stewart), 384 U.S. 436 (1966).
5
Shand, David (1996): “New Public Management: Challenges and Issues in International Perspective”, in
Ladipo Adamolekun, Guy de Lusignan and Armand Atomate (ed.) Civil Service Reform in Francophone Africa,
Washington, D.C. The World Bank.
9
with violent torture, degrading treatment and inhuman punishment leading to many custodial
deaths; which is colossal violation of human rights in all forms and constitutional rights. In
the era of 21st century with post modernism, we are languishing at police torture along with
inhuman and degrading treatment at remand for multifaceted vested interest. It is high time
for all the stake holders to come forward to eradicate torture at remand in the name
investigational purpose to extract cheap confession, which ultimately culminate in, violation
of human rights, fragile investigation report, missing confidence on basic state institutions and
last but not least injustice6.
3. Brief history of evolution of Magistracy in Bangladesh

The British during their colonial rule in the Indian sub continent (comprising today's India,
Pakistan, Bangladesh and parts of Burma) introduced the magistracy, where collectors were
empowered with judiciary authority. It was in fact with an inherent aim to maintain direct
control over the magistracy by the colonial government.
The demand for separation of judiciary started gaining momentum in the time of colonial rule
itself. Since its inception in 1949 raised a voice for separation of power, the Jukta Front also
demanded the separation of the judiciary in the 15th point of its 21-point demand announced
on7 November 4, 1953 and it continued even after Bangladesh was created8. The provision for
separation of judiciary was introduced in Bangladesh's constitution saying, "The state shall
ensure the separation of the judiciary from the executive organs of the state."
The then provincial legislative passed the law for separating the judiciary in 1957, but no
gazette notification was issued to enact the law. In 1958, the Law Commission recommended
following the law and bringing judicial magistrates under the direct control of the High Court.
The judiciary finally embarks on a historical journey today as it comes out of the control of
the executive organ of the state. The separation came after 200 years of colonial rule and 36
6
Gour Chandra Pal Vs State 59(DLR) 1227, Hazrat Ali and others Vs State 44 DLR 51 relied.
7
The Daily Jugantor,6th marc,2012.
8
The Daily Jugantor,6th marc,2012.
10
years of independence. Chief justice of Bangladesh Md Ruhul Amin, said the move was the
outcome of the “long-felt national desire9.”
The much-demanded implementation of the separation of the judiciary is now expected to

ensure justice without any hindrance as in the past when justice often used to be delayed and
the judiciary process controlled by the government10.
The magistrate courts across the country come out of the executive control today and continue
operating under the authority of the Supreme Court (SC). The constitutional provision could
be implemented much earlier had the successive political governments worked with goodwill.
A non-partisan caretaker government is now implementing the provision for separation of the
judiciary following the 12-point directive of the Supreme Court given in 1999.
The SC directive came following filing of a case–popularly known as Masder Hossain case–in
1995 by 440 members of the lower tier of the judiciary.Masder Hossain, said, “Oppressed
people suffered a lot of harassment for getting justice. I only wish with the implementation of
the separation justice seekers will get fair justice swiftly without spending much money.”
4. Expectation of Commonalty from Judiciary:

endeavour. In the Preamble of our constitution we have pledged to realize an exploitation free
society-a society in which Rule of law, fundamental human rights and freedom, equality and
justice, political, economic and social will be secured for all citizens11. In a democratic polity
like ours, the judiciary plays a vital role. Justice is one of the central themes of all
Constitutions of the world. The Constitution has promised to the people justice-social,
economic and political12.
Today, the judiciary is called upon to enforce the fundamental rights and basic human rights
of the poor and deprived section of the people and this new development has made the
9
39 DLR (AD) 194-paragraph-9.
10
Quayson, Richard (2006): “The management of the Public Relations Functions – Commission on Human
Rights and Administrative Justice (CHRAJ), Ghana” in Regional workshop on Enhancing the Public Profile of
the Ombudsman’s Office in Africa. Abuja, Nigeria 30th January – 3rd February.
11
Picard, A. Louis (2002): “South Africa” in Adamolekun Ladipo (ed.) Public Administration in Africa. Ibadan,
Spectrum Books Limited
12
Osborn’s CONNCISE LAW DICTIONARY, seventh edition, P. 85.
11
judiciary a more dynamic and important institution of the State than ever before. 150 millions
people of Bangladesh nourish the dream of judiciary with ‘justice seems to be done’, speedy
disposal with quality, accountability, transparency and cost effective which would be devoid
of corruption, undue influence, profligacy, rampancy of illegal money/ bribe, unnecessary
delay, pettifoggers, humiliation of humanity and crying of the illegally deprived.
The whole nation is a skylark with the envisage that if the serene and tranquil enjoyment of
life and property are the only flavor of human surviving that should be protected by the law
and legal system by hook or by crook. To uphold the pleasure/ taste of independence, the
judiciary should ensure rule of law and justice as the alternative is neither available nor
foreseeable. The whole nation is bloomed with the dreams that the judiciary will be a real
watchdog of the constitution achieved through gulf of blood shedding13.
5. Pole To Pole Gap Between Expectation and Attainment

‘Justice cries in silence’ and ‘court is dead; rest in silence’ are commonly echoing among the
millions of down trodden justice seekers in Bangladesh. Millions of cases are pending to
resolve without knowing destination14. It is the grandsons /daughters have to handle the case
filed by grandfather. There are multifaceted overt and covert reasons to hinder justice
culminated in indescribable and inhumane sufferings of the poverty stricken strata as the
decaying feudalism and cupid capitalistic state reality are controlled by social elite against
have-nots. The people who have minimum iota of court experience lost their confidence on
court and court system as last resort of ensuing security of their lives and properties. The
present decoration of court atmosphere and legal leverage is the surname of pauperization as
reflected in the age old maxims ‘do not show the palm to witch and do not show the house to
the advocate, ‘even the soil and grass of court stead want money’, etc. Today, to follow legal
recourse is a synonym of wasting time, strength and property which ultimately case colossal
national wastage and prevents sustainable development of the nation15. The rate of disposal
13
D.P.P.v. Ping Ling [ 1975] 3 W.L.R. 419.
14
See generally Abbott, supra note 8 (illustrating an early use of the notion of international regimes
in the context of international law). In international relations, the seminal analysis is by Krasner and
Ruggie. See generally INTERNATIONAL REGIMES (Stephen D. Krasner ed., 1983) [hereinafter Krasner].
15
For an early and influential attempt to incorporate international relations to international law, see generally
Kenneth W. Abbott, Modern International Relations Theory: A Prospectus for International Lawyers, 14YALE
12
of cases in our country clearly speaks the alarming number of indisposed of cases which are
increasing in a gigantic figure. However, while there are a huge number of cases pending and
the rate of filing cases is greater than the rate of disposal indicating increase of caseload every
year, it is certain that judiciary will have to bear the huge backlog of cases on its shoulder for
an uncertain period of time unless special steps are taken to heal the cancer of the judiciary.
Huge number of back-logs of cases is waiting for disposal for over a decade, sometimes to
observe silver/golden jubilee of its filing and the litigant public are living in the age of
uncertainty when and where they will get justice. In this connection Chief Justice Burger has
noted that the people come to believe inefficiency and delayed justice drains out even a just
judgment of its value. In the language of Justice VR Krishna Iayer it also can be said
“Delayed justice is means of inflicting injustice through judicial process16.”
6. Prevailing Problems
Backlog of cases appears to be a common predicament of the judiciaries worldwide.
Countries from both developed and developing world have been facing this problem more or
less alike. Evidently Bangladesh judiciary has failed to deal with its enormous backlog of
pending cases, denying its citizens right to justice. However, this difficulty for Bangladesh
judiciary seems going from bad to worse every year17.
In Bangladesh's adversarial judicial system, trial procedure is dominantly controlled by the

lawyers of the both sides of litigation, where the judges play minimal role to control the trial.
Lawyers takes repeated time to make them well prepared for dealing with the case, or for
sometimes to frustrate the aim of the case itself by delaying its progress18.
J. INT’L L. 335 (1989). For an excellent survey of the interdisciplinary literature see also, Anne-Marie Slaughter
Burley, International Law and International Relations Theory: A Dual Agenda, 87 AM. J. INT’L.L. 205 (1993);
Anne-Marie Slaughter et al., International Law and International Relations Theory: A New Generation of
Interdisciplinary Scholarship, 92 AM. J. INT’L. L. 367 (1998).
16
Stone’s framework takes seriously the role of liberalism in shaping the constitutionality of international
regimes. The structure of the EU is in part determined by the liberal political rationality of Western European
States. See generally Alec Stone, What is a Supranational Constitution? An Essay in International Relations
Theory, 56 REV. POL. 441 (1994). See also Mark Beeson & Kanishka Jayasuriya,The Political Rationalities of
Regionalism: APEC and the EU in Comparative Perspective, 11 PAC. REV. 311, 331 (1998).
17
See, farewell addresses by outgoing Chief justice Mr. Justice K. M Hasan on 24.0.2004 on the eve of his
retirement in Court Room No.1, “Search of justice, rule of law and independence of judiciary- guiding
principles”, BLD Journal, p. 26.
18
. A. Mutaleb, Advocate ( Mymensingh), “Public Accountability of Judges”, p. 25.
13
Generally, the state of court administration is considered a great contributing factor in the
backlog of cases.In the case of Bangladesh, we see the judge-population ratio is one of the
lowest in the world. I don't have exact data in my hand this moment, but I guess the ratio is
not more than 12/13 judges per million population. Comparing to developed world's judiciary,
the ratio may evoke disbelief among many of us. A paper shows that even twelve years ago
the numbers of judges for per million people were 41 judges in Australia, 75 in Canada, 51 in
England and 107 in the USA.
In developed country's judiciary, along with judge- population ratio, another aspect which is
taken equally importantly or more importantly is the ratio of case management staff number
of cases. Court administration cannot succeed without the unstinted support of the Court staff
and its Registry. In fact, they are the backbone of the system and the administrative burden
really falls on them. Though there is no data as to this ratio in Bangladesh, undoubtedly it is
also one of the lowest in the world19.
While the unjustified shortage of court staff is contributing mismanagement of trial,

proceedings and records, the ancient or traditional management technology have been
worsening the situation. Most of the case management work - for example maintaining case
files, keeping records of document and evidence, writing warrant, summons, notice, order,
judgment etc is done manually, following century old format20.
Along with all these comes the role of law enforcing agencies, i.e., the police department.
Criminal justice system is very much dependent on police and thana administration.
Corruption in the Bangladesh police administration contributes heavily in the malaise of
Bangladesh legal system. Without taking care of this department, nothing good can be
expected overnight from the present independent judiciary21.
19
Generally, Foster, NHD (2002) ‘Transmigration and Transferability of Commercial Law in a Globalised
World’ in Örücü, E and Harding, A (eds) Comparative Law in the 21st Century Kluwer.
20
M Habibur Rahman, Professor of law, Rajshahi University, “March to Rule of Law through the judiciary”, 48
DLR (1996) Journal, p.7.
21
Gour Chandra Pal Vs State 59(DLR) 1227, Hazrat Ali and others Vs State 44 DLR 51 relied.
14
In Bangladesh, the expenditure on judiciary in terms of GNP is again one of the lowest which
is not more than 0.5 percent I guess. Considering this trivial financial care of the judiciary, the
poor administration of justice in Bangladesh is not inconsistent.
The intention of the principle is not to protect the offender from being punished rather to
protect the innocent from being implicated. Extreme care should be taken to see that the
victim is not left without legitimate relief. Technicality should be complementary and not
contradictory.
Deliberations in our Courts marred and frayed by temper and loss of patience on either side is
an unfortunate recent development happily confined to a few, but the odour it spreads bears
an alarming message for the future generation of lawyers and Judges.
Delay in pronouncement of judgment can also become a cause of suspicion in the mind of a
litigant and, as such, inordinate delay in delivering judgment must be avoided lack of
transparency of activities of a Judge may give rise to doubts and misgivings in the mind of a
litigant. Justice delayed is justice denied may sound like a platitude, but is indeed, a basic
truth in relation to the dispensation of justice22.
7. Causes of delay in Criminal Cases

In our country criminal cases are instituted in two ways a) by filing complaint petition
straightly before the court of Magistrate having jurisdiction to take cognizance called CR case
and b) by lodging First Information Report (FIR) before the local police stations called GR
case23.
IN GR case the Magistrate after examining the complainant and perusing the petition takes
cognizance of the offence and issues summons or sometimes warrant, receiving or knowing
which the opposite party or the accused appears before the court and obtains bail and thus
after hearing both parties the concerned Magistrate or the trial Court farms charge to which,
the accused pleads not guilty and thus trial is stated.
22
AIR 1936 Lah. 247= 37 Cri.L.Jour 432(DB)
23
Ibid, note 12.
15
In GR cases on getting the FIR recorded or registered with the concerted police starts
investigation. IN FIR case police starts investigation .IN FIR case police may arrest the
accused without warrant or the FIR named accused may surrenders before the concerned
court. IN GR case after completion of investigation police submit report in the form of either
charge- sheet or FRT (final repot true), on receiving the report, perusing the CD (Case Diary)
and hearing both sides the trial court takes cognizance, thus proceeding starts24.
Trail Courts after taking evidence, examining the accused, hearing the arguments conclude
the trial by way of delivery of judgment either of conviction or acquittal .In the administration
of criminal justice in our country trial of case is absolutely based on oral evidence of the
witnesses25.
The procedure of trial followed in our country, particularly in the Magistrate court, the
prosecution side is conducted by the police officers who produce the witnesses before the
court and place the prosecution case. In the District or Sessions level the prosecution cases are
conducted by the public prosecutors, Additional public prosecutors and Assistant public
prosecutors. In CR cases private lawyers are appointed by the complainant to conduct his or
her case. The public prosecutors are appointed by the ruling government party and in the
existing system there is very little scope to justify the quality rather affiliation to political
party is widely considered. The members of the bar belonging to the ruling party or like
minded are customarily given appointments for such posts even up to law officers for the
Apex Court of the country including the Attorney General, Additional Attorney Generals,
Deputy Attorney Generals and Assistant Attorney-Generals. Due to such a system after the
changes of the Government all sets of law officers also automatically changed 26. The reasons
for delay in disposal of criminal case in our country are as follows:
8. Frequent adjournment for prosecution witnesses

After framing charge innumerable cases are found pending for years together but no
witnesses turned up, on behalf of the state steps are taken praying for adjournments and even
24
Latifur Rahman, CJ, “Bar Council is to See Corrupt People Do Not Crowd the Bar”, 53 DLR (2001) p. 22.
25
Duren v. Missouri, 439 U.S. 352 (1979).
26
Professor Dr M Habibur Rahman, “Democracy, Rule of Law and Accountability”, 53 DLR (2001) p. 5.
16
sometime no steps are taken but automatically order had been passed fixing next date for pws
(Prosecution Witnesses )and thus number of Part to pass appropriate order amounts to denial
of justice. The judge holding cases are found to have been packed in a bundle for unlimited
period27. This type of adjournment can not be accepted to meet the demand of justice. Judges
are bound by profession to ensure justice but lack of interest on their the trial obviously would
try to give seasonings in defensive way that due to pressure of number of case equally and
carefully with determination to include the trial speedily. Though the judge is not bound to
issue warrant to procure the attendance of the witnesses in the court at the first instance but it
can pass special order fixing date for the commencement of the trial to the concerned
authority for the appearance of the witness and complete the trial within the stipulated period
as it done by the speedy trial tribunals28.
9. Unwillingness of the advocates

Normally whenever a case is ready for trial the connected accused or tadbirkarak goes to a
chamber of advocates and makes contract to conduct the case till conclusion of the trial .In
that case comparatively a senior or experienced lawyer have a demand of at least 50% to 60%
advance payment of the total contract amount and the rest amount is realized at a less
premium on the dares fixed for taking evidence. But unfortunately it is found that after
receiving the advance payment four or five dates having been passed no progress is made in
the way of disposal of the case29 .Thus dates are passed only for adjournments and the learn
Advocates lose interest and patience to deal further with the case. It is not unlikely in several
occasions in the midst of trial conducting Advocates are found to have died or retired but
there is no end of next date in the order sheet, in some cases accused are also found to have
died30 . But if learned Advocates want to really do something for client judges will be obliged
to act in accordance with law, both the members of Bar and Bench must remember they are
27
Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Reports
174 at 178.
28
In inverted commas because the word as used herein covers a whole range of processes in which varying
degrees of homogeneity are sought.
29
The notion of legal transplants was coined by Alan Watson, one of the world's renowned legal scholars
specializing in comparative law.
30
The Future of the Common Law. The Willberforce Lecture 1997" (1997), 46 International and
ComparativeLaw Quarterly 745, at 748;See also "Comparative law and the courts" (1996), 45 International and
Comparative Law Quarterly 545, at 556.
17
performing their jobs not only for seeking justice but justice is to be done. Sometime judges
are found helpless even though witnesses are available and diary is not congested but even
then a particular case could not be taken up for hearing due to unwillingness of the Advocates
.In order to remove such a trend of professional conduct of Advocates with the client old saws
which permit the cases to become deadlock for years together are required to be repealed and
also the provision for time limit to conclude the trial is urgently needed to be re introduced to
get rid of such undesirable and unconstitutional practice31. It is very unpleasant , nowadays
due to is and improper advice and inefficient performance of the members of the bar
particularly the new comers who having not been attached with a senior Counsel for a
required period and properly trained up start independent practice, the sufferings of the
litigants people have ineffably been increased. In most of the case the members of the bar are
appearing before the court without any preparation of the matter and placing very rarely an
accurate and standard drafting resulting which very often the judges are found to have been
helpless till `then only for the sake of justice and considering the fate of the poor litigants the
judges pass order and judgment forgoing and forgiving their hopeless performance. Sometime
without knowing the provision of law and having no Knowledge and experience how to
invoke the law they are receiving briefs and taking steps after steps only to obtain an interim
order for stopping the proceedings or making delay in the trial. In criminal matter normally
the clients are always interested to finish a case early at its inception instead of facing trial
even in a case where there is a fair chance of acquittal and the responsibility shifts only upon
the legal practitioners to make them understood about the consequence of interim orders
obtained only for the purpose of making unnecessary delay32.
10. Negligence on the part of prosecutors

In the past senior and experienced member was found to have been appointed as the public
prosecutor in district level and under his guidance there were a few assistant public
prosecutors. But nowadays out of politicallisation quality having not been considered a large
number of party belonging members of the bar are appointed as the Assistant public
prosecutors and also inexperienced and untrained party fellows are appointed as the public
31
R. Schulze, "Le droit privé europeéen" (1995), Revue internationale de droit comparé 7, at 18.
32
Thompson, Mark (2008-12-26). "The $1 Trillion Bill for Bush's War on Terror" . TIME.
http://www.time.com/time/nation/article/0,8599,1868367,00.html.
18
prosecutor, Additional public prosecutor and special public Prosecutor 33 . The role of the
Assistant public prosecutors in discharging their function in the court in prevailing system are
found most questionable since at the same time they have the opportunity to conduct their
own cases even on behalf of the accused as a result of which off and on it is found in the same
court one APP is found to have conducted a case on behalf of the prosecution and for the next
case he is appearing on behalf of the accused .App is found to have conducted a case on
behalf of the prosecution and for the next case he is appearing on behalf of the accused 34. An
officer of such double standard character can never devote himself to perform his job sacredly
and sincerely, on the other hand due to political backing such officers never try to even
understand for which responsibilities they have been entrusted with. Besides, they are always
found busy with their own party program even at working period and due to their
preoccupation witnesses who appear from distant places are found to have turned back
.Practically, in many cases the witnesses appear after along time of the occurrence and , as
such, witnesses are required to be tested or examined by the prosecutors for which they
should have enough time and mind to concentrate with such task. Due to such insincere and
irregular performance of the law officers in District level the trial Courts ate automatically
deprived of getting proper assistance and finding no alternative court- peshkars are allowed to
put their pen in the order sheet to note for PWs next date PWs for years together. Another
vital issue is needed to be discussed here is that the Assistant Public Prosecutors are not paid
monthly salary and the public Prosecutors are getting a very nominal honorarium for which
reason they are interested to hold such position as an addition to their profession keeping
themselves full time busy with their private profession 35 . In case of such uncertainty of
earnings no service with integrity and honesty can be expected from them. In order to get rid
of such flinching and spiritless role Permanent Attorney service should be introduced to
provide full time service with the prosecution through trained, skilled and devoted officers36.
33
Beres, Louis Rene (1991-1992), On Assassination as Anticipatory Self-Defense: The Case of Israel,
20,HofstraL.Rev.,pp. 321.See also, Shue, Henry and Rhodin, David (2007). Preemption: Military Action and
Moral Justification. Oxford University Press. p. 116. ISBN 978-0199233137.
34
Twining, W (2000) ‘Comparative Law and Legal Theory: The Country and Western Tradition’ in Edge, I (ed)
Comparative Law in Global Perspective: Essays in Celebration of the Fiftieth Anniversary of the Founding of
the SOAS Law Department Transnational Publishers 21 at 65.
34
Pierre Legrand’s criticism of the European Civil Code project in ‘Antivonbar’ inThe Journal of Comparative
Law:A New Scholarly Resource issue-1, at 13
35
http://www.china-un.org/eng/chinaandun/legalaffairs/sixthcommittee/t28560.htm.
36
The New Nation,18th December,2011.
19
11. Long Pendency of stay orders
During trial is found in most of the cases against the order of taking cognizance, framing
charge and rejecting other miscellaneous applications innumerable applications are filed
before the High Court Division of the Supreme Court of Bangladesh upon hearing which
Rules are issued in maximum case , staying all further proceedings and Lower Court Records
(LCR) are called for hearing of the Rules. In particular case challenging the law itself several
writ petitions are also filed, for hearing of the Rules either in writ jurisdiction or criminal
jurisdiction LCR is called for and reached the High Court none can ascertain when it will go
back . After disposal of the Rules records are found stored en the record room for years
together, no initiative is taken for sending those to the concerned court. In our
country,generally,in one criminal case there are more accused, the number of which sometime
exceeds hundreds and it is found one of the co-accused though not principal, files an
application before the High Court Division and obtains whose case is stopped, trial could not
proceed on with other accused who are mot party in the appellate Court due to some technical
reasons37.
12. Corrupt practice of the court staffs

Corrupt practice of the court staffs: It is found in maximum cases even after disposal of the
Rules no LCR is sent back by the concerned staffs though it is ordered by the concerned staffs
though it is ordered by the judges to send the record immediately. Normally without any
tadbir no records move from one place to another and in case of defeat or loss in the case the
contesting party lose in the case the contesting party lose interest and make no effort to send
the LCR to the court below rather in collusion with the staffs attempts are made to keep the
record untraced for unlimited period 38 . Practically in a very rare case court staffs are
performing their jobs sincerely and honestly knowing very well without their proper
assistance fair and hurried justice is quite impossible,. It is unpleasant to say that in some
cases corrupt staffs in collusion with tadbirkar are found to have been implicated with such
heinous act of missing the record for ever. In criminal case like civil suits their are no
contesting parties like plaintiff and defendant, against the accused side only the state is the
37
39 DLR (AD) 194-paragraph-9.
38
1980 Sc MR 654, 20 DLR 524.
20
other side and due to lack of carefulness and sincerity on behalf of the prosecution side the
accused side very often adopts such malpractice to avoid trial and get temporary and unlawful
relief remaining as fugitive. In the administration of criminal justice particularly in the lower
courts it is very difficult for a presiding officer-in-charge of a court to maintain the list of
cases disposed off and pending without the proper assistance and cooperation of its staffs .But
it is very unfortunate to say in our country the litigant people always try to adopt and apply
unfair means to get justice compelling the staffs to be dishonest and corrupt and rarely a very
few of them are devoted to their duties who saved the prestige and confidence of the judiciary
in the mind of the general people39.
13. Avoiding tendency to face trial

It is unpleasant to say in criminal case just before starting trial or even sometime in the midst
of trial the conducting lawyers knowingly or unknowingly the respective provision of law or
without entering into the merit or demerit of a particular case just to satisfy their clients try to
take steps in various way before the High Court Division just to obtain a stay order and the
ruby stop the efforts of the Advocates in very rare case found permissible but in maximum
cases they become ultimately unsuccessful to get any relief causing only harassment to their
clients40. It is very much expected that the litigants well get proper advice from the legal
practitioner but due to deterioration of quality of the members of the bar sufferings of the
clients is found to have increased to a larger extent. Sometimes even it is found in some
occasions just before the pronouncement of judgment or where a strong prima face case is
disclosed in the FIR or complaint petition provision for quashing the proceeding is found to
have invoked forgetting or without following the settled principles decided by the Apex Court
of the country only to obtain an interim relief just to avoid facing trial41. These types of efforts
sometime are taken out of motivation one after another without any positive result just to
make delay in commencement of trial. The role of the members of the Bar to contribute
towards the delivery system in the administration of criminal justice is imminently required to
be upgraded to get the justice free from farce and to do justice42.
39
1957 Cr.L.J. 545 DB AIR 1937 Mad 321, (1962) 2 Kar L.R 231 (SC).
40
39 DLR (AD) (1988) 108.
41
1957 Cr.L.J. 545 DB AIR 1937 Mad 321, (1962) 2 Kar L.R 231 (SC).
42 42
8 BLD (AD) 109.
21
14. Absence of the prosecution witnesses
Since there is no time limit either to submit police report or to conclude the trial a case is
found to have been ready for trial long time after the date of the occurrence meanwhile the
witnesses lose their patience and appetency causing despair to appear Sometime it is found
the ocular witnesses also become disinterested to prove the case due to change of mind and
even forget the role or part of the act committed by on particular accused due to
commencement of trial after along lapse of time causing the evidence based on impeachable
character and not immaculate in nature 43 . Moreover, during such along gap on several
occasions witnesses are found to have been purchased by the accused party and also out of
fear, threat and consternation they do not want to appear before the court and become
hostile 44 . Apart from public witnesses the official witnesses particularly police personnel,
doctors and expert witnesses sometimes are found to have been transferred from one station to
another or retired and free from official responsibility automatically they become disinterested
to appear and depose before the court. The prevailing system in the administration of criminal
justice itself is liable for such procrastination in concluding both investigation and trial
causing the prosecution witnesses demoralized and disinterested to contest the case and if
such system is not reformed invoking provision for limitation the people will lose confidence
upon judiciary for ever. In the light of such realization it is optimistic that the present
Government is going to take steps to reintroduce the provision of time to glory of the
judiciary45.
15. Motivated efforts

Nowadays in our country it becomes tradition that whenever a ruling party becomes
opposition being defeated in election opposition leaders are found to have been involved in
number of criminal cases and a large number of lawyers belonging to such political party are
found to have engaged themselves voluntarily to conduct those cases to satisfy their beloved
43
25 BCR (AD) 239, 44 DLR (AD) 10, 45 DLR (AD) 175, 55 DLR 382, 7 BLC 362, 3 BLC (AD) 53
44
State vs Lalu 39 DLR (AD) 117, 45 DLR 142, 260, 142, 360; 10 BLC (1990) AD 224; 46 DLR77;7 BLD 351;
8 BLD 396; 1 BCR 104; 7 DLR (FC) 123, 129; 10 BLD 430; 1986 BLD 390; 12 BLD (HCD) 105.
45
State vs Lalu 39 DLR (AD) 117, 45 DLR 142, 260, 142, 360; 10 BLC (1990) AD 224; 46 DLR77;7 BLD 351;
8 BLD 396; 1 BCR 104; 7 DLR (FC) 123, 129; 10 BLD 430; 1986 BLD 390; 12 BLD (HCD) 105.
22
leaders and prove their commitment and dedication to such party46. Such group of Lawyers
including senior most and experienced Counsels who are at the same time senior party
leaders being united in a forum and well organized in a disciplined way hold the responsibility
of conducing those cases and just after initiation of such cases first of all they arrange how to
obtain bail and thereat after try to find out various ways and take steps how to stay or stop the
further proceedings of such cases and even after submission of charge sheet how to make
delay in commencing trial. In one hand, the investigation agencies under the shadow of and
being influenced by the ruling party hurriedly submit charge –sheet to commence trial and on
the other hand ,the opposition Lawyers made efforts how to stop the trial taking steps one
after another before the appellate Court invoking provision either for quashing or revision or
other miscellaneous cases or moving writ petitions with the sole purpose of passing the tenure
of present regime. In fact, trial of all such so- called political cases or cases of VIP personnel
are found to have been stopped for years together due to stay orders passed by the High Court
Division or Appellate Division and if once such orders could be obtained on hearing of the
Rules would ever have been possible due to repeated prayers for adjournment in spite of
constant mentioning by the state law officers to get the Rules heard expeditiously47.
16. Motivated investigation

In some cases particularly in murder if the informant side is found not stronger and solvent in
that case the investigating officer just having a perfunctory investigation submits report or in
other words, charge –sheet wherein the names of the principal or vital offenders are found to
have been dropped compelling the informant complainant to file naraji application
.Sometimes it is found in spite of submitting repeated naraji petitions following even three or
four years having been passed no report up to the satisfaction of the informant is found to
have submitted by the investigating officers resulting the trial of the case fallen into the
deadlock positions 48 .Since there is no finality of investigation the aggrieved party takes
lawful action for which reason sometimes it is found parties are to appear even up to the
Appellate Division starting from the cognizance court to finally settle the legality of the
supplementary charge –sheet holding further investigation on the basis of naraji petitions and
46
29 DLR (SC) 271, 59 DLR 17, 396, 6 MLR 205, 51 DLR 244, 53 DLR 268, 49 DLR 573, 55 DLR 137.
47
AIR 1954 Tra, Co 456 DB; PLD 1966 Kar 242
48
12 MLR (HC) 2007.
23
the fate of such cases become uncertain and oscillating .Besides, in some other cases
particularly in corruption cases the connected or FIR named accused are found to have been
filing hajira for years together but no report is submitted by the investigation officers out of
enigmatic character or being biased49 .
17. Some other reasons

In the context of our country customarily it is found a large number of working days have
been elapsed following ‘hartal’ days ,thought nowadays normal city life have not been
hampered by calling such hartal no judges of the High Court Division and the Appellate
Division sit on the Bench on such days and in the District or Sessions level though courts are
found functioning basically no important hearing take place or part heard trial matter is taken
up for hearing on such days, Moreover, due to long vacancy of some post in the lower
judiciary a number of part heard trial matters and are found to have been postponed and court
in charge due to over rush of the same court50.
18. Criminal administration of justice after separation of judiciary on 2007

In the evolutionary and zigzag history of human civilization, we do not discover /invent any
other alternative platform of judiciary to protect and preserve life and property as pick of
human flavor to survive in this mundane world. In this spectrum, separation and independence
of judiciary is a sine qua non to address people’s grievances from all strata.
The people of this part of the planet invested a lot from time immemorial to quench the thrust
of justice as their legitimate expectations and rights are perished and frustrated from
multifaceted vested corners of colonialism’s cupidity, its legacy as degenerated psyche in
aftermath generations specifically in complicated bureaucracy, governance, political will and
neo-colonial agents51.
But Bengali as a nation is icon of knight, painstaking, rebellious, struggle prone to materialize
the dream of justice as luminous in thousand year’s history thereof. Separation of judiciary
is an integral part of that endeavor. But it is an irony of Bengali nationhood that it can not
49
Id.746
50
Studies in Legal Systems: Mixed and Mixing (Kluwer 1996).
51
William Tetley, “Mixed jurisdictions: common law vs civil law (codified and uncodified)”
www.cisgw3.pace.edu/cisg/biblio/tetley.html at p 15.
24
reap or retain the fruit of successes as sustainable. As for instance, achieving of independence
through a gulf of bloodshed but the flavor of independence still a dream of aloof where the
hapless commonalty is skylark52.
In the same chronology, on 1 November,2007; we attained partial separation of judiciary

though the whole nation is fully bloomed to welcome full fledged separation and
independent of judiciary for upholding constitution, human rights, good governance, and
other normatic aspect of right based approach of modern welfare state.
Though it is not time enough to evaluate the far-reaching advertence of separation of

judiciary, meanwhile all of us visualize the rudimentary positive change in terms speedy
disposal, eradication of up soaring corruption, transparency, accountability which safe down
trodden justice seekers and this would add mobility in the sustainable nation building
maneuver. After the separation of the judiciary, the rate of disposal of criminal cases in the
courts of magistrates increased by 51 per cent in December 2007 in relation to the cases
disposed of by the judicial magistrates in November 200753.
Even this partial separation of judiciary has already germinated win win pragmatic milieu for
all the stakeholders but this ameliorated race of nation has begets burning sensation of contour
vested groups as their all pervasive hypocrisy and voracity do not know any limit by the cost
of withering away of the collective interest. They want to grasp the taboo of bureaucratic
complexity, absolute power for absolute corruption and they are frightened from
decentralization of power, active and passive accountability to the have nots people as
prevailing now-a- days in judiciary.
This colonial degenerated psyche to maximize the vested interest is explicitly reflected in
the recent the Judicial Service Secretariat Ordinance, 2008 which the council of advisers to
the caretaker government gave the final approval on 14-12-08, which is now waiting to be
52
See T.H. Bingham “‘There is a World Elsewhere’: The Changing Perspectives of English Law” 41 ICLQ 513
(1992); J.E. Levitsky, “The Europeanisation of British Legal Style”, 42 Am. J. Comp. L. 347 (1994); Xavier
Lewis, “A Common Law Fortress Under Attack: Is English Law being Europeanized?” 2 Colum. J. Eur. L. 1
(1995).
53
The Daily Newstoday,29th September,2010.
25
promulgated by the president. The bird’s eye view without optics on the text enshrined 19
sections envisage the following traits of it---
 Grandiloquence, chicanery ,coquetry and uncalled - for meddling of law ministry by
the name of Judicial Service Secretariat for perfection of separation of judiciary; but it
would not take a moment to frustrate the dream as it has made the Secretariat as
Juggernaut.
 The judicial service secretariat headed by the chief justice must go through the law
ministry to contact the president and the prime minister regarding any matter related to
the functioning of the secretariat (Section 4(2) of the Ordinance) 54 .If it is so, the
pertinent question arises why this weighty Secretariat would be nourished by the taxes
of citizens?
 This Ordinance has made a castle in the air in respect of independence of judiciary in
terms of the suspension, dismissal, removal, posting, promotion, leave, control, and
discipline as the Articles 48(3) and 116 55 provided the aforesaid functions must be
executed by the President in consultation with the Prime Minister which is the
surname of anchoring judiciary with Executive organ at least the experiences of
Bangladesh testimony so.
 Among the 15 functions of the Secretariat, all the most indispensable functionaries for
the protection and preservation of independence of judiciary shall be done via law
ministry as broker leaded by anti Judiciary hyena. This is simply a blatant conspiracy
to show humbug of illegal and unethical power of tyrant bureaucrat to perish the
separation and independence of judiciary.
 There is colossal negation of autonomy of the Secretariat though the Ordinance
tantalizes some mere bounty to the Supreme Court in respect of arranging pion,
chaprashi, sweeper, alpine, books-khatas, slate-pencil, tissue paper, pot etc.where the
Law Ministry does not want to be cambist as part of their intrigue to appease.
 The accountability of the secretary of the secretariat is devolved on the Chief Justice
in such a decoration where his persona is focused rather the Supreme Court as
institution with collective entity and this might be a part of plot to authenticate non
54
The ordinance of 2007.
55
The Constitution of people’s Republic of Bangladesh.
26
functionality or incapability of smooth functioning of it in future through various
allegations as asymmetrically prevailing in despotic, chaotic and power centered
bureaucracy in Bangladesh.
 It connotes that the chief justice will not be allowed to communicate directly with the
president or the prime minister regarding the secretariat's functioning. The new
ordinance puts the law ministry in the way of the High Court's exercise of that power.
This is crystallized to all why such encroachment and self declared mastery has
been deliberately given to the law ministry?
 This ordinance is against the spirit of the judiciary's separation from the executive
branch of government.
 Some of its provisions running counter to relevant articles in the country's
constitution. As art.116 of the constitution56 provides the control including the power
of posting, promotion and granting of leaves, of disciplining persons employed in the
judicial service and the magistrates exercising judicial functions shall be vested in the
president and shall be exercised by him in consultation with the Supreme Court and
art. 109 means the High Court shall have superintendence and control over all courts
and tribunals subordinate to it.
 The executive or law ministry's mala fide interference as it frequently proved might
hamper the new judicial secretariat’s spontaneous functioning. The very organogram
of secretariat would simply obstruct judicial proceedings.
 High Court or Full court is absent from the total modus operandi of Secretariat .It
bypassed section7 (b) of High Court Rules pertaining to GA Committee as an age old
traditional effective body composed of Chief Justice and others three Judges to deal
with Promotion and transfer57.
 In the Ordinance, there is no iota of reference of “appropriate authority” as frequently
enshrined in the Rules, 2007 where it is stated that Law Ministry would propose in
56
The Constitution of people’s Republic of Bangladesh.
57
T.H. Bingham “‘There is a World Elsewhere’: The Changing Perspectives of English Law” 41 ICLQ 513
(1992); J.E. Levitsky, “The Europeanisation of British Legal Style”, 42 Am. J. Comp. L. 347 (1994); Xavier
Lewis, “A Common Law Fortress Under Attack: Is English Law being Europeanized?” 2 Colum. J. Eur. L. 1
(1995).
27
case of 15 functionaries of the secretariat to the Supreme Court and its
recommendation would get priority.
 Above all, this ordinance is inconsistent with the Constitution and violation of the 12
points of Masdar Hossain’s case in spirit and letters.
In a nutshell, from the aforesaid anatomy of the proposed Judicial Service Secretariat
Ordinance, 2008, it could be axiomatically inferred that it would debacle separation of
judiciary through the dominance of hawkish executive swoop58.
After 37 years of independence, it is a matter of great regret that the policy makers who are
like step sons of the nation imbibed into selfishness fail to think platonically for the ulterior
welfare of the country rather they leave no stone unturned to fetter the race of good omen like
separation of judiciary.
As a citizen of the country our legitimate expectation is that the government shall ensure
separation and independence of judiciary with all its multitudes setting aside any kind of plot
from any corners to fetter its race directly or indirectly. Otherwise it would create plethora of
anarchy as already echoed from the emergency meeting on 20-12-08 of Bangladesh Judicial
Service Association, a platform of around 1,200 judicial officials across the country,
demanded to scrap the Ordinance. BJSA has vehemently condemned those who are trying to
curtail comprehensive separation of judiciary along with their legal demands and proposed
abstaining from work, wearing black badges and hemming the president's office to press
home their demands59.
Judiciary is a resort of confidence, reverence and respect to the society at large. All of us
should invest efforts to protect and preserve its sanctity and dignity. We belief that there
would be minimum wisdom in profane and anti public policy bureaucracy to uphold the apex
matrix of judiciary and they should not bound it to come out in the road as its back is against
58
Consider, for example, the debate in England on a right of privacy following the incorporation of the European
Convention on Human Rights through the Human Rights Act 1998. See Basel S. Markesinis, Privacy, Freedom
of Expression, and the Horizontal Effect of the Human Rights Bill: Lessons from Germany, 115 L. Q. Rev.
47(1999)
59
In the system of trial which we have evolved in this country, the judge sits to hear anddetermine the issues
raised by the parties, not to conduct an investigation or examination onbehalf of society at large, as happens, we
believe, in some foreign countries': Jones v NationalCoal Board [1957] 2 QB 55, 63 (Denning LJ).
28
the wall after so much hassle, tussle and exclusion from various rational advertence as it is
highly vulnerable state organ merged in lackadaisical milieu devoid of any tenacity or unity to
bargain60.
The field level scenario represents that the country and countrymen do not want to see any
conflict between executive and judiciary any more in case of ensuring justice seems to be
done through holistic separation of judiciary. They are fully prepared to challenge any
impediments in path of plenipotentiary separation of judiciary.
It is a legal, ethical and civic duties for all including voracious, greedy and profligate
bureaucrats to cooperate with judicial organ for separation of judiciary in toto as
recommended in Masdar Hossain’s case without any covert or overt exception of it. This is
high time to the nation peddling in 21st century to ensure separation of judiciary to materialize
the core dreams of flavor of independence, justice, good governance, democracy,
transparency, accountability and right based approach. Administrative cadres and bureaucracy
pouncing for power should come forward with open mind to survive and feasible functioning
of separation of Judiciary. They have to visualize and envisage that separation of judiciary is
a division of labor between and among public servants to serve the country not to gulp the
blood and sweat of hapless skinny bony citizen, which is a general propensity amongst the
greedy vested segment of public servant61.
Last but not least, the proposed Ordinance for secretariat would beget mammoth obstacle and
hurdle for sustainable separation and independence of judiciary. There is a dire need of
secretariat without father-in-law’s house in law ministry. It should be emphatically noted that
the proper functional separation and independence of judiciary would germinate a fertile
60
For a critical analysis of the use of these terms see M Damaska `Structures of authority andcomparative
criminal procedure' (1975) 84 Yale Law Journal 480. See also ALRC Issues Paper20 Review of the adversarial
system of litigation: rethinking the federal civil litigation systemALRC Sydney 1997, ch 2, which summarises
the features taken to be general characteristics ofadversarial and non adversarial models.
61
In England the common law, `adversarial' system developed in the Middle Ages and wasexported to countries
such as Australia, Canada, New Zealand and the United States through colonisation. In Europe, civil law
inquisitorial systems had their basis in Roman law. The Napoleonic Codes (1804-1811) in the French civil law
system; the German Civil Code (1896) in Germany. Civil law systems in Europe and Asia have generally styled
themselves on either theFrench or German model.
29
edifice for a prosper nation where intra and inter generations irrespective of admin or judicial
cadre would feel complacence. Pressure groups like NGO, media, civil society can play a
pivotal role in this regard through proactive advocacy. It would be prudent and judicious to
scrap the ensuing Ordinance to redraft it avoiding an iota of anchoring with any ministry.
Against the cowardice apprehension of complicate bureaucracy, it could be assured that the
judiciary would not be arrogant in its demands as there is not a single precedent of it in this
regard after so many deprivations, like other state organs. Hope, conscience would sharp
enough of the concerned to take proper resolution in this regard without delay to evade
probable conflict among the organs of state where the substantial number of peace loving and
marginalized people would be immolated.
19. Challenges:
Soon after the government’s declaration of separation of judiciary, a satisfied Masder Hossain
asserted that the initiative would prove a success in due course of time. But the suspicion and
confusion about the new legal system are still paddling in the minds of the people. Mustafa
Kamal Majumder, the editor of The New Nation, a Dhaka based daily says, "It is definitely a
long felt demand met. But the question arises, how efficiently the sufficient number of judges
(more precisely to talk about the quality) are appointed to fill the void left by administrative
officers62."
Remand in Bangladesh is the surname of torture with all its kinds and degrees by the very
hand of state machineries for mere power based politics, politicization of fundamental state
institutions, for wrongful gain (The Penal Code, 1860) 63 , ignorance, lack of right based
approach, accountability, transparency, rule of law and good governance wherein human
rights have been turned into paper tiger with mockery and jiggery- pokery. In the modern
welfare state, the denial of justice and due process of law by state machineries through torture
during police remand though prohibited by national and international law along with good
conscience is neither expected nor desirable. This is high time to retreat from barbaric torture
during police remand as an entity of modern or ultra modern phase of human civilization.
62
R. H. Helmholz, Use of the Civil Law in Post-Revolutionary American Jurisprudence,66 Tul. L. Rev. 1649
(1992).
63
S.23 of the Penal Code, 1860.
30
Herein all the stakeholders should come forward with specific proactive result oriented
program as a matter of priority to stop any kind of Torture during police remand64.
Of all organs of the State the judiciary is the weakest, because it has no weapons to implement
its judgment and order. Its strength lies in the command the judiciary has over the hearts and
minds of the people. Its transparency and predictability must be of higher levels so that people
can have confidence in a court of law.
The judicial system as of today is a combination of the Judges and lawyers. It is imperative
that these two wings co-operate and co-ordinate with each other to ensure the dignity and
independence of the Bench. An independent Bar is as essential for the administration of
justice as an independent judiciary. I should like to add that no judiciary can be independent
unless the Bar of that country is also independent. In fact, an independent Bar can greatly
contribute to the independence of the judiciary. Evidently, both are responsible for protecting
the constitution more than ever before.
The legal profession and the judiciary now stand at a crossroad of history. So long the
Judiciary functioned almost beyond the gaze of public eyes, but with the concept of
accountability growing currency by the day, the legal profession and the judiciary can no
longer function behind and beyond public scrutiny. We have a storehouse of problems to face
and solve.
20. Achievement
Separation of judiciary has fetched a rudimentary change pertaining to notion of justice. All
the stakeholders from all strata envisaging win win situation via the prolific impact of
separation of judiciary in terms of qualitative and quantitative justice65.
64
Griffith’s definition of pluralism, which is indebted to Moore, is “that state of affairs for any social field, in
which behavior pursuant to more than one legal order occurs.” Quoted from Menski, at p. 114. Michael Hooker’s
concept was similar
65
The text of the Convention was adopted by the United Nations General Assembly on 10 December 1984 and it
came into force on 26 June 1987
31
The marginal citizens are observing transparency and accountability in the zigzag path of
justice. The justice seekers are getting enormous time in presence of judicial officers
particularly the judicial magistrates in dispensation of justice. The free, fair and cordial “court
hour” atmosphere devoid of look and hide game like orders inside the veil are bye gone
history in present criminal administration of justice66.
The present criminal administration of justice through separation of judiciary is cent per cent
free from any kind of coercion or influence from any corners. The political interference has
drastically alleviated after separation of judiciary though there are some futile efforts in the
regard.
The criminal administration of justice in lower judiciary is functioning independently where

the culture of Tadbir (connotes illegal and immoral maneuver for one’s own advertence) is
also remarkably reduced. As a viable state organ, the lower judiciary for dispensation of
criminal justice has turned into a neo-phase where the sufferings of justice seekers have been
reduced in many parts in terms of speedy disposal, transparency, neutrality and accountability
which would propel sustainable national development.
The judicial magistrates who have robust legal background are highly conscious about legal,
constitutional and human rights of individuals culminated in illogical and irrational rate of
shown arrest and remand have been reduced, where the concept of right would perish in
toto67.
The traditional reality of buying and selling of bail through corrupt practices have been
reduced in many parts as the present judicial magistrates are comparatively young with legal
background, commitment , dedication values and ethics. They are penetrating into the nitty-
gritty of a case for ensuring justice seems to be done.
66
Ibid, ChapterXXVI “Of the Judgement”Sections 366-373.
67
Islam, Md. Rafiqul andSolaiman, S. M “Torture under police remand in Bangladesh : a culture of impunity for
gross violations of human rights” Asia-Pacific journal on human rights and the law, Vol. 4, Issue 2, p.1-27
32
The present outline of separation of judiciary is in its infancy. The police as part and parcel of
dispensation of criminal justice is going to be more aware about police report as the
magistrates are frequently chalking out various lacunae in police report and ordering
concerned to rectify which would culminate in efficient and learned investigating police
personnel in long term. Before separation of judiciary we have seen the illegal collaboration
or liaison between police and executive magistrates to gratify respective interests setting aside
the notion of justice.
The vested and degenerated bureaucracy is always intriguing against the separation of
judiciary to topple its smooth journey as its reality curtained the illegal and immoral grasping
of all pervasive power by the bureaucracy even by the very cost of hapless citizens.
The judicial magistrates are working amongst multifaceted impediments like- lack of court
room, lack of basic logistic support, devoid of primary facilities, accommodation, library etc.
The vested groups who oppose separation of judiciary to gratify self interest do not co-operate
with judicial magistracy, rather they are hyperactive to plot against it to regain for grasping
every power for absolute corruption68.
We have to aware about the conspiracy of absolute power loving bureaucracy as they are
germinating various pretexts to share judicial activities which would simply beget deadlock in
judicial magistracy. The government should not adopt any step by the pressure of
bureaucracy, which would be inconsistent with the spirit of separation of judiciary. The grass
root level experience predicts that the people welcomed separation of judiciary overwhelmly
and they are enjoying the fruit of it. The advertence of separation of judiciary would
geometrically increase if the police administration and executive organ amplify their
qualitative co-operation to dispense justice69.
There should launch a mechanism to exchange of views amongst district level administration,
police and judicial magistracy to maximize the advertences of separation of judiciary setting
aside any kind of hypocrisy for the ulterior benefit of whole nation. Last but not least, it could
68
The Daily Star, 20th July, 2010
69
Amnesty International's Report on Bangladesh 2003.
33
be axiomatically infer that separation of judiciary has brought a higher degree of complacence
among justice seeks specifically in criminal matters.
According to latest annual report on the judiciary, still the judicial magistracy 6,02,173 cases
as of December 31, 2007 although the disposal rate of cases has increased. It is a matter of
hope that the judiciary after being formally independent on November 1, 2007, has shown its
efficiency to a good extent. After the separation of the judiciary from the executive and with
the introduction of judicial magistracy, the rate of disposal of criminal cases in the courts of
magistrates increased by 51 per cent in December 2007 in relation to the cases disposed of by
the judicial magistrates in November 200770.
According to the report, 5, 63,344 cases were pending with the judicial magistracy as of
November 1, 2007 and 34,131 cases were filed in November 2007, while the magistrates
disposed of 33,104 cases. On December 1, 2007, the judicial magistracy had 5, 64,371 cases
pending and 87,789 cases were filed in December 2007, while 49,987 cases were disposed of.
On an average, 137 cases were disposed of by each of the 242 judicial magistrates in
November, in a month after the judiciary became independent of the executive71.
Comparatively incase of disposal of cases Manikganj might be the model which is reflected in
the following statistics:
Month Number of Number of Pending Cases Comment
Filed Cases Disposed cases
January,2008 441 357 84 80.95%
February,2008 342 263 79 76.90%
March,2008 332 225 7 67.77%
April,2008 401 234 167 58.35%
May,2008 335 189 146 56.41%
June ,2008 743 707 36 95.15%
70
The Daily Star, 4th July, 2010
71
The Daily Ittefaq, 10th July, 2010
34
July,2008 685 546 139 79.70%
August,2008 501 485 16 96.80%
September,2008 1026 1025 01 99.90%
October,2008 263 236 27 89.73%
Total 5069 4267 702 84.17%
The table demonstrates that in chief Judicial Magistracy, Manikganj disposal rate is almost
85% while the national disposal rate is not more than 50%.But we concern do not want to
bind ourselves in complacence rather we have a mission to have 100% disposal rate where
your collective cooperation is a must72.
21. Vulnerability of police investigation negates Justice

Police is an important and unparallel institution to ensure justice as supplementary and
complimentary entity of court’s functioning in different administrative arrangement. Police is
friend and guard of public lives and properties in many parts. Irony of the Bengali fates that
we could not furnish well equipped modern police force for multifaceted causes. But as there
is no viable alternative of police, it is high time to reshuffle the entire machineries of police to
uphold constitution, human rights, rule of law and good governance73.
The police force has been nascent in Bangladesh through liberation war. There are many
episodes of heroism pertaining to police even by sacrificing their lives.
But in course of time, the police fore has been turned into symbol of tyrannical entity devoid
of humane and legitimate behavior resulted in ‘policing of police’ has become urgently
necessary. There are no forms of crimes that have not committed by police including murder,
rape, extortion and so on. In 2008, 4 women/ girls were raped by law enforcement agencies.
Among them 3 were raped by police and 1 by RAB74 .
Though there is uphill expectation from police, but proportionate investment for police is very
tiny. The pitiable life sketch of lower level police personnel who are excluded from basic
72
Hasan, Jesmul and Hussain, Sazzad “BANGLADESH: A Probe into Power Abuse by Dhaka Police” Human
rights Solidarity Vol. 14 No. 05 SEP 2004
73
Hasan, Jesmul and Hussain, Sazzad “BANGLADESH: A Probe into Power Abuse by Dhaka Police” Human
rights Solidarity Vol. 14 No. 05 SEP 2004
74
Violence against women in 2008 daily star 24-1-09
35
requirements of sound life is beyond imagination. They do not have required salary,
allowance, training, logistic etc. This is the only job where working hour is unlimited75.
It would take hundreds of pages to write down the humiliated scenario of police in
Bangladesh. Let us focus on the subject matter of ‘fragile police investigation which has
created substantial impediment for smooth dispensation of criminal justice.’ In the adversarial
legal system herein Bangladesh, we discover the court plays a passive role. Court is a mere
umpire/referee to find out the fact from the evidences arranged by the parties via legal battle
in the court. Like civil law system, the courts do not play any active role to collect evidences.
Inevitably, the court has to substantially depend on police investigation which is imbibed into
plethora of faultiness culminated in 90% acquittal rate which is probably highest in the
world76.
Investigating police officer is the parent and destiny controller of the criminal case as IO can
perish or give sustenance to any criminal investigating matter. The catastrophic reality of
police investigation envisages submitting charge sheet even without going to the place of
occurrence, recording statements under section 161 inside the police station, biasness,
corruption, nepotism, ignorance, etc, are common phenomena of police investigation77.
In substantial number of charge sheets, we do not discover any legal analysis to insert any
penal provisions. Charge sheets enshrined sections 143, 34, 109 of Penal Code,1860 create
huge hurdle as the investigating officer can not or do not understand the basic difference of
those. They can hardly know the differences among sections 447,448,379 and 380 of Penal
Code, 1860. The omnibus police reports caused distrust on whole gamut of administration of
criminal justice.
Maximum forwarding of police as per arresting the accused on doubt do not substantiate or
rationalize the reasons behind it, resulted in violation of individuals right in toto. The remand
75
Hamidul Haque, Justice Mohammad “ Trial of Civil Suits And Criminal Cases”, 1 st ed. 2010,P.224
76
Kahkonen, Satu, “Decentralization and Governance: Does decentralization improve public service delivery?”
World Bank: PREM Notes. No. 55, June 2001
77
The Police Regulation of Bnagladesh,1943.
36
petitions do not reveal the reasonable grounds in this regard. The false and fabricated
manoeuvre of showing arrest without rationality is very high among the investigating officers.
At remand, they do not follow any human rights norms and use third degree method to extract
the fact. It is usually found that the remanded accused wants to confess from fear of torture
but denies to the magistrates. Actually, remand procedure at the present form devoid of any
scientific method and proved as substantially fail to be useful to investigation. To work very
closely with police engaged for investigation, I discovered that they do not have minimum
sensitivity for constitutional rights of citizens and maximum time they do not know even.
These malpractices have breeded colossal national wastage though there is specific
prohibition in international human rights documents, constitution and precedent of BLAST vs.
Bangladesh78.
Corruption is all pervasive in police administration. For any activities with police, the hapless
citizens have to count the penny whatever might be the merit of fact. From this writer’s field
level experience to work with police, it could be axiomatically inferred that there would be
insurmountably need of Tk. 3000-5000/ in an average for per police investigation and this is
naive to distort the outcome of police investigation irrespective of reality because of overt and
covert variants like- muscle power, so called social elite, dissatisfaction of IO, poverty, etc79.
The flavor of independence of judiciary could not be recouped if there is no rudimentary
change is caused to the police investigation as the police and dispensation of criminal justice
is interwoven in the adversarial legal tradition like us80.
The multifaceted problems likely colonial police laws, degenerated psyche of executive
organ, political use of police, meager training, lack of logistic support, etc. are the
rudimentary impediments of proper functioning of police and its investigation. Ignorance,
78
55. (2003) DLR 363, 23 BLD (HCD) 2003 Bangladesh (Md. Hamidul Haque, J) 115Bangladesh Legal Aid
& Services Trust (BLAST v. Bangladesh (Md. Hamidul Haque, J) 115
79
Shand, David (1996): “New Public Management: Challenges and Issues in International Perspective”, in
Ladipo Adamolekun, Guy de Lusignan and Armand Atomate (ed.) Civil Service Reform in Francophone Africa,
Washington, D.C. The World Bank.
80
Quayson, Richard (2006): “The management of the Public Relations Functions – Commission on Human
Rights and Administrative Justice (CHRAJ), Ghana” in Regional workshop on Enhancing the Public Profile of
the Ombudsman’s Office in Africa. Abuja, Nigeria 30th January – 3rd February.
37
lack of patriotism, accountability, transparency and proper monitoring are the rudimentary
obstacles for indescribable failure of reasonable expected standard of police investigation81.
This writing might be allergy for many dedicated police officers but we have to remember
that exception is not an example; I am talking about overall reality pertaining to deplorable
scenario of police investigation for ulterior benefits of all stakeholders82.
The meager and fragile condition of police investigation reveals the profound vulnerability of
overall police administration in Bangladesh. There should be a comprehensive paradigm shift
to altar the poor performance in investigation. The separate investigating police wing should
be launched with proper education and training equipped with necessary logistic support. This
investigating wing of police might be controlled by the District and Sessions Judge and chief
judicial Magistrate. Political use of police should be eradicated at any cost. Moral and ethical
issues should be taught to the police personnel reiterately on priority. Modern technology
including DNA labrotary should be endowed to the investigating police. Psychological
training in the era of organized criminality is a sine qua for fruitful investigation.
Transparency, accountability and monitoring of the police from top to bottom should be
ensured at ant cost without further delay. Go, NGO, development partners, media, civil
society and all stakeholders should come forward to amplify the investigating capacity of the
police. The proposed police law should be launched by setting aside any conspiracy against it
for the ulterior welfare of the nation as whole83.
The present milieu of confession is a nothing but different version of extraction of coerced
confession through inhuman torture and cruelty. It simply negates justice to the hapless
accused devoid of penny to approach higher court to address grievance84. There are volumes
of instances where the conviction is given based on confession hailed from jeopardizing the
81
Picard, A. Louis (2002): “South Africa” in Adamolekun Ladipo (ed.) Public Administration in Africa. Ibadan,
Spectrum Books Limited
82
Putsoane, Lekileli and Mafisa Sekara (2006): “Management of the Public Relations Function of the Lesotho
Ombudsman Office” in Regional 27Workshop on Enhancing the Public Profile of the Ombudsman’s Office in
Africa. Abuja, 30th January – 3rd February.
83
Pope Jeremy (1996): Ethics, Accountability and Transparency” in Ladipo Adamolekun, Guy de Lusignan and
Armand Atomate (ed.) Civil Service Reform in Francophone Africa. Washington, D.C. The World Bank.
84
Oosting, M. (1996): “The Ombudsman: A Profession”. This is a Workshoppaper delivered at the International
Ombudsman Institute, Netherlands. The workshop was titled Strengthening the Ombudsman Office in Africa.
26th August
38
life of individual accused though free from torture is guaranteed in national as well as
international documents.85 International law prohibits the introduction of evidence procured
by torture, or by cruel, inhuman or degrading treatment, in all legal proceedings. 86 Confession
obtained by physical violence, mental torture or by other illegal means is the outcome of
immediate measure to safe life as the most precious one. The fact that those convicted on the
basis of forced confessions are denied this right is an ongoing violation and further fuels the
cycle of impunity and abuse87.
It is an accepted means of maintaining law and order, investigation and extorting money by
the police. According to reports of the human rights organizations the number of death in the
custody of the law enforcement agency is about 70 per year.88 In general, torture is applied to
extort information or confessional statements by force or to force the persons in custody to
give false statements and sometimes to take revenge on the opponents (Odhikar, 2010).89 ‘The
torture techniques employed in Bangladesh, whether of long standing practice or of more
recent origin, are brutal. Methods documented by Human Rights Watch and other human
rights organizations include burning with acid, hammering nails into toes, drilling holes in
legs with electric drills, electric shocks, beating on legs with iron rods, beating with batons on
backs after sprinkling sand on them, ice torture, finger piercing and mock executions(Human
Rights Watch,2008).”90 Police are poorly trained about the dangers of interrogation and false
confession. Police officers are rarely instructed regarding how to avoid torturous mechanism
of eliciting confessions, how to understand what causes false confessions, or how to recognize
the forms false confessions take or their distinguishing characteristics. Ignorance /
lackadaisical reality of the magistrate also take place a big role. The absence of feasible
accountability mechanisms of the confessional statement recording officer is major problem
85
Article 35 (5) of the constitution of Bangladesh; U.N. Resolution 3452, which is the Declaration on the
Protection of all Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, and/or U.N. Resolution 34/169, which is the Code of Conduct for Law Enforcement Officials.
86
Article 7of ICCPR,1966,Article 5 of ACHR
87
24 BLD 205 and 56 DLR 324.
88
Amader Somoy, 4th July, 2010
89
Odhikar Observes International Day in Support of Victims of Torture26 June 2010, National
PressClub,Dhaka(see.athttp://www.odhikar.org/Torture/Int'l_Day_in_Support_of_Victims_of_Torture.pdf p.2).
90
February, 2008 report released by Human Rights Watch.
39
to detect indifference and callousness as prevail encircling them91. Lack of profound training
in this regard is also a tremendous problem. Sometimes pressure from vested group indirectly
accelerates this process. Colonial degenerated mentality, traditional oppressive mindset and
lack of right based approach. Soaring ignorance about constitutional rights /human rights
among the concerned is also a major problem. Lack of right based approach in the whole
gamut of the state machineries is the core aspect of this crucial aspect of improper and illegal
remand business. 92 The roles of pressure groups are also very feeble in this regard.
Voluntarily causing hurt to extort confession is an offence under section 330 of the Penal
Code, 1860 but use of the section is not common in our criminal courts. 93 Even the total
period of remand id not specifically stated in the Code of Criminal Procedure, 1898 as there is
no maximum period fixed by law for order of detention in police custody by the Magistrate.
For how many terms not exceeding 15 days can the Magistrate authorise detention? 94 In
absence of any proper guideline unfortunately the Magistrates have been accustomed to
follow a 'parrot like' order on the forwarding letter of the police officer authorizing detention
either in the police custody or in jail. And this non-application of proper judicial mind in view
of sub-sections (1), (2) and (3) of section 167 of the Code by the Magistrates has ultimately
resulted in so many custodial deaths and incidents of torture in police custody.95 The absence
of judicial mindsets among most of the Magistrates and Judges of Bangladesh creates
sufficient room for the police, who are by practice and training arbitrary, to abuse their power
as there has been no mechanism established to hold the police accountable96. In Bangladesh
neither the police nor the Magistrates follow the laws and rules regarding arrest and "remand",
which has widened the paths for the police to seek remand for whomever or whichever days
they want.The media do not view torture beyond its limited news value, depending upon the
identity of the victim. So far there has been no single attempt by the media to generate a
91
Olowu, Dele (2002): “Accountability and transparency” in Adamolekun Ladipo (ed.) Public Administration in
Africa. Ibadan, Spectrum Books Limited
92
The term “remand business” is popularly used in the legal arena of Bangladesh to mean the maneuver of
collecting unlawful gain by the police from the remanded accused in exchange of torture free remand,
culminated in, the fact of the investigated matter is hushed up or erroneous and caused justice and rule of law at
stake.
93
Supra, note 9, P.221.
94
Abdul Halim, Barrister Md. “Police remand: Concept and procedure” published in “Law and our Rights”, Issue
No: 247, July 22, 2006.
95
Ibid.
96
Nugent, P. (1996): Big men, Small boys in Ghanaian Politics. Accra, Asempa
Press.
40
debate on torture, viewing it as a vital issue that needs to be tackled to realize true democracy.
There is literally no intellectual discourse about torture in the country for the past one decade.
In Bangladesh the police officers do not submit their applications by filling up the BP Form
No. 90 whenever they seek remand for a detainee. Instead, the police send a manuscript
petition on plain paper without the BP Form No. 90 by ignoring the guidelines prescribed by
the PRB, which is mandatory for the police. The Magistrates, who are not adequately aware
of the law and the rules, entertain the plain paper petition, which should not legally be
considered as an application for remand at all, and grant remand to the police though it
beyond the purview of the law of the land97.
In reality, torture is not a punishable crime in the domestic laws of Bangladesh. The Penal
Code of 1860 (Sections 330, 331 and 348) penalises offences relating to causing hurt or
wrongful confinement to extract confession. However, these provisions do not meet the
standards of the CAT or define 'torture' as a crime98.
In contrast, the provisions of the Code of Criminal Procedure, 1898 (Sections 132 and 197)
protects the public servants such as police officers from prosecution unless prior approval
from the government is obtained. According to the current interpretation of these provisions,
the courts refuse to take cognizance of crimes committed by state agents without the prior
approval of the state. This reflects the moral as well as jurisprudential deficit of the judiciary
in the country.
Since torture is not criminalized, a victim of torture cannot get any compensation in
Bangladesh at all. No specific law allowing compensation for the victims of torture exists in
the country despite the fact that the right against torture is a fundamental right.99
Denial of bails, indiscriminate granting of police remand, the alleged torture of person(s)
arrested in police custody create genuine concerns. Bangladeshi security forces have been
persistently criticized by Amnesty International and Human Rights Watch due to grave
97
& Services Trust (BLAST v. Bangladesh (Md. Hamidul Haque, J) 115.
98
Rahman Khan, Saira “Reflections on Torture: Actions and the Law” published in “Law and our Rights”, Issue
No: 216,April 30, 2011.
99
http://notorture.ahrchk.net/profile/bangladesh/ at 2.30 pm on 24.08.2011.
41
abuses of human rights 100 . Police related human-rights abuses are plentiful - unlawful
detention, excessive use of force, torture, deaths in custody stories abound in the media. Right
to life and right to property as the flavor of human surviving is frustrated during police
remand in Bangladesh. Gross violation of human rights occurs under the police remand from
the very beginning. Fundamental rights to life and liberty, to equal protection of law, to be
treated in accordance with law and to be free from cruel, inhuman and degrading treatment
and punishment are colossally and frequently violated during police remand. The Constitution
of Bangladesh is considered one of the good constitutions in the world in that it contains
almost all the provisions of the Universal Human Rights Declaration. 101 Part III of the
Constitution of Bangladesh sets forth the fundamental rights of the citizens which are
enforceable by the courts of law. The present phase of torture during police remand is
violation of human rights in toto as enshrined in the Constitution of Bangladesh. 102 The
victims are really ‘Forgotten people’ and have to fend for themselves, which is highly difficult
for majority down trodden citizens in class biased social milieu. Women and children are
specifically vulnerable to the brutal behavior of the police( Jesmul Hasan and Sazzad Hussain
2004). 103 Persons in police custody are routinely subjected to physical and psychological
abuse, often from the initial moments of their arrest. The concerned authority often refuses to
hold police and security forces accountable for acts of torture, and even tacitly encourages
torture though its broadcasting of political prisoners' public "confessions" as tools of political
propaganda104.
Torture, according to the United Nations Convention Against Torture (an advisory measure of
the UN General Assembly) is:...any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a
100
Musamba, M. Annet (2006): “Commission for Investigations (Zambia Ombudsman’s Office) Regional
Workshop on Enhancing the Public Profile of the ombudsman’s Office in Africa. Abuja, 30th January to 3rd
February.
101
The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations General
Assembly (10 December 1948 at Palais de Chaillot, Paris.
102
Supra,note 20.
103
Hasan, Jesmul and Hussain, Sazzad “BANGLADESH: A Probe into Power Abuse by Dhaka Police”
Human rights Solidarity Vol. 14 No. 05 SEP 2004
104
McMillan, John (2006): “The Role of the Ombudsman in Protecting Human Rights” in an address to a
Conference on Legislatures and the Protection of Human Rights. University of Melbourne, Faculty of Law, 21st
July.
42
third person, information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him or a third
person, or for any reason based on discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity. It does not include pain or suffering arising only
from, inherent in, or incidental to, lawful sanctions( --UN Convention Against Torture).105
Torture by police is endemic in Bangladesh. It takes place everywhere like in the custody of
police, armed forces, paramilitary forces like the Rapid Action Battalion (RAB), intelligence
agencies, special interrogation cells such as Joint Interrogation Cell (JIC) and Task Force for
Interrogation (TFI). Torture continues to benefit the powerful persons in the society and
fulfils the interest of the ruling political parties irrespective of their colour. The Bangladesh
Police require torture for extorting bribes and maintaining the 'bribery collection chain' that
runs from the lowest ranking constable to the highest officer in the chain of command. Their
efficiency is in maintaining this chain of profit. Crime investigation since long has been
reduced to extraction of forced confessions by torture from anyone whom the police can lay
their hands upon.
For many years, torture has been the most widespread and persistent human rights violation in
Bangladesh but has been routinely ignored by successive governments since Bangladesh's
independence in 1971(Amnesty International's Report, 2003).106 Human rights are infringed
with impunity from the moment of suspicious arrest until the end of the remand period. 107The
main reasons why the police will torture a person in remand can be summarized as follows:
1. to get a confession out of the suspect, regardless of whether he has or has not actually been
involved in the particular crime the police apprehended him for;
2. to extort money from the accused or his family members;
105
The text of the Convention was adopted by the United Nations General Assembly on 10 December 1984 and
it came into force on 26 June 1987
106
Amnesty International's Report on Bangladesh 2003.
107
Islam, Md. Rafiqul andSolaiman, S. M “Torture under police remand in Bangladesh : a culture of impunity
for gross violations of human rights” Asia-Pacific journal on human rights and the law, Vol. 4, Issue 2, p.1-27.
43
3. as a way to 'teach a lesson' to political opponents; opposition student activists; newspaper
Editor; or any other person who members of the political or law enforcement elite consider a
'threat' to the 'stability of the country'.
There is a basic pattern leading to the torture of an accused person. He is first arrested by the
police and may receive a few slaps or kicks during that time, including a fair amount of verbal
abuse. He has to be presented before a Magistrate within 24 hours of his arrest. In court, the
police may ask for anywhere between 3 to 15 days remand in order to 'question' the
arrestee 108 . Remand is what all detainees fear. It is during that time that they are beaten,
intimidated, given electric shocks, kicked and verbally abused in order to extract a statement
that may lead to a confession and a quick solution of the crime. Family members often bribe
or offer money to arresting officers as a way to prevent the physical and verbal abuse that
comes with being taken into remand. Again, there is always the fear of the police seeking a
further period of remand if the accused does not confess the first time round, and this also
encourages the accused to make a statement. In the eyes of law enforcement it seems to be
vital that an overworked, under-resourced, badly paid police force, resort to torture and
degrading treatment in order to hasten their investigation109.
There are multifaceted inhumane and degraded “methods of torture have included beating
with rifle butts, iron rods, bamboo sticks, or bottles filled with hot water so they do not leave
marks on the body, hanging by the hands, rape, "water treatment" in which hose pipes are
fixed into each nostril and taps turned on full for two minutes at a time, the use of pliers to
crush fingers, and electric shocks.”110
Cruel and inhuman treatment and torture are also used by law enforcement to demoralise,
scare and stop the activities of specific groups of individuals, such as journalists, political
activists (belonging to the Opposition) and even human rights defenders. There have been
times, especially during the State of Emergency, when newspaper offices have been
108
109
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949
110
Amnesty International's Report on Bangladesh '2003
44
monitored and their reports closely censored and journalists threatened and tortured for
exposing flaws in law enforcement or for criticizing government actions.
The draconian power of policed remand is also indiscriminately used to nab political
opponents by the government in the power. It is frequently seen that police arrests political
leaders belonging to the opposition and they are shown arrested in more than one case with
the prayer for remand in police custody and the empowering magistrates just grant such
remand without almost any exception. It is a guarantee ensured by the Constitution that every
arrested person must be produced before the nearest magistrate within 24 hours and he must
not be kept in police custody without an order of a magistrate. Why is this guarantee
provided? The avowed aim is to check and control arbitrary executive power exercised by the
police111. However, to the utter dismay to civil societies in this country we have seen that
magistrates have traditionally failed to exercise their so-called judicial power on granting
remand. Previously remand power was used to be exercised by the executive magistrate who,
it was argued, did not have either experience or education in criminal justice and as a result,
they were accustomed to follow a parrot-like order on the forwarding letter of the police
officer authorizing detention in the police resulting ultimately in innumerable custodial
deaths. The TIB mentioned in its report that about 600 people have been killed in custody by
the law enforcing agencies in last two and half years amid inactiveness of the government. In
some cases, the government even played a negative role.112The crime investigation officer of
police feels comfort and convenience113 to wind up the investigation through extraction of
illegal and unlawful confession via tortutr.
“Torture in police custody and extrajudicial killings by law enforcers in Bangladesh is one of
our top priority concerns and areas of intervention,” Rahman said. “This must be
stopped.” 114 Odhikar , a local human rights organization, said at least 10 people had been
tortured to death by law enforcement agencies in the first six months of 2011. It documented
111
The Geneva Convention relative to the Protection of Civilian Persons in Time of War, commonly referred to
as the Fourth Geneva Convention and abbreviated as GCIV. It was adopted in August 1949,
112
The New Nation, 19 August, 2011 Friday.
113
Is laziness, as seen by the senior civil officer and endorsed by Sir James Fitzjames Stephen, Member,
Viceregal Council for India, an English legal luminary and the architect of the Indian Evidence Act, 1872, the
major factor responsible for torture or is there something more to it?
114
http://www.unhcr.org/refworld/docid/4e4a66412.html at 5:40 on19.08.2011.
45
67 torture cases in 2010, which led to 22 people reportedly dying. There were 68 cases of
reported torture in custody in 2009.115
22. Recommendations
The judicial system as of today is a combination of the Judges and lawyers. It is imperative
that these two wings co-operate and co-ordinate with each other to ensure the dignity and
independence of the Bench. An independent Bar is as essential for the administration of
justice as an independent judiciary. I should like to add that no judiciary can be independent
unless the Bar of that country is also independent. In fact, an independent Bar can greatly
contribute to the independence of the judiciary. Evidently, both are responsible for protecting
the constitution more than ever before.It is soothe to say the role of the Advocates are most
indispensable in the administration of justice to get the justice within the access and for the
well- being of the people ,proper advice and action in time never bar an effort to get any
lawful relief. The lawyers are the only and best defenders of Judges and it is to them that we
look for protection and help if we fall victims to backdoor reputation assassination.It is the
Bar which makes the judges. The judges shine with the reflected glory of erudition of the
learned members of the Bar. If the Bar does not become helpful the Bench dwindles into
mediocrity. The judges and those in the profession of law belong to the same fraternity. We
are all contributing our little mites to building up a just society.
Many developed courtiers, like USA, Australia, United Kingdom, Canada, who had faced
same type of case management problem due to shortage of staff have been gradually
overcoming this by introducing 'e-management' of cases. Their experiences show that by
using modern information technologies like computer data base and internet etc. these case
management problems can be overcome to a great extent even with the existing 'insufficient'
number of staff.
The intention of the principle is not to protect the offender from being punished rather to
protect the innocent from being implicated. Extreme care should be taken to see that the
115
Ibid,note16
46
victim is not left without legitimate relief. Technicality should be complementary and not
contradictory116.
When rigidity of law allows a culprit to escape punishment it is discretionary power and
proper application of mind of a judge that should prevail upon the rigid law to set things in
proper motion.No doubt, for improving court administration, the number of judges and
management staff and infrastructure development is must, for which huge financial
investment is necessary.
Let not a single innocent be punished and not a single offender goes unpunished. National and
international legal prohibitions on torture derive from a consensus that torture and similar ill-
treatment are immoral, as well as impractical.117Torture is practiced as a routine in all of these
police stations in Bangladesh. The direct or indirect state sponsorship of torture, violence and
ill treatment towards its citizens has grave implications for state-societal relations, as well as
for individual well being. In fact, the majority of countries where torture is prevalent are
facing numerous political and social crises, including ineffective rule of law, instability and
poor realization of basic human rights. Justice and free from any kind of torture is a
constitutional right and flavor of freedom fight118 as also reflected in international human
rights regime which should be protected and preserved at any cost as a sine qua non of
welfare state(sping-Andersen, Gøsta 1999). 119 Instituting legal and judicial reform to halt
116
The Indian Supreme Court in D K Basu v. State of West Bengal held that the state is liable to compensate
victims for the breach of public duty to protect; and that the sovereign immunity of state as a defence is
unavailable for the tortuous acts of public servants/agents (1997 AIR 624-25). This decision mirrors: Neelabati
Bahera v State of Orissa (1993 Cri L J 2912); Rudul Sah v State of Bihar (1983 AIR SC 1086); Sebastian M
Hongrey v Union of India (1984 AIR SC 1026); Bhim Singh v State of Jammu and Kashmir (1985, 4 SCC 677);
Saheli v Commissioner of Police Delhi (1990 AIR SC 513); M P v Shyamsunder Trivedi (1995, 4 SCC 276).
The Irish CJ O'Dalaigh explained the rationale for state liability in State v Ryan (1965 IR 70) and Byrne v
Ireland: 'where the right is once guaranteed by the State, it is against the State that the remedy must be sought'
for its failure to discharge the constitutional obligations (1972 IR 262). The decisions of the Privy Council in
Maharaj v Attorney General of Trinidad and Tobago (1978, 2 All ER 670) and New Zealand Court of Appeal in
Simps v Attorney General (1994 NZLR 667) may be cited to the same effect.
117
"Torture and Ill-Treatment in the ‘War on Terror’". Amnesty International. 2005-11-
01.http://www.amnesty.org/en/library/info/ACT40/014/2005/en. Retrieved 2008-10-22
118
The People’s Republic of Bangladesh achieved independence through heavy blood shed and chastity of
thousands of mothers and sisters finally on 1971 as legacy of historical struggle against injustice, oppression and
discrimination from the then west Pakistan’s semi colonial and diabolical policy.
119
Esping-Andersen, Gøsta (1999). Social Foundations of Postindustrial Economies. Oxford: Oxford University
Press. ISBN 0-19-874200-2 .See also Rice, James Mahmud; Robert E. Goodin, Antti Parpo (September–
47
torture, and ending impunity for it, should be a matter of priority for the government of
Bangladesh and for all parties interested in human rights and the security and stability of the
region. Bangladesh should immediately end systematic human rights abuses, including
stopping extrajudicial executions and torture by its security forces, the 649-page report
published on Monday says in the chapter on Bangladesh.120It is crucial for public authorities,
civil society groups, professionals, academics and ordinary citizens to understand the radical
nature of the fight against torture, if other social ills are to be effectively addressed. All the
stakeholders should come forward to eradicate the malpractices prevailing pertaining to
extract the confessional statement through torture and improper record of it for the sake of
upholding rights preventing frustration of constitutional and human rights.
The aggrieved or the victim of a crime shall also get justice along with the accused.
Measures in the light of the suggestion given should be taken to save the witnesses from
harassment and intimidation. A separate enactment for the purpose may also be considered.
Provisions should be made in the existing laws for payment of adequate compensation to the
victim or members of the family of the victim in the light of suggestions given or separate
enactments may be made providing such compensation.In the light of the suggestions given,
suitable provisions may be added in the Police Regulations of Bangladesh as to the power of
police officers and investigating officers.
Steps will be taken for protection of the key witnesses when there is any intimidation from the
side of the accused. There should be launched a torture free criminal administration of justice
system. In this regard the guidelines of BLAST vs. Bangladesh 121 should be mulled over and
materialized on the basis of priority. At remand or just after remand, confession should not be
taken. The aforesaid guideline for remand should be followed without any exception. Creation
of independent investing wing of police is a must. Civil society, experts, human rights NGOs
and other stake holders should come forward with the advocacy to have a resolution regarding
December 2006). "The Temporal Welfare State: A Crossnational Comparison" (PDF). Journal of Public Policy
26 (3): 195–228. doi :10.1017/S0143814X06000523 . ISSN 0143-814X
120
Supra,note 35.
121
& Services Trust (BLAST v. Bangladesh (Md. Hamidul Haque, J) 115.See also . Saifuzzaman vs. State
reported in 24 BLD 205 and 56 DLR 324.
48
the aforementioned. Introducing a full fledge separate department of police only for
investigation under the control of Court of Session or Chief Judicial Magistrate is a must as
the present criminal administration of justice substantially depends on fragile and feeble
investigation reality of police, culminated in, 90%acquittal rate in criminal a cases. The
British concept of adversary system is very old, impractical and outdated in many cases to
prevent in justice. We have to change our mind-set and legal culture. Recently, instruction as
issued by the Government122 upon all the Sessions and District Judges, Inspector- General of
police, Chief judicial Magistrates and Chief Metropolitan to implement the directions123 given
by the High Court Division in the BLAST case124 should be followed without any kind of
derogation. Proper and effective guidelines must be framed by the apex court for the judicial
magistrates to follow while granting remand in police custody if any in special circumstances.
Appointment of a judicial ombudsman under the leadership of a retired chief justice is long
overdue in view of rampant procedural injustice throughout the judiciary. For instance,
granting remand or refusing remand is a discretionary power of the magistrate and to check
the abuse of this power is almost impossible by the High Court Division. This is because such
abuse of power may traditionally be challenged by way of revision application, 561A
application or through writ application. However, hearing and dispensation of such a petition
takes as long as 8-10 years and to get all remedies exhausted from the Appellate Division it
usually takes another 7-8 years and in the meantime the concerned judge or magistrate might
have gone into retirement and as such this type of judicial control is almost meaningless.
However, these problems may easily be remedied by creating an office of judicial
ombudsman. Bangladesh signed the Convention against Torture (CAT) on 5th October, 1998.
However it has not framed any law by declaring 'torture in police custody' as an offence.
Sooner the Government makes such law better for judicial magistrates. This is because once
such law is made, police and other law enforcement agencies will be less interested to make
application for remand let alone torturing in custody. The "Torture and Custodial Death
(Prohibition) Bill-2009" was tabled in the Bangladesh Parliament on10 September 2009, as a
Private Members' Bill should be launched as full fledge law without delay even for a single
moment. "Our law enforcers need to train up on human rights to stop torture and extrajudicial
122
Vide No. wePvi-4/1 Gg-11/2010 ZvwiL 23-08-2010.
123
15-point directives.
124
Writ Petition No. 3806 of 1998
49
killings," said Sultana Kamal, a former adviser to the caretaker government and head of Ain o
Shalish Kendra, a legal aid and human rights organization and chairman of Transparency
International Bangladesh. To achieve this goal, “the government’s political will is critical,”
she said.125 "The government should not just keep turning a blind eye to all these killings
because they are not fooling anyone with their excuses," said Phil Robertson, deputy Asia
director of HRW (Human Rights Watch).126
There shall be pre-trial conference in which the Public Prosecutors and Investigators shall
discuss the questions relating to leading evidence in a case, conducting the case, attendance of
witnesses, the defense case, the weak sides of the prosecution case, the points on which the
defense is likely to assail the prosecution case, etc. In this meeting, strategy be determined to
conduct the case most efficiently and effectively. Such meeting shall be held at least fifteen
days prior to trial date of a case.
There shall be monitoring committee in each district comprising of Public Prosecutors,

supervising officers of the investigators, investigators, one representative each of the district
administration and police administration.All the police officers and the investigating officers
should be clearly instructed not to torture the accused either physically or mentally or
otherwise.Investigation shall be started within twenty-four hours of receipt of the first
information report or order of the Magistrate Court127.
Modern scientific equipment be provided to the investigators and special laboratories

including a laboratory for DNA test shall be set up without any delay.Investigators shall be
given special training in criminal investigation which is considered as an art and science
because of the increase in number of organized crimes and globalization of crime.
There shall be a separate independent Investigation Commission and the investigators and
other officers shall be appointed by the Public Service Commission. Chairman and two other
125
Supra, note15.
126
World Report 2011 by Human Rights Watch.
127
50
members shall be appointed by the Government for a fixed period of 4/5 years. Provisions
should be made so that they may work independently128.
There shall be a separate Prosecution Service, the members of which shall be recruited
through Judicial Service Commission, necessary amendment may be made in the Judicial
Service Commission Rules, 2004129.
The judiciary must be manned by persons of high quality, courage, determination, devotion
and independent and unbiased mind. Justice Pn Bagawati, Chief Justice of India, reminds the
Judges that to perpetuate an error is no heroism. To rectify is the compulsion of judicial
conscience. Justice Bronson has stated- “A Judge ought to be wise enough to know that he is
fallible and there fore, ever ready to learn; great and honest enough to discard all mere pride
of opinion, and follow truth wherever it may lead, and courageous enough to acknowledge his
errors”. Now quoting from Bacon’s Essay of Judicature “Judge ought to be more learned than
witty, more reverend than plausible and more advised than confident130. “ Above all things,
integrity is their portion and proper virtue. Moreover, patience and gravity of hearing is also
an essential part of justice, and an over speaking Judge is known as well tuned cymbal. It is
the duty of the entire Judge to follow the law who cannot do anything whatever he likes. Sir
MATTHEW HALE’S rules of Judicial conduct: (i) The Justice is to be done uprightly,
deliberately and resolutely. In the language of BENJAMIN N. CARDOZO: “The Judge even
when he is free is still not wholly free. He is not to innovate at pleasure. He is not a knight-
errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his
inspiration from consecrated principles.”
128
Odhikar Observes International Day in Support of Victims of Torture26 June 2010, National
PressClub,Dhaka(see.athttp://www.odhikar.org/Torture/Int'l_Day_in_Support_of_Victims_of_Torture.pdf p.2).
129
February, 2008 report released by Human Rights Watch.
130
Abdul Halim, Barrister Md. “Police remand: Concept and procedure” published in “Law and our Rights”,
Issue No: 247, July 22, 2006.
51
In all acts of judgment, the Judges should be transparent so that not only the lawyers but also
the litigants can easily predict the outcome of a case. Transparency and predictability are
essential for the judiciary as an institution of public credibility.
To alleviate though expected to eliminate, the devastating denial of justice through extraction
of confession the following areas should be pondered over and taken dynamic initiatives.
 There should be launched a torture free criminal administration of justice system. In
this regard the guidelines of BLAST vs. Bangladesh should be mulled over and
materialized on the basis of priority. At remand or just after remand, confession should
not be taken. The aforesaid guideline for remand should be followed without any
exception131.
 Creation of independent investing wing of police is a demand of time for torture free
investigation keeping pace rule of law and legitimate expectation132.
 Easily understandable Form for recording confession should be introduced and it
should be inevitably written in Bengali language.
 Magistrates should be justice oriented with the accountability to self sanction, to the
people through constitution rather whims.
 The concerned magistrates should be properly trained in this regard. He would make
sure that the confessing accused had no marks of violence on his person nor was he
under threat or duress of any kind133.
 There should be explicit framework to dispose of retraction petition and a confessional
statement cannot be the overwhelming reason to convict an accused person134.
 The Magistrate should not act mechanically in recording the confessional statements;
it is the solemn duty of Magistrate to strictly follow the provisions of sections 164 and
364 of the Code of Criminal Procedure for avoiding the possibilities of causing
injustice. It is important that the procedure and manner followed by the recording
131
1957 Cr.L.J. 545 DB AIR 1937 Mad 321, (1962) 2 Kar L.R 231 (SC)
132
Article 35 (5) of the constitution of Bangladesh; U.N. Resolution 3452, which is the Declaration on the
Protection of all Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, and/or U.N. Resolution 34/169, which is the Code of Conduct for Law Enforcement Officials.
133
(1986 Cr. L. J. 439 Ori).
134
Alauddin Khan Pathan and others Vs The State, 19 BLD (HCD) 74
52
Magistrate must be reflected in the prescribed From so that the trial court/ appellate
court can see whether the recording Magistrate has made real endeavor for
ascertaining voluntary nature of the confession135.
 The trial court should take higher degree of care and caution to appraise and evaluate
the confessional statement. To ensure exact value of confessional statement, it should
be raised to the accused at examination of accused.136
 Proper monitoring of recording confessional statement is inevitable.
23. Concluding Remarks

The reasons causing inordinate delay in disposal of criminal cases which have been discussed
and identified on the basis of nitty –gritty as above deduced and drawn from experience are
not free from any dissent and discordant opinion .The Judiciary is the last resort for obtaining
redress of one’s grievances. We are entering a new era. What we will have is a tentative
arrangement that will need the support and cooperation of every branch of Government. It is
up to us to ensure that this separation does not become a token gesture. This measure contains
real promise. It has to be supported not because it has been decided and sanctioned by the
highest Court but because it contains the possibility of people being able to realize their legal
and human rights according to the due process of law. However, while the separation
nourishes big hopes, a few lower court judges told journalists yesterday that to make the
separation meaningful cooperation is necessary from all sections of people, especially the
police and administration. It otherwise reveals that for an overwhelming development of the
'caseload situation' there is a need for a comprehensive approach to analyze the entire
situation and take comprehensive actions that will weightily take into consideration the
administrative and financial aspects, among others, of the judiciary. Now Bangladesh
Judiciary is separate from executive137. This separation is a result of a long struggle. It is now
the responsibility of the judiciary to reap the benefits of being independent and to stand by the
justice hungry people of the country. However, after separation of judiciary form executive,
the judiciary is theoretically independent; practically it is still dependent upon the other
135
39 DLR (AD) 194-paragraph-9].
136
Section 342, the Code of Criminal procedure, 1898; Abul Kashem and others vs.state,49 DLR (HCD)573;
Mezaanur Rahman and others Vs. State, 16 BLD (AD) 293); Abu Taher and others Vs. State, 10 BCR (AD) 290.
137
Abul Kashem and others vs.state,49 DLR (HCD)573; Mezaanur Rahman and others Vs. State, 16 BLD (AD)
293); Abu Taher and others Vs. State, 10 BCR (AD) 290.
53
partners in government, i.e., the executive and legislative branches of government,
specifically in cases of legislative changes, police cooperation, allocation of national budget
for judiciary etc. But, above all, the judiciary must be cautious that it does not sacrifice access
to 'justice' for the sake of 'access' to justice. Finally, the rule of law and the rule wedded, the
spring of social justice will rise thereby only. Justice and right of free from any kind of torture
is a constitutional flavor which should be protected and preserved at any cost. The state
should ensure true and voluntary confession in consonance with prescribed laws and
philosophy behind it. Any form of indifference, irregularity and malpractices to record
confessional statement should be avoided for sake of justice. It should not be the policy that
police will seek remand from the court under section 167 Cr.P.C138 all the time. GO, NGO
and civil society should have joint venture to perish the heinous impact of so called
confessional statement. Those who are involved with forced or coerced confession should be
brought into books as the right to effective redress is a fundamental principle of constitutional
and international human rights law139.
138
The Code of Criminal procedure Code,1898.
139
Bachhu alias Ekramul Hoque and others Vs. The State, 14 BLD (HCD) 589.
54
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59

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RESEARCH

Course Title: A Research Monograph

Date of Submission: 02.08.201

Md. Zakir Hossain

Subject: Letter of Transmittal

I am Sadiya Samanta, ID.LLM110300798, student of Department of Law, Northern University

Md. Zakir Hossain Sadiya Samanta

This Research Monograph

1.1 Object of the research paper

1.2 Research methodology

1.4 Literature review

3. Brief history of evolution of Magistracy in Bangladesh

The much-demanded implementation of the separation of the judiciary is now expected to

4. Expectation of Commonalty from Judiciary:

5. Pole To Pole Gap Between Expectation and Attainment

In Bangladesh's adversarial judicial system, trial procedure is dominantly controlled by the

While the unjustified shortage of court staff is contributing mismanagement of trial,

7. Causes of delay in Criminal Cases

8. Frequent adjournment for prosecution witnesses

9. Unwillingness of the advocates

10. Negligence on the part of prosecutors

12. Corrupt practice of the court staffs

13. Avoiding tendency to face trial

15. Motivated efforts

16. Motivated investigation

17. Some other reasons

18. Criminal administration of justice after separation of judiciary on 2007

In the same chronology, on 1 November,2007; we attained partial separation of judiciary

Though it is not time enough to evaluate the far-reaching advertence of separation of

The criminal administration of justice in lower judiciary is functioning independently where

21. Vulnerability of police investigation negates Justice

There shall be monitoring committee in each district comprising of Public Prosecutors,

Modern scientific equipment be provided to the investigators and special laboratories

23. Concluding Remarks

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