Legal Framework for Introducing Forensic Evidence in the Criminal Courts of BD

Al Mustashim Nobi Niku: Criminal proceedings end with a case being filed, investigation, arrest, formation of charges, and completion of trial and conviction or acquittal where forensic evidence can lead to significant progress. In our country, people involved in the criminal justice system like lawyers, investigating officers and even judges are not skilled enough to apply the knowledge of forensic science. A strong legal and institutional framework is now essential to ensure the use of forensic evidence in the criminal justice system, given the number of cases pending in court and the conviction rate. Increasing the effectiveness of forensic evidence to expedite criminal proceedings in Bangladesh would be able to reduce the length of the trial. This will greatly increase the rate of conviction or acquittal at the end of a criminal case, which will ensure justice for the people. This is a moderate effort to evaluate the existing law of Bangladesh and the institutions working with the criminal justice system to identify the scope of forensic evidence.

Forensic science and scientific evidence     

Forensic science can be broadly defined as a scientific discipline that conducts recognition, identification, segregation, and evaluation of physical evidence through the application of natural science principles and methods for the administration of justice. And the scientific evidence is evidence obtained from scientific knowledge or technique. Scientific evidence is based on the knowledge that has been created using scientific methods. This means that the basis of the evidence has been assumed and tested and is generally accepted in the scientific community. This could mean that the theory, based on scientific evidence, has been published in scientific journals and has been the subject of peer-reviewed reviews in the scientific community. Most forensic evidence, including genetic evidence, is scientific evidence.

Legal Framework of forensic Evidence in Bangladesh

I will try to mention below the existing legal framework of Bangladesh for introducing forensic evidence in the criminal justice system. The existing laws in Bangladesh are:

• The Code of Criminal Procedure, 1898
• Evidence Act, 1872
• The international crimes (tribunals) act, 1973
• The Narcotic Control Act, 1990
• Digital Security Act, 2018
• Deoxyribonucleic Acid (DNA) Act, 2014
• Consumer Protection Act, 2009
• Food Safety Act, 2013

The laws are explained below:

The Code of Criminal Procedure, 1898

Section 509 of the Criminal Procedure Code states that the statements, investigations, etc of a civil surgeon or a medical witness may be considered at any stage of the trial or other process of a criminal case. The statement of a medical witness or the statement of a person with special knowledge of medical science must be given after technically examining the matter. Section 509A of the Criminal Procedure Code states that when a civil surgeon or a medical officer prepares a post-mortem report, it may be used as evidence at any stage of the criminal proceedings, even if the examining physician is unable to testify in person. The physician’s report in court will be admissible as evidence of true or false proof. Section 174 of the Criminal Procedure Code, provides for the investigation and autopsy that falls in the case of forensic pathology or forensic medicine. Section 176 (2) of the Code of Criminal Procedure gives it the power to order a magistrate or trial court to dismember or exhume a corpse from a grave subject to forensic evidence. Section 510 of the Criminal Procedure Code gives the court discretion in accepting the reports of forensic chemists, ballistic specialists, and serologists appointed by the government without personal presence. Section 464 of the Criminal Procedure Code and section 84 of the Penal Code determine the procedure for the trial of an insane person. Forensic psychology and psychiatry will come to the aid of the court in this matter.

The Evidence Act, 1872

A person whose statement is not generally admissible under the provisions of Section 45 of this Act will be admissible as evidence if he specializes in foreign law, science, or art, or handwriting or fingerprint identification. This section is the main provision of Bangladesh regarding the introduction of forensic evidence in criminal proceedings. Under this section, certain types of forensic evidence can be examined by an expert and he can give a statement of his result in such examination in court and they will be considered as valid evidence. Section 45 of the Evidence Act deals with forensic arts, fingerprints, and handwriting.

The International Crimes (tribunals) Act, 1973

Section 19 of the Act states that the tribunal may accept any forensic evidence as evidence for conducting its proceedings. The law emphasizes forensic evidence. The tribunal is empowered by the tribunal to accept any evidence, including forensic evidence, as evidence for the conduct of a trial under this Act. Although it is a special law enacted for the trial of international crimes, the provisions of this law are not limited to the International Criminal Tribunal.

The Narcotic Control Act, 1990

Section 50 of the Act states that the government shall set up chemical laboratories for chemical testing under this Act and appoint chemical experts for this purpose. All chemical test reports under this section are forensic evidence. Any chemical report prepared under this section shall be admissible as evidence in any investigation or proceeding under this Act. But the provisions of this Act are limited to the proceedings conducted under this Act because it is a special kind of law made for a specific purpose.

The Digital Security Act, 2018

Section 10 of the Act authorizes the Government to set up one or more digital forensic labs to meet the objectives of the Act, which shall be regulated by the Digital Security Agency established under Section 5 of the Act. This Act authorizes the formulation of rules for determining the use and operation of labs. According to this section, any other lab established by the government before the enactment of this Act may be used for this Act. Section 11 of the Act states that the company shall ensure the quality of each digital forensic lab through the standards prescribed by this rule.

Section 51 of the Act states that the tribunal or appellate tribunal shall seek an independent opinion from experts in computer science, cyber forensics, electronic communications, data security, and other matters while conducting the proceedings. To implement this law, the government or organization will provide special training to all persons involved in the implementation of the law in computer science, cyber forensics, electronic communication, data security, and other necessary areas.

The Deoxyribonucleic Acid (DNA) Act, 2014

For the first time in Bangladesh, this law can be said to be a complete law enacted for that collect, evaluating DNA evidence. The DNA Act deals with the provision of collecting and testing DNA samples as well as establishing a national DNA database. We can call it a kind of forensic evidence. Section 4 of the Act states that an investigating police officer may ask an accused or a suspect to test a DNA sample. If the suspect is a minor or has a physical or mental disability, ask the suspect’s legal guardian to provide the sample. Section 5 Note that DNA samples must be collected from the crime scene if anything is found. And section 6 states that no DNA sample may be collected without the written consent of the suspect or his legal guardian and the presence of at least two witnesses. Section 7 mentions that if a request is made under section 4 and which is not accepted within 3 hours, it will be assumed that he is not willing to provide the sample and in this case, it will be taken as a record in a prescribed form. Section 8 provides that the court may order the collection of DNA samples from the suspect or accused after giving both parties a reasonable opportunity to be heard. Section 37 provides that DNA reports made under this section may be used as evidence in any process. The provisions of this Act apply to all criminal proceedings.

The Consumer Protection Act, 2009

Sections 42 and 62 of the Consumer Rights Protection Act deals with the method of collecting and sending food samples to the laboratory to test for the presence of adulterants. Section 62 of the Act states that in determining the veracity of an allegation of a defect in a product, the Magistrate shall if he thinks that it is not possible to ascertain the veracity of the allegation without proper analysis or examination of the said product. Samples of that product should be sent to any suitable laboratory with the necessary instructions to check for the presence of any defect. The product report sent to the laboratory for testing must be submitted to the Magistrate’s Court within 2 (two) months from the date of submission of the test report. This procedure will also be considered as forensic evidence.

The Food Safety Act, 2013

The use of forensic evidence can also be noticed in this law. For example, section 50 of the Act states that if an investigation or any other activity is pending before a court under this Act, the court may issue a self-imposed order for food testing. Section 73 of the Act states that if a complaint is lodged under this Act and an examination is required to ascertain the authenticity of the food, the court shall order the collection of samples and send them for examination. The report has to be prepared within one month after sending the sample for testing.

Findings and recommendations

The above discussion makes it clear that quickly in ensuring fair justice by an independent and impartial judicial process Forensic evidence is important now. Below are some important findings and recommendations:

Findings–

After studying all the above laws, I noticed some shortcomings in the use of forensic evidence. Such as:

• Bangladesh’s existing legal framework for introducing forensic evidence in criminal proceedings is incomplete.
• The Criminal Procedure Code 1898, the Evidence Act 1872, and the Bengal Police Regulation 1943 do not provide for direct provision for the collection and conduct of forensic evidence. Some relevant provisions in the Criminal Procedure Code are not sufficient at all.
• We have special laws that provide for the conduct of forensic evidence or some direct provisions but the main point is that these provisions do not apply to general criminal investigations because their scope is limited to that particular law only.

Recommendations

To reduce the backlog of cases from criminal courts, legislatures should pay more attention to modernizing our existing criminal justice system. I will end my assignment with some recommendations. Such as:

• There is a need to increase the use of forensic science and to enact specific legislation on the use of forensic evidence to ensure the fundamental right of the plaintiffs to a fair trial.
• The government needs to be proactive in resolving this situation by amending the main law governing the criminal justice system in Bangladesh by inserting new provisions on forensic evidence management.
• Forensic evidence provides a general provision applicable to criminal courts that will enhance our judicial power and also fulfill the constitutional order to establish the rule of law.
• A competent and strong committee of experts will be formed to work on ensuring the use of forensic evidence in criminal proceedings, including the regulation of the criminal justice system and the provision of modern equipment and necessary logistical support.

 Conclusion

With the unimaginable advancement of modern science and technology, the method of crime has changed from conventional to innovative. Criminals are committing crimes by disguising themselves with high-tech equipment. This is a big challenge for the state system involved in criminal justice. In most cases, it is not possible to prove the charges against the perpetrators due to the weakness of the prosecution’s case. For such a situation, forensic science needs to be introduced in criminal cases. For this, urgent steps have to be taken to ensure the use of forensic evidence and forensic science.

The writer is an Apprentice Lawyer