Criminal Courts in BD: Classification & Powers to trial and sentencing under CrPC

Abstract

The word “Criminal Court” means a legal court that deals with criminal cases or a court that has jurisdiction to try and punish a person who has committed and offence. Hereinafter, the word “offence” means any act or omission made punishable by any law for the time being in force.

In Bangladesh, the criminal courts are divided in various categories and each court has specific jurisdiction to trial an offence and sentencing the accused if he has been proven guilty beyond reasonable doubt.

In this article i will try to discuss about the “Classification & Power of Criminal Courts in Bangladesh to trial and sentencing” with details & also with relevant provisions of law.
So Let’s start……

(1) Classification of Criminal Courts in Bangladesh

Section 6(1) of the Code of Criminal Procedure, 1898 (Hereinafter later mentioned as CrPC) states that, “Besides the Supreme Court and the Courts constituted under any law for the time being in force, other than this Code, there shall be two classes of Criminal Courts in Bangladesh, namely:-

(a) Courts of Sessions ; and
(b) Courts of Magistrates.

In this Section we found 4 categories of Criminal Courts, as follows:

1. Supreme Court of Bangladesh.
2. Courts Constituted Under any law.
3. The Court of Sessions; and
4. The Court of Magistrate.

Let’s discuss about all 4 types of courts mentioned above-

(1.1) Supreme Court of Bangladesh:
Bangladesh Supreme Court is the highest court of Bangladesh. It consists of two divisions,

1. The High Court Division; and
2. The Appellate Division.

Remember that, there is no separate court as named ” High Court” existing in Bangladesh. The existing one is the ‘High Court Division’ which is a division of Bangladesh Supreme Court and subordinate to the Appellate Division.

(1.2). Courts Constituted Under any law

Such courts may be called as special court. Special Courts are such courts that are established under any special law with jurisdiction for a particular matter. It deals with the specific matter as the law referred on it.
some example of this types of courts are:
(a). Cyber Crime Tribunal which is established under “Information and Communication Technology Act, 2006″…
(b). Nari o shishu Nirjaton Daman Tribunal which is constituted under the ” Nari o Shishu Nirjaton Daman Ain, 2003″.

(1.3). Court of Sessions

According to Section 7 of the CrPC, Bangladesh shall consist of sessions divisions: and every sessions division shall, be consist of one or more districts. And According to Section 9(1) of the code, the government shall established a court of sessions in every session division, which in Metropolitan area introduced as “The Metropolitan Court of Sessions”.
After analysis of Section 9 of the code, we found three parts or judges in the court of sessions as follows:

(a). Session Judge,
(b). Additional Session Judge.
(c) Joint Session Judge.

In Metropolitan area, such Judges shall introduced as:
a. Metropolitan Session Judge,
b. Metropolitan Additional Session Judge, and
c. Metropolitan Joint Session Judge.

all the judges are appointed from the members of Bangladesh Judicial Service in accordance with the provision made by the president under the power conferred on him through article 115 and article 133 of the ‘Constitution of the People’s Republic of Bangladesh, 1972’.

(1.4). Court of Magistrate’s

Section 6(2) of CrPC divided court of magistrate’s into two categories. Though this divisions comes after the last amendment to the CrPC on 2009 as the result of the judgement on Masdar Hossain case (separation of judiciary) by the SCB. From then, the magistrate courts are divided into two categories, as:
1. Executive Magistrate.
2. Judicial Magistrate.

(1.4A). Judicial Magistrate’s:

We will discuss about the executive magistrate later in this article. Now we are going to discuss about the Court of Judicial Magistrate’s.

Under section 6(3) of the code, there are four types of judicial magistrate’s in Bangladesh, as follows-
a. Chief Metropolitan Magistrate in Metropolitan areas and Chief Judicial Magistrate in other areas.
b. Magistrate of the 1st class who shall introduced as Metropolitan Magistrate in metropolitan area.
c. Magistrate of the second class.
d. Magistrate of the third class.

Note that, the word “Chief Judicial Magistrate” includes the word “Additional Chief Judicial Magistrate”; and the word ” Chief Metropolitan Magistrate” includes the word “Additional Chief Metropolitan Magistrate “.

If we divide such magistrate courts separately in respect of the Metropolitan area and others area, then the classifications of judicial magistrate’s court’s become as follows-
*In Others than metropolitan area, the magistrates court shall –
1. Chief Judicial Magistrate / Additional Chief Judicial Magistrate.
2. Magistrate of the first Class who are generally known as ‘Senior Judicial Magistrate’.
3. Magistrate of the Second Class.
4. Magistrate of the third class.

Note: (a) The word ” Senior Judicial Magistrate” is not stated under CrPC, it comes/constituted from the ‘Bangladesh Judicial Service Commission Rules, 2007’.
(b) the magistrate’s of the second and third classes are known as Judicial Magistrate’s.

*In Metropolitan area, the court of magistrate’s shall-
a. Chief Metropolitan Magistrate/ Additional Chief Metropolitan Magistrate.
b. Metropolitan Magistrate (Magistrate of the first class).

Note: there are no second class or third class magistrate in Metropolitan area; and the CJM/ACJM, CMM/ACMM all are also first class magistrate.

(1.4B). Executive Magistrate’s

According to section 10 of the code, the government shall appoint as many persons as executive magistrate as the government think fits and shall appoint government as District Magistrate.
The government shall appoint any Executive Magistrate to be an Additional District Magistrate.
That means there are three kinds of executive magistrate, as:
a. District Magistrate,
b. Additional District Magistrate.
c. Others Executive magistrate.

there are also another kinds of executive magistrate called “Special Executive Magistrate ” that are appointed by the government from any person, in respect of particular cases or a particular class or classes of cases, or in regard to cases generally in any local area outside a Metropolitan area.

Territorial area: The Government may, or subject to the control of the Government, the District Magistrate may, from time to time, by order define territorial areas for the executive Magistrate’s.

(2). Powers of Criminal Courts to trial and Sentencing

The power of criminal courts to trial and sentencing are stated under difference sections of the CrPC. However before discussing about the powers of such court, we should bear in mind that, power to trial offence and power to sentencing is totally different concept.
Now, Let’s see the powers separately:

(2.1). High Court Division

(2.1A) – Trial: According to Section 28 of CrPC the HCD can try any offences as per column 8, Schedule 2 of the Code. Article 110 of our constitution gives power to the HCD to dispose a case itself if the HCD satisfied that a case pending to the subordinate involves a point of general public Importance.
According to section 28 of CrPC, The HCD

(2.1B) – Sentencing: According to section 31(1) of the code, the High Court Division may pass any sentence according to the law.

(2.2). Courts constituted under any law except CrPC

Basically the Special Courts or Tribunals may Constituted under any special law for specific matters. The power of such courts also invested into the law and such court’s exercise the powers to try offense and sentencing as the law conferred on it.

(2.3). Court of Sessions

(2.3A) – Trial: According to Section 28 of CrPC the Court of Sessions shall also try any offences as per column 8, Schedule 2 of the Code.
Moreover, Some specific offences such as Murder, culpable homicide, attempt to commit suicide etc are exclusively triable by the Court of Sessions.

(2.3B) – Sentencing

However, According to Section 31(2) the Session Judge and Additional Session Judge may pass any sentence according to the law; but if they pass any death sentence then the sentence shall be executed after the confirmation by he High Court Division.
The Joint Session Judge has the power to impose a maximum sentence of imprisonment not exceeding 10 years.

(2.4). Court of Magistrate’s

(2.4A) – Trial: Section 28 of CrPC also imposed power to magistrate’s to try offences as per column 8, Schedule 2 of the Code.
However, as per section 29(b), Any offence, other than punishable with death or transportation for life, committed by any person under the age of fifteen years, may be tried by the Chief Judicial Magistrate or the Chief Metropolitan Magistrate or by any Magistrate specially empowered by the Government to exercise.

(2.4Aa) – Special Power of Magistrate’s to trial

Section 29(c) of the code states about special powers of magistrate’s to trial an offences. Under this section, the government may in consultation with the HCD invests powers to the:
(a) CJM, ACJM, CMM to try as a Magistrate all offences not punishable with death;
(b) Metropolitan Magistrate or any Magistrate of the first class to try as a Magistrate all offences not punishable with death or with transportation or with imprisonment for a term exceeding ten years.

(2.4B). Sentences which Magistrates may pass

As per section 32 of the code, the Courts of Magistrates may pass the following sentences:-
(a) Magistrates of the first class may pass Imprisonment for a term not exceeding five years, including such solitary confinement as is authorized by law; and Fine not exceeding ten thousand taka Whipping.
(b) Magistrates of the second class may pass Imprisonment for a term not exceeding three years, including such solitary confinement as is authorized by law; and Fine not exceeding five thousand taka ;
(c) Magistrates of the third class may passes Imprisonment for a term not exceeding two year; and Fine not exceeding two thousand taka.

(2.4Ba). Special powers of certain Magistrates to passing sentence

as per section 33(A) of the code, The Court of a Magistrate, which are specially empowered by the government under section 29(C), may pass any sentence authorized by law, except a sentence of death or of transportation or imprisonment for a term exceeding seven years.

(2.5). Executive Magistrate’s

Basically, as per section 10 of the Code, the Executive Magistrate’s are appointed from the members of ‘Bangladesh Civil Service(Admin)’ ; and the Ac(Land), ADC, UNO shall be the executive magistrate in their respective area. By this provision, it is clear that the Executive Magistrate’s are the part of Executive Department and they are not a part of Judiciary. So, In generally the executive magistrate haven’t any jurisdiction to try any offence and sentencing a person.

But Under Section 11(4) of the code, the government may conferred power to an executive magistrate to perform the functions of a Judicial Magistrate for a period to be determined in consultation with the High Court Division. However such provision is basically for the time of emergency.
Moreover, Under “The Mobile Court Act, 2009” the powers to trial and sentencing has been conferred to an executive magistrate with two conditions as provided under section 6 of the Act.
The two conditions are:
1. The offense shall observed or committed in front of the magistrate; and,
2. The accused shall makes confession before the magistrate.

If such conditions mentioned above are fulfilled, only then an Executive Magistrate can take cognizance of an offence and pass any sentence in accordance with law.

Conclusion

There is a proverb that “Justice delayed, Justice Denied”. Every person has the right to be treated only in accordance with the law, including the accused. And the Courts are always most significant body to perform any type of justice.

The Criminal courts are responsible for assuring that every accused receive fair trials for determining the guilt or innocence of the accused. I have tried my best to discuss about the existing criminal courts in Bangladesh.
At last, i am exiting the article by saying a quote about the Criminal Justice System,

“A judge who cannot punish, in the end associates themselves with the criminal.”
—Johann Wolfgang von Goethe–

The Writer M.M. Shahid Islam, LL.B(Hon’s.), General Secretary, Justice Served Foundation.