Procedure of trial (Civil & Criminal)

LEGAL SYSTEM OF BANGLADESH

 

Affidavit

Affidavit means a statement or a declaration of facts in writing made especially under oath or on affirmation before an authorized officer or magistrate.

 

I ………… son of ………… of village …..... P.O ........ P.S. ......... District ........., aged about ........, by faith ............, by occupation or profession ............, by nationality Bangladeshi by birth, do hereby solemnly affirm and say as follows:

1. That I am the petitioner of the above mentioned petition and am acquainted with the facts and circumstances of the case and competent to swear this affidavit.

2. That the statements made herein above in paragraphs 1-10 are true to the best of my knowledge and belief and rest are submission of the learned Advocate.

 

Prepared in my office

.......................

.......................

Advocate

 

Deponent

The deponent is known to me and identified by me.

Advocate

Solemnly affirmed before me by the said deponent at the Court premises on this the ........... day of ...........

 

Commissioner of Affidavits

(Court’s name)

 

Verification

Verified this the ............. day of ............. 2007 sitting at chamber of my learned Advocate that the statements made in paragraphs 1 to 15 are correct to the best of my knowledge and in truth whereof I put my hand hereto.

Verifier.

 

Criminal Case

Pre-trial stage

  • FIR in cognizable offence
  • Information in non-cognizable offence
  • Complaint in cognizable and non-cognizable offence
  • Reporting to the Magistrate
  • Taking into cognizance and the procedure of such taking including transfer to the appropriate court
  • Investigation and maintaining a case diary
  • Police report (Final report/Charge sheet)
  • Narazi petition

 

At the time of taking cognizance the Magistrate may grant remand or otherwise do the followings-

  • Issue of process i.e. summon, warrant, search warrant, proclamation of arrest
  • Order to accept FIR
  • Order to conduct an inquiry or investigation
  • Transfer to an appropriate Court either on application of by own motion
  • Return the complaint for presentation to the proper court
  • May dismiss the complaint after considering the statement on oath

 

Trial stage

i. Trial in Magistrate Court

ii. Trial in Session Court

 

i. Trial in Magistrate Court-

Regular trial-

  • Pre-trial hearing/discharge
  • Framing of charges
  • Plea and convictions
  • Hearing/taking of evidence (Examination in chief, cross examination and re-examination)
  • Acquittal
  • Sentence and transfer for sentence

 

ii. Trial in Sessions Court

  • Opening of the prosecution case
  • Pre-trial hearing/discharge before framing of charge
  • Framing of charge
  • Plea and conviction
  • Prosecution evidence: examination in chief and cross examination
  • Acquittal on the basis of prosecution evidence
  • Defence evidence: examination in chief and cross examination
  • Summing up/ Closing of the prosecution and defence case
  • Judgment of acquittal and conviction

 

Post trial stage

  • In respect of ordinary rational being convicted
  • In respect of a lunatic
  • In respect of a child
  • In respect of a pregnant women
  • Others (Appeal, Revision etc)

 

In respect of ordinary rational being-

  • Every judgment shall be passed in the form of a warrant to the jailor where the prisoner is confined
  • In death penalty, it shall be submitted to the HCD for its confirmation
  • If sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead
  • If acquittal, the Court shall state the offence and direct to set him free
  • The court shall state the reasons behind the judgment

 

In respect of a lunatic-

  • If a person is of unsound mind and incapable of making his defence, the court shall postpone the proceedings
  • Send the person to a surgeon for examination
  • May grant bail
  • If bail is not granted, may order to put him in safe custody in a lunatic asylum
  • The court may resume the trial if the person is capable of making his defence
  • If the offence is committed by a lunatic, the court shall detain him in custody
  • If he is capable of making his defence, the court shall proceed with the matter

 

In respect of a child

  • If the convicted is under 15, the court shall order him to be confined in any reformatory established by the Govt. or in any training centre.
  • The Children Act, 1974 and the Probation Act, 1861 shall be followed in this respect.
  • In a non-bailable offence, bail may be granted if he is below 16
  • If a child who is below 15 years is convicted, his conviction will be suspended and he will be sent to a probation officer.

 

In respect of pregnant woman

  • The HCD shall order the execution of the sentence to be postponed
  • May commute the sentence to imprisonment for life

 

Exceptional proceedings of a criminal case- (p. 326)

  • Bail
  • Transfer of a criminal case- At any time can transfer
  • Withdrawal of a criminal case- P.P under the instruction of the Govt., Complainant in compoundable cases.
  • Appeal, Revision and Reference- Appeal against judgment, Revision against order, Revision in an error of law, appeal in both error of law and fact.

 

Civil Suit-

Pre-trial stage

  • Institution of suit/Presentation of plaint
  • Issue of process (summon)
  • Service of summon
  • Return of summon
  • Filing written statement
  • Alternative Dispute Resolution
  • First hearing and examination of the parties by the court
  • Disposal of the suit at the first hearing
  • Framing of issues
  • Section-30 step and settling of date for hearing
  • Fixation of suits in the daily cause list

 

 

Trial stage

Opening of the case

Peremptory hearing (PH)/ Further hearing (FH), Examination in chief/ Cross examination/ Re-examination, production of evidence

Summing up/ Closing speech/ Argument

 

Post trial stage

i. The judgment i.e. Decree and Order

ii. Enforcement and execution of Decree which includes

  • Application for execution
  • Hearing of the application
  • Show cause notice for execution
  • Procedure after notice
  • Process of execution
  • Mode of execution

 

The plaint shall consist of-

  • The name of the Court in which the suit is brought
  • The name, description and place of residence of the Plaintiff
  • The name, description and place of residence of the defendant
  • Where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect
  • The facts constituting the cause of action and when it arose
  • The facts that the Court has jurisdiction
  • The relief which the plaintiff claims
  • Where the plaintiff has allowed a set-
  • A statement of the value of the subject-matter

 

A Decree shall contain the following particulars-

  • The number of the suit, the names and descriptions of the parties, particulars of the claim, relief granted or other determination of the suit
  • Cost payable and how it should be paid
  • Cost shall be set-off which is admitted or found due
  • Decree should be signed by the judge
  • Decree shall bear the date of judgment
  • A Decree may allow set-off

 

Application for execution shall contain-

  • The number of the suit
  • The names of the parties
  • The date of the decree
  • Whether any appeal has been preferred
  • Payment or other adjustment
  • The amount with interest or other relief granted
  • The amount of costs awarded
  • The name of the person against whom the execution of the decree is sought
  • The mode in which the assistance of the Court is required
  • Certified copy of the decree

 

Mode of execution-

The court shall order the execution of the decree in the following way-

  • By delivery of any property specified decreed
  • By attachment and sale or by sale without attachment of any property
  • By arrest and detention in prison
  • By appointing a receiver; or
  • In such other manner as the nature of the relief may require.

 

Summary trial

In summary trial the Magistrate or Bench of Magistrates need not record the evidence of the witnesses or frame a formal charge in cases where there is no appeal but they shall enter in such form as the Government may direct the following particulars-

  • The serial number
  • The date of the commission of the offence
  • The date of the report or complaint
  • The name of the complainant
  • The name, parentage and residence of the accused
  • The offence complained of
  • The plea of the accused and his examination
  • The finding, and, in the case of conviction, a brief statement of the reasons therefore
  • The sentence or other final order; and
  • The date on which the proceedings terminated

 

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