Problems in investigation wings to ensure fair trial in criminal justice system of Bangladesh: our expectation and achievement.

Problems in investigation wings to ensure fair trial in criminal justice system of Bangladesh: our expectation and achievement.

P

At the outset I must say that an independent, impartial and efficient judiciary is the very foundation for democratic development. In a democratic polity like ours, the judiciary plays a vital role. The integrity of the judicial system is central to the maintenance of a democratic society. Through the judicial system, the rule of law is applied. Without an impartial judiciary, democratic character of Bangladesh will be destroyed. However, criminal justice system of Bangladesh by its very nature, has become excruciatingly slow and inefficient.

I must honestly say that at present there is an abnormal delay in litigations in Bangladesh, both in civil and criminal cases. Criminal justice system is manifesting abnormal delays in litigation and huge pendency of cases in all courts from the sub-ordinate judiciary to the supreme court of Bangladesh. Most importantly, the problem of delay in disposal of case in Bangladesh is a highly complex problem in which many factors  are involved which need to be addressed in phases. In real sense, to ensure fair Justice, fair and impartial investigation of criminal cases is undoubtedly a milestone which we can not see to happen in Bangladesh.

In our country, crime investigation has not yet been made seperate, thereby the investigation has not been done efficiently and properly. The police commission headed by Mr. Justice Aminur Rahman Khan in its report suggested for separate investigating agency with proper and adequate training of police. In fact, we need honest and well trained person for efficient investigation. Our investigating agencies are very corrupt and as such people suffer to a great extent.

It is difficult to get development in criminal justice system, unless we can ensure a fair investigation. According to the law, the time that could be taken for the submission of report of investigation into the incident a maximum of seven days. The facts received about this shows that in 65.3% of the reports of the cases, it was submitted in exactly seven days, while in 34.7% of the cases the report was submitted before seven days. In no cases among the courts selected for observation were incidents of investigation exceeding this seven day limit period. So, it can be said that reports of investigation were submitted in court in accordance with the stipulated time limit of seven days set down by the court.

Now I need to state that apart from maintaining law and order by engaging them selves in prevention of crime and enforcement of laws in some petty offenses, detection and investigation of crime, arrest of accused and collection of evidence are one of the major duties of the police force.

Though separate judicial magistracy started its journey delayed, defective and biased investigation of crimes in one of the major stumbling blocks that hunt our crippling criminal justice system.

However a police case which is also popularly known as general register case is set in motion by filing a FIR concerning commission of cognizable offense to the officer in-charge of a police station (Section 154 of code of criminal procedure). A police officer may investigate any cognizable offense without the order of the Magistrate (Section 156 of crpc).

After recording the police case officer in-charge may himself investigate the case or instruct a police officer and not the below rank of sub inspector to investigate the same.

In practice investigating officer inspects the place of occurrence, prepares the sketch map along with the index of the spot, records the statements of the witnesses who are supposed to be acquainted with the facts and circumstance of the occurrence (Section 161 of Cr PC), seizes the seized articles (Alamat) and thus prepares the seizure list in presence of the witnesses (Section 103).

Then arrests and tries to apprehend the accused and suspects and forwards them to the nearest Magistrate with in 24 hours of their arrest (article 33 of constitution of Bangladesh), detains and interrogates them in custody (remand) (Section 167 of crpc), Produces the accused or victim before the Magistrate to have his/her confession/statement recorded (Section 164 of Cr pc), section 22 of the Nari o Shishu nirajaton Damon Ain 2000).

Sometime they conduct the inquest report of the deceased for autopsy, collects medical certificates and expert reports, maintains diary of proceeding of investigation (Section 172 of Cr PC), and submits the police report (Section 173 of Cr PC).

Police regulations 1943 code of criminal procedure 1989, or concerned special laws, evidence Act 1872, constitution and precedents are the authority and guidelines to which the investigation officers must adhere to.

The key problems of investigation wings while conducting investigation in Bangladesh:

The code of criminal procedure does not provide for any specific time limit with in which investigation is to be completed. However, there is a statutory indication is section 167(1) that investigation is to be completed within 24 hours. Further, section 167(5) empowers the cognizance taking Magistrate or Judge to grant bail to the accused if investigation is not completed within 120 days. Police regulations also state that even most difficult criminal investigation should not take more than 15 days if the investigation goes at stretch (regulation 261).

Quite strangely, criminal investigation department or detective branches, Rapid action battalion take longer period in completing their investigation then the regular police force take. In practice, investigating officers do not record the statement while examining the witnesses but subsequently make a summary of what the witnesses said at the time of examination. They prepare the record of those statements at their ‘free time’.

As a result, many vital points are found to the missing in their recorded statements. The statements of witnesses these recorded can not be used by the prosecution but can be used by the defense under  section 162 to contradict a prosecution witness in the manner provided by section 145 of the Evidence Act 1872. Investigating officers have very little idea about the importance of statements made under section 161 of Cr PC.

Some times sketch map and index of the place of occurrence are prepared without clear specification. Also alamat are seized in the police station long after the occurrence which is produced by the informant. It is the duty of the police officer to seize alamat at the place of occurrence or hospital immediately after the occurrence.

Delayed seizure list at some other places other than the place of occurrence surely invites doubt. There is no need of recording the statement of informant during investigation. However in many cases, investigation officers, record the statement of informant who himself is the victim.

There is also delay in collecting medical certificates and other expert reports. More over, investigating officers sometimes do not send a case diary along with remand prayer. As a result accused is sent to the Jail custody pending hearing of the remand prayer for some other date. In this way, accused becomes acquainted with the hardened criminals in Jail custody and makes deliberate attempt to dodge the investigating officer even he/she is in remand in subsequent date.

Keeping the accused for long in police custody before being forwarded to the Magistrate for recording his/her confession under section 164 of Cr PC obviously destroys the veracity of such confession. Sometimes investigating officer submits final report on the plea of alibi of the accused. Informant and investigating officer being the same officer is also fatal to the prosecution case.

There is no pretrial conference of the investigating officer and public prosecutor and most of the investigation officers have no knowledge on law of evidence. Investigating officers also feel reluctant to give testimony during trial, though court issues all possible processes. Sometimes, during trial, there is no trace of investigating officer who has been transferred to some other places.

The prime object of investigation is to detect the accused persons who have committed the offense. In this way investigating officer is to collect evidence to be used during trial. Therefore, a faulty investigation leads to miscarriage of Justice when there is faulty evidence. It is worth mentioning that investigation is the basic substratum upon which trial of criminal cases is founded.

I am of firm view that reforms in the criminal  Justice system should be initiated first at the investigating stage. In fine, I would like to reproduce observations of the Honorable  High Court division reported in 4 MLR at page 87 thus:

“We have come across many cases in which due to faulty investigation accused get benefit of reasonable doubt in spite of consistent and uniform evidence of prosecution witnesses about the occurrence. As a result, people of our country have been losing faith in the present system of administration of Justice mainly due to the failure of the police to properly investigate the case and collect the evidence. It is high time that the system of the investigation of the criminal cases by the police alone should either be abandoned or completely reformed.”

However, I strongly believe that unless we can change our moral ethics in all the way of life, it will be a little bit day dream to wash way the manifold latches, problems and drawbacks of investigation wings to bring to light the true and fair investigation for ensuring our opted Justice and Equity in fact.

No telling to say that political influence, biasedness, corruption and moral defalcation, less competence of investigation, inadequate procurement and facilities to the investigation wings,  lack of ICT & modern investigating training, having no awarding system to the best investigating officer and many more reasons chase the criminal Justice system about to bury in Bangladesh.

What I strongly believe is that in Bangladesh Global standard detective training academy, investigation officer training school should be established in no time to get the real taste, not the mockery in the name of trial, of Justice & Equity in our country.

Apart from this, I can not help saying and pointing out that crime, trial process & natural Justice are inter – connected terms with each other.

More specifically, to ensure the best, appropriate and ultimate award “Punishment” to the criminals, the existing folded and unfolded problems in investigation wings of Bangladesh have to be erased and washed away for the sake of ensuring Justice and Equity in the bead of this country, the Earth as well.