Mirza Mohammad Rifat.:What are the reasons on procedure of transfer of criminal cases from any court to another court.

Mirza Mohammad Rifat.:What are the reasons on procedure of transfer of criminal cases from any court to another court.

Mirza Mohammad Rifat.:What are the reasons on procedure of transfer of criminal cases from any court to another court.

Question-What are the reasons on procedure of transfer of criminal cases from any court to another court.

Introduction:

Courts have the authority to transfer a civil or criminal case from one court to another. If any party to a case believes that he will not get a fair trial otherwise, he may file an application for transfer the case with the currently presiding court. According to the Supreme Court, a judge has discretion to transfer a criminal case.

Types of Transfer of criminal Cases:

A criminal case may be transferred by the following authorities:

• High Court under section 526
• Session Judge under section 528         

Power of High Court Devision to transfer of criminal cases:

According to Section 526, Criminal Procedure Code the High Court has power to transfer any case from one Court, subordinate to it to another on any of the grounds specified therein. This power of transfer extends to all classes of cases.

No application shall now lie to the High Court for the transfer of a case from one Court to another Court in the same Sessions division unless an application for such transfer has been made to the Sessions Judge and has been rejected by him.

Object of Section 526:

Section 526 has two-fold objects:

• To provide convenience to the parties and witnesses.
• To ensure that justice should be done beyond all doubts. 

Mode of Transfer:

                                                                     

1.      Application of an interested party.

2.      Application by lower court.

3.      By suo motu order.

• Application of an interested party: 

Applications for transfer of criminal cases may be made by the parties seeking transfer of a case by filing a petition supported by the grounds of transfer. If he is a reasons to believe that he will not get a fair trial, or the transfer is desirable for the convenience of the parties. If the court satisfied about the grounds of transfer may approved the application.

• Application by lower court:

The HCD on the report of the lower court may transfer a criminal case from one court to another court that some question of law of unusual difficulty is like to arise or for the end of justice.  

• By suo motu order:

The power to transfer a case is the discretion of the court. Normally a criminal case may transfer from one court to another court by an application of the parties. The HCD has the power to transfer a criminal case from one court to another court though his suo-motu power of transfer.

Grounds for Transfer of Cases under Section 526:

Applications for transfer of criminal cases are frequently made by accused persons on the allegation that such transfer is necessary in the interest of justice. The most common grounds on which such applications for transfer are made are-

(a) That the Judge or Magistrate is personally interested in the case.

(b) That he is connected with one or the other party to the case by relationship, friendship, etc. and is therefore, likely to be partial.

(c) That he has already formed or expressed an opinion on the subject matter of the enquiry or trial.

(d) That he has conducted himself in such a manner that no fair or impartial enquiry or trial can be expected from him.

Power of Sessions Judge to transfer cases U/S 526 B:

(1) Whenever it is made to appear to a Sessions Judge that an order under this section is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his session’s division.

(2) The Sessions Judge may act either on the report of the lower Court, or on the Application of a party interested, or on his own initiative.

(3) The provisions of sub-sections (4) to (10) (both inclusive) of section 526 shall apply in relation to an application to the Sessions Judge for an order under sub-section (1) as they apply in relation to an application to the High Court Division for an order sub-section (1) of section 526.]

   

 

Power of transfer of Sessions Judge and District Magistrate:

According to Section 528 of the Code of Criminal Procedure 1889.

Under Section 528(1) of the Code any Session judge may withdraw any case or recall any case from any Joint Session Judge Subordinate to it. The Session judge may before the trial of the case or hearing of the appeal may recall any case from the Additional Session Judge. The Session Judge may try the case in his own court and hear the appeal by himself.

Under Section 528(2) of the Code a Chief  Metropolitan  Magistrate, or the Chief Judicial Magistrate, or District Magistrate also has general power to withdraw any case or re-call any case from any subordinate Magistrate to himself or refer it for trial to another subordinate Magistrate.

Under Section 528(3) of the Code the Chief Metropolitan Magistrate, or the Chief Judicial Magistrate, are authorize to withdraw any case from any Magistrate subordinate to him for the purpose of end of justice.

Under Section 528(4) of the code Any Magistrate, may re-call any case made by him under section 192/2 to any Magistrate and may try such himself.

Under Section 528(5) of the code When a Magistrate making an order under this section shall record the reasons in writing for making the same.

Note: In districts in which the experiment of separation of the Judiciary from the Executive is being tried, the work of transfer of cases from one Judicial Court to another is to be performed by the Additional District Magistrate.

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Mirza Mohammad Rifat.: Elaborately discuss the procedural formalities and obligations of section 342 of the Code of Criminal Procedure with view to proper adjudication of a criminal case.

Mirza Mohammad Rifat.: Elaborately discuss the procedural formalities and obligations of section 342 of the Code of Criminal Procedure with view to proper adjudication of a criminal case.

Mirza Mohammad Rifat.:Elaborately discuss the procedural formalities and obligations of section 342 of the Code of Criminal Procedure with view to proper adjudication of a criminal case.

Question-Elaborately discuss the procedural formalities and obligations of section 342 of the Code of Criminal Procedure with view to proper adjudication of a criminal case.

Introduction:

The right to fair trial is human rights, which has been accorded to all the members of human family by international human rights law, as well as national law.Criminal proceeding means the way in which a legal action is brought in a court of justice. The provision of examining the accused, is based on the fundamental maxim "audi alteram portem" i.e. "none should be condemned unheard". The statement enables the accused being heard by the trial court. So the examination of the accused is very significant and most important part of the trial of a criminal case.

 Examination of accused/342 Steps:

According to Section 342 of the Code of Criminal Procedure 1889:

(1)    The Court may, at any stage of any inquiry or trial may put any questions to the accused without previously warning. After examining the evidence it is mandatory for the court to question the accused. The purpose of this examination is to give the accused a reasonable opportunity to explain incriminating facts and circumstances in the case.

(2)    The accused shall not be punishment for refusing to answer such questions or by giving false answers.

(3)    The answers given by the accused may be taken into consideration. After examining the accused and hearing the prosecution and defence, if considers that he has committed any other offence may make inquiry or trial, and put in evidence for or against him.

(4)    No oath shall be administered to the accused.

The examination of accused is mandatory and obligatory for the trial court:

From the language of this section, it can be presumed that the provision of the first part of sub-section (1) is discretionary and that of the second part is mandatory. But our Apex Courts by judicial pronouncements made the provision mandatory and obligatory. Hence, it is clear that the examination of the accused under section 342 the Code of Criminal Procedure is the valuable legal right of the accused which is mandatory and obligatory duty of the court and it cannot be dispensed with. The act of such examination is the solemn act of the trial court and it should not be treated as an idle formality or mere routine work.

For example, in the case of Nurul Islam @ Nur Islam Vs The State reported in 18 BLD-695, the High Court Division of the Supreme Court, held that the provision of section 342 of the Code of Criminal Procedure being a mandatory provision of procedural law, the deviation from the fundamental principles of the said section causes grave prejudice to the accused. Similar decisions have been made in the cases reported in The State Vs Monu Miah & Other-54 DLR-60 (AD).

Necessity of examination of the accused:

Examination of accused is a most valuable right in principle of natural justice. The main object of examination under section 342 of Cr.P.C. is to enable the accused to explain the incriminating circumstances appearing in the evidences against him. The whole object of this section is to afford the accused a fair and proper opportunity to set up his defense in order to establish his innocence. So, this mandatory duty vested upon the trial court and the court shall performed this duty properly, diligently and also most carefully.

The purpose of such examination would be clear from the case of Abdul Wahab vs The Crown reported in 7 DLR (FC) 1987: Wherein the Federal Court observed that, the real object of section 342 is not to cross examination the accused. It is as a matter of fact, when the evidence is adverse to the accused at the time of arriving conclusions. Before drawn such an adverse influence the accused should be offered an opportunity to explanation, if he has anything to say.

Stage when the accused can be examined:

The accused can be examined when a prima facie case is made out against him under section 342 of the Code of Criminal Procedure.Only the court alone is empowered and authorized to examine the accused. So the examination of the accused under the above section must be made after closure of the prosecution witnesses and before the accused is called to put his defense. But when the prosecution evidences is concluded, the court should not repeat all of those questions at the time of re-examination.

            The accused may be examined at any stage of the proceeding, but such examination is not sufficient compliance with this section. A decision taken by the Apex Court in the case of K.M. Zakir Hussain Vs The State reported in 29 DLR (SC)-250, wherein the Supreme Court observed that, after examination of all prosecution witnesses the court shall examine the accused for the said purpose. In this regard more references may be found in the cases reported in 12 DLR-274.

In the conclusion, it may be said that the accused can be examined under section 342 of the Code of Criminal Procedure by the trial court more than once at any stage and complete examination must be made after closure of prosecution is completed.

Guideline for examination of the accused:

There is no model regarding the framing of questions by the trial court, but some guidelines and principles have been well settled by the Apex Courts regarding the examination of an accused under section 342 of the Code of Criminal Procedure and those are as follows-

(1)   Proper warning to the accused should be given before the examination.

(2)   The questions must not be in the nature of cross-examination.

(3)   The questions must not be in such nature that the accused is bound to admit the offence.

(4)   Irrelevant questions which may confuse the accused should not be asked.

(5)   Questions should be put in such a manner that it can be answered properly.

(6)   Lengthy form of circumstantial questions cannot be asked.

(7)   No oath shall be administered to the accused when he is examined.

Procedure of examination under section 342 Cr.PC:

The examination of an accused under section 342 of the Code of Criminal Procedure is actually a direct dialogue between the trying Judge or Magistrate and the accused about the evidence produced against him. So, during such examination the answer or explanation given by the accused must be recorded by the own hand of the trying Judge or Magistrate in the prescribed form accordingly.

             It is often seen that some of the trial Judges and Magistrates after the prosecution witnesses are examined, ask general question like -Whether you are guilty or you have already found guilty, what is your answer? Or you have heard the evidence of the prosecution witnesses, what have you to say? And record the shortcut answer of the accused like- I am innocent. These types of questions are not only improper and in procedural but also very much prejudicial to the accused. 

            Examination of accused by such type of questions is also not sufficient compliance with Section 342 of the Code of Criminal Procedure. The Apex Courts held that an accused should be properly examined and, if a point in evidence is considered important against the accused, should be questioned about that point and given an opportunity of explaining. 

The Judges and Magistrates must realize the importance of the examination under this section. He should perform this by proper questioning and adequate manner. Because it is a solemn act of the trial court and should not be treated as an empty formality. It is also a most important duty of the trial court while examining the accused to incriminating documentary evidences like-

(1)   Confessional statement of the accused U/S 164 of the Code.

(2)   Dying Declaration of the victim.

(3)   Expert’s Report or Chemical Examination Report.

(4)   Medical certificate or Injury Report.

(5)   Post Mortem Report or Report of Physician.

(6)   Alamat of the Occurrence, DNA Report, etc.

Lastly the accused must be asked, during his examination under section 342 of the Code of Criminal Procedure whether he will produce any witness or adduce any evidence in his defense. If he answers (Yes/affirmative) i.e. accused wants to adduce witnesses in support of his defense, the trial court is to record the answer and proceed accordingly.

Evidentiary Value of the Statement of Accused:

The Statement given by the accused during his examination under section 342 of the Code of Criminal Procedure is entirely for the benefit of accused and the accused only. The statement cannot be used by the Court against him. 

The answers given by the accused may be taken into consideration, but the statement of the accused cannot be used as evidence, unless its truth is otherwise established. The statement of one accused cannot be used against co-accused. Admission of guilt made by the accused during his examination, if found clear, unambiguous the court may consider it as evidence and proceed to convict him. 

Similarly, during his examination under section 342 of the Code of Criminal Procedure if a confessing accused does not deny his confessional statement then the confessional statement may be used against the accused cited in the case of Iftekher Hossain (Md.) @ Al-Manun & others Vs The State reported in 59 DLR (AD)-36.  

Conclusion:

In the conclusion it should be mentioned that the statement given by the accused during his examination under section 342 of the Code of Criminal Procedure, may not be sacrosanct but certainly it deserves proper consideration. 

       

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