Some important terms of legal proceedings of Bangladesh

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Some important terms of legal proceedings of Bangladesh Empty Some important terms of legal proceedings of Bangladesh

Post by Admin on Sat Jan 26, 2008 9:58 pm

Terms relating to criminal case-

Release or setting at liberty a person from custody. Both the police and the Court can grant bail. Bail can be granted before and after conviction.
Essential elements of bail-
i. Bond
ii. Security
iii. Sureties

i. Bond- It is mentioned here the name of the sureties, security amount, time, place, date and name of the court. It is signed by the person seeking bail.
ii. Security- means the sum of money fixed for bail.
iii. Sureties- mean a person who undertakes by signing the bail.

Bail is of 4 types-
a) Bail in bailable offence (even without signing bond)
b) Bail in non-bailable offence (if arrested without warrant)
c) Pre-arrest/Anticipatory bail
d) Ad-interim bail

Pre-arrest/Anticipatory bail- Application to be placed to the HCD or Session court.

Punishment & theories of punishment
Punishment of four types-
i) Preventive
ii) Punitive
iii) Deterrent
iv) Reformative
v) Expiation

Taking of cognizance
Indicates the point when a Magistrate or Judge takes first judicial notice of an offence. Takes cognizance on the basis of three sources-
i. upon receiving a complaint of facts which constitute such offence;
ii. upon a report in writing of such facts made by any such police officer;
iii. upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.

If the accused in custody, he shall be presented before the court while taking cognizance and may grant remand or do the followings-
a) Issue of process; summon, warrant, proclamation of arrest
b) Order to accept FIR
c) Order to conduct an inquiry or investigation
d) Transfer to the appropriate court
e) Return the complaint for presentation to the proper court
f) May dismiss the complaint

Trial is a proceeding which commences with the framing of charge and concludes with the pronouncement of judgment. It May be conducted summarily or ordinarily.

Charge & Charge Sheet
Charge Sheet- means an investigation report which will be submitted by the police officer to the Judicial Magistrate that the alleging offence may be proved against the accused with relevant documents and statements based on dying declaration, injury report, result of Test Identification (T.I) parade etc.

Charge- is not defined in CrPC. Charge means the name of a particular offence.
Contents of Charge:
i. Statement of the offence
ii. Specific name of the offence
iii. Specific name of the law and the section of law
iv. Statement of previous conviction, if any
v. If it is criminal breach of trust or dishonest misappropriation of property, the gross sum and date
vi. Time and place of the alleged offence and the person against whom the offence is committed
vii. The manner in which the offence was committed.

Framing of charge/Discharge
After submitting charge sheet, the court shall scrutinize the evidences and may discharge the accused. But if the court considers that there are reasonable and credible grounds to proceed on with the case, it shall frame a charge. A trial starts with framing of charge.

Inquiry and Investigation
Investigation- All the proceedings for the collection of evidence conducted by a police officer or by any person who is authorized by Judicial Magistrate.

Inquiry- includes every inquiry other than a trial conducted by a Judicial Magistrate or court.

Burden of proof
The burden of proof shifts constantly as evidence is introduced by one side or the other.

F.I.R & Case reports
F.I.R- can either be written and oral. in both cases, it must be signed by the person making it. There are some non F.I.R Prosecutions where no F.I.R is necessary:
i. under Motor Vehicles Act, 1988
ii. under Municipal or railway bye-laws
iii. under Police Act, 1861
iv. under section 107, 109, 110, 144 and 254 of CrPC.

Police Remand
Taking into custody of the accused for investigation or trial. Should not be more than 15 days.

Terms relating to civil suit-

Suit & Case
Suit- used in civil matters. To uphold the rights of the individuals. Judgment is decree or order based on liable or not liable. Two exceptions-
Execution case- When a judgment is passed a decree-holder needs to execute the decree by filing another application which is known as execution case.
Miscellaneous case- against the order of the court in an application.

Case- used in criminal matters. To maintain law and order. Judgment is guilty or not guilty.

Nonjoinder & misjoinder
Where a person, who is a necessary or proper party to a suit, has not been joined as a party to the suit, it is a case of Nonjoinder. On the other hand, if two or more persons are joined as plaintiffs or defendants in one suit and they are neither necessary nor proper parties, it is a case of misjoinder of parties.

Interpleader suit
Where the real dispute is not between the plaintiff and the defendant but between the defendants only and the plaintiff is not really interested in the subject matter.

Res judicata & Res subjudice
Res judicata- No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title.

Res subjudice- No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in Bangladesh.

Counter claim/ Set off
Set off- Where the suit for recovery of money by the plaintiff, the defendant finds that he has also a claim of some amount against the plaintiff, he can claim a set-off in respect of the said amount.

Counter claim- A claim made by the defendant in a suit against the plaintiff. Therefore, a defendant in a suit may, in addition to his right to plead a set off, set up a counter-claim.

Pauper/Indigen suit
If a person has a property which worth not more than 5000 Taka, his case will be conducted by the legal aid fund of the government. This will support him up to 3000 Taka.

An injunction is a judicial process whereby a party is required to do, or to refrain from doing, any particular act. Four types of injunction-
i. Temporary
ii. Permanent
iii. Ad-interim
iv. Mandatory

Pecuniary jurisdiction- means financial limits which a court can not exceed.
Territorial jurisdiction- means the local jurisdiction which a court can not violate.
Jurisdiction as to subject matter- includes civil, criminal, special cases relating to special subject.
Original jurisdiction- when a case can directly be filed to a court.
Appellate jurisdiction- file a case/suit to the superior court when a man is aggrieved by the order/ decisions/ decrees/ judgments etc by a subordinate court.
Revisional jurisdiction- to revise a judgment when there is an error of law resulting in an error occasioning failure of justice.
Review jurisdiction- to review its or a courts own judgment.
Transfer jurisdiction- to transfer a case for securing ends of justice.
Reference jurisdiction- to refer the matter to the higher court to know the exact meaning of a legal term etc.
Quashment- to quash the proceedings to secure ends of justice and to prevent abuse of the process of the court.

Representative suit
When there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested, which is known as representative suit.

Order, Decree, Judgment
Order- the formal expression of any decision of a civil court which is not a decree.

Decree- the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.

Judgment- the statement given by the judge on the grounds of a decree or order.

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