Low conviction rate in Bangladesh: Some relevant thoughts
Aminul Hoque Mithu
Anywhere in the world, the core concept of criminal justice administration system is that all the criminal acts as well as omissions go against the society and the state because the state and the society have their best interest in maintaining law and order, peace and tranquillity, co-operation and harmony among the people. This thing is apparent from the title of the criminal cases. If Mr. Abul Hossain (an imaginary name) commits an offence in Bangladesh, the criminal case against him will have the name State Vs Abul Hossain ,in United Kingdom it will be R Vs Abul Hossain, in United States it will be Commonwealth Vs Abul Hossain. In every country a common practical test is applied to asses the efficacy of the criminal justice administration system and that is to look at the conviction rate in criminal cases. Of course this conviction rate indicates those conviction, which are arrived at beyond reasonable doubt, after adopting a due process and fair procedure of law.
In United States the District Attorneys' offices take pride in the fact that they could secure a high conviction rate. As it is not easy to prove one's guilt beyond all reasonable doubt, so the conviction rate shows the amount of trouble the state attorneys took in discharging their office. Sometimes the conviction rate is also the indication of the ability, sincerity and integrity of the public prosecutors. So it has become the custom in the developed countries to appoint very sincere lawyer as public prosecutor. It is worth mentioning here that high conviction rate is the result of a sincere joint effort of the public prosecutors as well as the police investigators. Perhaps police has a greater role to play in securing conviction. This is police who conducts field level investigation and public prosecutors merely present in the courts all the evidences procured by police from crime scene. So here the police investigators are very vital role players.
In Bangladesh perspective, we will find that in our courts of law very few criminal cases end with conviction in trial courts. Then much of the convictions in trial court are reversed at appellate level. This is the general picture though some exceptions to this are now seen after introducing Speedy Trial Tribunals. These special tribunals are maintaining a high conviction rate. But this rate is not beyond controversy and there are many allegations against it, among those the vital one is that judges have become desperate to award sentences to overcome the bad impression about criminal justice administration system in Bangladesh overnight, which have been built over a long period.
A lot of reasons can be attributed to the low conviction rate in Bangladesh. But the most important ones are weak police investigation which is hardly sufficient to lead to a conviction, inefficiency of public prosecutors i.e state attorneys, lack of commitment to ensure justice on the part of the lawyers, the large scale corruption practised in the law courts and the last but not the least the attitude of the people. In this article one has dealt with the first two reasons.
Weak police investigation
In a criminal case the most vital part is the police investigation report. The initial prosecution is done by the police. After doing the investigation police gives a report u/s-173 of CrPC.If police submits a chargesheet the trial in courts begins but if police reports that the allegation has not been found in the form of a Final Report, then the accused is/ are discharged from the case. From my experience, though for a short period, I can say that most of the cases here end with acquittal of the accused because there are many loopholes in the police investigation report. In many sensational cases it was seen that the police reported they found nothing. Though it is claimed by the police that they are under a lot of constraints like insufficiency of manpower and sophisticated instruments, political pressure etc but the main reason is undoubtedly the existing corruption in the police department.
Police always takes a long time to conduct the investigation. But criminal justice system always prefers immediate findings because the major part of a criminal case has to be proved by the oral testimony of the witnesses and with the passage of time there increases the probability for the evidences to be fabricated by the influence of a lot of social, economic and political factors. In a number of cases the Supreme Court of Bangladesh has declared evidences unacceptable because of their being recorded after a considerable period in the absence of strong reasons for doing so. In the case of State Vs Babul Hossain (52 DLR 400) the High Court Division held that because of belated examination of the witness by the police officer for no plausible reason, possibility of embellishing the prosecution case by the witness can't be ruled out.
Again in the case of Moin Ullah Vs State (40 DLR 443) the High Court Division held that the examination of the prosecution witness u/s-161 of Cr.P.C after a considerable lapse of time casts a serious doubt on the prosecution story. Our problem is that the investigation report given by our police officer is hardly a neutral one. It either favours the defence or the prosecution side but in both cases the investigation report becomes weak and legally unreliable and unacceptable and the ultimate result is non-conviction in the case.
Role of public prosecutors
Unlike the US experience, we aren't fortunate enough, in most cases, to have our best lawyers in the Public Prosecution office. These has days allegedly it become a profitable portfolio to be awarded to the partymen. The broadside allegation against politicians turned PPs is that in many cases they are not honest, eligible and efficient up to the required level. It is the duty of PPs to conduct the whole case by producing the witnesses in the court, by taking steps to bring the perpetrator to justice. In criminal cases now it is very easy for a serious offender to obtain bail by managing the PP concerned and it is alleged that they remain silent when the criminals pray for bail. Besides, the sufferers know that it is a common scene in sessions court that no work is done in a case and a new date is fixed in some later months because the witnesses are absent. It is the duty of the PPs to produce witnesses before the court and in very rare cases they do it. Even such cases can also be found where no witness was produced in the last 7-8 years though the proceeding is a continuing one.
Here we have to mention the cases of expert witnesses e.g the doctor conducting autopsy, post mortem or at least giving medication to the victims, fingerprint experts, firearms expert etc who usually take a lot of time to appear before court as witnesses. The worst case is that of a police officer conducting the investigation in the case, known as IO. In many cases there are more than one IO involved and a criminal case never becomes successful without examining the IO in the court. The problem arises when the IO is transferred after conducting the investigation but before being examined as a witness in that case. The court has to send a number of calls to make them appear in the court. Even after that a number of cases have to be concluded without the examination of the IO and the result of those cases are, mostly, acquittal of the offender as the IO confirms the statements recorded by him u/s -- 161 of the Cr.P.C and any deviation therefrom by the witnesses in their testimony given before the trial court.
In the case of Bhopal Singh Vs the State of Rajasthan [1989 (1) RLR, 492] the court has taken the view that the investigation officer is a very important witness and if he is not examined and doesn't prove the case, the entire story of the prosecution would fall flat on the ground. Again in the case of J. K Devariya Vs the State of Coog (1956 Cr L.J 904) Mysore High Court held that non-examination of the investigating officer is a serious omission on the part of the prosecution. The accused is entitled to know from the investigating officer what story the witnesses gave to him during the investigation and whether the same is consistent with the evidence produced in the court. This is the typical view taken by the law courts in a criminal trial and consequently many criminals are escaping on this plea.
The above two are the main procedural defects which are ,with other reasons, making our criminal justice system a worst one. Among the other reasons the prevailing corruption in the lower courts, political subordination of the judiciary as well as filing of false cases as a result of political malpractice are worth mentioning. Besides we don't have any kind of witness protection system and as a result witnesses aren't tending to appear before court which vitiates the trial. I think these reasons can be the topics of a further research but we can validly make a comment that all the evils are joining together to make our criminal justice administration system an ineffectual one and this situation should immediately be changed if we still care for any justice.
The author is a practicing lawyer in Dhaka district court.