Anika Nower Suvra :
The principle basis of the criminal justice system in Bangladesh is investigation. After an inquiry, the charge formed by the testimony of the witnesses is proven beyond any reasonable doubt. The accused is punished or bailed. Here, the criminal offences are investigated by the members of the executive body. Some of the executive bodies are Police, Crime Investigation Department (CID), Police Bureau of Investigation (PBI), Detective Branch (DB), and Rapid Action Battalion (RAB).
According to our statutory law, police maintain their protocol for investigating the criminal offences as stated in Section 161 under the code of criminal procedure, 1898. They go to the crime spot and investigate the facts and prepare a charge sheet against the accused person. If the accused person is not guilty, the police send a final report to the court according to Section 173 under the code of criminal procedure, 1898. Now the question arises when police make a charge sheet for the accused person and send it to the court to ensure justice, can there be any lacking of the police investigation procedure?
There are some examples of such cases like accused Aslam Shikder raped a woman, but he was granted bail from the High court division. We know that rape is a serious crime and it is a non-bailable and cognizable offence in our country under Section 376 of penal code 1860 and punishment is life imprisonment or 10 years imprisonment and fine or according to Section 9(1) of Prevention of Violence Against Child and Women Act, 2000, punishment is life imprisonment and fine also. The accused person granted bail under Section 497(2) under the code of criminal procedure, 1898. For that reason, victims often do not get justice in our society. When a victim gets humiliated every day, life becomes difficult for him/her and he/she can even commit suicide. However, police have to take responsibility to maintain the investigation in due time prescribed by law. Section 61 of the Code of Criminal Procedure, 1898 suggests that a person will not be in police custody more than 24 hours and in Section 167(2) of the same Act says, any accused person arrested into custody will not exceed 15 days and Section 167(5) of the code of criminal procedure 1898 mentioned that if the investigation is not completed in 24 hours then the police in charge investigated not exceeding 120 days.
Because of such legal time frame, police sometimes cannot do a proper investigation and have to face a lot of burdens. As a result, Section 24 and 28 of the Evidence Act, 1872 and Article 35 of the constitution gets violated. That’s why a judicial inquiry agency is very much needed. If the government establishes such judicial inquiry agency to work with the law enforcement agency as a helping hand to find conclusive evidence to ensure fairness and justice for deprived people, it may not breach any law according to section 3 under the Commissions of Inquiry Act, 1956.
Besides the executive bodies, a first-class judicial magistrate also investigates under the subject “Judicial Inquiry”. However, those incidents are rare. Because of inadequate equipment and training, judicial officers can’t conduct judicial inquiries. In that situation, an independent Judicial Inquiry Agency (JIA) can be an effective solution for ensuring justice and fairness for mass people. Federal Investigation Bureau (FBI), the most effective investigative agency under the High Court of the United States is a good example in this regard.
Rule of law is supreme and absolute but it cannot be unconditional. If it is unconditional, people will be deprived of their rights. So, I believe that an independent Judicial Inquiry Agency can ensure the rule of law. To describe the idea of rule of law, A.V. Dicey mentioned the supremacy of law, equality before the law, establishment of the law and order, and the protection of human rights. There is a principle of equity which is ‘equity follows the law’.
Our constitution has mentioned about rule of law in Articles 27 and 31. Article 27 says every citizen shall get equal protection of the law. Article 31 suggests a guarantee to enjoy the protection of the law. But another equitable principle which is “delay defeats equity” means the defenses unreasonable delay for an equitable remedy. If any aggrieved person filed a case against the accused person with evidence but the accused person wants unreasonable delay for further investigation from the court.
What will be the consequences in such a situation? There is an unreasonable delay. As a result, the aggrieved person does not get their justice in proper time. Articles 7 and 26(2) mentioned that if there is any law which seems inconsistent with the Bangladesh constitution, that law shall be void. So this equitable principle and Articles 7 and 26(2), 27 is violated. If there is opportunity to investigate the case both by Judicial Inquiry Agency and police, the aggrieved person will have got justice within a short time and thus rule of law can be ensured. Articles 44 mentioned the enforcement of fundamental rights. And a particular organ can do writ under Articles 102. Article 11, 55, 56, 57, and 65 (2) ensure the rule of law.
The police department is a part of the executive body. If the law enforcement agency and an independent judicial inquiry agency work together to find the case documents and send it to the court as conclusive evidence, the country will be prevented from arbitrariness, and rule of law will be ensured.
(Ms. Anika is a student, Department of Law and Human Rights, University of Asia Pacific. Email: [email protected])
