Gulam Rabbani :
Nowadays video and audio clips have become the important evidences to prove the correctness of an incident. But, video and audio recordings on electronic devices have not yet been accepted as the admissible evidence in our judicial process. But many countries in the world, including neighboring India, have reformed the law long ago regarding the issue.
A writ petition was filed at early of this year with the High Court seeking its directive upon the concerned bodies of the government to reform the law and to take necessary step to consider information contained in an electronic device (mobile, Video, computer, magnetic media etc.) during pendency of investigation of a criminal case.
Shammi Akther, a Supreme Court lawyer, filed the petition as a public interest litigation. The High Court is yet to hear the petition.
The petitioner also prayed to the court to issue a rule upon the respondents to explain as to why the failure of the respondents to inclusion of the provision in respect of information contained in electronic device (mobile, Video, computer, magnetic media etc.) as admissible evidence in the evidence Act 1872 in view of proper adjudication of a case should not be declared illegal.
It also sought rule as to why the respondents should not recommended to take necessary step to inclusion of the
provision in respect of information contained in electronic devices as admissible evidence as per the evidence Act 1872 for proper adjudication of a case.
There is no alternative of proper evidence and witnesses to ensure justice for the victim in any criminal offence. But the hundred years old Evidence Act doesn’t give any security to the witnesses. An initiative was taken in 2011 to formulate a separate law for the protection of the witnesses. Although a long time has passed, the draft law has not seen the light of day.
The High Court also asked the government bodies concerned to formulate a law for the security of the witnesses at different times. But the directions were defied.
J R Khan Robin, a Supreme Court lawyer, said, “Sometimes the act cannot determine the actual fact in modern age as most of the offences are associated by using digital devices. But in respect of that there is no provision in the evidence act 1872. Whereas India has incorporated a special provision to evidence related to electronic recording by amending section 65(A) of the Indian Evidence Act 1872.”
“However, under section 3(16) of the General Clauses Act, under section 29 of the Penal Code in respect of digital witness and according to sections 161 and165 of the Code of criminal procedure, the investigating officer is empowered to include any evidence in a case. So in our country, under Section 3 and 65 of the Evidence Act 1872 should be amended by incorporating provision in respect of digital witness,” added the lawyer.
The Evidence Act has some other loopholes. Two sections of the Evidence Act allow questioning the “character” of rape victims. A writ petition was filed with the High Court on November 14 this year challenging the legality of these two sections of the act.
Three rights organisations, Bangladesh Legal Aid and Services Trust (BLAST), Ain O Salish Kendra (ASK) and Nari Pakkho, submitted the petition as a public interest litigation seeking cancellation of Sections 155(4) and 146(3) of the Evidence Act.
The petitioners sought a rule upon the respondents to explain as to why the sections 155(4) and 146(3) of the Evidence Act, 1872, should not be declared to be unconstitutional being in violation of the fundamental rights.
Section 155(4) of the act says, “When a man is prosecuted for rape or for an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.
According to Section 146(3) of the act, “When a witness is cross-examined, he (she) may, in addition to the questions hereinbefore referred to, be asked any questions which tend — to shake his (her) credit, by injuring his (her) character, although the answer to such questions might tend directly or indirectly to criminate him (her) or might expose or tend directly or indirectly to expose him (her) to a penalty or forfeiture.”
Petitioners’ lawyer Barrister Sara Hossain told the reporters that the two sections of Evidence Act allow questioning and cross-examination of the rape victims’ character and history which are contradictory to their fundamental rights.
During the hearing on the writ petition on Nov 16, Attorney General AM Amin Uddin informed the High Court that the government had taken a decision to scrap the concerned sections of the Evidence Act that allow questioning the “character” of rape victims.
After the hearing, the High Court bench of Justice M Enayetur Rahim and Justice Md Mostafizur Rahman asked the Attorney General to submit a report containing the government steps taken in this regard to the court as an affidavit. It also fixed January 4 in 2022 for further hearing on the matter.
