Prospect of Alternative Dispute Resolution in Criminal Justice System of Bangladesh

(written in 2011)

Legal system of Bangladesh is uncaring, non-accountable and formalistic. It delivers formal justice and it is oblivious of the sufferings and woos of litigants, of their waste of money, time and energy and of their engagement in unproductive activities, sometimes for decades. When they win a case, the result is much worse than losing it. On the other hand, when they lose a case, they lose not only the subject matter of the dispute, but also a good part of their fortune.

If interlocutory matters are dragged up to the appellate or revision courts, their woos know no bounds and their agonies are prolonged for an indefinite period. Appeals from trial court decrees may reach unto the Appellate Division by which time the parties are thoroughly drenched in misery. When a judgment is thus obtained after protracted litigation, it does not end there. Execution proceedings then re-starts a fresh litigation between the parties or even their  successors which may take years or decades to come to a conclusion and which may end up with no real or positive benefit to the winner. This is the experience of a common litigant in Bangladesh. Added to this inherent and in-built delay and expenses, corruption and often terrorism at almost each stage of litigation is eating into the vitals of the justice delivery system.

According to records, about 750,000 cases are pending with the courts of judicial magistracy. The Supreme Court sources say about 500,000 cases, both civil and criminal, are pending with its Appellate Division and at least 300,000 other cases, including writ petitions, are pending before the High Court Division.

Alternative Dispute Resolution, ADR, has proved its effectiveness as an option outside the formal court’s settlement procedure. It has been welcomed and accepted by the many countries of the world too. An ADR may advantage you by many ways like:

• you may resolve your problem
• you may be awarded compensation
• the procedure is less formal than going to court
• in some schemes, the decision may be binding on the parties
• it may cost you less than going to court
• Suitability for multi-party disputes
• Flexibility of procedure – the process is determined and controlled by the parties to the dispute
• Parties choice of neutral third party (and therefore expertise in area of dispute) to direct negotiations/adjudicate
• Likelihood and speed of settlements
• Practical solutions tailored to parties’ interests and needs (not rights and wants, as they may perceive them)
• Durability of agreements
• Confidentiality

Taking all these advantages, ADR has gained widespread acceptance among both the public and the legal professionals in recent years. Many countries, including developing countries have already adopted ADR in civil litigation to their legal systems.

Prospect of ADR in Criminal cases:

In Bangladesh, the Code of Criminal Procedure (CrPC) does not allow directly to dissolve the dispute out of the court. However, section 345 of CrPC offers certain specific offences to be compounded by the parties. Nevertheless, the system is neither mandatory nor directive. Even not sufficient. Let us have a look on section 345, though the prospect of ADR is narrow here.

5. Compounding offences

(1) The offences punishable under the sections of the Penal Code specified in the first two columns of  the table next following may be compounded by the persons mentioned in the third column of that table:− (a list of some penal offences is mentioned in the columns’)

 (2) The offences punishable under the sections of the Penal Code specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that table−

 (3) When any offence is compoundable under this section, the abatement of such offence or an attempt to commit such offence (when such attempt is itself an offence) may be compounded in like manner.

(4) When the person who would otherwise be competent to compound an offence under this section is  under the age of eighteen years or is an idiot or a lunatic, any person competent to contract on his behalf may with the permission of the Court compound such offence.

(5) When the accused has been 3[sent] for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to 1 Section 493 and the  entries relating thereto was inserted by section 25 of the Code of Criminal Procedure (Second Amendment)  Ordinance, 1982 (Ordinance No. XXIV of 1982). which he is [sent] or, as the case may be, before which the appeal is to be heard.

(5A) The High Court Division acting in the exercise of its powers of revision under section 439 2[, and a Court of Session so acting under section 439A,] may allow any person to compound any offence which he is competent to compound under this section.

(6) The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded.

(7) No offence shall be compounded except as provided by this section.

Criminal cases are of two types- General Registered (GR) case, which filed in Police Station and Complainant Registered (CR) case, which filed in Court. In GR cases, State becomes a aprty i.e. the Complainant. Under section 248 of CrPC, a complainant can withdraw his case during any stage of the proceedings. However, in a criminal court, the maximum number of cases is GR case. So the main complainant or the person made First Information Report is not longer authorized to withdraw the cases; ultimately, this power goes to State. Under section 496, a Public Prosecutor can withdraw any case by the permission of the court. Therefore, if both the parties are intent to dissolve the matter alternatively out site the court or the Complainant intent to withdraw the case, the rule is silence and very narrow.

ADR may be applicable to some cases that are not dangerous in nature and not threaten to society or state. The cases punishable by short term and do not affect negatively over the society if dissolve alternatively, can be brought under the ADR scheme.

Application of ADR in CrPC:

• Offering of a compounding with Complainant and Accused under ADR at the any stage before announcement of judgment.
• More provisions that are penal should be included in section 345 of CrPC for compounding. For example, sections 143, 307, 326, 385, 404, 412, 468, 506 (Part-2) etc. besides, section 138 of the Negotiable Instrument Act 1881, some sections of Nari O Shishu Nirjaton Domon Ain of 2000, Forest Act of 1927 and some appeal under Muslim Family Law Ordinance of 1961.
• After getting the file of cases under compounding sections, the Session Court or the Magistrate Court, after taking cognizance but before framing of charge, shall fix a date to take initiative for ADR. This should be binding.
• There should be a provision of application for compounding by the person made FIR/complainant at the any stage of the proceedings and the Court shall be bound to grant the application for ADR.
• There should have been a provision to confess by the accused at the any stage of the proceedings.
• For applying ADR, there should be a contract signed the parties to the case and the principle of stopple should be apply under section 115 of the Evidence Act of 1872.

ADR in Under-investigation cases:

• In CR case, after taking the cognizance, mandatory ADR can be applicable when both the parties presence at the Court.
• After arresting the accused, the court can fix a date for ADR hearing by the presence of both the parties.

For all these initiatives, an amendment to CrPC is necessary.

The system of Plea Bargaining also needs to be included in the criminal justice system.   Compounding of criminal offences under ADR  and Plea Bargaining scheme can be the best solution of Bangladesh where courts are over burdened by case load.