The New Nation - Internet Edition

K.M.Mukta

Prelude: The Judiciary is the last resort for obtaining redress of one's grievances .Today, the judiciary is called upon to enforce the fundamental rights and basic human rights of the poor and deprived section of the people and this new development has made the judiciary a more dynamic and important institution of the State than ever before. Judiciary as an organ of the state has to administer even handed justice in accordance with the Constitution and the mandate of law. Judges as human beings are not free from human errors and frailties. But the errors or lack of due care, may, if or when it occurs, have disastrous consequences for a litigant. A good judge with the qualities of patience, wisdom, courage, firmness, alertness, incorruptibility and the gifts of sympathy and insight can quench thrust of justice. The same are also embodied in all the religious scriptures.

Matrix of Qualities of a Good Judge/Justice: It is quite difficult and challenging to draw a stereotypical parallelogram of qualities of a good judge/justice as it varies in multitudes of time, place and circumstances. But from time immemorial in the zigzag path of justice in human civilization, we discover some common parlance to appraise the qualities of a good judge. In the Holy Quran the doctrine of Justice has been vigorously stressed.

Article 2.02 of the Universal Declaration of the Independence of justice adopted at 1st World Conference of the independence of Justice held at Montreal on 10 June, 1983 reaffirmed this universal principle as follows : Judges individually shall be free, and it shall be their duty to decide matters before them impartially, in accordance with their assessment of the facts and their understanding of the law without any restrictions, influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

The Judges exercise the judicial power on trust. Normally when one sits in the seat of justice one is expected to be honest, trustworthy, truthful and a highly responsible person.

The public perception of a Judge is very important as Marshal, Chief Justice of the United States Supreme Court said, " we must never forget that the only real source of power we as judges can tap is the respect of the people. " It is undeniable that the Courts are acting for the people who have reposed confidence in them. That is why Lord Denning said, "Justice is rooted in confidence, and confidence is destroyed when the right-minded go away thinking that the Judge is biased".

More than any one else, a judge is a responsible person. His first accountability is, of course, to his own conscience. But that in itself is not enough, because conscience is not always invulnerable. What is also needed is accountability to the constitution, which, in reality, means accountability to public opinion, for the constitution is the ultimate analysis an embodiment of public opinion prevailing in a country.

Lord Denning aptly said, "Every Judge, in a sense, is on trial to see that he does his job honestly and properly."An independent Judge must remain immune from political controversies. Today, Judges have got judicial immunity subject to correction of their judgment in appeal and revision. This doctrine of absolute judicial immunity has become entrenched in the common law world, yet, the Judges are accountable to conscience, to good sense and to the people at large. Justice Pn Bagawati, Chief Justice of India, reminds the Judges that to perpetuate an error is no heroism.

To rectify is the compulsion of judicial conscience. In order to purify the character of Judges and making the life disciplined he has asked the Judges to recollect the inspiring words of Justice Bronson who has stated- "A Judge ought to be wise enough to know that he is fallible and there fore, ever ready to learn; great and honest enough to discard all mere pride of opinion, and follow truth wherever it may lead, and courageous enough to acknowledge his errors".

It is the duty of the Judge to know how to use his knowledge in the dispensation of justice and how to apply the law to change ever changing conditions, the never-changing principle of freedom. Now quoting from Bacon's Essay of Judicature "Judge ought to be more learned than witty, more reverend than plausible and more advised than confident.

" Above all things, integrity is their portion and proper virtue. Moreover, patience and gravity of hearing is also an essential part of justice, and an over speaking Judge is known as well tuned cymbal.

It is the duty of the entire Judge to follow the law who cannot do anything whatever he likes. In the language of Benjamin N. Cardozo: "The Judge even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles." In ancient period the King was the source of justice.

A strict code of judicial conduct was enjoined on the King. He was required to decide cases in the courtroom, his dress and demeanor were to be such not to over-awe the suitors or the accused. The King had to take oath of impartiality and to decide the cases without bias or attachment.

On the importance of the judicial rode and preservation of mental equilibrium, the ancient Jurist Manu says "Having occupied the chair of justice with his body well- attired and mind composed, the Judges shall salute the guardian of deity (chair of justice) and then proceed with the trial. In the language of Katyan, the famous ancient Jurist, "a Judge should be austere and restrained, impartial in temperament, steadfast, God-fearing, assiduous in his duties, free from anger, leading righteous life and of good family." A judge as an individual must maintain the principle of judicial independence and dispose of a case with the principle of fair play.

The main feature of the judicial function is to provide judicial independence. This impartiality in the context of judicial independence means freedom of the judges to decide matters before them in accordance with their impartial assessment of the facts and their understanding of the law without improper influence of any quarters, direct or indirect, visible or invisible.

In all acts of judgment, the Judges should be transparent so that not only the lawyers but also the litigants can easily predict the outcome of a case. Transparency and predictability are essential for the judiciary as an institution of public credibility. After all, the judiciary is manned by human begins living in an orderly society. Setting aside his personal inclinations and prejudices, he must endeavor to achieve as much objectivity, as he can.

Delay in pronouncement of judgment can also become a cause of suspicion in the mind of a litigant and, as such, inordinate delay in delivering judgment must be avoided lack of transparency of activities of a Judge may give rise to doubts and misgivings in the mind of a litigant. A Judge should not show favor to any particular lawyer. The judge is "the pillar of our entire justice system," and the public has a right to demand "virtually irreproachable conduct from anyone performing a judicial function." Judges must strive for the highest standards of integrity in both their professional and personal lives.

They should be knowledgeable about the law, willing to undertake in-depth legal research, and able to write decisions that are clear and cogent. Their judgment should be sound and they should be able to make informed decisions that will stand up to close scrutiny. Judges should be fair and open-minded, and should appear to be fair and open-minded. They should be good listeners but should be able, when required, to ask questions that get to the heart of the issue before the court.

They should be courteous in the courtroom but firm when it is necessary to rein in a rambling lawyer, a disrespectful litigant or an unruly spectator. Finally it could be wrapped by saying that a good judge should possess the following qualities-

Integrity - honest, upright and committed to the rule of law.

Professional competence - keen intellect, extensive legal knowledge and strong writing abilities.

Judicial temperament - neutral, decisive, respectful and composed.

Experience - strong record of professional excellence.

Service - committed to public service and the administration of justice.

Problems: There are multifaceted impediments in case of attaining aforementioned ideal qualities of a judge for materialization of far reaching horizontal and vertical level of expectation by the commonalty from the whole gamut of judiciary.

Do the Jugs get any systematic training during their process of making to build up a state of mind or attitude whereby they become committed to uphold the moral and ethical values and thus, the rule of law?

Or in other words, how much concern, if at all, are our legal professional bodies and the legal education system to produce a lawyer or a law graduate who would never fail to appreciate the ethics in law? Unfortunately, the existing legal education institutes of our country do not teach its graduates the ethics or professional responsibility. There is no conceptual framework that to be a good lawyer a student needs to learn and develop good ethics and as such, there is no subject called legal ethics in the official curriculum of any of the law degree of our country.

To my knowledge no surprise inspection and visit was made to any subordinate Court without prior notice to ascertain the real activities of a subordinate Court.

There is little scope of intellectual development here as the judicial officers cannot publish any articles, research papers unless and until pursuance of complex bureaucratic maneuver for consent from the authority is made. In the District level courts; there are no minimum opportunities of rich library, modern information technology, residence and other ancillary opportunities.

Judicial officers are suffering from lack of basic logistic support and if it is the reality the set parameter of Qualities of a Good Judge/Justice would be substantially unobserved and its expectation would be a 'castle in the air'. In Bangladesh, the expenditure on judiciary in terms of GNP is one of the lowest which is not more than 0.5 percent.

There is mammoth communication gap between the Bar and the Bench while there are no formal and informal steps to minimize the misunderstanding.

The degenerated and colonial psyche is still activated and imbedded in all the decoration of judiciary.

Frustrations, stoical and lackadaisical reality among the judicial officers are hindering judicial activism and qualitative speedy disposal which is constitutional commitment to the citizen at large.

Social stratifications, class biasness, patriarchal chauvinism, all destructive bad omens of capitalism, globalization as neo-colonialism and corruption are tightening the rein of qualities of a good judge/justice.

Lack of positive and constructive criticism rather destructive and war mongering negative criticism about the judge and judiciary is a fundamental impediment of spontaneity to attain qualities of a Good Judge/Justice.

Deliberations in our Courts marred and frayed by temper and loss of patience on either side is an unfortunate recent development, the odour it spreads bears an alarming message for the future generation of lawyers and Judges.

Last but not least, lack of patriotism, commitment and self sanction are quite visual.

Recommendations:

With regard to the accountability of the Judges of the subordinate Courts and Tribunals it may be mentioned that Article 109 of the Constitution of Bangladesh authorizes the High Court Division to use full power of superintendence and control over subordinate Courts and Tribunals. Under Article 109 of the Constitution a guideline in the nature of Code of Conduct can be formulated for the Judges of the subordinate courts for the effective control and supervision of the High Court Division. In this method, the judicial accountability of the Judges of the subordinate courts could be ensured. The Supreme Court of Bangladesh under Article 109 of the Constitution can also issue an appropriate order if it thinks that some sort of directions is necessary for the better administration of justice.

An integrated approach to continuous education of judges and lawyers should be a strategy for strengthening the professional capacity of judicial actors. Hence, regular training and refreshment activities should be effectively implemented by universities and organizations involved in promoting fair trial. The professional bodies (such as the Bangladesh Bar Council, Bar Associations, the Judicial Administration Training Institute etc.)have to play a pivotal role to ensure that their members, before joining their respective profession, go through a proper system of training where they are carefully introduced to the issues of legal ethics and professional responsibility.

Nobody can deny that there is a need for the development of an ethical framework in our entire legal and judicial arena. The utmost need for popularizing legal ethics and basic professionalism cannot be treated so callously. The legal education in Bangladesh should enshrine the courses on ethics and legal ethics as compulsory.

Judiciary as a whole of a country must remain accountable to the Code of Conduct and judicial ethics.

The judiciary must be manned by persons of high quality, courage, determination, devotion and independent and unbiased mind.

The judicial system as of today is a combination of the Judges and lawyers. It is the Bar which makes the judges. It is the Bar which makes the judges. The judges shine with the reflected glory of erudition of the learned members of the Bar. If the Bar does not become helpful the Bench dwindles into mediocrity. The judges and those in the profession of law belong to the same fraternity.

We are all contributing our little mites to building up a just society. It is imperative that these two wings co-operate and co-ordinate with each other to ensure the dignity and independence of the Bench. An independent Bar is as essential for the administration of justice as an independent judiciary. I should like to add that no judiciary can be independent unless the Bar of that country is also independent. In fact, an independent Bar can greatly contribute to the independence of the judiciary.

Evidently, both are responsible for protecting the constitution more than ever before. Bar and Bench must school themselves in the use of language such that they come across as maintaining decorum at all times. A judge should not exhibit a tempestuous disposition on account of a disagreeable conduct on the part of a lawyer.

The principle of "Simple Living and High Thinking" as motto should be nourished and patronized.

Judicial officers' access to modern information technologies like computer data base and internet etc. should be ensured to flourish human resource quality and for justice seems to be done.

The replacement of conservatism by activism in judicial process should be launched.

There should be a holistic and comprehensive efforts to ameliorate the overall socio-economic, political and egalitarian reality to attain the qualities of a good judge/justice

Concluding remarks:

Summing up the above references a Judge can be defined in the following language: "A judge should be God-fearing, law-abiding, abstemious, truthful in tongue, wise in opinion, cautious, fore-bearing, blameless and untouched by greed. 150 millions people of Bangladesh nourish the dream of judiciary with 'justice seems to be done', speedy disposal with quality, accountability, transparency and cost effective which would be devoid of corruption, undue influence, profligacy, rampancy of illegal money/ bribe, unnecessary delay, pettifoggers, humiliation of humanity and crying of the illegally deprived. We no longer want to hear 'justice cries in silence' and 'court is dead; rest in silence' which are frequently echoing among the millions of down trodden justice seekers.

Simultaneously, we should not be oblivious about the great parameter in the language of Chief Justice Mr Nasirullah Beg of Allahabad High Court that the best test for determining the height of civilization in a society is to be found in the extent of honor, respect and regard paid in that society to the Judiciary;-the greater the respect, higher the civilization.

(The writer is advocate, researcher and analyst on Law and Judiciary in Bangladesh. E-mail: Kohinoorgazi@yahoo.com )

2008 (XVI) BL T (AD) 265

Appellate Division [Criminal]

Present:

Mr. Justice Md. Ruhul Amin,

Chief Justice

Mr. Justice M.M. Ruhul Amin

Mr. Justice Md. Tafazzul Islam

Mr. Justice Md. Abdul Matin

Criminal Appeal No.38 of 2000

The State .. , .. Appellant

- versus-

Sai1endra Chandra Borman t. Respondent

For the Appellant: Mr. Abdul' Rouf, Deputy Attorney General, instructed by Mr. B. Hossain, Advocate-on- Record.

For the Respondent : Mr. Aftab Hossain, Advocate-an-Record.

Dates of hearing: 20.02.2008 & 13.03.2008. Result: Allowed

Code of Criminal Procedure, 1898

Section-195(l)( c)

Private Complaint -The alleged forged document was not filed before the Civil Court and only a certified copy thereof was filed. Hence the bar of prosecution as provided under Section 195(1)(c) of the Code of Criminal Procedure is not attracted in the present case. [Para-9]

Anti Corruption Act, 1957

Section-3

An Assistant Inspector of the Bureau of Anti-Corruption is competent to conduct investigation of a case initiated by the Bureau of Anti Corruption and such investigation by an Assistant Inspector of the Bureau of Anti-Corruption is merely irregular but not illegal. [Para-9]

Judgment

Mr. M. M. Ruhul Amin, J:- This appeal by leave is directed against the judgment and order dated 09.07.1998 passed by the High Court Division in Criminal Revision No.249 of 1997 making the Rule absolute and quashing the proceedings of Special Case No.7 of 1996 under Sections 419/420/ 467/ 471/ 109 of the Penal Code read with section 5(2) of Act II of 1947.

2. Short facts are that one Mohammad Abul Kashem, Assistant Inspector of District Anti Corruption Bureau, Kushtia lodged F.I.R. with Kumarkhali Police Station against the accused respondent and others alleging that they in collusion with Modan Gopal Ghosh and Ranjit Kumar Ghosh created a kabala deed No. 41 15 dated 30.06.1992 and another kabala deed No. 4129 dated 30.06. 1992 by false personification and interpolation by inserting 3.97 acres land in place of 97 acres of land and thereby they committed offences under the aforesaid provisions of law. Police on completion of investigation submitted charge-sheet in the case against the accused respondent and others under the aforesaid sections of law.

3. On 05.01.1993 Ranjit Kumar Ghosh filed Title Suit No. of 1993 in the Court of the Assistant Judge, Kumarkhali for declaration that the kabala deed No.4129 dated 3.0.06.1992 is forged, collusive, fraudulent and not binding upon him. The said suit was dismissed on 20.01.1993. In the said Title Suit No.4 of 1993 certified copy of the impugned kabala was produced before the Court. On 06.02.1993 Modan Gopal Ghosh filed Title Suit No. 23 of 1993 in the Court of Assistant Judge, Kumarkhali for declaration that the kabala deed No.4115 dated 30.06.1992 is illegal, fraudulent and not binding upon him. Against the judgment and decree of the Title Suit No.4 of 1993 plaintiff filed Title Appeal No.47 of 1993 which is still pending. It is alleged that taking of cognisance by the learned Divisional Special Judge, in Special Case No.7 of 1996 against the accused respondent is barred under Section 195(I)(C) of the Code of Criminal Procedure.

4. The High Court- Division by the impugned judgment quashed the proceedings of the said case holding that investigation of the case by an Assistant Inspector of the Bureau is contrary to the Provision of Section 5A of Act II of 1947 and, as such, illegal. The High Court Division further held that since the alleged forged document was filed in the Civil Court private complaint in respect of such document is barred under the provisions of section 19S( I )(C) of the Code of Criminal Procedure.

5. Leave was granted to consider the submission that the Assistant Inspector of the Bureau being competent to conduct the investigation under the provisions of law, High Court Division erred in law in quashing the proceeding on the ground that the investigation by the Assistant Inspector of the Bureau was without any lawful authority and the further, submission that bar or the prosecution as provided under section 195(I)(C) of the Code of Criminal Procedure not being attracted and applicable in the present case in view of the fact that the alleged forged document was not filed before the civil Court and only a certified copy thereof was filed, the High Court Division erred in law in quashing the proceedings and the next submission that pendency of civil suit cannot bar the proceedings of criminal case for criminal offence and as such the High Court Division erred in law in quashing the proceeding.

6. We have heard Mr. Abdur Rouf, the learned Deputy Attorney General for the appellant and Mr. Aftab Hossain, the learned Advocate-on-Record for the respondent and perused the judgment of the High Court Division and other· connected papers on record.

7. The learned Deputy Attorney General submits that Section 195 and 476 of the Code of Criminal Procedure speak of production of a document in a proceeding before a Court when the offence appears to have been committed in relation to a proceeding in that court and it is undisputed that in the instant case the alleged forged document was not produced before the Court rather a certified copy thereof was filed. He further submits that in the case of Shamsuddin Ahmed Chowdhury Vs. State and another reported in 49 DLR(AD) 159, it was held that unless the document in question is filed in court, the court cannot make a complaint. Since in the instant case the alleged fraudulent document was admittedly not produced before the Court, the High Court Division was not justified in making the Rule absolute holding that private complaints are barred under Section 195 of the Code of Criminal Procedure. He also cited the case of Ali Aman & another Vs. the State reported in 5 MLR(AD)343 and the case of Md. Takumuddin Par Vs. the State reported in 4 BLT(AD)(1996)83 on the same point. He further submits that the High Court Division was wrong in holding that the Assistant Inspector of the Bureau of the Anti-Corruption was not authorized to make investigation in the case in view of the provisions of section 3 of the Anti-Corruption Act, 1957 and paragraph 59 of the Anti-Corruption Manual. In the case of Md. Abul Hossain Vs. the State reported in 19 BLD(AD)97, it was held that the investigation by an Assistant Inspector of the Bureau of Anti-Corruption does not per se become without jurisdiction and a proceeding cannot also be quashed merely because there is irregularity, if any, in the investigation.

8. Thus it appears that when a forged document is produced and used as genuine before a Civil Court private complaints subsequent to this are not maintainable.

9. From our above discussions, we find that the alleged forged document was not filed before the Civil Court and only a certified copy thereof was filed. Hence the bar of prosecution as provided under Section 195(I)(c) of the Code of Criminal Procedure is not attracted in the present case. We further hold that an Assistant Inspector of the Bureau of Anti-Corruption is competent to conduct investigation of a case initiated by the Bureau of Anti Corruption and such investigation by an Assistant Inspector of the Bureau of the Anti-Corruption is merely illegular but not illegal. (Furthermore pendency of a civil suit cannot bar the proceedings of criminal case for criminal offence.

10. The appeal is accordingly allowed.