After dealing with the examination chief of the investigation officer relating to the Sayedee case in the morning, the tribunal after lunch dealt with the case of Salauddin Quader Chowdhury
Fakhrul Islam, Chowdhury's defense lawyer mentioned to the tribunal there are eight applications pending before the ICT.
1. An application to release the petitioner as the petitioner has been under arbitrary detention.
2. An application to review the Order on the application for bail.
3. An application in regards to Rules of procedure which is not adequate to conduct a fair trial.
4. An application to disclose the materials and statements taken during interrogation at the so called safe home.
5. An application to review the Order on application to transfer the case from this Tribunal to an appropriate court or tribunal under P.O 8 of 1972.
6. An application to review the Order on application to discharge the petitioner (additional ground on discharge petition)
7. An application to supply legible copies.
8. An application to supply transcript of Argument.
Fakhrul Islam: My first application is an application with regards to Rules of procedure which is not adequate to conduct a fair trial.
He said according to section 23 of the Act, “The provision of CrPc and Evidence Act shall not apply in any proceedings under this Act” and here Proceedings before a Tribunal commence upon the submission of formal charge.
My lord, formal charge of this case was submitted on 17th November 2011 and petitioner was arrested in another case on 9th December 2010. So it is clear that case has been started from 17th November 2011 upon the submission of the formal charge. So I would like to mention that, in case of pre proceeding stage CrPc and Evidence Act will be applied upon the case of petitioner. Since CrPc and Evidence Act will be applied on pre-proceedings stage so Investigation report should be given to us. As a reference of the (60 DLR page 1) investigation report is supplied to the defence because the investigation report is the basis of the case.
Justice Nizam: Documents upon which prosecution relies will be provided to the Tribunal and defence as well.
Fakhrul Islam: My lord, I disagree with you at this point, it is clear that we should be provided investigation report since CrPc will be applied upon the pre-proceedings stage. And according to the section of 76 of the Evidence Act certified copies also need to be supplied to us. But we did not get anything.
My lord, we need to know who lodged the case and witness should be examined under section 200 of the CrPc as CrPc will apply in pre-proceeding stage.
In order to conduct a fair trial proceedings should be conducted fairly. Pre-proceedings stage in case of the existing petitioner should not be denied as the complaint register is not known. In fact, we are suffering for the inconsistency of the pre-proceeding stage.
Justice Nizam: That means you want to say rules and procedure are not adequate to conduct fair trial. Mr. Fakhrul islam you will be given investigation report and certified copy if CrPc and Evidence Act will be applied in pre-proceedings stage.
Fakhrul islam: We also want statement reduced into writing as per sec 8(6) of the ICT and materials collected to prepare investigation report at the pre-proceedings stage.
Justice Nizam: Let’s see whether CrPc and evidence will be applied or not?
Fakhrul Islam: I do not know what harm will occur if report has been given to us. It is very important to us to get report as in one press conference Investigation officer said in one case matter that there are 32 charges against the accused but prosecution submitted 25 charges before the Tribunal.
Justice Nizam: To get investigation report is the main purpose of your petition?
Fakhrul Islam: there are 3 purposes:
1. Illegality should be avoided by applying CrPc and Evidence at the pre-proceedings stage.
2. Order should be passed so that we are not deprived of legible copies.
3. Rule should not be conflict with the parent law.
Justice Zaheer: So far I understand, basic word of the petition is, to formulate rule like 154 CrPc so that you can know upon which basis your case has been filed.
Fakhrul Islam: Yes, My lord.
Justice Nizam: That means you want to say rules are sufficient so it should be amended for fair trial.
Anwarul Hauque: According to CrPc either there is C.R case or G.R case. Is there is any provision in CrPc to go any other place for filing case without filing C.R and G.R case?
Secondly, whether there is provision in CrPc or ICT that CrPc will be applied before the submission of Formal charge?
Fakhrul Islam: My lord, in this act it is clearly stated about the commencement of the Act.
My lord, if the word “proceeding” is not mentioned here then CrPc and Evidence will not be applied here. This Act was for 195 prisoners like Nuremburg trial where 24 persons were prosecuted.
Justice Nizam: After the amendment in 2009 the position of the Act is changed.
Justice Nizam called upon the prosecution to submit there argument.
Zead-al-malum: Parlaiment gives the power to the Tribunal to make rules for interest of the justice; In fact, the Act was enacted for ends of justice. Here pre-proceeding is also a proceedings. So there is no chance to apply CrPc and Evidence in sec 23. So I think petition is nothing but killing of time. And suggestion in sec 22 will not be applied if it is barred by sec 23.
Haider ali (prosecution): My lord, I would like to say there are two stages one is proceedings stage another is pre-proceedings stage. So I think, giving suggestion is not necessary here as section 8 is already exists.
Fakhrul islam: They missed my point, I did not say about sec 8 just I want to say when CrPc and Evidece will be applied.
Justice Zaheer: In sec 9 it is specified that, “commencement of the proceedings before the tribunal” not “under the Act”. And in section 23 it is stated that “CrPc and Evidence shall not apply in any proceedings under the Act” not “before the Tribunal”
Just I want to say there are 3 components of this Act
1. Tribunal
2. Prosecution
3. Investigation.
So as per sec 23 “CrPc and Evidence shall not apply in any proceedings under the Act” means proceedings not only before the Tribunal but also before the other components. So CrPc and Evidence will not be applied here. In sec 9 the commencement is only related to before “the Tribunal” not “under the Act”.
Fakhrul Islam: My Lord, meaning of the proceedings is same everywhere like the meaning of fairness, trial and tribunal.
Justice Nizam: No, meaning are not same, in each Act there is a definition clause where it is specified the meaning of those terms under the particular Act.
Order Given by Justice Nassim:
Justice Nizam: Okay then please come with a review petition.
Then the court is adjourned.
Fakhrul Islam, Chowdhury's defense lawyer mentioned to the tribunal there are eight applications pending before the ICT.
1. An application to release the petitioner as the petitioner has been under arbitrary detention.
2. An application to review the Order on the application for bail.
3. An application in regards to Rules of procedure which is not adequate to conduct a fair trial.
4. An application to disclose the materials and statements taken during interrogation at the so called safe home.
5. An application to review the Order on application to transfer the case from this Tribunal to an appropriate court or tribunal under P.O 8 of 1972.
6. An application to review the Order on application to discharge the petitioner (additional ground on discharge petition)
7. An application to supply legible copies.
8. An application to supply transcript of Argument.
Fakhrul Islam: My first application is an application with regards to Rules of procedure which is not adequate to conduct a fair trial.
He said according to section 23 of the Act, “The provision of CrPc and Evidence Act shall not apply in any proceedings under this Act” and here Proceedings before a Tribunal commence upon the submission of formal charge.
My lord, formal charge of this case was submitted on 17th November 2011 and petitioner was arrested in another case on 9th December 2010. So it is clear that case has been started from 17th November 2011 upon the submission of the formal charge. So I would like to mention that, in case of pre proceeding stage CrPc and Evidence Act will be applied upon the case of petitioner. Since CrPc and Evidence Act will be applied on pre-proceedings stage so Investigation report should be given to us. As a reference of the (60 DLR page 1) investigation report is supplied to the defence because the investigation report is the basis of the case.
Justice Nizam: Documents upon which prosecution relies will be provided to the Tribunal and defence as well.
Fakhrul Islam: My lord, I disagree with you at this point, it is clear that we should be provided investigation report since CrPc will be applied upon the pre-proceedings stage. And according to the section of 76 of the Evidence Act certified copies also need to be supplied to us. But we did not get anything.
My lord, we need to know who lodged the case and witness should be examined under section 200 of the CrPc as CrPc will apply in pre-proceeding stage.
In order to conduct a fair trial proceedings should be conducted fairly. Pre-proceedings stage in case of the existing petitioner should not be denied as the complaint register is not known. In fact, we are suffering for the inconsistency of the pre-proceeding stage.
Justice Nizam: That means you want to say rules and procedure are not adequate to conduct fair trial. Mr. Fakhrul islam you will be given investigation report and certified copy if CrPc and Evidence Act will be applied in pre-proceedings stage.
Fakhrul islam: We also want statement reduced into writing as per sec 8(6) of the ICT and materials collected to prepare investigation report at the pre-proceedings stage.
Justice Nizam: Let’s see whether CrPc and evidence will be applied or not?
Fakhrul Islam: I do not know what harm will occur if report has been given to us. It is very important to us to get report as in one press conference Investigation officer said in one case matter that there are 32 charges against the accused but prosecution submitted 25 charges before the Tribunal.
Justice Nizam: To get investigation report is the main purpose of your petition?
Fakhrul Islam: there are 3 purposes:
1. Illegality should be avoided by applying CrPc and Evidence at the pre-proceedings stage.
2. Order should be passed so that we are not deprived of legible copies.
3. Rule should not be conflict with the parent law.
Justice Zaheer: So far I understand, basic word of the petition is, to formulate rule like 154 CrPc so that you can know upon which basis your case has been filed.
Fakhrul Islam: Yes, My lord.
Justice Nizam: That means you want to say rules are sufficient so it should be amended for fair trial.
Anwarul Hauque: According to CrPc either there is C.R case or G.R case. Is there is any provision in CrPc to go any other place for filing case without filing C.R and G.R case?
Secondly, whether there is provision in CrPc or ICT that CrPc will be applied before the submission of Formal charge?
Fakhrul Islam: My lord, in this act it is clearly stated about the commencement of the Act.
My lord, if the word “proceeding” is not mentioned here then CrPc and Evidence will not be applied here. This Act was for 195 prisoners like Nuremburg trial where 24 persons were prosecuted.
Justice Nizam: After the amendment in 2009 the position of the Act is changed.
Justice Nizam called upon the prosecution to submit there argument.
Zead-al-malum: Parlaiment gives the power to the Tribunal to make rules for interest of the justice; In fact, the Act was enacted for ends of justice. Here pre-proceeding is also a proceedings. So there is no chance to apply CrPc and Evidence in sec 23. So I think petition is nothing but killing of time. And suggestion in sec 22 will not be applied if it is barred by sec 23.
Haider ali (prosecution): My lord, I would like to say there are two stages one is proceedings stage another is pre-proceedings stage. So I think, giving suggestion is not necessary here as section 8 is already exists.
Fakhrul islam: They missed my point, I did not say about sec 8 just I want to say when CrPc and Evidece will be applied.
Justice Zaheer: In sec 9 it is specified that, “commencement of the proceedings before the tribunal” not “under the Act”. And in section 23 it is stated that “CrPc and Evidence shall not apply in any proceedings under the Act” not “before the Tribunal”
Just I want to say there are 3 components of this Act
1. Tribunal
2. Prosecution
3. Investigation.
So as per sec 23 “CrPc and Evidence shall not apply in any proceedings under the Act” means proceedings not only before the Tribunal but also before the other components. So CrPc and Evidence will not be applied here. In sec 9 the commencement is only related to before “the Tribunal” not “under the Act”.
Fakhrul Islam: My Lord, meaning of the proceedings is same everywhere like the meaning of fairness, trial and tribunal.
Justice Nizam: No, meaning are not same, in each Act there is a definition clause where it is specified the meaning of those terms under the particular Act.
Order Given by Justice Nassim:
The accused Salahuddin Qader Chowdhury has been produced in the Tribunal today by the prison authority.
Today is fixed for hearing applications filed by him. First we take the application with regared to Ruies of Procedure 2O1O of the International Crimes Tribunal which according to the accused is not adequate to conduct a fair tnal. Mr. Fakrul Islam the learned counsel appearlng for the accused petitioner submitted that the Act and the Rules by which the Tribunal is proceeding is not adequate and is not clear. He submitted that when in section 23 of the Act it has been stated that the provision of Criminal Procedure Code and Evidence Act shall not apply in any proceedings under this Act and the word proceedings, has been defined in section 9(1) of the Act wherein it has been stated that the proceedings before a Tribunal shall commence upon the submission of a formal charge and this proceedings also started with the submission of formal charge and there is no bar to apply Code of Criminal Procedure in the Tribunal before submitting the formal charge. As such in a pre-trial proceeding i.e. during investigation of the case, Code of Criminal Procedure shall apply.
Mr. Zead-Al-Malum the leamed prosecutor appearing for the prosecution opposed this and submitted that section 23 is clear that in any proceedings under this Act, Code of Criminal Procedure shall not apply and as such the Code of Criminal Procedure remains inapplicable in any proceedings in this Tribunal.
We have heard the learned counsel for defence and the learned prosecutor. It appears that section 9(1) shows that the proceedings before a Tribunal shall commence that means a proceeding when pending before this Tribunal, it shall be deemed commenced from the submission of formal charge. In section 23 of the Act, it appears that the word in any proceedings has been stated and not the proceedings before the Tribunal. This Act comprises 3 components, the Tribunal, the prosecution and the investigation. We are of the view that section 9(1) relates to the proceedings before the Tribunal and section 23 deals with any proceedings under the Act that means it includes investigation and prosecution also. Thus it becomes clear that the legislature wanted that the Code of Criminal Procedure and Evidence Act shall not be applicable in the process of the investigation agency, prosecution and also the Tribunal as such the submission of Mr Fakrul Islam the learned counsel for the petitioner does not stand in the eye of law. Moreover for the applicability of the Code of Criminal Ptocedure, the complaint must be lodged in the police station as FIR or in the court of Magrstrate, but this provision is not available in the Act and as such it is clear that Code of Crirninal Procedure is not applicable in the case involving this Act.
The leamed counsel has submitted that for fair trial, the rules need be changed by incorporating similar provision of law as in section 154 of the Code of Criminal Procedure. Framing of Rules is done by section 22 of the Act by this Tribunal. It has been stated that subject to the provision of this Act, the Tribunal shall regulate its own procedure that means the Tribunal will frame Rules under the provision of the Act to regulate its own procedure that means how the proceedings will proceed during investigation, prosecution and the trial stage. This Tribunal has framed rules upon which the proceedings are running. The Rules are amendable at any time and body may put suggestions. But it cannot force upon the Tribunal to enact certain procedure in the Rules in the name of fair trial. As such this prayer of Mr. Fakrul Islam is also liable to be rejected. However we shall consider the submission of Mr. Fakrul Islam if we find it necessary to amend this rule. With this the petition is rejected.
This is another application for supplying the legible copies of the documents to the defence. We have already found and observed that the prosecution is to serve copies to the defence which should be legible and when copies served are not legible, then they are to try to make them legible. And if it cannot be made legible then the defence is entitled to inspect those documents. In this case, we find no ground to deviate from our earlier orders. As such the prosecution is directed to supply the legible copies of the documents which are illegible as mentioned in paragraph no. 5 of the petition, where 38 pages have been mentioned. In case legible documents cannot be made available for any other reasoning, then the defence is permitted to inspect those documents from the office. With this the petition is partly allowed.
This is another application to disclose the materials all statements taken during interrogation of the accused person. The claim that the statements which has been made by the accused before Investigation Officer is to be disclosed to him and according to him, he may be forced to make a statement which could not be incriminating against him but Article 35(4) of the Constitution state that no person accused of an offence shall be compelled to be witness against him.
We have already found and observed that the statement of the accused made before an Investigation Officer will not be admissible in evidence and statement which is not admissible in evidence cannot used as evidence by the prosecution and as such the defence is not entited to get a copy of that as such the statement made by the accused before the investigating authority being not admissible in evidence the defence cannot get a copy of that. The instant application is thus rejected.
This is another application filed by the accused to supply the transcript of the arguments advanced by both the parties. In this Tribunal no transcrlpt of the argument made by the parties are made and as such question of supply of that does not arise at all. The prayer is thus rejected.
This is an another application for review of the order passed in the application to transfer the accused to any ground to reconsider the prayer as in the original order the provision of transferring the accused has been considered and without complying of that, the instant petition has been filed. As such it is rejected.Fakhrul Islam: My lord, I have said many things which are not included in Order sheet. And the 6 cases which are already pending before the court have not been considered by the Tribunal also.
Justice Nizam: Okay then please come with a review petition.
Then the court is adjourned.
No comments:
Post a Comment