Legal Procedure

Dr Zakir Hossain
MBBS (DU), DFM (BSMMU)
 Legal procedure

Legal procedure deals with new doctors can help the courts in
connection with offences against the person or preserve the
rights of the individual, or of the community.

Police+ doctor+ lawyer/counsel

 Basic Terminology
Offence:
Offence means any act or omission made punishable by any
law.
Types:
1. Cognizable offence
2. Non cognizable offence
Cognizable offence:
It is an offence in which a police officer can arrest a person
without warrant from the magistrate. Example: rape, murder, dowry
death, death due to rush & negligence etc.
 Contd
In such offences, the injured person is sent by police to the doctor
for medical examination.

Non-cognizable offence:

It is an offence in which a police officer cannot arrest a person

without warrant from the magistrate.

As for example, Assault

In non-cognizable offences, the injured person may go direct to

the doctor or he may file an affidavit in the court of a magistrate
who will send him to the doctor for examination and respect.
Civil case:

It deals with disputes between two parties or two sides which are
not amounting to offences

Example: land dispute, divorce cases, property dispute etc.

Civil cases are tried in civil court without punishment suffered

person gets compensation.
Criminal case

It deals with offences which are considered to be against general

public’s interest.

Example: rapes, murder, death from rush and negligence etc.

Criminal cases are tried in criminal court with punishment.

Affidavit:

It may be defined as a written statement in the name of a person

called the deponent by whom it is voluntarily signed and sworn to
or affirmed.

Complainant:

It may be defined as a person who makes a complaint to justices.

Contempt

It may be defined as a willful disregard or disobedience of courts

orders, as well as such conduct as tends to bring the authority of
the court and administration of law into disrepute or in some
manner impede due to administration of justice.
Defendant:

It may be defined as a person against whom a civil action is

filed.

Plaintiff:

It may be defined as the person who files the suit.

Deposition:

It may be defined as oral or written statement made by a witness

under oath in a judicial proceeding and signed by the witness and
the magistrate.

Testimony:

It may be defined as the oral evidence of a witness in court.

Warrant:

It may be defined as a written order for the arrest of persons or

for their forcible production in court as witness.

Warrant case:

It may be defined as a case relating to an offence punishable with

death, imprisonment for life or imprisonment for a term
exceeding two years is called warrant case.
Summons case:
It may be defined as a case relating to an offence where maximum
punishment allowed is imprisonment for a term of two years.
Will:
It may be defined as a document by which a person expresses his
desire about the devolution and distribution of his property after
death.
Testator:

It is one who can make a valid will

Writ:

It is a form of written command in the name of a court or other

legal authority to act, or abstain from acting in a particular way.
 Court
Definition:
It is an institution in where the existing laws are executed.

Courts of Bangladesh:
1. Civil court: Munsef court
2. Criminal court: Magistrate court
3. Both civil and criminal court:
i. supreme court
ii. High court
iii. Session court
Supreme
Court

This is the
highest
court of
Banglades
h
Supreme Court:

It is the highest body of the adjudicator usually if person is

dissatisfied with the verdict of the high court he/she appeals to
the Supreme Court, in which tries that case again.

Power:

1.Can deal with any case or affairs

2.Can pass any verdict

3.Any ruling declared by it, must be followed by lower courts.

High court division

i. It may try any offence

ii. It may pass any sentence authorized by law as---
Death
Imprisonment for life
Imprisonment—rigorous, simple or solitary
Forfeiture of property
Fine
Treatment, training and rehabilitation of youthful offenders
Session judge court

Can trial any case.

Can pass any sentences approved by law.
Can give death sentence (must approved by high
court)
Can fine unlimited.

Additional session judge

Same as session judge.

Assistant session judge
10 years imprisonment
Tk. One lac fine.
Cant give death sentences
Juvenile Courts

Section 42 any offence, other than one punishable with death

or transportation for life, committed by any person who at the

date when he appears or is brought before the court is under

the age of 18 year

 Magistrate court
1 class magistrate
st

Can deal criminal case only

Can give imprisonment upto 5 yrs & fine up to tk 10000
Cant give death sentences.
2 class magistrate
nd

Can deal criminal case only

Can give imprisonment upto 3 yrs & fine up to tk 5000
Cant give death sentences.
3 class magistrate
rd

Can deal criminal case only

Can give imprisonment upto 2 yrs & fine up to tk 2000
Cant give death sentences.
Legal system of Bangladesh:
Magistrate court/ session court High court  Supreme court
 President

Any sentence/ punishment awarded by a court may be

enhanced or declared by a higher court.

The president of Bangladesh has to power to grant pardons,

remission of punishment and commutation of death sentence
Sentences/ punishment authorized by law

1) Death sentence
2) Imprisonment for life
3) Imprisonment—rigorous, simple or solitary
4) Forfeiture of property
5) Fine
6) Treatment, training & rehabilitation of youthful offenders
 Some extra information
Order of power in BD:
President Prime minister Speaker Chief justice
Minister MP etc.

Law is produced in our country in parliament by MP.

Name of penal code of Bangladesh is called ‘The penal Code’.
In Bangladesh there is no high court but supreme court has 2
wings that is Appellate division & High court division.
In BD criminal act conducted by 4 ways-
(i) CrPc (II) BPC III) Evidence act (iv) Constitution of country
 Contd
 Session court is the highest judicial tribunal in district situated in
district headquarter.
 Trial is limited to session judge court but review is done in higher
court.
 District judge court deals only civil case & District session judge
court deals only criminal case both courts are presided by district
judge that means person same, power same but can preside both
courts.
 Summon

Summon/ subpoena (sub= under, poena=penalty):

It is a written order or document compelling the attendance of a

witness on a specified day and at a specified time in court of law
under penalty for purpose of giving evidence is called summon.
 Contd

It is issued by the court in writing, in duplicate and signed by the

judge, magistrate or presiding officer of the court. It is served on
the witness by a police officer or officer of the court or other
public servant. The witness retains one copy and returns the other
one dully signed by him in acknowledgement of its receipt.
If a doctor received summon from more than one court on the same
date----
1. If the doctor receives summons one from civil court and another
from criminal court, the doctor should attend the criminal court,
which has preference over the civil court. But he should inform the
civil court about his inability to attend there.

2. If the doctor receives summons from two courts, both of them civil
or both of them criminal then he should attend the higher court.

3. If the doctor receives summons from two courts. Both of them are
of same status—then he should go to the court from which he received
the summons first and he should inform the other court of his fact or
he should attend the other court after he had attend the first court.
 Medico legal importance of summon
1. Noncompliance to summons without valid reason
a. In a civil case, he will be liable to pay damage
b. In a criminal case, fine or imprisonment.

2. He or she cannot leave the court without the permission of the

magistrate or judge. If he or she fails to attend in time, warrant can
be issued to compel his or her attendance.

3. An attendance certificate may be issued by the court on demand

 Conduct money
Definition:

It is the fees offered to witness in civil case, at the time of serving

of summons to cover his or her travelling expense for attending
the court.

In civil cases: medical officer gets the conduct money at the time
of serving summons.
 Contd
In criminal cases:
a. Where state is prosecuting party, government medical officer will
not be paid conduct money at the time of serving the summons. But
he or she is paid for the travelling purposes as per law by the court.
b. In a private criminal case, government medical officers will get fee,
while private practitioners get fee from the state or private parties.
 Evidence

Definition

It is the statement made by a person regarding a legal matter

within his knowledge to prove or disprove the matter of fact.
 Types
1. Oral evidence

a. Direct— Evidence of a fact which is actually in issue. E.

g. consent, prescription

b. Indirect or circumstantial evidence

2. Documentary evidence

3. Hearsay
 Contd
Documentary evidence:
1. Medical certificates
2. Medico legal reports
3. Dying declaration

Medical certificates:
a. Birth certificate
b. Sickness certificate
c. Fitness certificate
d. Death certificate
e. Age certificate
 Contd
Medico legal reports

a. Post mortem report

b. Report of sexual offences (rape, sodomy etc.)

c. Chemical examination report

d. Injury report

e. Report on a poisoning
 Dying declaration
Definition:
It may be defined as a statement by a dying person narrating the
cause of his condition leading to death is called dying declaration.
 Procedure of taking dying declaration
The doctor should determine that the dying person is mentally
sound.
A magistrate should be called to take down the declaration but
anyone (Doctor, police, village headman etc) can take
declaration.

If the condition of the victim is serious, the doctor should take
the declaration in presence of two witness.
 Contd
Dying declaration should record at his own language. If the dying
person is unable to speak –questions put & signs/gestures made
in reply are recorded.

After writing the declaration, it must be read over to the declarant.

Signature or thumb impression of the dying person.

Dying declaration is attested by the doctor and 2 witnesses

It should be forwarded then to the magistrate in sealed envelope.

Medico legal importance of dying declaration
a) If the patient dies after giving the dying declaration, then it carries
medico legal importance
b) But if the patient survives, it does not carry medico legal
importance
c) It is considered to be authentic evidence in criminal and civil cases
as it is thoughtful that “Truth lies on the lips of a dying person.
Oral evidence is more important than documentary evidence because
cross examination is possible in oral evidence
 Hearsay
It is any statement made by any person other than the witness
giving evidence in court, which is presented in the court in order
to assert that the facts contained in the statement are true. E.g. “A”
gives evidence in the witness box stating that “B” had informed
him that he had seen “C” committing a crime. In such case direct
evidence can be given only by “B” that he had seen “C”
committing a crime.
 Dying deposition

It also known as “bed sided court”

Definition: It is a statement of a dying person under oath,

recorded by the magistrate in the presence of the accused or his
lawyer, who is allowed to cross examine the person.

This procedure is not followed in Bangladesh.

Difference between Dying Declaration & Dying Deposition

Dying declaration Dying deposition

Made by medical man/ magistrate Made only by the magistrate

Oath is not necessary Oath is necessary

Presence of accused or his lawyer is Presence of accused or his lawyer is

not needed needed

Cross examination is not possible Cross examination is possible

Has a lesser legal value Has more legal value

 Witness

Witness is a person who gives statement or evidence in the

court from his personal knowledge regarding the matter of fact
in question.
Types:
a. Common witness
b. Expert witness/skilled witness
c. Hostile witness
 Contd
Common witness:

Also known as “witness of fact”, “occurrence witness”, “ordinary

witness”

Common witness/occurrence witness/witness of a fact is a

person who gives statement/evidence about the facts observed
or perceived by him.
 Contd

Expert/skilled witness:

Expert witness is one who has got technical education, training

and experiment and by virtue of this he can give opinion
regarding any matter in question.
 Contd
Example of expert witness:

Doctor is a medical expert witness

Chemical witness

Ballistic expert

Finger print expert

Hand writing expert etc.

 Contd

Hostile witness:

Hostile witness is one who purposely makes statement contrary

to facts or what he has already said in a lower court or in the
same court on a previous occasion.
 Contd
The common as well as expert witness may become hostile. A
witness is expected to tell the truth. But if he is influenced,
intimidated or bribed, he may intentionally conceal a part of truth
or give false evidence. The court may declare such a witness as
hostile witness. Here the lawyer of prosecution side can request
the court to declare such a witness as hostile witness.
 Contd
When such a hostile witness is being examined, leading question
can be asked by the same side counselor (lawyer/prosecutor) in
the examination in chief to determine the fact which is unusual in
case of common and expert witness.

Hostile witness usually don’t get any punishment.

 Contd
A medical witness is generally considered as both common and
expert witness—
1. Common because he or she can say the size, position and
number of wounds etc.
2. Expert because he or she can say with certainly whether the
wound is antemortem or postmortem, accidental, homicidal or
suicidal, age of wounds and give opinion about the cause of
death.
 Perjury
Perjury means giving willful false evidence by a witness while
under oath or failure to tell what he knows or believes to be trut

or
Willful utterance of falsehood under oath in the court of law
which is punishable

The witness is liable to be prosecuted for perjury and the

imprisonment may extend up to 7 years.
 Contd
Approval witness:

Approval witness is one of the accused who agrees to give

deposition in favor the government in government prosecution
cases.
 Pen picture of an ideal witness
• Study and master the facts of the case before attending the court,
study recent aspects on it
• Be well dressed and modest

• Be relaxed, clam and not frightened or nervous

• Speak the truth

• Speak slowly, audibly and clearly with assurance and confidence

• Use simple language and avoid technical terms

 Contd
• Avoid superlatives
• Not fumble
• Not underestimate the medical knowledge of the lawyer
• Not avoid any question
• Not less his temper, because an angry witness is often a poor
witness
• Not argue. Just disagree if does not agree
• Avoid long discussion, answer should be brief and precise and in the
form of “yes” or “no”. Never nod your head to indicate “yes” or “no”.
 Contd
• Address the judge by “sir” or “your honor”

• When a lawyer quotes a passage from a textbook and asks the

witness whether he agree with it, the doctor should read the
portion which is quoted also should read a paragraph before and
after that. He should satisfy himself that the edition of the book is
recent and the views expressed by the author are correct, there is
no need to accept everything that is written.
 Volunteering statement

When a medical man finds that there is danger of injustice due to

failure of the court of the law elicit some important point, he may
give willful statement in the court of law with the permission of
the judge. This is called volunteering statement
 Procedure of giving evidence by a medical
man in the court of law
1. Receiving the summon
2. Attendance in court: he attends the court. Then he should
contact the lawyer for the party who had summoned him or the
public prosecutor in government prosecutor cases
3. Move into the witness box
4. Oath taking
5. Deposition/record of evidence

6. Leaving the court

 Oath taking

Oath taking: before deposition starts, witness must take oath;

unoathed evidence is not admissible to the court of law, except
when a person is below 7 years of age.

Definition: It may be defined as a religious assertion declared on

the name of almighty God, that he would tell the truth and his
vengeance in case he acts contrary
 Contd
The oath is ------
• ‘’I do swear in the name of God, that what I shall state shall be the
truth, the whole truth and nothing but the truth, so help me God’’.
• If the witness is an atheist, he has to say----solemnly affirm”
instead of “swear in the name of God”.
• It will be--- I solemnly affirm that what I shall state shall be truth,
the whole truth and nothing but truth.
 Deposition
Deposition may be defined as oral or written statement on oath
made by a witness in a judicial proceeding and signed by the
witness and the magistrate.
Parts of deposition:

a. Examination in chief (direct examination)

b. Cross examination
c. Re-examination (re-direct examination)
d. Question by the judge
 Contd
1. Examination in chief (direct examination):
a. It is the first examination of the witness
b. This is done by the counsel (lawyer) who summoned him to give
evidence
c. The examination is done by short questions with short and specific
answers
d. No leading question is allowed by the counsel (lawyer)

In case of “Hostile witness” leading question is allowed.

Objects:

The object is to place before the court all the facts that bear on the case
and If the witness be an expert, his interpretation of these facts.
 Contd

2. Cross examination:

a. This is done by the counsel (lawyer) of defense party

b. There is no time limit of cross examination

c. Leading question is allowed in cross-examination

 Contd
Objectives of Cross examination
i. To elicit facts favorable to cross examining party.
ii. To test the accuracy of statement made by witness
iii. To discredit him by injuring his character
iv. To develop new or old facts
v. To modify or explain what has been said
vi. To remove any undue or excessive emphasis in a particular
statement
vii. Try to weaken the evidence that was by biasness, contradictory,
inaccurate information etc by witness.
 Contd
3. Reexamination (re-direct examination)
a) This is done by the counsel (lawyer) who summoned him to give
evidence
b) No leading question is allowed by the counsel (lawyer)
c) No new points can be introduced without the permission of the judge
and consent of the opposite counsel (lawyer).

Objects of reexamination:
i. To clear up any doubts that may have arisen during cross examination
ii. To explain and correct any mistake that may have arisen during cross
examination
 Contd

4. Question by the judge:

The judge may ask any question at any stage of the examination
to clear up doubts/confusion.
 Leading question
Leading question are those which suggest its own answer.

As for example

----Doctor is this injury caused by a sharp weapon? Is a leading question

Here ---- a positive answer is expected from the nature of the questions

It should be worded as “Doctor what type of weapon would cause this

injury”.
 Penal code
It deals with definition of different crimes and definitive
punishment.

As for example,

• Bangladesh penal code (BPC) 320 define grievous hurt

• Bangladesh penal code (BPC) 375 defines rape etc.

 Criminal procedure court

Criminal procedure court (CrPc) deals with procedure of

investigation & trial of offence.

E.g

It deals with police duties in arresting offenders, investigating any

offences. It deals actual procedure in trials, appeal, reference,
revision & transfer of criminal case
 Where criminal laws are not applicable?
1. Sovereign king, queen, administration
2. Ambassadors and secretaries with their family members including
servant
3. Foreign army
4. Government of the province
5. President of the province or state
6. Chief justice
7. Justice of the supreme court or high court