1|Page

Judicial Procedure of Bangladesh

The judicial procedure in Bangladesh consists of the higher judiciary (the Supreme Court) and
the subordinate judiciary (the lower courts).
Supreme Court: The apex court of the country consisting of two divisions i.e. the Appellate
Division and the High Court Division. Chief Justice of Bangladesh and other judges in each
division constitute the Supreme Court. Chief justice and other judges are independent in the
exercise of their judicial functions subject to the provisions of the Constitution. The Chief Justice
and other judges are appointed by the President in accordance with the advice of the Prime
Minister. Judges of the Supreme Court are appointed from amongst the advocates of the
Supreme Court and judicial officers. Judges appointed in the Appellate Division sit in that
division with the Chief Justice, and the judges appointed in the High Court Division sit in that
division.
Appellate division hears appeals from the judgment, decree, order or sentence passed by the high
court division or from any other court or tribunal, if so provided by law made by the Jatiya
Sangsad, such as decision of the Administrative Appellate Tribunal, Arpita Samapatti Appellate
Tribunal or Land Survey Appellate Tribunal. In addition to the above appellate power the
appellate division has advisory jurisdiction to give its opinion when sought by the President on
any question of law of public importance. For doing complete justice in any case, pending before
it, appellate division has power to issue any direction, order, decree or writ including attendance
of any person or discovery or production of any document.
Subordinate civil judiciary: There are five classes of subordinate civil courts i.e. the courts of
assistant judges, senior assistant judges, joint district judges, additional district judges and
district judges. District judge is the head of the judiciary in each of the districts. In the hill
districts where there were no separate civil courts, the magistrates performed the functions of the
civil courts. But recently civil courts have been sitting there and functioning. Subject to the
superintendence of the high court division, district judge has administrative control over all the
civil courts of the district. District judge has mainly appellate as well as revisional jurisdiction,
but in some matters he has original jurisdiction too. Civil courts while deciding any question
regarding succession, inheritance, marriage or caste or any religious usage or institution apply
the Muslim law in cases where the parties are Muslims and' Hindu law in cases where the parties
are Hindus except so far as such law has been altered or abolished by any enactment made by the
legislature.
Assistant judges, senior assistant judges as well as joint district judges have been empowered
with the functions of Courts of Small Cause to entertain and try suits for realization of money
upto thirty thousand taka and for ejectment of the monthly tenant by the landlord when twelve
months' rent of the premises is equivalent to the above amount. No appeal lies from the decree or
2|Page

most of the orders passed by the Court of Small Cause except appeal to the district judge from
certain1 orders. But a revision may be filed to the High Court Division by an aggrieved party
against decree or non-appealable order.
Subordinate criminal courts: There are several classes of subordinate criminal courts. These
are courts of session, courts of judicial magistrates and courts of metropolitan magistrates.
Courts of judicial magistrates include the chief judicial magistrate, additional chief judicial
magistrate and judicial magistrates of the first, second and third class. Courts of metropolitan
magistrates include the courts of chief metropolitan magistrate, additional chief metropolitan
magistrate and other metropolitan magistrates all exercising power of first class judicial
magistrate. Divisional Commissioner transformed the functions of the court of sessions for the
three hill districts, but since 2008 courts of sessions have been set up in the hill districts. Since
January 1999 metropolitan courts of session have been established for the Dhaka and Chittagong
metropolitan areas. For performing functions other than judicial there are executive magistrates.
Existing judicial system of Bangladesh can conveniently be studied under five important periods-
Hindu period, Muslim period, British period, Pakistani period and Bangladesh period. But there
is a pragmatic reason for concentrating mainly on the British period and that is that the present
judicial system is what the British created, and it hardly has any co-relation, continuity or
integral relationship with the pre-British institutions. 2

1
Banglapedia (Judicial System)
2
Judicial Portal Bangladesh (History of Judiciary of Bangladesh)
3|Page

Judicial procedure of Hindu Period

The ancient judicial system of India can be understood properly through its social institutions,
political system and religious philosophy. The Hindu period is considered to be existed from
1500 BC up to 1206 AD in the Indian Sub-continent. Hindu tradition, in its surviving ancient
texts, does not universally express the law in the canonical sense of ius or of lex. The ancient
term in Indian texts is Dharma, which means more than a code of law, though collections of legal
maxims were compiled into works such as the Nāradasmṛti. The term "Hindu law" is a colonial
construction, and emerged after the colonial rule arrived in Indian Subcontinent, and when in
1772 it was decided by British colonial officials, that European common law system would not
be implemented in India, that Hindus of India would be ruled under their "Hindu law".3

Stages of a suit: According to Brihashpati a suit or trial (Vyavahara) consisted of four parts: (i)
the plaint (Poorvapaksha); (ii) the reply (Uttar); (iii) the trial and investigation of dispute by the
court (Kriya); and (iv) the verdict of decision (Nirnaya).
Bench of Judges: It was a cardial rule of the administration of justice in ancient India that “No
decision shall be given by a person singly”. A bench of two or more judges was always preferred
to administer justice.
Institution of Lawyers: Smritis do not refer to the existence of any separate institution of
lawyers in the ancient Hindu judicial system.
Appointment of Judges: The chief justice was mandatorily appointed from Brahmins. A sudra
(lingayat) was forbidden to appoint as a judge. Women were not allowed to hold the office of a
judge. Judges were required to take oath of impartiality when deciding disputes between citizens.
Intergrity was the first qualifications.
Doctrine of Precedent: The decision of the King’s Court was binding on all lower courts. The
principles of law declared by higher courts were taken into consideration by the lower courts
while deciding cases.
Evidence: In civil cases / suits evidence was based on documents documents, witnesses and the
possession of incriminating objects. In criminal cases, sometimes circumstantial evidence was
sufficient to punish the criminal or to acquit him.
Witnesses: Witnesses were required to take an oath before the Court. False witnesses were very
severely fined by the Court. Narada says that they were condemned to go to a horrible hell and
stay there for kalpa. 4

3
Wikipedia (Hindu Law)
4
Legal History & Legal System of Bangladesh- Ahamuduzzam (Hindu Period: Ancient judicial system)
4|Page

Judicial procedure of Muslim Period

The Muslim conquests in the Indian subcontinent mainly took place from the 13th to 17th
centuries. Earlier Muslim conquests include the invasions into what is now modern-
day Pakistan and the Umayyad campaigns in India in eighth century and resistance of Rajputs to
them.Mahmud of Ghazni, who was the first Sultan, and preserved an ideological link to
the suzerainty of the Abbasid Caliphate, invaded and plundered vast parts of Punjab and Gujarat,
starting from the Indus River during the 11th century.After the capture of Lahore and the end of
the Ghaznavids, the Ghurid ruler Muhammad of Ghor laid the foundation of Muslim rule in
India. In 1206, Bakhtiyar Khalji led the Muslim conquest of Bengal, marking the easternmost
expansion of Islam at the time. The Ghurid Empire soon evolved into the Delhi Sultanate, ruled
by Qutb ud-Din Aibak, the founder of the Mamluk dynasty. With the Delhi Sultanate
established, Islam was spread across most parts of the Indian subcontinent. 5

Stages of a suit: In civil cases, the plaintiff or his agent was required to file a suit through plaint
before the competent court and the defendant was called upon by the court to accept or deny the
claim. If denied by the defendant the Court framed issues and the plaintiff was required to
produce evidence supporting his claim. The defendant was also given an opportunity to prove his
case with the assistance of witnesses. After weighing all the evidence, the presiding authority
delivered judgement in an open court.In criminal cases, a complaint was presented before the
court either personally or through representative. A public prosecutor known as Mohtasib was
attached to every criminal court. The Court was empowered to call the call the accused at once
and to begin hearing of the case. Sometimes the court insisted on hearing of the complainant’s
evidence before calling the accused person. Witnesses were cross examined. Where the accused
was dangerously influential, the judgement was not pronounced in the open Court.
Evidences: Evidences was divided by the Hanafi law into three categories: (a) Tawatur i.e. full
corroboration; (b) Ehad i.e.testimony of a single individual and (c) Iqrar i.e. admission incluiding
confession. All those who believed in God were competent witnesses. Oaths were administered
to all witnesses Women were also competent to give evidence but at least two women witnesses
were required to prove a fact for which the evidence if one man was sufficient. The principles of
Estoppel and res judicata were also recognized by the Muslim Law.
Represented by lawyers: Though there was no institution of a lawyers like the “Bar
association”, litigants were represented by the lawyers known as Vakils. During Aurangzeb’s
reign, wholetime lawyer was appointed in every district who were known as Vakil-e-Sarkar or
Vakil-e-Shara.

Trial by ordeal: The Muslim law prohibited the use of trial by ordeal to determine the guilt of a
person. Sultan Jalal-Ud-Din Khilji (1290-1296) made the earliest attempt during the Muslim
period, to adopt the system of trail by ordeal in the case of Sidi Maula when the Court declined
to convict him for sedition. The Sadre Jehen and other judges refused to allow Sultan Jalal-Ud-
Din to test the truthfulness of Sidi Maula by ordeal of Fire.

5
Wikipedia (Muslim conquests in the Indian subcontinent)
5|Page

Appointment of Judges: During Mughal period every possible effort was made to keep up the
high standard of the Judiciary. The Qazi-ul Quzat and other judges were high qualified and were
appointed by the Emperor and mostly judges were appointed among the Vakils.
Emperor Auragzeb’s order for the appointment of a judicial officer contained the following
instructions:
“Be just, be honest, be impartial. Hold the trails in the presence of the parties and at the Court
house and the seat of the Government. Do not accept presents from the people of the place where
you serve, nor attend entertainments given by anybody and everybody…know poverty (Faqr) to
be your glory (Fakhr).”6

6
Legal History & Legal System of Bangladesh- Ahamuduzzam (The Muslim Period: Judicial system in Mediaeval
India)