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A person can’t be booked twice for same offence, says DAG Saju

  • Staff Correspondent
  • 11 October, 2021 12:00 AM
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A person can’t be booked twice for same offence, says DAG Saju

The Constitution of Bangladesh has guaranteed fundamental rights of the citizens and an accused in a criminal case cannot be prosecuted or punished twice, said Deputy Attorney General Motahar Hossain Saju.

Fundamental rights are enumerated in Part-III of the Constitution ranging from Articles 27 to 43, he said, adding that the state counsel and other lawyers concerned follow the constitutional guidelines.

In an interview, he said, “We, the state and other lawyers entrusted with dealing cases, discharge responsibilities following the principles of the Constitution.”

Referring to Article 35 which provides for protection in respect of trial and punishment, he said an offender has to be tried under a law which was in force at the time of commission of the offence and s/he cannot be tried twice for single offence.

Article 35 (1) says, “No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence.”

Besides this, Article (2) states, “No person shall be prosecuted and punished for the same offence more than once.” Motahar Hossain Saju, a criminal law expert, made the above statements as many people are being accused in and harassed by multiple cases arising out of single incident or offence.

The criminal laws will have no retrospective and prospective application, said Motahar Hossain.

Citing an example, he said, “Suppose, a person was accused in a case filed under the Prevention of Women and Children Repression Act 1995 which provided for death sentence. Later, the government amended the law commuting punishment. The accused in question will be subjected to the death sentence. Similarly, if a person is accused in a law which provided for 10 years of imprisonment and subsequent amendment to the law hiked punishment to death sentence, s/he will be liable to face the highest 10 years of imprisonment.” If the above principle of law is violated in case of any accused, s/he will get legal redress, he opined.

About Article 35 (2) of the Constitution, he said no person shall be prosecuted and punished for the same offence more than once.

“Sometimes, we see a person being sued or prosecuted for the second time over an incident. Law enforcing agencies are also seen to arrest such accused.  If the court’s notice is drawn to such harassment, the judge concerned verifies it. The court clears way for continuation of the first case and dismisses the second one provided that allegation is proved true.”

Motahar Hossain said law enforcers, defence and prosecution lawyers and state counsel have a professional responsibility to deliver correct advice to litigants so that Article 35 (2) and other fundamental provisions are not violated.

No person accused of any offence shall be compelled to be a witness against himself, he said, quoting Article 35 (4) of the Constitution, he said.

The state lawyer also said custodial torture of any person arrested upon specific information or suspicion is illegal.

If an aggrieved person files a petition with the High Court challenging custodial torture and forced confession, s/he will get appropriate relief.