TRIAL F C LLAB RAT RS

NAZIRUDDIN AHMADSeniormost Advocate, Bangladesh.

Formarly,

Senior Advocate, SUPREME COURTS OF INDIA AND PAKISTAN,

Member, INDIA'S COI'JSTITUENT ASSEMLY Ai'-JD OF INDIA'S

FIRST PERLIAMENT, 1947-5\

Member, BENGAL LEGISLATIVE COUNCIL, 1937--16Public-Prosecutor, BURDWAN, 1924-49

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TOBANGABANDHU

SHEIKH MUJIBUR RAHMAN

W-hose lifelong suffering and selfless devotion to

cause of BANGLADESH have culminated

in the establishment of INDEPENDENT

BANGLADESH.

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Published by :Book Society

30, Hrishikesh Das Road,Dacca-lPhone No. 242475

Printed by :M. Z. Ali Khan,Kheali Press,19/20, Syed Hasan Ali Lane,Dacca-I,Phone: 252285

191Z

CONTENTS

PREFACE ~.. ....,From Partition of Independel1Qe ....

ITHE OFFENCES

'CHAPTER I PreliminaryCHAPTER II The scheduled offEmc~s

CHAPTER III What is a colhlbQrator?1. A condition precedent2. Defination of collaborator3. Cardinal rule of interpretation of

statutesClassification of collaboratot'(,)

5. pro-Pakistan collaborators

Art. 2, Cla,use(a) Sub-clause (i)

Anatomy of sub-claus~

(b) Sub-clause (ii)Anatomy of sub-clause (ii)

(<;) Sub-clause (v)Anatomy of sub-cl~use

,6. Anti-Bangladesh colloboratqfs(d) Anatomy of su)-clause (iii)(e) Sub-clause (iv)

Anatomy of sub.-clau~e (iv)The ~1Cplanation

Anatomy of the .Exp1cUlatiOtl(g) Proviso to the clause

Anatomy of the Proviso7. Retrospective operation o(~the ~Ofder:

1-2

5-185-66-7

8-99-11

11-14

14

16

17-18

18

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PART IIPROCEDURE AND EVIDENCE

CHAPTER IV What procedure to follow?CHAPTER V Rules of EvidenceCHAPTER VI Proocedings in Trial

1. Congnizance2, Public Prosecutor

CHAPTER VII Tribunal to followSummons-case proceduresection 241 Cr. P. Code

Sections 242-243 Cr. P. CodeSection 244 Cr. P. Code

(a) Adjournments(b) Examination of prosecution

witnesses

Examination of the accused

under Sec. 342 Cr. P. Code"

Examination of defence witnessesExamination of Court wit nesses

Section 245 Cr. P. CodeSection 246 Cr. P. CodeSection 247 Cr. P. CodeSection 248 Cr. P. CodeSection 249 Cr. P. CodeSection 250 Cr. P. Code

CHAPTER VIII Accomplice TestimonySchedule to the BookAppendix _c'A" Collaborators Order

Appendix-..;"B" Declaration of Independence ...Appendix-"C" Provisional Constitution

Order

19-2223-24

25-3325-2626-27

34-6636

36-3738-5642-44

44

47-5555-56

5556-5959-60

6061

61-6464-6667-6970-

105lIS"

123

PREFACE

The Bangladesh Collaborators (Special1972, hereinafter in this book referred to as the "Collaborato­rs Order" or "the Order", was promulgated by the Presidentof Bangladesh on the advice of Bangabandhu Sheikh Mujibur

Rahman, Prime Minister of the Independent People'sRepublic of Bangladesh, on January 24, 1972. It has createdno less than sixty-five old offences under the Bangladesh Penal

Code, when committed by a collaborator, and an entirely new

offence, that of being a,· collaborator, It has also set upSpecial Tribunals to try these offences. The procedure to befollowed in these trials is partly provided in the CollaboratorsOrder, and largely in the Code of Criminal Procedure, 1898.

The Collabora tors Order is not, however a complete

Code by itself. For a clear idea of these speci~l offences onemust refer to the Bangladesh Penal Code, and for a completepicture of the procedure applicable- to their trials one must

refer to the Code of Criminal Procedure, 1898 and for the lawof Evidence applicable to these trials one must refer to theEvidence Act, lR72. Clearly a text-book to deal systematicallywith the entire law, substantive. procedural and that relatingto Evidence, is called for. I have venture:! to submit thisbook to the members of the Bench and tbe Bar and to the

intelligent laymarl interested in the well-being and orderlygovernment of Bangladesh.

The offences made punishable by the Collaborators Order

are specified in the Schedule to the Order. These offencesare described in this book as the 'scheduled offences."the Schedule to the Order these offences are described byreference to the" section numbers of the Bangladesh PenalCode. Besides these, the act of being a 'Collaborator" isitself made an independent offence; the term "collaborator'

having been defined in a five-sub-clause definition clause(b) of article 2 of the Order. All thes30f£en.ces are described

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The task of the Public Prosecutor engaged in these caseS'is a difficult and responsible one. These duties are dischar­.ged by them, as a rule, fairly and independently. I have,

however, in~ thi§ pQ~k ~uggeMed cert~in cQnsiderationswhich should weigh with them in the conduct of the cases.

This book deals with a subject which affects not onlythe State and accused persons under trial but is also,of considerable geeeral interest to the members of the Barand the general public in Bangladesh, as also to jurists,and constitutionalists in other countries. The book is writtenin a style which would be intelligible to lawyers

judges, as also to every intelligent citizen inerested inthe peace and the weU*being of the State.

In the preparation of this book I have received manyhelpful suggestions and criticisms from many friends andwell wishers, and I have incorporated their suggestions in thisbook as far as practicable. I am, however, fully conscious of·of the maD y errors and imperfections, which must have

crept into the text of the book due to the shortness of thetime at my disposal in its preparation and its passage throu-gh the press "

I have to express my apologies for the delay in publish",ing the book, which was due entirely to circumstances bey­,ond my control. The inconvenienoe thereby caused to themembers of the 1 ench and of 1he Rar and to the general

public is very much regretted.I shall, however, consider my labours amply rewarded

if this book succeeds in lightening the arduous task of thememberao£ the Bench and the Bar engaged in the trials of

.co11aborators.

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in greater detail in the Sch~E1ule this book, indir.rating thegeneral rules of procedure applicable to them ina tabularform ~s in the S~cQn.d Scl;1edttl~ to the Code of Cf'Iminal Pro­cedu.re. The elementa of rhese offences are full;~describ~d inthe said Schedp.le to tgis hook.

An ieseentialelement in these offences is that the accusedin. ep.chca"le must be, and must have acted, as a cOllaboratoxat the time when the qffence was r.lleged1y committed by him.The fact of heing a "collaborator" under the Order is there..fore, f"l vital el~m2lnt in these offences. The term 4Icoliaborq.'7

tor" has, huwever, been fu.lly and eXhaustively defined inclause (b) of article 2 of the Order, as already stated. Anattempt has been made in thi~ book to explain the concept ofa collaQorator with the help of anatomical cht\rts under thefive-sub~clausedefinition which, it is hoped, will give a clearidea of the meaning of 4(collaborator."

The offences dealt with by the Collaborators Order aroseout of the "Nine Months" War of Independence' for ~Uanghl.~

desh, which commenced on March 26, 1971 and ended victQ"'dously for Bangladesh by the surrender of the Ptlki~ta:ll

.Army of occupation a.t the f{arona Race Course Ground~ ill

.Dacca on the 16th December 1971.The offences dealt with in the Collaborators Order are by

their nature, necessarily refrospective in operation. it ~§

npt within the scope of this book to disGus~ th~ policy und~.,

dying the retrospective effect being given to these of£enf{e~.

That is a matter fer the lawgiver to determine, B~t theretrospective effect to these ·offences will rAi.se SOme very·difficult questions at the trials as to the mers rea of th~

accused persons or their guilty mind at the tirp,e when th~

·offences are <'\lleged to have been committed. As these qU¢?S­tions are likely to be raised in the many pending caf:ie s, it isnot proper to express any opinion ahOll.t them here,whiql}might prejudice a vital issue in these caSe~. Be::?id~~ ffil1Qh

will depend on the facts of each case.

Dacca, the

l:.:;t May, 1972. 1 NAZIRUDDIN

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FR011. PARTI fION

TO INDEPENDENCE 1903...:...01971

It is unfortunate that no clear' or authentic accountis available as to what took place durning the ninefateful months from l\1arch 26 to December 16, 1971,wbich resulted in the establishment of IndependentBangladesh. I t is to this period that the allegedacts of collaborators must necessarily relate. It goes

without saying that the acts said to conHitute any scheduledoffence, must be proved by the prosecution on sufficimntlegally admissible evidence.

The following is, however, a general account of someof the principal events which led to and confirmed theIndependencG of Bangladesh. Thts account is not, however,in any way authentic. and is of no eviientiary valuein trials of collaborators. It is intended only to serve as ageneral background to the Independence Movement in Bengalprior to the establishment of the Independent People'sRepublic of Bangladesh~

A secret and widespread terror:st movement was set onfoot in Bengal in 1903, organised by a band' of B iuduyouths with Barindra Kumar Ghose as its leader. Theobject of the movement was to liberate Bengal fromthe British hold. The means by which this object wasto be achieved was to kill Eurupean District Magistratesand Superintendents of Police, as well as some policeofficers, with bombs and revolvers, The concept of killingthe enemie ~ of a country as a justifiabl~ means to liberateher from foreign yoke, was said to be based on the teachingsof the Geeta comprising the words of Lord Sri Krishnahimst?lf. According to these teachings, this 'World and the

men and things on it are rr.ere illusions (maya), havingno real existence, and the so-called killing was only a

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change from one form of illusion to another. Howeveridealistic this view might seem, it was sincerelyardently believed by the devotees of the tenrorist movement.

The terrorist organisation had, however, received itsiminediate inspiration from Bankim Chandra's novelAnandamath. which unfortunately had its aim to establisha Hindu State in Bengal, to the excluaion of the Britishand the Muslims. The outlook of Barindra Kumar andhis party was. however. only anti-Britis h and not anti~

Muslim. Barindra Kumar subsequehtly explained that

Muslims were not taken into the organisation, not becausethey were not patriotic or ineapable of sacrifices. They were,he rightly believed, incapable of keeping any secret tothemselves for long. The Muslims, however, believed thatIndependence could he achieved only by open war for whIchthe time W[iS not ripe.

The First Partition of Bengal 1905

The Government, however, got scent of the organisa~

tiOn, and wanted to isolate the IVluslims from the movementby giving them a healthier and more acceptable politicaioccupation. As a means to this end, Lord Curzon, tbeViceroy, partitioned Bengal into West Bengal and EClsr

Bengal in October 1905, in the teeth of solid Hinduopposition.

The Partition gave the Muslims of East Bengal aGovernment sympathetic to their needs and aspirations,of which they took the fullest advantage. -There was ageneral demand for more and more higher education andshare in. industrial and commercial undertakings, and inthe public services. From now on politics in Bengalunfortunately took a communal turn. And whl1e theHindus hated Lord Curzon as the [~uthor the

the 1tluslims of East Bengal est2 blished the Curzon

in Dacca as a token of their gratefulness to the

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( vi ) ( :)

Second B~ftgal, 1941

Many eventful years toiled by wh,ich many events ofwbfi'd wide lrl:1pottaiice happened namely, twoWars and those of All-lnc'Ha lmportance namely,,operation Movemement, Disobedience Movement,arid the passing of the Government of Iildia Act, 1935 byBritish Parliament. But the "Congress were never satisfiedaiid demaiided full lridepetltlence Muslims aridCbi1~ress, hoitever, tilHmately agreed 3,P'attHion Int1.iii lftcludlhft a fe-partition of """'-'LL!"i,U-.L.

British" Govetnlfient accepted agreed solutiOn and

The annulment me Partition in 1911

M~a1iwhiie',f.Iihdu agitators agaihst the con-tinued their compaigil with such tenancitythat the BflHsh Government at Home got frightend,the anuulment6f the was announced atDelhi barbar of 191 L The capita.l alsoremoved from Calcutta to Nawabwho had gone to Delhi to attehd the Dar1)1:1r, was informeRof the decision to undo the Partition a day earliet.Na\vah Saheb was somotHfled ahd H1Censed the sacri­nee of Muslim int~tests at the altar Hindu appeasement

that he refused t6 attend the Darbat, and his seat lremainc.prciinineritlyvaeant dUi~ing etire Dei-bat ceremonies.

Muslim politicS ffom mo-\\V' ob. tooIt an independentline.

the High Cbiltt, ""hicn ended complete 0f

tt'ittcils as the evidence short bfcriminal cases that is, proof beyond reasoriahie d6tibt.These Judicial pronouncemehts 'restO'f'ed the 'confidence

the people iti the adminlsttiltion justice Hi Bengal.and futther,eslabHsned his tejjutatlorl asChief Justice in India of the Twentieth Century.

·gf tn~ Partition., Ftlrth~r. th,e Mw~Hw L~~aw~ Wg~ bornin Daqcq l1!fq~r tlw l~ader:ship of Nawah Sir Salinw·UClhin 1906.

M~anwhil~, th~ t~rrori~t Qrga,.l1isa,tiql1 first mAPifeElt~(l its'e~i~tenc~ in. q pqnb o1,ltr age i~l Muzaffarp.pr~. This l~q tQt4~ discovery of fl seqr~t bomb. f~qtQry at .tvlcu:dcktolq, ip.Cf\lputta~ with QraJ;lclws"" pf the org;;\ni:::Hltipl,1 all qver ~_eru~al~This led the 11rrest qnq trial of j3arindra KUilla,r GQQs~

qnd man:v others ill what ~s kIlown as th~ A,lip()r~ Bomb Case.

Hindu Bengal wa,s now seething with op~n disqontent.L9,rd (urgon, however, with yhara,~teristic sa.gacity aIle! far~

sighted st'atesmanship, brought bach; from HOl11e Sh Lawf~ence' Jenldns who had been' the disting4ishttcl Chief J l!stic~of Bomba] < as the Chief Justice of Bengal. The O,pject was,to restore public con,fidence in the administration of j\lsticein Bengal as a cure for political discontel1t.

Meanwhile Barindra Kumar Ghose and many others,were convicted of waging war against the King under sect­io]) of the Penal Code qnd their a,p peal was heard bya Ben,ch of the I-Hgp COliJ;t qt Ca.lcuttp~ pre,~ided 9ver qySir Lawreuye J~uldn:s ntm ;J(;lt. The,j4dg~me:nt of thilt Verylearned Judge is reported 118 Barindra Kumar Ghost!. (l1/4 oth#r~.

V. Empuior,l which is <l masterplec~. of $Q1;J.A(l jUQidaJreasoning free from political con~i,dyratiqp~. Sowe of the,accused were acqui tted while the conviction of the rest,'wa3 altered to one only of couspir-acy tq Wq~e war againstthe I\iIl~ uuder S. 121 A of the Penal COcl~, and their SeIJ,t­ences reducecl.

The Judgment of the learned Chief Jl\stice in the caSe'ha~ settled sOl11e very knotty q 4estio~s <;If Criminal Law"substqntive and PAocedural, as well as on ~vi,de:qce, whichi:;; well worth studyin~" apd will amply re,p8,y, a care£l1l

'persWiil~ FUl'~he+; the learn~d c;.4~e£ JU$tice l;1iml?elf :pre'"

sideQ. oyer SQme trials o~ terrorists ~n SP~9ia.l·a~nchesqf

~~ (1909)1.~. R. 37 Gal. 467.

Courtesy of MMR Jalal

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-ament quickly passed the Independence Of ~lPt~ia Act, 1947,-and India and Bengal were partition~d I3~ngal. for the

second time.,Bengal was again .dtyided into W~stBen~1:l1 and East

BengaL generally -on the same lines as the first Partition of1905, and East Bengal was merged into! Pakistan under the

name of East Pakistan.The Agartala Conspiracy Case

1968-69Then came the -fateful Iy gartala Conspiracy, ca~s of 1968­

'69, for tryipg to secure the Independeneeof East Pakistanby an armed rising. It, however, 9nlysucce~ded in further

loosening the already loosene.d ties between fhe two Wings

of Pakistan. There ,were ~n all 35 accused persons for con.s­,piracy towage war agai nst Pakistan. The Chief accu~ed was,however, Bangabandhu Sheikh ]\;1ujibur Rahman himself.

This was a crucial blunder made by the "Ay ub Govern­ment for it was common kl1,owl~d,ge that the BangabJ.ndhu,was for the most part covered by the conspiracy, in jail, andhis complicity was sought to be established by t1:1e evidenc~

{)f pardoned accomplices, which was palpably false and conc,o­cted. The trial was being held by a Special Tribunal of thr~~judges in the Cantonment area of Dacca, five, ,1,niles awayfrom the city. Hundreds of men and women daily attendedthe trial which continued for months, and openly resented

trial, partiyul,arly that of the SheikhSaheb.Popt1lar resentIl1ent against the trial which was all:~ady

high, howev~r, rose to feyer heat, and ended alJ: explo..

sion on the death of an accused, Serjeant Zahurul IIuq, fromrifle fire by a sentry on guard duty. This was taken by ,the

public to be a delibe!ate a~ld cold-blood~d 111urder .. by '. thePakistan Army, and there WlilS considerablM!unr~standviol~4

nt demonstrations against the Goverllment. The d~mOnf:3tra~

Hons grew so violellt that tp.e Gqvernment f~rcedto stop

the trial, and rel~ase accused on Febr\l~ry 22, J969.

Th~., Ayub Gove~nment fell, and wasmilitary Gpver~ment of General Yahya Khan. new

'Government wasJorced to order a fresh general election,

first ever to be held on the basis of universal adult franchise.The result was an unprecendented electoral victory for Sha­ikh Mujibur Rahman, in which all politicalparties opposi­tion to him were totally.routed and wiped out. The SheikhSaheb and his Awami League Pa1;'ty captured over 99 per<cent of the seats, aa fill-time record for auY political electionall the world over.

The TVaI' Of Independence,

JvUsunderstandings betwee n the ,'two wurgs Pakistanwere now complete. The Sheikh Saheb two separateautonomous constitutions for the two Wings, with fec!eration

or confederation at the Centre as may be agreed upon.this was not acceptable to President Yahya andWestern politicians. There was a complete deadlock whenfurther negotiations became impossible. And the War ofIndependence began on the night '. of the 25th/26th March1971, and the Sheikh Saheb was arrested in his hO'l+se andtaken away to the West, there to undergo secret trial for

treason. !The Sheikh Saheb had anticipated all these and had dec ..

lared the Independence of Bangladesh,and left instructionsto his followers to carryon the war tO~"a finish. The electedmembers of the party wellt into exile, electing the SheikhBaheb as the President of the Independent People'slic of !Bangladesh, and issued their Proclamation of Inde-pendence of Bangladesh Mujibnagar on theApril 1971, with retrospective effect from the 26th March

197LThe War was fought on the one side by the regular

army of Pakistan, and the people's Liberation Armyconsisting of mostly students, a hundred thousand strong..

Courtesy of MMR Jalal

ex)

··the army duly WUHt111e§,' uhdel~oingtHldles§ arid extrenre kIhdBaHl§hips. BuftI1eyfuught WHHtl~l!d ipettirraeHy Withedn·slc1'era.ble Ibss 6flife, and tReY .wob. Th~ Pakistan A~rify got ~an:icky

andsb:frtHideted to the Bailglad~sh Govenmei1t< at .tneRamba Cbuts~Gt(junds the Illth Oeceffl.bef 1971,as .alt~aHy sta.ted. There~a~' ·Sdme help lrorli·;ihe tddiAhArmy, whIch gtiarded the7 frontlers, and <bombed IJilcdr from

air dne day.Tlie •cretin for the vibforYfflul;t "go to tireLiberation Army of· youths,

Meanwhile, the secret trial of the Sheikh Saheb conti­nued apace. But this only added ftiel to the fire of the

ardour of the libeFation army ~ulminaHng in victory a~

above described~

The continuance of the fa.rcical secret trial of the SheikhSaheb became impossible, and the Pakistan Governmentwas forced to release him aI\ld deliver him back to mill·ions of his followers a t the R'am,11a :Race Course Grounds~

Independence of Eangladesh thus came out of the secmnuPartiti)n of BeFlgal i ri 1947, as aq;mrt or the Patti tio ri ofIndia; but .£br which, Independent Bangladesh would neverhave come;

The above is a general and informal out line, of whathappened during the, War of Ihdependel1c.e. I havepur­posely refrained from disCussing what tool\'. place bdyondthese gerieral:events~ as thef!e would undoubtedly f~:rm

thesubjec :~matter of the marty pen~Hng cases und~r theCollaborators Order. As already stated, the above is aninformal general aeb'buntof the War in broadou1iline, toenable the readers to follow the events in a general way_

NAZIRUDDIN AHMAD

TRIAL OF COLLABORATORSI.

OFFENCES

Chapter I.

PREUMrNARY

1. Bangladesh Collaborators (Special Tribunals) Order1972, was promulgated the President of th PI'Rbi- f . e eop e s

epu lC 0 ~angladesh on the 24th January, 1972'.Order, certaIn offences specified in the Schedule toOrder, have been made punishable with specl'al p 0 h

d o unlS mentsan are tnable exclusively by Special Tribun 1 Of h, . a s, 1 t ey werecommItted by a "collaborator". The Bangladesh C II b

t ( SOl T 'b loaor-a ors . pec1a a1 una s) Order 1972, is referred to inbook for shortness, as the "Collaborators Order" 0 "thOd" d h r er er, an t e offences specified in the Schedule to thOrder, as the "scheduled offences ". e

2. The trial of scheduled offences are to be 0 dcarne onunder t~e special rules of procedure laid down in the

and subject thereto, by certain rules of precedure prescribedby the Code of Criminal Procedure.

3. The scheduled offences, except the last in the Sche~rlul~ to the Order,. are all old offences under the Penal Codewh1c~, ,have acquIred a new status of aggravated offences

carryIng generally more severe punishments' than in

.~ Penal Code, by reason of the fact tbat they were comm'tt ·a·b "II b" . 1 e .~

y a co a orator . last ·offence·. in the Schedule

L President'sOrder No:8dat6dthe:24th Janllary 1972 publised' 'thBangladesh Gazette Extraornidary of the same date. ,In . C?

Courtesy of MMR Jalal

2 Trial of Collaborators

is, however, a new offence-that of merely being a

"collaborator" .

4. The concept of a "collaborator" committing an

.offence is new, and arises outof the Nine Months War ofIndependence by Bangladesh which began on the 26th

March, 1971 2, and which ended victoriously for Bangladeshon the 16th December, 1971 by the surrender of thePakistan Army of occupation at the Ramna Race Course

ground at Dacca.

Chapter II.

THE SCHEOULED OFFENCES

8. The offences dealt with by the Collaboratorsare clearly specified in the Schedule appended to

These of1encs are there divided into four parts, uv'-" ""

the special punishments which they carry as laidarticle 11 of the Order, if and when they are'''collaborator'' .

to the Order as innew offence speciallyIt occurs in clause

where it

11. The last item in ScheduleSchedule to this book is however a,-created by the Collaborators Order.-of part IV of the \ Schedule to the

-cribed as follows :-

9. These scheduled offences are re-stated

form in the Schedule to this book toegtherpunishments which they carry. Apart from these, the various'.procedural rules which are applicable ·to these offences are:a]so given against each offence. The offences are there

described with their ingredients as they are given in thePenal Code, noted. This Schedl1le is designed to give a

;and complete picture of all that is to be known about these·offences, and is planned on ,the lines of the Second Scheduleto the Code of Criminal Procedure. They are arranged in-the order in which they ~ppei3r in the Schedule to the

aborators Order, with the four parts clearly distinguished.

10. On a reference to the Schedule to this book it,,be seen that there are altogether 66 different items of off­

,ences, which are punishable with special punishments aslaid down in article 11 of the Order. It would further,be seen that the first 65 out of these offences are those

under the Penal Code, when committed by a "collaborator".

Set; Clauses (V)('llld. (vi) of fthepreamble tathe -Pr8clamationof,Independence Order at Mujibnagaronthe 10th A.prll. 1911 See Appendix n'to'thisbobk.

7. This book is divided into two parts, Part I dealswith the nature and the ingredients of the scheduled

()ffences, while Part II is devoted to the discussion of the

yules of procedure and Evidence applicable to the investi­

gation and trial of these offences, including appeals. U,'he

disc'l1ssion -in the text of this book is supported and expl­

~ined by reference to the relevant case law.

6. The purpose· of this book is to discuss and explain

the substantive law of offences as specified in the scheduleto the Order as well as the procedural law applicable thereto,,in -simple language corrtpatible with the difficulty of the

subject, as would be intelligible to the lawyer and the inte­

lligent citizen alike.

E. The term "collaborator" is new and has been elabor­etely defined in a five-sub-~lause definition in article 2,clause (b) of the Collaborators Orde!" 1972, and is explainedby an Explanation and is modified by a proviso. The exavt

connotation of the term "collaborator" has to b:; gatheredby a careful examination of the definition in the light of

certain well known rules of interpretation of statutes.

Courtesy of MMR Jalal

4 Trial of Collaborators

'\b) Any act which is mentioned in clause (b) ofarticles of the Order, but which is not covered by any Item'under any of the parts of this Schedule."Clause (b) of article 2 of the order, referred to in theabove item, however, is a definition of the terms "collabor­ator". This definition mentions certain acts which, if­done by any person, makes the offender a "collaborator",and also makes him punishable under article 11 (d) of the·Order. It would be seen that the mere fact of being a"collaborator" is an independent offence and is punishableunder the Order, although it dose not constitute any off­ence under the Penal Code specified earlier in the Schedule.

12. The defination in article 2 (b) of the Order is fulLand complete though somewhat involved. It is containedin five separate sub-clauses, which are again exaplained byan Explanation and modified by a proviso. The meaning.of "collaborator" as so defined is fully examined and expl­ained in the following chapter..

13. The result of the above discussions may be summ­

arised as follows :-Any collaborator who has committed any offence under

the Penal Code specified in Parts. I to II I, and clause(a) of Part IV, and any person who is merely a collabor­tor whose act does not amount to an offence under thePenal Code described above, are all offences under the'Order and are triable exclusively by a Special Tribunal

. and not by a Magistrate or the Court of Sessions underthe normal procedure of the Code of Criminal Procedure.

Chapter-

"WHAT IS A COLLABORATOR~ ?

1. A condition precedent.

14. The above discussions make it clear the,exclusive ,jurisdiction of Spe~ial Tribunals will come intoplay only when the offence in question is a scheduledoffence, and it was committed by a "collaborator."is made further clear by the terms of article 4 of thewhich provides that.

"any collaborator who has committed an offence specifiedin the Schedule shaH be tried and punished a,Special Tribunal, and no other Court shall have IU1. .I.0\...l.l.­

cHon to take cognizance of any such offence."This clearly means that a Special Tribunal haveexclusive jurisdiction to try a scheduled offence, if and'when it is committed by a collaborator, and not otherwise.For, if a scheduled offence is committed but the offenderwas n9t a collaborator when it was committed, theoffence is under the Penal Code, and it

"shall be "0 •••••• tried or otherwise dealtby the ordinary courts under the Codeprocedure, 1 and the Special Tribunal have nojurisdiction. The jurisdictions of the ordinary courtsthe Special Tribunals are alternative and not concurrent.The one wiU exclude the other.

15. The offender must be a collaborator in respect·of a scheduled offence to give the Special Tribunaljurisdiction to deal with it. This is a condition precedentto the application of the Collaborators Order to the case.If this condition precedent is not satisfied, the special

law enacted· by the Collaborators Order will not apply,and the case will be triable only by the ordinary courts

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6 Trial of Collaborators

. "18. "Collaborator" as defined In artiole 2, clause (b)is as follows :--

~'2. In this Order

(b) "collaborator" means a petson who has"-0) participated with or aided or abetted the

occupation army in maintaining, sustaining,strengthening, supporting or furthering the

illegal occupation or Bangladesh by such

whatever the occupation army by any

whether by words, signs or conduct;(iii) waged war or abetted in waging war against

the people"s Republic of Bangladesh;(iv) actively resisted or sabotaged the efforts

the people, and the liberation forcesBangladesh in their liberation struggle against

the occupation army ;(v) by a public statement or . by a voluntary

participation in propagandas within and outsideBangladesh or by association or by participationin purported bye-elections attempted to aid oraided the occupation army in furtheringdesign of perpetrating its forcible occupation

of Bangladesh.

Explanation: A person who has performed

in good fai th functions whether he wasrequired by any purported law in force atthe material time to do shall not be deemed

to be a collaborator:

Provided that a person who has performedfunctions the direct object or result whichwas the killing of any member of thepopulation or the liberation forces of Bangla­desh or the destruction of their property orthe rape or criminal assault on their women­folk even if done under any purportedpassed by occupation army, shall bedeemed to be a collaborator."

19. To ascertain the true meaning and import the'term "collaborator", we must construe the words of

definition with the help of some well know rules

interpretation of statutes, described below:assistance in any way

...,••.'u.u,.... procedure.

material

S. 5 (1) of the Code

under the normal procedure prescribed by the Code ofof Criminal Procedure.

16. The most vital problem, therefore, which aSpecial Tribunal trying a scheduled i offence will have tosolve would be to determine whether on the facts proved,,or which can be proved, the offender can be held to bea collaborator. And if it appears at any stage of the case, oreven in appeal, that the offender cannot properly be held tohave been a collaborator at the time when the offence wascommitted, the proceedings must be dropped or quashed,and the ordinary courts must be left to deal with thecase under the normal procedure prescribed by the Codeof Criminal Procedure,

2. The definition of "collaborator"

17. The term "collaborator" has, however, been varycarefully and precisely difined in article 2, cluse tb) of

the Order. The definition is further clarified by anExplanation and a proviso. To determine the questionwhether a person accused of a scheduled offence, is acollaborator or not, we must therefore turn to thedefinition.

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8 Trial of Collaborators of Collaborators 9

3. The cardinal rule of interpretation of Statutes.

2. The cardinal rule of interpretation of statutes~

which is sometimes called the "golden rule" of interpretationof statutes. was formulated by Lord Wensleydale in theHouse of Lords in the well known case of Grey,..Pearson 1 in the following oft-quoted words ;_

s'I have been long and deeply impressed with thewisdom of the rule now I believe universally adopted......... that in construing wills and indeed statutes andall written instruments, the' grammatical and ordinary

sense of the words is to be adhered to, unless that wouldlead to some· absurdity or some repugancy with the restof the instrument, in which case the grammatical and

ordinary sense of the words may be modified so as toavoid that absurdity and repugnancy, but no further."

21. Tindal, C. 1. in delivering the opinion of thejudges on the subject in the Sussex Peerage Case2 hadearlier declared as fo nows ;-

'The only rule for the construction of Acts ofParliament is that they should be construed according tothe intent of the parliament which l)assed the Act. Ifthe words of the statute are in themselves precise and

un:Jmbiguous, then no more can be nece::sary than toexpaound those words in their natural and ordinary senee.

The words themselves alone do in such case bestdeclare the intention of the lawgiver. But if any doubtarises from the terms employed by the. legislature, ithas always been held safe means of collecting the intention,to call· in the ground and cause of making thestatute and to have recourse to the preamble which .••••..• IS a key to open the minds of the makers of the

1. 6 of Lords Cases 61 (106) ; 108 Revised Reports19 (42). H, L.

2. (1844) CL & Fin. at page 143 ; 65 Revised Rep,Jrts II (67).

Act, and the mischiefs which they are intended toredress."Lord Halsbury in .the House of Lords quotedwords of Tindal C, J. with approval and adoptedin ihe case of Commissioners for special Purposes Income

Tax. V. pemsel1•

22. Lord Atkin In delivering the judgement of the

Privy Council in the well known case of Pakala NaraJanaSwami V. King Emperor2 quoted with· approval the

passages from the cases cited above, and adopted the

principles laid down therein, and declared as follows g-

"in truth when the meaning of words is plain. it is notduty of the courts to busy themselves with intention.h

Lord Atkin further observed that in the statute under-consideration, the words themselves declare the intention·of the Legislature, and added the following observation g-

U It therefore appears inadmissable to consider the advantagesor disadvantages of applying the plain meaning whether in

interests of the prosecution or the accused."

4. Ciassification of "Collaborators"

23. It would be seen on a perusal of the terms of the'Various sub-clauses of clause (b) of article 2 of theCollaborators Order containing the definition of "colla­borator", that the Pakistan O~cupation army was seekingto perpetuate their illegal and forcible occupation ofBengladesh, vide sub-clauses and (v); while, on theother hand, the people and the "liberation foicest)Bengladesh were struggling to liberate her from suchoccupation, vide sub-clause (iv); and certain personswere waging war against the People's Republic ofBangladesh. vide sub-clause (iii). This struggle, as we

1. (1891) Appeal cases 531 (542) H. L.2. (1939)L.R.66 Indian Appeals 66 (78-79)

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Collaborators'

have seen, began on the 26th Marcn1971 and. eencled;on the 16th December 1971. The struggle must, therefore._have lasted between these two dates comprising a periodof nine months. Any scheduled offence, if any, must,therefore, have been committed between the 26th Ivlarch,1971 and 16th December 1971, so as to be triable by aSpecial Tribunal under the Collaborators Order.

24. During this period, such persons (collaborators) aresaid to have co-operated with the Pakistan Occupation armyin their illegal and forcible occupation of Bangladesh, as 1

in sub-clauses (i), (ii) and (v); while other personswaged war against Bangladesh or actively resisted or

sabotaged the efforts of the people and the liberationforces in their liberation struggle against the Pakistanoccupation army as in sub-clauses (iii) and (iv)- Thesepersons, according to the definition. are "collaborators".Collaborators may thus be divided into two classes~ t1)collaborators who were pro Pakistan occupation-army

as in sub-clauses (i), (ii) and (v); and (2) those who,were anti-Bangladesh in, their opposition to the peopleand the liberation forces, seeking to liberate her from:the Pakistan occupation army. The "liberation forces"have been defined in article 2 (d) as including 'Iallforces of the People's Republic of Bangladesh engagedin the liberation of Bangladesh", while "occupation army"has been defined in article 2 (e) as meaning the "Pakistan,Armed forces in the occupation of Bangladesh".

25. The broad effect of the Explanation and of theproviso to the definitions upon the sub-clauses' may be'indicated. The Explanation is intended to soften the'~rigout of the definitions by excluding certain bonafide acts mentioned therein from the operation ofthe definitions. The operation of the provisdto the

definitions, on the ofher is intended to make itclear t hat certain .. ·serious offences such as andcertain offences against property or against women, specifiedtherein, will not be excused on any ground whatsoever.We may now examine the five-sub-clause ofcollaborator belonging to the two classes metioned above,

in their proper :0 rder.

26. Before examining the definitions, sub-clausesub-clause, it may be stated generally that these definitionshave appered to many as too vague and too general,so as to include any form of co-operation or associtionwith the occupation army which will thereby constitutecollaboration within the meaning of the ·definition. Butthis is entirely wrong. To convert any person into a·'collaborator" the co-operation or the associaton must bedirected against some forbidden objective specified in thesub:clauses.

27. To bring out the real and substantial ineach definition, the sub-clauses have been re-writtenwithout any change, except that the ingredients of eachsub-clause have been shown and numbered separately"thus bringing out fhe essential points clearly and pV.LJ.,U,vU.J.:J

We now take up the two groups of pro-Pakistanianti-Bangladesh collaborators separtely for detailed consi­deration.

5. Pro-Pakistan Collaborators

(a) Sub-clause

Sub-clause (1) Is reproduced below, any9hange, except that the constituent parts of the sub­clause are shown and numbered separately :--

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il2 Trial of CollaboratQf.s Trial Collaborators

(c) Sub-clause

32. Sub-clause (v) is also reproduced below, withoutany change, except that its component parts are shownand numbered separately In the following anatomical

chart :-

"Collaborator" means any person who(i) rendered material assistance

(ii) in any way whatsoever(iii) to the occupation army

(iv) by any act,whether by words, signs or conduct."

Anatomy of sub-clause

"Collaborator' means person who has-(1) (a) by a public statement

(b) or by voluntary participationin propaganda

(c) or by association in purportedbye~election

(a) attempted toor aided

31. The words used in this sub-clause also are­"precise and unambiguous". They must, therefore, beinterpreted by giving them their grammatical and ordinarymeaning. It is clear that the acts alleged againstpersons concerned, must be to render material assistance(clause (i) above) to the occupation army. showsthat the assistance rendered must be material or substantial,.and not trivial or unsubstantiaL The mantler of renderingthis assistance as stated in clauses (ii) and (iv), is not

material;

sub-clauseAnatomy

1. See paragraphs 19 to 21 above.

(b) sub-clause (ii)

30. Similarly sub·clause (ii) is reproduced below withits component parts shown and numbered separately inthe following anatomical chart ~ .......

Anatomy of sub-clause .(1)

'Collaborator' means any person who has­(a) participated with

(b) or aided,(c) or abetted

(ii) the Occupation army.(iii) In (a) maintaining,

(b) sustaining,(c) strengthening,

(d) supporting(e) or furthering

(iv) the illegal occupationof Bangladesh by such force."

29. The anatomy of the sub-clause set out above,shows that the words used in the sub-clause are "preciseand unambiguous". We must, therefore, interpret themby giving them their grammattical and ordinary meaning.!

Interpreting them in that way, it becomes clear that the actsset out in clauses (i) and (iii) in the above anatomical chart,must be directed towards the "occupation army" in supportingthe "illegal occupation of Bangladesh by such force". In otherwords, the "participating with", or "aiding or abetting"referred in .clause (1) of the chart must be directed tothe maintaining etc. of the "occupation army" in their"illegal occupation of Bangladesh by such army". If the actsof the person concerned are not directed substantiallytowards this allegedly illegal act, the person win not,it is submitted, be a "collaborator" under this sub-clause.

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df CoLlal)Qrl~tojrs

or .abetted of warPeople's.Reprq.blic

'eonaborator' means any parson who has­

(a) actively resisted(b) or sabotagedthe efforts(a) of the people(b) and the liberation forces of Bangl~desh

(iii) in their liberation struggle against thearmy.

( e ) Sub-cluase ( iv )

06. Sub-clause (iv) is reproduced below without change,except that its component parts are shown and numbered:separately in the following anatomical chart :-

1. (19Jl.)

Anatomy of sub-cluase ( iv )

35. The words used in clause are 'preciseunambiguous', Giving these words their grammaticalorditlary Il1eaning, it is clear that act or acts personconcerned must amount to waging war or abettingwaging of war against the People's Republic Bangladesh.Waging war has been made. punishable under 1210£ thePenal Code, while abetment is defined in 107same Cod'e. was held in the case 8f Aung Bfa

that when a multitude of people rise assemble to.by force and violen.ce any object a public nature, againstthe Government, that is waging war. It mmst be aninsurrection against the Government. If the objectattained is of private or personal nature, it would beunder sections 147 and 148 of the Penal Code. The,of war must be against the People's Republic Ba'ngladesh.

itsthe occupation armyin furthering its design in perpetuatingforcible occupation of Bangladesh."

(iii)(iv)

33, It will be seen that the words 'Used in this sub­,clause are also "precise and unambiguous". Giving thewords their grammatical and ordip,arym,eaning, it will beclear that .the emphasis of the sub· clause lies in aidingor attempting to aid (clause ii) the occupation army infurthering its design in perpetuotfng its forcible occupation

oI Bangladesh. The mere making of a public statement. OT

any voluntary participation in propaganda.ara·n associationin 'any pUPpOf ted bye-election J is not by j tself .enough to makethe person so acting, a "collaborator". Such public statementor propaganda or association in any purported bye-electioflmust consist of or amount to or lead to,an aid or attemptedaid to the occupation army in furthering its design toperpetrate its forcible occupation of Bangladesh. Unless theacts mentioned in clause (i) above amount to aiding ()f

attempting to aid the occupation army in its said allegeddesign, the act or acts will not amount to collaborationwithin the meaning of the sub-clause. Tb.e sub-clausecontemplates the acts which are pro-p'aki$tan-occupatfo~-a~my

act. We now take up the anti-Bangladf!,$h activities of the;persons concerned.

6. Anti-Bangladesh collaborators

(d) Sub-clause ( iii )

34. Sub-cluase (iii) is reproduced below without any"change, except that its component parts are shown and.numbered separately in the anatomical chart below:

Anatomy of sub-clause ( iii )

"Collaborator' means any person wh@ has­(i) (a) waged war

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16 Trial of Collaborators 1!heProviso

37. The words used in this sub'"Clause are "precise un­ambiguous". They must therefore be interpreted· by gi.ving,them their grammatical and ordinary meaning. From sub­clause (v) often above clear it would appear that the PakistanOccupation army were in illegal occupation of Bangladesh.

From clauses (ii) and (iii) of the above chart of the presentsub-elause, it would be- seen that the people and the liberationforces of Bangladesh were struggling to liberate Bangladesh­from such illegal occupation. The vital act or acts whichwould make the person concered, a collaborator consist ofactively resisting or sabotaging the efforts of the people andthe liberation forces of Bangladesh against the Pakistanoccupation army.

39. The words of th~ Exp1tll1atiQ1l a-re "Irr~cise

bignous". Theyishould< therefore be interpreted

theirgramrnatieal and ordinary meaning.

~~me ,~S 'flbqve, th~ means thIt evenwhere the "cta th~ per~Qf.l cOnCerned may toethe letter (If any of the sub-clauses (i) to the person

concerned shall not be dEemed to be a collaborator if has,acted in ~ood faith under ,any purported law in force atthe time "Purported implies made b:y 'thepr~vious Government, I which may have beenthe People's Republic of Bangladesh. The thus

softens the rigour oftl:ie defl'nitiens in sub-clauses (i) to (v).

(f) The Explanation

38. The Explanation to the sub-clauses is reproduced:below without any change, except that its component parts

are shown and numbered separately in the followinganalytical chart ;

1 g) The provso to the sub-section

40. The proviso to the definitions in the sub-chu3es is

reproduced belqw witho1+taI+Y chqIlge, except th~t its compo­nent parts are shown and numbered sep'lrately in the folloN'~

iug analytical ch:lrt.

Arultomy of the proviso

'Ge:str11etJlOn ofor2-

"Provided that

a perSon who has performed functions

(2) the (i) directobject

(ii) ,or the result

(3) of which was

the

Anatomy of the 'Explanation'

(c) to do

shall not be deemed to bea collaborator."

"A person

(i) who has performed

in good faith

(iii) functions

(a) which he was required

(b) by any purported law In force at the mater­ial time

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TriahofCollabdrators

or the '" (a) rapeor criminal assaulton their women-folk

(iv) even if done urider any purported law

passed by the occup'ationcl.1°my

PROCEDURE

shall be deemed to bea collaborator" WHAT PROCEDURE TO FOLLOW?

The procedure to be followed in thethe police and the of scheduled offencs

-Tr ibunals is. partly provided in the Collaborators Order and

partly ~n the Code of Procedure. It is necessary todetermIne where the special procedure laid'Order will apply and where the rules of gemeral nr...,('O",,,rl,,,~~

laid down in the Code apply. The special rule or'procedure is prescribed in article 8 (1) or the Order in the:following. terms ~-

7. Re trospective operation of the Order

41. The words of the proviso are also "precise a'Q.d

unambiguous". These must, therefore, be intepreted a~cor­

ding to their grammatical and ordinary sense. Interpretingthem in this way, it follows that the serious offences,specified in the proviso, are not to be excused or ignoredeven if they were done by any purported law passed by

the occupation forces.

In

42. The Collaborators Order was promulgated by the

President on the 24th January, 1972. Under article 1 l3)however, the Order must be deemed to have taken effect onthe 26th March . The Order and the scheduled offenceswill, therefore, have retrospective effect. That means thatoffences committed during the pendency of the War of Inde­pendence, between the 26th March 1971 and 16th December,1971, though committed before the Order was promulgated,

be punishable under the Order. To create offencesretrospectively, though very unusual, is legal. and conatitu­tional. But though the retrospective operation is legal, itwill raise some very difficult questions as to the mens rea ofthe accused, As, however, such questions are to arise in

·many pending cases, it is not proper to discuss them here.The question will have to be decided by the Tribunals on

hearing arguments of Advocates on facts:of each case.

"8 (1). The provisions of the Code

Procedure ), in so far they are not inconsistentthe provisions of this Order, shall apply to all mattersconnected with, arising from or consequent upon atrial by a Special Tribunal."

The article does not say in so many wordsspecial rules of procedure laid down the Order a I

b' h' PP y,

su Ject to w 1ch the rules of general procedure in the Codewill apply. But this is clearly implied. This is so on

the principle that where a special law and a generaflaw onthe same subject exist the spec1'al 1 ., app y In

preference to the general. The provisions of therule of procedure laid down in the CodeProcedure if, and iIi so as they are not

the rules special procedure

apply~

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20 Trial Collaborators What Special

is46. principlebut its application in may

uncertainties. It may there~tOJre be usebl to enurrleriite

typicalc3.ses where the special of

provided in the Order apply, as where some

.general rules of procedureProcedure Code will apply. A consideration of suchinsta.nces may help solve some actual problems which may,arise in particular cases situations.

1. Article 4 of the Order.2. Article 14 of the Order.3. Article 8 (2) of the Order. The procedure for the trial of summons

..casoo are to be found in Chapter XX of the Code of Criminal procedure.4. Article 18 of the Order.

Cases where some of the important special

·of procedure proviledthe Collabotatorsapply are shown below. These ate: that theIbe held by a Special Tribunal and no other court l .

~

;(ii) no person who is "in custody, accused or convi.cted"

shall be released on bail:! ; the Special Trihunal

follow the procedure prescribed in the Code Criminal

Procedure for the trial of "sum1l10ns-casesU Magistrates3 ;

(iv) that no proceedings taken under the Collaboratorsshall be called in question in any court, except by way ofappeal against a conviction or an acquittal under article 16of the Order4 ; (v\ appeals 8ha11 lie against a conviction oracquittal on a question of fact la.w, only to the Court,if filed within the special period prescribed.

48. The followiug are some of the more

rules of procedure enacted in the Code CriminalProcedure, which are not inconsistent _with the specialrules of procedure provided in the Collaboratorswill also apply to the investigation and. trial af collabo-rators under the Order. These are: the

44. The Code of Criminal Procedure in section 5,.also makes an identically prOV1SlOn. After provi-

ding in sub-section th~r~of~ tlw.t f\.11 offences underthe Penal Code shall investigated, inquired into, tried,.

and otherwise dealt with according to the provisions ofthe Code, it goes on to declare in sub ·section (2) thereof,.

as follows :-

45. The effect of these two prOVISiOns is that the

rules of special procedure enacted in the Collaborators.Order, where applicable, must always be applied. Butsubject to these special rules of procedure, the generalrules of procedure provided in the Code of Crimin;;J.1Procedure will also apply~ provided they are not inconsistentwith any rules of procedure enacted in the Collaborators~

Order.

"(2) All offences under any other law shall be·investigated, iAquir~dinto, tried, and otherwise dealtwith according to the sameprovisionsj but subject to·\

any enactment for he time being in force relating

to the manner or placeof investigation, inquiry into,trying or otherwise dealing with such offences."

The terms of this sub-section are thus more explicit

than those of article 8 (1) of the Order quoted above.The sub-section says that offences under other laws, suchas the Collaborators Order, shall also be dealt with bythe Code of Criminal Procedure, but the provisions ofthe Code shall be subject to the provisions of any specialenactment (such as the Collaborators Order). This meansthat the provisions of the Code will apply, but only inso far as they are not inconsistent with the provisionsof the special enactment, such as article 8 (1) of theCollaborators Order, quoted above.

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22 Trial of Collaborators

EVIDENCERULES

Chapter V

RULES OF EVIDENCE

49. Under article 8 (2) of the Collaborators Order, aSpecial Tribunal must deemed to be a ofSession, without the association assessors or aFurther. under the second clause to section 1

Evidence Actt 1872, that Act appli~s to ··all

proceedings in or before any court ... ,.. " • "Court".under that Act. includes all judges ..•. ,. persons•••••• ... legally authorised to take evidence," A Special

Tribunal is thus a 'Court' and is a "Judge" as well as aperSOll Ulegally authorised to t9.ke evidence." The provisionsof the Evidence Aot will, therefore, apply to trials ofcollaborators before Sp~cial Tribunals,

50. It would be seen that the definition of theterm "collaborator" contains such expressions and wordsas the "occupation army" who are said to have beenin "forcible) and "illegal" occupation of Bangladeshand the "people" and the "liberation forces" ,.

were engaged in the 'Ii ')era tion stuggle" to liberateBangladesh from such occupation. Unfortunately, however,there is no authentic account available, of what took placeduring the stu~gle for Independence, ortook pa~t in that struggle. The Collaboratorshowever, in clauses ) and (3) respectively, of thepreamble to the Order guarantees Lfair trial" and inaccordance wiith the "due process of law". It is toassumed, however. that the acts of collaborationconftituting the offences under the Pe nal Codein the Schedule to the Order and whichagainst any accused in particular cases, must if at

1. See the meaning of ' Co tft" in seeton 3 of the Act.

of the,' Cr. P. Code relating to theiriformation to the­Police and their power to investigate offences iunder­Chapter XIV of the Code; (ii) these include theprovi~ons of S. 154 of the Code relating to t he recordingofa first information report, and the provision of s.161 Cr. P. Code regarding the taking and recording.'evidence and statements during a police investigation,and that in S, 16~ of the Code providing a specal ruleof evidence relating to such evidence or statement·,

the provisions relating to the territorial jurisdiction

of Special Tribunals in trials, in section 177 to 189 ofthe Code; (iv) the provisions relating to joinder ofoffences and the joint trial of several accused in onetrial as prescribed in sestions 233 to 239 of the Code .).(v) the provisions of sections 164 and 364 of the Coderelating to the mode and procedure of recording ofstatements and confessions by a Magistrate during apolice investigation, (vi) the provisions relating to thetatdngand recording of evidence by the COd.!t underChapter XXV of the Code; (vii) the provisions ofChapter XL of the Code relating to the examination ofwitnesses on commission, in some very special caaes;­(viii) the provisions relating to the questioning of theaccused by the Tribunal to enable hi m to explain anycircumstances appearing in the evidence against him,under section 342 of the Code; and {ix) the provisionsof Chapter XXVI of the Code relating to the writingaad delivery of judgements. These are some of the moreimportant rules of procedure applicable to the investigationand trial of scheduled offences against collaborators.

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24 Trial of Collaborators

PROCiEDINGS IN

which

he

53. As was pointed out in the case v~

Sourindra M dfwn Chuckerbutty,2 taking cognizance not

involve any formal action or indeed any action of anykind, but occurs as soon as a court appHesits mind to

the alleged commission of an offence. If the

is to tak.e' cognizance on a: report in writingin·charg~'of a. police station, it stands to Jteason thatthe report should state the factS which constitute the ""'TV,.. ... ,..·O

It is submitted that the report should statewould show that the accused was a collaboratordid the acts 'alleged 'against him and, wherethat the acts con.stituted an offence under a section ·of

1. Co~wjz::mce

The first thing which a Special

to obtain jurisdiction over a case,

zande the offence. Under S. 190of Criminal Procedure, read wi th clause (a)

-section, a Magistrate may take eognizlnce ofupon a "report in writing of the facts which constitutes

the offence by any police officer. A Court of Session, onthe other hand, takes cognizance of an offence underS.193(1) of the Code, on a com;nitment of the accusedto that Court by a Magistrate. But a Specialcan take cognizance upon a report in writing

officer.in-'charge of a police station. A proper cognizance

is a condition precedent to a court aeq uiring

'Over a case.

taken pla~e within the period of Nine-MonthsWar of Independence which is taken to have lasted

between the 26th March 16th December, 1971 asstated above. in accordance with due proCfSS

¢1 law, however, requires that the facts alleged a,gainst

the accused in each case, must be s tricHy proved by

evidence admissible uncler the Evidence Act.

51. Apart from the general applicability of the Evidence

Act in proving the facts alleged in each caSe, cartian

special provisions of th:1 t Act will frequently be used inthe trial of cases before Special Tribunals. These .are:

(i) the provisions of sections 24 to 29 of the Act dealing

with confessions; I ii) the provisions of section 30 of theEvidence Act under which a oonfession of an accusedmay be "taken into consideration" against a cOioaccused ;

(iii) 1he provisions of section 114, and p3.yticularly illus­

tration(b) to that section and some leading caSes there "on which requite that the evedence of an accomplice or

accomplices must be corroborated in material particularsby independent witnesses or circumustanceb before it couldbe .used' to convict an ~ccused thereon; (iv) the rules

relating to proof of guilt bY' circumastantial evidence;

(v) the admissibility the statement of a petson sincedead. as to the' cause of his death or as to any of thecircumstances of the transaction which nesulted in his

death" under section 32 (l) of the A~t; and (vi) iha pro­visions of section 10 of the Act under which the state­ments, acts and the writings of a conspirator are adnli­

ssible against a co-oonspirator. These ate some of the moreimportant provisions of the Act which may be expected

arise in trials of collaborators by Special Tribunals.

1. Article 7 of the Collaborators2. (1910) 1.L.R.37 Ca1.412(416).

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56. The Public Prosecutor must represent the Stateand'riot,the police; must discharge

and fearlessly and with a full sense of his responsibilities;Ranjan V. Emperor.! His object to·

aid the Court in discovering the. truth;It is his duty to place pefore the courttruth and not to suppress any part favourable to thedefence; Ramranjan V. Emperor.! The

should not have .any·· personal interest in

of Collaborators26

the Penal Code mentioned in the Schedule to the Order.,This would appear to be further clear from the fact that

when the accused is produced before the Tribunal, it

must, under s.242 Cr.P.Code, state to him the "particulars

of the offence" and ask him if he has any cause to showwhy he should not be convicted. At that time the only

material before the Tribunal is the report of the officer":

in·charge, and the Tlibunal will not be able to question,him properly unless the report states the facts con:stitut~'

ing the offence.!

2. The Public Prosecutor

3. Special Tribunals are toof. trials in summons-case

I.LR. 42 011.4228 Bombay' H.C.R.128(IS").

(a) Distinction between Summons andcases and .between the Procedures applicable totrial.

Clause (2) of article 8 of the Order provides among"things that-

"a SpeciaLTribunal. .. shall follow the pIocedure

prescribed by the Code (of Criminal Procedure) forthe trial of summonS-cases by Magistrates."

The procedure in summons-cases is prescribed in Chapter'XX the Code of Criminal Procedure consisting ofsections 24l to 250 thereof. The provisions of these sect­ions are discussed in Chapter VIr below.

58. For a proper appreclatlOn the scope and purpose'

of the provislotls 9£ the Code of Criminal procedureing, to sumrnoqs-cases which are applicable toSpecial·' Tribunals, the distiction between summons-ca8esand warrant·cases,.atld between the procedures aOOllCalJJ.e

54. Under article 82) of the Order, the perSoncln-,

ducting the prosecution is to be deemed be a PublicProsecutor. A Public Prosecutor has important duties,

to perform and to discharge important furtctions. It

would not be out of place to state here the object of a·State prosecution and the duties of the Public Prosecutor.

55. The only legitimate object of prosecution is thevindication of justice, and not a mere securing of aconviction, Empress V. Dhunno Kazi.2 The object of aprosecution is punishment for a crime and not the .enforce­ment of a remedy for' any 'private injury; ,Laidmpn V ~

Hearsey.3 The purpose of a trial is n()t to suppor't at all

costs. a theory, but the investigatiori and determinationof guilt or innoc;ence; Ram Ranjan V. Emperor}

1. See paragraph 702'. (18tH) l.L.R. 8 Cal. 121 (124). See alsoQue~n Empress V~

Durg~.(1893) I.J-,.R, 16 All. 84 (86); Barindra Kumer Ghose V.," Emperor, (1909) 14 C.W.N. 1114(1207).

3.. (1888) l.L.lt. 7 All. 906(913);4. (1914) I.L.R. 42 Cal. 422.

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in

commitment toCourt

of

Short cp.ts proceduretrials of summons-casss

I.. See S. 242 of the Code.2. See S. 252 and Chapter XVIII, respectively.ofthe€edl.k:

The short cU,ts referred to in the previous paragraphconsist of the following; The Magistrate IllUst stateto accused the "particulars of the pffence" of whichaccused, and ask if ha,s any cause show

not becon.victed.1 This however, to beany evidence is recprrJed Magi~trate~

recQDdingof, some evidenoe make 011t a prim,\iis thus dispeJ;lsed is done

cases. and the factstood by the accused without any evidencerecorded ; (Ii) in a warrant-case

Summons....cases deal the L ... li:. ...... ~I;>g'V

est offences under the· Penal -"Code andundarare again, punishable the mildest

as cornparedwith those in different classescases. Consequently, the elaborate procedure applicableto warrant-eases tried be Magistrates and the more CLClLI.JVL~~,C;

procedure applicable to inquiries and trials of wanant-cases by the Court of Session for the ofaccused, are not required in the trial of summ.ons-casesby lViagistrates. There are, therefore, some short cuts inthe procedure of trials of summon~-caseElas dishnguishedfrOrllprOcedures 18pplicable to warrant·yases byMagistrates and the Court ot Session.

1:0 their tria.ls should be c~earlyunde:rstdod. As definediiisub-sebtions (v) of· section 4~ of the Code' of CrHni­

...... ,,,.'" <'''' is aC8Jse relatiug tdoffenbes

which death, transportationex,ceend;fhg six months, whether wJlthor

A sUII1mons~case~ on othethand~ relatesto the classes of offenoes,2 This means thataS1.1mrllOnS-Oase is adaserelating to Some minor :offenceswhich are punishable with fine only, or with imprisonmentfor a term not excending six months whether with or with..

-out fine. For procedural purposes, warrant-cases may aga,in.be divided into three classes, namely, ......(l) warrant-caseswhich are triable by Magistrates, til) warrant-cases which,are triable by Magistrates as well as by the Court ofSessions, and (iii) warrant-cases which are triable exclu­sively by the Court of Session. The courts by which

different offences under the Penal Code are triable are notedin Schedule II of the Code of Crimillal Procedure. Those

relating to offences under laws other than those in the Penal'Code' are noted at the end of the Schedule to the Code.

59. The procedures applicable to summons-cases, andto the two classes of warrant-cases which are tried bylvlagistrates, may be indicated here. Summons-cases ,rretried by Magistrates under the provisions of Chapter XXof the Code of Criminal Procedure. Warrant-cases whichare triable by Magistrates, and those which are triableby Magistrates as ~ell a~ by the Court of Session andwhich are tried by Magistrates, are tried by' them underthe provisions of Chapter XXlof the Code: The mostserious warranhcases which are tried bY Sessidns Courts,are first inquired into by Magistrates} preparatory toacommitment to the of SessiotL, are dealt •with in

1 Seethe difinition of warrant-caseinS. 4(w) o'fthe Code of Ct 1­

minal Procedure.2. See the difinition of summens-cases in SA(v) same Code.

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The Warrant Procedure

'Committed an offence triable

'Chapter XXI of Code, which is

and can be adequately punished by-frame a charfJe in writing against the accused. The

is then read and explained to the accused and must~be asked whether he is guilty or has any defence tomake1

• (iv) The next step in the pr~ceeding

ant For, if the accused refuses to plead, or does not'plead, or claims to be tried, ( or pleads notMagistrate must adjourn the case toanofher date the-cross-examination of such witnesses as the accused may

-desire 2• These four stages, which are considered necessary

for the protection of the accused in a warrant-case are,,for reasons already explained, entirely omitted in thetrial of a summons-case a Magistrate underXX of the Code.

63' We now turn to the procedure to casestried by the Court of Session. The offences

are far more complex and complicated, and involvemore intricate and complicated questions of law, both:substantive and procedural, as also relating to Evidence,than are required in trials of warrant-cases by Magistrates.The procedure has accordingly been split up into twoparts and carried on by two different courts. twoparts comprise (i) inquiry into such cases

to a commitment of the accused to the Court of Session-under Chapter XVIII of the Code, and actualin that court under Chapter XXIII the Code.time and opportinity have, been given to

'accused in such cases to know exactly what is the caseand the evidence against so as to get readydefence a clear cut and

,latter records the evidence of the prosec't;ltion witnessesand frames a charge when apriman.facie caSe has been-made out and if the accusedpleacls not guilty theretot

the Magistrate must adjourn tlus case for the cross-examination

of such witnesses1• In a summons-case, however, the accusedmust cross. examine the prosecution, witne~stis as and whenthey are examined-in-chief2. This is done also on thesupposition that the case being a simple one, the immediate

-cross-examination of the prosecution witnesseswo111d notprejudice the accused; (iii) In aSUIll'tnOnS,case. thedefencewitnesses are also to be ready on the saIne day as th,ose

.for the prosecution. This is not required in a warrant­·case. (iv) In a summons-case, the Magistrate is :not boundto summon the witnesses for the parties3• Whereas. thisis not so in a warrant-case. These short cuts are resortedto in order to save time and on the assumHon that theaccused would not be prefudiced thereby, as already stated.

62. The ingredients of the offences for which the'warrant-case procedure is prescribed, and the facts constitu­ting the offences being more complicated, the procedureapplicable to trials of such cases by Magistrates are thu~

'understandably much more elaborate. (i) The Magistate-must first hear the compl~inant (if any) and take all-the evidence for the prosecution as may be produced.(ii) If the Magistrate on a consideration of the evidenceand examining the accused under S.342 of the Code, if'necessary, finds that no case against the accused has been

made out which, if unrebutted, would warrant his conviction"'he must discharge the accused4

• (iii) If, on the otherhand, the Magistrate is of opinion that the accused has

1. (I) of the Code.2. 5.244 {l) of the Code.3. See 8.244 (2) of the Code.4. S.;253 ef the Cede.

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III

accusedtoTribunals may gr,ant

by the Court of Se~sion offences inand IV of the same schedule when read(c) and (d) article of Order

by the .~our~ of Session a Magist;ate as a warrant-case. WIt . t e liberal procedure pres~ribed therefor in theCode as described above. Special Tribunals' "t'

b . d . may, 1 18su ~ltte , relax the short procedure' of summonsand In their discretion grant time to the aGcused whenfor th: ends of justice as p~?vided in article of theSuch a procedure will remove any inconveniencesbe felt by the accused in co:b.ducting his defence.

It cleu fnJIll' . abov,e discussionstha t the ~labDrp.te procedure followed in the trial ofwarrant.Qa!3efl is more advalltageous to the accu~ed thanthat followed in trials under the summons-case pro,c~dure.

F1jlrther. the still :more elaborate proGed\lre be followed

in inquiries and trials of warrant"case& by the Magi~trate

and the Court of Session, i.s more ~dvftl1tag~o,us to theaGcused than that are presGribed for summonS1"C!lses and

warrant-eases by Magistrates.

defend. properly and effectively. This.elaborate

pt.:ocedure not only helps the socusecd defendinghimseUpl'opedY and hut actually saves much public'time and money, not to spet;lk the harrasment of tlileaccused.

65. It would follow from what has been said abovethat if the proce dure of summons"Gases is fonowed b,the trial of warran.t cases by Magistrates orin theinquiry and trial of such cases by the Court of Session,the accused would be\ seriously handicapped and pr.ejudicedin his defence. And any cpnviction following' such· atrial would be quash~d by :the High Coqrt. But :thecontrary proposition is npt true. F0r if the procedureof warrant..ca~es tried by Magistrates or by the Courtof Session is followed in·a $UmlllOn~case, the accusedis not only not prejudiced in his trial hut actually has

the advantage of a more favourable procedure, a:nd he. willhave nothing to complain of.

66. It would be seen that the off~Aces in Parts I,and the Schedule to the Collaborators Order whenread with C;!FiUSes ((}) .a.na (bJiofarticle>'iioftheOrclel\are very serious offenGes whiGh but for t.he'

provisions of article 8 of the Order",b~~>\tda.ble('e~cbJ,siv,ely

3-

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Chapter XX of the,of sections 241 to

classified summary

,1. The procedure laid in sections 241

to 250 of the Code ·shall apply toSpecial Tribunals (S. 241 ).

2. The particulars the offence in question

shall be stated to the' "accused (S. 242 ); ifadmits havingchmmitted the offence does

not show sufficient cause why not be

convicted, he may convicted thereon. (8.243).

3. The procedure of taking evidencethe case is contested (S. 244 ).

4. Examination of the accused under S.342

of the Code.5. Acquittal or conviction on the merits

6. (a Conviction for other offences ifproved (S. 246 '); .

(b) acquittal a complaint case for the non~

appearance of the complainant ( S. 247 ) ;(c) acquittal in a complaint case on the

com'plainant withdrawing his complaint ( S. 248 ).

(As will be shown, however, these provisionsdo not apply to cases by Special Tribunals).

7. Stopping of the prosecution and releaseof the accused without consideration of the caseon the merits (S. 249 ).

8. Compensation to accused

complainants and in£?rmants case isfalse, aIt40r ve,~atious ( 250).

Th~se .. Il:OYlSlOUS

iJ ....' .... I5, ...... jJJ,.1... \ls ~aapted

under article 8(2) of the

R~~9{eq~1fe{. porvided byPr9gedure, 1898 ')' for,,' il

summons-cases by Magistrate~."

1. Act XL of 1958.

E8. It should be noted that a similar provision has

been made in section 6(3) of the Bangladesh Criminal

Law Amendment Act, 1958,1 by which fCi'e provisions

of Chapter XX of the Code, in so far as these are "not

inconsistent with the provisions" of that enactment were made

applicable to trials by Special Judges under that Act.

These words in inverted commas above do not, however.,

occur in article 8 (2) of the Order quoted uhave.

This form of legislation by reference to the prOVISlOllSof another enactment, known as' referential legislation".though common, is often attended with errors sometimesof a serious nature. Article 8(2) ado[Jts the proeedure,of summons-cases prescribed in Chapter XX of the Code ofCriminal Procedure consisting of sections 2-i1 to 250as applicable to trials by Special Tribunals under the

Collaborators Order. As will be shown below thatsections L46, ~47 and 248 of the Code, though soughtto be made applicable to trials by Special Tribunals

under the Order are not at all applicable to such trials.»

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36 of 'Collaooratbrs Particulars the offence to be 31

ask the aQcused to75. The Tribunal must

1. See paragraphs 60 and 61 above.

(0) the Tribunal must ask he hasany cause to show he not

convicted ; (S. 242 ) ;{c) if the accused admits that he has "

the offence, his admission shall be reC:OfClea

as nearly as possible in the words used

and (ii) if he shows no cause why he

be convicted, the Tribunal may

accordingly ( 5.243 ).rhese subjects are discussed below in the above order.

(a) Particulars of the offence must be stated to, the accused

74. As has already been stated in the last ~LL'''IJ''~L

that summons-cases deal with minor offences depending

on simple facts, the short cuts in the procedure are not

expected to prejudice him In showing cause

he should not be convicted. however. the offences

triable by the Special Tribunals are very serious ones,

and may depend upon intricate and complicated facts, the

Hparticulars of the offence" which should be communicated

to the accused, should be and complete, so asthemselves to constitute the offence. The facts relatingto the collaboration of the accused should be statedto him preferably by reference to the sub..clause or sub-

'Clauses the definition of collaborator in article 2 ofthe Order to which they appertain. I t is submitted

that as these "particulars" are the only materials comm­unicated to the accused so as to enable him to decide

whether to admit the offence or contest the case, theparticulars should be full and complete.

(b) The Tribunal must also ask the accused ifhe has any cause to show against a conviction

73. The two sections lay down the following procedure:

(a) The first major judical act which the Tri­

bunal must do, after taking cognizance and before

recording any evidence is to state the accused

the "particulars of the offence" which he is,

accused ; ( S.242 ) ;

243. "if the accused admits that he has commUted theoffence of which he is accused, his admisssion

shall be recorded as nearly as possible in the words

used him ; and if he shows no sufficient cause

why he should not be convicted, the (Special Tribunal)

may convict him accordingly.lt

2. Sections 242 and 243.

72. The next two sections 242 and 243, 'are related

to each other and should be read together. These two"

sections are reproduced below :-

242. "J:Vhen the accused appears or is brought before'

the (Special Tribunal). the particulars of the

offenc~ of which he is accused shall be stated tohim and he shall be asked if he has any cause to-,show why he should not be convicted; but it shall

not be necessary to frame a formal charge."

1. Section 241

71. Section 241, the first section in Chapter XX..

runs as follows :-

241. "The fi,Uowing procedure shall be observed by·

(Special Tribunals) in the trial of ( offences specified

in the Schedule to the Order )."

are printed' in Italics, to distinguish them from the­

commentaries which follow them.

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Questioning S.34?(1) Cr. P. Code

cause why he should' ,not lJe4onvidi~~, ahd riot hferely to'question him if he is guilt:y" or not guilty: That should

. be done only In the trial of warrant~casesl and ofsessions cases2•

(c) The aqmission of guilt by theaccused(i) The admission must b3 fully recorded

76. The acctlsecl is thn's entitU~d to nlhke a long state­ment by way of shOWIng cause why he ~hould not beconvicted~ He may als'o, if he likes, plead 0111y gililty ornot guilty. But if ill showing caus~, he admits having.committed the offence, it must be recorded in full, as muchas poss'i.blb in'th.e wbrdsor the accusea~ In warranf·Case~b.d in Sessio'lls'-c~se pfoc~aUres, the acciised .may only'plea.d" "gu.i1ty'· Or "hht guil'ty" aliCl riothirigIllortL

(ii) COflVlct;ion on accused '8' admissibn ot tneoff~nce and on his' f~atire to shbw cklise whyhe should not be coh\rieteCl

77. If the accused admit~ having committed the off­ence impute.d to him, and does not show sufficient causewhy he should not be convicted, he may be convicted on.his admission of guilt.

3. Section 24478. Section 244 runs as follows':-

244. "(1) 1f the' (Special Tribunal) dces not eon-,vict tile accused under the preceeding., section

or if the accused ooes not make any such ad.

mission, the ( Special Tii15tmdf) shall I?roceedto hear the complainant ( if any and take all' .

such evidence, as may be produced in support of

the prose.c.ution. and also TO tfle accused

1. Under 5.255 ofthe Code.2. Under 5.271 of the Code.

and tJke all' such evtdellce may be ,... ,-,';"/,U'I';.'hl"l

1ft' hlJ; lJefenc'e.(The proviso to this srib-section aHseswhena ease is started on the cdmplaint of a pub..lie servant, which isofnitted' a's it'apply to Special Tribunals,)'

"(2) The (Special Tribunal)" may /1 itthin/,s 0'1 the application of tfie co<nplairlantor accusecl issue suiJi,nons tOGn,! witness direct~

ing him to" attend or to produce an"y documerJ(or other thing.

(3) ·'The (Special Tribunal) may, before

sum,manning the witrt~!S on~uch (lpp{lcalion /e­

quire that his rem"onable, expetises, incurred for

the purpos es of the trial, be deposited in (:ourt~"

19. The points dealt with un~ersyction 244 of theCode may be considered under the following heads :-

1. The purpose ot the shortened pro0edure ot

summ<:>~p cases;(a adjournments,\b) trial in the absence of the accusEid;(c) examination of the prosecution witnesses;

2. examination of the accused under S. ::142(1)Cr. P. Cod~;

3. examina:tio 11 of defence witnesses ;4 examination of court witnesses.

1. Trrepurpose' of the shortened procedure ,ofsummons·cases

80. The purpose of a,c!optingtb,e s,hortened procedure

of '~um:wpp.s-casesi,the triq~ of" offeIlces .

Collaborat(H~' O~de;r, i~t~,!eiI)sHP1i~peedy trial~sU'pp'()s~~ithfltthJat'iPurpo~~, " . , ."""""".-1

advfintges a fair trial under the more fldvaIlt<:lgeou~

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40 Trial of Collaborators, .. ",' .....,. """ .,... ,•. ', .~\ ", Copies of all papers given to parties in the Agartalacase 41

procedure applicable to warr~Il,t-cases and Sessions trials,as the advantageous procedure of warrant-cases and ofSessions' trials' can be woven into the texture of thesUfil.mons-caseprocedure. Speedy trial. is not inconsistentwit4 faic,trialto th~uaccused within the framework of theprocedure of summos-cases.

81. Long experience in trials of cases under theanti-corruption laws, which are also tried under theprocedure of summon~-cases has, however, amply demon­strated that inordinate delays have almost invariably

occurred in these cases in spite ofthedevice of summons­case procedure. Cases are pending under the anti­

corruption laws which are being tried under the summonsprocedure for four, five or six years or even longer.These inordinate delays c:re almost invariably due to theprosecutiqn failing to produce some of their witnessesfor months and years. Speedy trial can be combinedwith fe ir trial by the court insisting on the prosecution

producing all their witnesses for a day-to-day hearingof the case, as is done in Sessions trials.

82. Delays in serious cases tried under. the procedureof sumrhons"cases are also due to the failure of theprosecution in time to supply copies of the statements

of their witnesses made to the police under section 161of the Code as well as those of confessions, search andseizure lists and of the opinions of handwriting experts,enlarged photographs of documents and sample writingsof accused persons and other documents if any.

83. These causes of delays were anticipated by theprosecution in the wen known "Agartala Con'piracy Case'~

which was'·· "a Case of corispiracy·towage war against

the lGoverilment under section 121 A 'of the Penal Code,and which was also tHed by a Speci~l Tribunal under

the shortened procedure of summons-cases tried byMagistrates. In this Cdse the prosecution supplied cyclostyled

j ~ ;

cQpi~s ,of a I DO-paragraph statem~nt of facts, and statements tothel?o1ice~tal1'Xitnessesunder s. 161 Cr. P. Code, of all con­fessions re~orded under section 164 of the Cr. P. Code, ofseizur~ lists and documents seized by the police and even ofthe opinions of handwriting experts and of enlargedphotographs of disputed handwritings and of sample writings·ofaccused persons which were used by the handwriting,experts, were all supplied to all the 35 accused on the

first day of. hearing, when the accused persons, were

separately examined under S. 242 of the Code on the100-paragraph statement of the case which, was read outto each accused and tbey were questioned if they hadany cause to show why they should not be convicted.All the accused persons pleaded not guilty to the offence of

whIch they were accused.

84. The evidence was not, however, taken immediately

afterwards. But the case was adjourned for a.month;to enable tbe accused and their advocates time, so that theycould have ample time to study them and come preparedfbr cross-examination for a day-to-day hearing of the case.The prosecution witnesses were t on the resumption of thehearing, examined and cross-examined from day to daywithout any hitch. Further, cydostyled copies of thedepositions of all witnesses were prepared and supplied tothe advocates on the following day. Witnesses wereallowed to be re-called by the prm ecution and by thedefence for further examination and cross-exa::nination,where necessary. Thus the case went on smoothly and speed­ily .£.1,"0111 day to day without any adjournments, and without

f;l~Y) inconvenience to the prosecution and the defence.Further, the case was heard from 9 A. M. to 1 P M. each

<lay with a recess for half an hour each day with

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42 o E GoHat)Onlto:rs a.ccused

the above

of his counsel

accused

gang cases

this

is

of hbw'ever,

as f6 \lows :-

9.(2). "No sh~ll adjourned reason

of the absence of the accused person, if such

accused person is represented counselor if,the absevce of the accused person or his "'n''''''(~''''

has been brought about by the accused person

himself, and the Special Tribunal shall proceed

with the trial after taking necessary steps toappoint an advocate to defend and (the?) accusedperson who is 110t represented by counsei." ,

The wording of this clause is somewhat

and its meaning somewhat obscure. The clause may

mean the following :-

An accused may b~ tried in his absencc ifhe is represented by counsel (which perhaps.

includes an advocate or a legal practioner). But

if the accused is not present at the and

has no counsel to represent and if their

absence has been brought about by the accusedperson himself, the Tribunal shall appoint an

advocate :to represent him at the trial,may proceed in his absence.

It would, however, seem to follow

if the absen~e of the accused and

has not been brought about by the

the Tribunal cannot try himex~ept under secHon540 A of the Code ofcedure where there are "two or more accused" and

one of. them is "unable to remain in court" generally

from illness, in which case 'court may "dispense

with his attendance" and proceed the inhis' pl'eadef him triaL

85. It is submitted that the same procudure should

be adopted in the trials under the Order, so as to ~ave

time and ensure ,. fair trial" 1 to the accused under the

"due process of law"2 which are guaranteed by the

Collaborators Order.

Saturdays off, to enable the advocates engaged

case to study and digest them. Thus. not awas lost by any delays in the trial, and the hearing went

on speedily, smoothly and continuously from dey to day.

'Evidence was recorded in shorthand. There was thus, three

and a haH hours of hard work for everyone concerned in

the trial each day, which 110 one grudged.

(a) Adjournments

86. Section 244 (1) of the Code gives the court

power to postpone the commecement of, or adjourn, a

trial, if it thinks fit, and 011 such terms as it thinks fit.

The same principle is also laid down in article 9(1) of

the Order, though in somewhat emphatic terms, asfollows :-.

9.(1) '·A Special Ttibunal shall -not be houn,d

to adjourn a trial for any purpose unless such

adjournment is in its opinion, necessary in the

interest of justice".Though expressed in differnet words, the two provisions

seem to lay down substantially the S3-me rule., They

allow sufficient discretion to the Tribunal for the purpose

of helping the accused to prepare his defence with the·

facilities suggested above, as also ensure speedy trial.

(b) Trial in the absence of the accused and his counsel

87, Normally under the Code of Criminal' Procedllie,.

rio accused can be tried in his abscence. Article 9\2)

1. Se~ clause 4 0 r the pre,~mble to the Order2. S~'~ cla~se 3 of the of prcal~lbie t~ the ()rd~r.

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44 Trial of Collaborators The order of prod. of wit. to be regulated by th~ COUtt 4'5

;section 400 of the Penal Code to prevent a hold-up of

the trial due to the illness of one or more accused.

The present clause, however, seems to contemplate a casewhere the accused person prevents his own appearanceIn court by hunger-strike and the like.

(c) Examination of the prosecution witneEses

88. According to the terms of section 244( I) of the-Code, if the Tribunal does not convict the accused under

section 243 thereof, it must hear the compbinant ( ifany) and shall take all such evidence as may be pro­

duced in support of the prosecution.

89. This duty of the Tribunal to take all the evidece

produced by the prosecu tiOll, is obviously subject to theexception that the ebvidence must be J elevant to thecase urder the terms of the Evidence Act. This

principle is laid down in clear terms in section 5 ofthe Act which provides that evidence may be given of

·every fact in issu~ and of such other facts as are "dec­lared to be relevant and of no others." Under the section

the court must exclude all evidence which are not declared

'by the Act as relevant. The general rules of relevancyare to be found in sections 6 to 11 of the Act, the rules-of relevancy in particular cases being embodied in sect­ions 12 to 55. There are also other rules as to relevancyin other places in the Act. These rules are of great

practical importance. The advocate who stands up to

·examine or re-examine or to cross-examine a witness in

·court must be familiar with the rules of relevancy, andmust be re.idy to support any question put by him to a

witness by reference to the- relevant section or indicate

the principle under which the question is justified. He

must also be ready to object to any question put by theadverse party if it is not relevant under any specific

provision of the Act. Questions and objections to questions'

based on the so-called common sense or experience are·

not a safe guide in such matters.

90. The order in wh\ch the witnesses are to be pro­duced is of no less importance. Witnesses are to be produced~.

in a natural order so as to unfold the story which it isproposed to be proved, and develop the case in a natural

order. In practice however, great laxity prevails in this·

respect, and witnesses are produced in a haphazard andbewildering manner, leading to great confusion and incon­

venience in cross-examination. Witnesses of a particular

group should ,be produced consecutively and in a di-finite:order or cross-examination becomes difficult. It is often

thought that these are matters for the advocates of the­parties concerned alone and not for the court. But this is·a mistake. For~ section 135 of the EvidenCE Act clearly

provides that the order in which witnesses are to be

produced must be .regulated by the law and practice laid

down in the Codes of Civil and Criminal Procedure,.respectively, and in the absence of any such law, suchmatter must be regulated by the court itself. No rules

governing the question are to be found in these two Cod·es.

The order in which witnesses are to be produced must,.

therefore, be regulated by the court itself. The SpecialTribunal must, therefore, take the matter in its hand and

'direct the order in which witnesses are to be produced.

This will remove any grievance of the adverse party

and will simplify and shorten matters considerably.

91. The order in which a witness is to be handled

by the party calling him and by the' adverse party, is

regulated by section 138 of the Evidence Act. Under the

first .clause thereof, witnesses are to be -firstexamined-in­chief, then ( if the adverse p;trty so desires') cross-examined"

Courtesy of MMR Jalal

95. Sub-section (1) of section 342 of the Code of CriminalProcedure deals with the questioning of the accused for

the purpose of enabliI}-g htm to explain any circumstances,fJ.pp~ating in the evicience agllinst him. As pointed out

h;r Mu~eEji, 1. in the casy pi 1[-mpcror V. Alimuddin Nasker2

1. (1922) 21C. W. No. 797- (799) P. C,(1924) I. L. R. 52 Ca1.522 (5~6).

94~ ~pep~~l. provisiqn has Pren made in se~ti~n 154"0£ th~ Eviqeqqe 'Act l~p.je~ ~h~ch the court 1)1aype~mita"p'.n:ty calUn'g a witnesst to' put quesrio~s to l1.im Vfh,ich

t~~'f\?v~r~y lW~ty may put in crosswexamination.' 'In otherwords, the court may permit a party to P'lit leading

qttest~ons t? his own witness, and virtuaUy to cros~e~amine him. It is, however. often believed that thissan only be done when the witness "turns hostile" andis to be declared to be so. But this is a mistake. Sir

Lawr~nce Jenkins in delivering the judgment of thePrivy Council in the case of Baikunta Nath Chan'raj V.

PrClsarma Moyi Debya. J has pointed out that the sec;:ion

does not say anything about declaring a witness hostile;and the court may permit leading questions to one's ownwitness although it does not think that the witness has

turned hostile. Under the English rule of Evidence thewitness must be declared hostile to enable the court to

permit his cross examination. The English practice has

been introduced in this country through English text­books. But section 154 does not say any thing to encouragethe introduction of the English practice .here. The courtmay permit such questions not only when the witnessturns hostile and goes back upon his previous admission

but also when he goes against the party calling, him through

forgetfulness or mistake and the like.

2. Examination of the Accused under section342 Cr.P.Code.

th~10 (if the party CfllliJ1g himThis is, of course, el~lTI~ntaFY'

1. Section 141 of the Act.2. St:l;tiQU 142 of the. AGt.~. ~~c~jonp~ oq~e ,49t, &e.c9Jil~ cla.l}~e.

93. There is a marked difference in the form in whichquestions are to be put to one's own witnessin examination­

in-chief on the one hand, and in cross-examination bythe adverse party on the other. The question relates tothe occasions when "leading questions" may be put toa witness. A leading question is one which suggests the

answer which the person pntting it wishes or expects receive)

The rule is that leading questions must not be put bya party to his own witness, if objected to by the adverseparty, unless such questions are permitted by the court.2

The court must, however, permit leading questions as tomatters which are int~od?lctory or 'undisputed or which

have in the opinion of the court, been sufficiently proved.3

Leading questions in such cases are harmless and are per­mitted to save time.

92. The scope and purpose of these three kinds of

,examin~tiolls a~e importa~~. Tpyse are laid dovvn in theseyond and third clauses of the s~ction. Unc;ler t~~ 8econd

.clause, the examination-in-chief and the G~o~s-exami'nationmust relate torele;'qnt matters; but the cross-examinationneed not be confined to the facts deposed to by the wit­ness in his examin~tion-in-chief, but may relate to otherrelevant matters not touched by the examination-in-chief.

'Under the third clause, the re-examination must be dev6t'edto the txD!anation of matters referred to in cross-examin­ation. But if new matters are introduced with the per­mission of the court, the adverse party may further cross­examine him upon that matter.

Courtesy of MMR Jalal

48 Trial of Collabora tors No questioning if n,(;)thingag~hJ.staccusedin evidence 49'

the sub-section contains .two parts. The opening words.of the sub-section "for the purpose of ~riabling the acousedto explain any circumstances appearing in the evidence

against him", govern both the clauses. The first clause

runs as follows .-

342. (1) "For the purpose of enabling thethe accused to explain any circumstances appearing

in the evidence against him, the Court may, atany stage of the inquiry or trial wi thout previously

warning tne accused, put such questions to him, as

the court considers necessary,"

The second clause of the sub-section, which IS more

important, runs as follows :- .."and shall for the purpose aforesaId questIon

him generally on the case after the witnesses forthe prosecution have b~en examined and before

he is called on for his defence.

96. It will be seen that the questions to the accusedunder the first clause is optional, but under the second

clause, such questioning is more important and is compulsory.

As pointed out by that very learned judge, the second

clause if fully writJen out would rLln as follows 8-

"The Court shall for the purpose of enabling

the accused to explain any circumstances appearingin' the evidence. against him, question him geneTallyon the C:lse after the witnesses for the prosecutionhave been examined, and before he is called on

for his defence."

97. As in the case of the definition of 'collaboration',

the words of the seco!ld clause, as fully written out asabove, are reproduced below without· any change~ except

- that the component parts thereof are written out and

numbered separately as under :

Anatomy of the second :clause

1. HThe Court shall

(aj for the purpose of enlbling the accused(b) to explain any circumstances

(c) appearing in the evidence against him.

2. question him generally on th~ case(a) after the witnesses for the, prosecution have

been examined

(c) and before he is called on for his defence."

98. From' the above analysis and on a considerationof the leading cases thereon, the following points seemto emerge :-

(a) The condition precedent-there must appear

circumstances in the evidence against theaccused;

(b) if there is eviden:e against the accused, thecourt must question him about it ;

(c) the form of the questions.

We may consider the leading decisions under the aboveheads.

(a) The condition precedent.

99. It would thus appear from the above analysis that~he existence of some circumstances in the evidice aglinstthe accused, which' is a condition precedent to thequestioning of the accused under the above clause. Aswas pointed out by Abott C. J. in R. V. Burdel/1 thatas a general rule of criminal practice no accused is tobe required to explain until enough has been proved to

warrant a reasonable and just conclusion against him inthe evidellce, in the absence of an explanation. For, itstands >fo reason tliat ,if there is nothing in the evidence

1. (1826)' L.B. &lA.Jq•...:93(161) :>2~.Re'(iseq:R.epors .. $11(~77 ).1.4-

Courtesy of MMR Jalal

against him; tnere is ,nothill'~ for him to explain, dnd

he cannot be questioned about ~1~ Iqdeed,the;court has no

right to question, hinr Vfhen eyi;de~se ~ar been givento i~plicate himl Qr when "eyide~ce ,i~, insufficientfor his, qon~iction or wher~. fr?fil, , the : :~ague~ess of theevide~ce the court is not prepared foac~ o~ it.

2, ,Sectioon 342

<loes not relieve the grosecution ,of t?enecessi~Y of provingthat the accused is implicated i~ ,the "offen~~ ,3 Answersto such improper questions are riot admissible in evidence

against the accused,4

100. It must ·f~rther be ~oted that the sole a?d ()nly-purpose of que~tionin~ the "accused. is to e~able him to,explain circumstances appearill;g in the evi~ence againsthim. It cannot be used' to cross-examine. t?e accused to,entrap him into making incriminating adnii'ssion, Hurry

,Churn ChuckurDittfy V: Emperior 5 , Queen-Empress V. Vbo11 6;

Queen-Empress V. HargovihdSingh3 ;Queen-Emp'ress V., Bhairab

'Chunder Chuckerbutty7 ; Yas'in and Ors V. King-Emperors.

lOt. As a necessary corollary to th~ abo\T~ principles,it would follow that the court cannot question the accused

. ·d 9so as to fill up gaps in,the prosecutiOn eVl ence.

1. .... bibulla V. Kabtr.(1915)LL.R. 39 Mad.(711).2. R~V. Bholanath (1928) LL.R. 51 Cal. 313 (322)3. Mohideen V. Emp. (1903) I.L.R. 27 Mad 238 (240).4. A bidul1a V. .K abir. (191~)I.L.R.'39 Mad 770(171),5. (1l'S83) l.L.R. 10 ,C~l. 140 (142-43),6. (1886) LL.R. 9. Mad., 224(238-36)7. (1892) I.LR. 14 AIL 241 (253),8. .(1898) 2C.W.No. 702. ..' r,

, 9. Basant~ ;Kumar Ohatak V. Queen-Empress, (1898) LL.R. 26 cal

'1~)'\5Ul~' ,jM?W~rf~,~.. ,Entperor',i (1902L;I·~·It~.. 29, ,M~d! 238 (239) ;..~h.l 'iv.tajhi, v. King-~mpe~or, q929~ '.• I:L-~' 9 ~ft,~. 504 (506); Tahasin­~ddin V. Ertlperor,(1940) 44 'C.W~N. 396'(397;':';;98).

(b) If there, is evidence agahtst th~ aeBus~4.

the court must questronhim, on it.

102. It Was authoritatively held hy the Privy Councilin th~ case of Dwarka Nalh Varma V. King-Emper.or· thatif there is a pdint @1" in the evidence against the accusedwhich tFre court consid'el"s to be vital, it is its duty underS.342(1) Cr. P. Code to draw his attention to the point·or points for his explanation. if any. This was a case,of fundamental importance which for the first time drewthe attention of the then British Indian Courts to the.duty of the court in this respect. It should be noted that.all the later cases are based upon this leading case.

(c) The formoftne questions

106. As to the form in which the questions are to beput, much irregularity prevaHsih the C'ourts. At first,the usual form of the question was "you have heard theevidence, have you got anything to say? -A. I aminnocent." This was condemned in the case of Dwarka NathVarma V. King-Emperor2 referred to above. This-decisionwas universally followed, and now this sort of questioningis no longer in use. Instead of this, however, anotherand a wrong form is very much current. The new formcis: "The accusation against you is that you on or aboutsuch and such date and in such and such place did suchand such things Answer--Iam innocent." This form,of questioning is open to the objection that it alleges thecase against the acCused or the "particulars of the offence"which are to be put to the a.ccused under S. 242 of the,Code and not the cevidenceagainst him, which alone 'maylbeputunder the section. This form of questi6n:i:ng wasa:Isb 'cbndeIllrledby Ithe Supreme Court 'Of India !in :'the

-1. (1901) I.L.R. 28 Cal. 689 (693).2. (1933) 37 (C.W.N, :'51'4 -(525~26)59 GL.J. 177. :P;O.

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1. (1951) S.C.R. (India) 129~, A.I.R.1951 S. C. 441

case of Tara SiitghV. Stat~.l But this form of question-,

'ing still prevails.in some courts.

104. The correct form 'shpuld be to collect the circum·

stances ',which, according to the court, really weigh against

the accused on which he should be convicted and then ta·,question him about it. For example, in a case of murderthe evidence against the accused was (i) that some wit­nesses saw him striking the deceased with a weapon, (ii}

some witnesses said that the accused bore a grudge against.

the deceased, and (iii) that the accused made a confessionbefore a Magistrate or to some other person. The correct

exam.ination should be as follows :-Q. "Witnesses so and so said that you struck

the deceased with the weapon (name the waapon).

Do you wish to say anything about it ?

A. "This is false. The witnesses are my.

enemies, and have given false evidence against me."Q, "Witnesses so and so said that you had

a grudge against the deceased before the allegedoccurrence. Do you wish to say anything about

it 1"A. This is entirely unfounded and false."Q. "The Magistrate (naming him )has said

that you had made a confe~sion before him that., .u­

Do you wish to say anything about this ?"A. "Yes, This was due to police beating and,

tutoring. The statement is entirely untrue."Q. "Do :you wish to say anything else ?"

A. "I am innocent." .

And so on and so forth. Every category of evidence or'

circumstance appearing therein against him must be put to,

him distinctly and separately and not lumped together in one

.complex questions

,52 Trial of Collahorators Evidence can't be used to convict; if not questioned about 53

105. The next question is what is the effect of the court.omitting to put a particular category of evidence tJ the

accused for his explanation if any. It was held by thePrivy Coundl in Dwarka Nath Varma V. King-Emperor,l

that if the court considers that a point or points in the

~vidence is vital against him, the court is bound under~. 342 (1) of the ,Code to put it to the accused for hisexplanation if any. If the court does not put it to theaccused for his explanation, and the accused offers no expl­.anation thereof, the court cannot blame the accused for

not explaining it, and cannot use it against him in convictinghim on that evidence. This decision was followed by ,Abdul

Rashid C. J in the Federal Court of Pakistan in the caseof Rahim Bukhsh V. The Crown 2 in which it was held that

"it would be most unfair and would a'!Uount to a 'violation

of a fundamental principle of natural justice if he is convictedsolely on the basis of an admission alleged to have beenmade by him without calling his attention to the admiss­ion and asking for his explanation." The confession wasexcluded from consideratiqn, and this being the sole evi­dence aginst the accused, he was acquitted. This casewas followed by the same Court in the case of AminulRoque V. The Crown 3 and in Ahdu/ Latif V. The Crown:t

106. It is therefore clear that a court trying an accusedmust collect together all the evidence against him andarrange them in different groups, and put them to theaccused separately, and so give him an opportunity to ex"!plain the same if' he chooses. If this is not done. thecategory of evidence to which the accused's attention hasnot been specifically drawn, cannot be used against himin conviting him. The need for very careful examination of

1. (J933) 37 C:W.N. 513. P.C.2. (1950-51) F.C.R. 246. F.C.3. (1951) 1950-51 F.C.R. 224 (244-45) F.C.4. (1952) F.C.R. 116 F.e.

Courtesy of MMR Jalal

of Defence

witnesses

Cross~exlmination. -. ' , .and3. Examination

Witness.es.

110. After the 8¥=amination of the .accused undersection 3 J 2 Cr. P. Code, the Tnbunal must heflrthy accuse4and take all ,such evidence as he may produce!. Thisis of COttrse subject to the condition that such evidedceis relevant, as in the case of the prosecution evidence2..

The w~tqesses for the defence may be cross,examined

and re-examined in the same manner as the witnesses'

for the prosecution.

L2.

1:.Q9.~!lJ.J~,-sr[c~~91L~~', p,rqyJge~, J~~t any answer

tJ-"HlJ:th~ a,9cU,~y~ W.;Ly;·~JX·~, ~a.y bitt tq.~e)1 fn,toC~R-~iderationin the trial. It further provides that such ;a,n~wers may

~J~oQe 114~ in ,eyi4eppe .for qr aga,i:p.st ll~m in any future

prQ~e~"lltion fqr any Qt1:l~f oHepce t~at his answers may

~e:p.dt9 ,Sh9;W he has, 99Il,1mittEtd. .It i~subrnHted that the~ta.:teIl)ent .of the fipcused way Qe used in any criminal,ya,~e Qr in any civil actiop as an admission afiainst hisinterest under section 21 of the 'Eyidence Act.,

4. Examination of Court witnesses.

111. We have now to consider the pow~r of theTribunal to examine any court witnesses. The Tribunalhas absolute and unfettered powers to examine any witnessit thinks necessary or 're~call any witness who has been

e:X:~II1ined alrefidy. Thi~ power is conferred uP9J:,1 allcQttrts ttndtir section !HO of the ,CQde .of

gg)~edure, ~J;:lichru.Il;s asfolloyvs :~

540. "Any Court may, at any stage ,Qfanyinquiry, trial or otherproceec;l~ngund~r '. this Codesummon any '. p~rson as a witness,. or, exa.mine Jlnyperson in attendance, though summoned as a .witp.ess,

Ttial efCdHa.borators

th'eaccus~d about the different categories ofevidence andthe need for giving him an opportunity of expiaining ,thesame is therefore imperative.

Suhr sections(2) , (3~ and (4)

167.We have now to consider the terms of the' remaining:sub-sections to section 342. Taking sub-section (4) 'first,it provides that no oath is to be administred to theaccused when he is questioned byrhe court under sub;.

section (1). It is a general rule th3.t no oath can :be

administered to the accused in any drcu mstances. Anexception to this rule is, however, provided in section ,7of the Prevention of Corruption Act. 19471 where it is.,provided that in a prmeeution' under section ] 61 of thePenal Code, the accused is a competent witness for thedefence, and can give evidence on oath.

1. Act II of 1947.

lO,q. Sub-section (2), however, gives immunity to the

aceused from any punishment for (i refusing to answerany questions, or (ii) for giving false answers to any suchq crestions. The agcused is thus left free to anSwer 0 r notto answet in any way he chooses. The idea is that ,inanswering or refusing to answer any question, he is notto behaun;ted with any fear of any future pro~ecution

for refusing toanswerorforgivir;tg false answers to sqqh

questions. The suh.,.se.ction, how.ever, pro vides tha,t thecourt may-draw such infereuC?e from ,such,. refusal ito answerany such 'questions as itlthinksfit. It may, he noted here'

thatillustratian(h) to section 114 of the Eyidence Actalso provides that H,aman ,retuses to answer a iquest1QJ;lwhich <is nat compelled to answer-bylaw, ithecollr:t.may

presume that the answer. if gi;v~n, ;wouldb~\Unf~vourable

to him. See also the sub-illustration to;illustration Jh)in that section.

Courtesy of MMR Jalal

56 Trial of Cdllaboratots Prosecution mu~t,prove'guilt beyond reasonable doubt

or re-cllll and re-examine any such person if his

evidence appears to be essential tdthe jtlstdecisiohof the case."

Section 540 thus enables the Court to callor re-call any witness, whom it considers to be a

material witness, but whom the" parties are notwilli ng to call and examine. The section confers onthe court a very necessnry power, t6 be exercised inthe interest of justice.

Section 245 Cr.'P. Code.

112. We now come to the final stage of the trial'\vhich is dealt with in section 245 of the Code; whichruns as follows :--

245. -"{f) If the ( Special Tribunal) upon taking

the evidence referred to in section 244 and further

evidence (if ml.1) as it may, of its own notion,

couse fo he prDduced. and (if it thinks fit) examining

the· accused, finds the accused not gi-lilly, he mayrecord an order of acquittal.

(2) r¥h~re the ( Special Tribunal) does not proceed

in accordance with the provisions of section 349 or

section 5n2~ it shall, if it finds the accused guilty,pass ser,Lence upon hYm according to law."

Sub-section (1)

113. Under sub-section ll) the Special Tribunal aftertaking the evidence produced by the prosecution andthe defence under section 244, may examine courtwitnesses under sectiol]. 540' of the Code. The Tribunalmust then hear, arguments as may be ,offered by the

Public Prosecutor and the accused, alld proceed to decide

the case.

The Burden of Proof and the Standard ofProof in a Criminal Case.

114. The' burden,· of proof in a civil a~tion > is generally'On tl;1epla:intiff,but sometimes the burden is divided betweentheparties,and sometimes on the defendant. depending on:the pleadings. The standard of 'proof in a civil action is thebalance of probability. In a criminal case, however, there are

no pleadings; and the burden of proof is always on the pro­

secution ; the presumption being that the accused is inno-'

cent. As to the standard of proof required for convicting an'accused', it is iniversally accepted that to convict an accused,th&prosecutionmust prove the guilt of the accused beyond

reasoimble doubt. This principles in its lafe~t form has hasbeen enunciated by the flonse of Lords in the well knowncase of ,. ,FVoolmingUon V. Director of Public Prosecutions!.

where 'Lord Sankey L.C. in delivering the opinion oithe

House said ~-

"Throughout the web of English Criminal lawone golden thread is always to be seen,that it is thedUly of the prosecution to prove the prisoner's guilt '., ..•

Hat the end of the whole case there is reasonable

doubt created by either the prosecution or the priso­ner :as to the prisoner's guilt, the prosecution has notmade out its case and the prisoner is entitled to be

acquitted. No matter what the charge is or where

the trial, the principle that the prosecution. mustprove the guilt of' the prisoner is part of the Comm­on Law of England and no attempt to whittle itdown can be entertained."

Viscount Simon L.C. in the case of Mancini V. Director

,oj Public prosecutions2 explaining the effect of WODlmingtons

case 1,; said that the prosecution rnust prove the. charge it make.J

beyand reasonable doubt. The rule is of general application inall charges under the criminal law.

H~L.

1.' ':(1942) A.C.I.H.L

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IH,. These. principles are of l,;lniversalc a:pplication in alrcriminal ,trials in Bangladesh. It is part ;dfthe ilib~rtyl,of

the citizen., of which he cannot be robbed, o:p. evidence­which is not ,free froin .reasonable doubt. If:~be, TribiunaLcannot find that ~heprisoner'sguilth~sbeen established,beyond reasonable doubt, it. must acquit. him.

Sub~section (2)

116. Seption 349 of the Cocle, ref~1J~d to it;l sub­section (2),prescdb~s what a Magistrate mt1~t do ;wh?n.he ;fi:qds th~ flccus~4 gpHty but also thinks that .he capllQtpa~s a-.qequate sentence. This section dqes not apply to

a Special Tribunals sinc3 all Special Tribu:t;lals are ~rppow­

~red to .pa,I;lS adequate sentences on acccused ;whom they­find guilty.

117. Section 562 of the Code, also refferred to insub-section (~), deals with a case when a COUEt finds anaccused guilty but the accused is a first offender. Section562 empowers the court to release the cffender on probation,of good conduct. The section is based on the idea of

reformation instead of punishment, which tends to make hima hardened criminal. Section 562 applies to' Special Tribunals,who may act l.lnder it in proper cases.

118.Sub.-sect~on (2) requiries the Tribunal, when it

finds t.h<;ltthe guilt of the accused hets b.~en establishedbeyond reasonable doubt, to pas~ a seHt~n,ce upQ:n him inaccordance with law.

.Sections 246 247 and 248 of the Cr.P.Code.,'~" ~ . _ " , ." J - , : . " _ __ ':,.;' '.' _ _-_ \ _~

119. We now come to sections 246, 247Uand 2,18 ofthe Code ,of Cdmir;tal ProCedUlre. which a,resupposed itO!

be applicable to Special Tribunals·.! ,It !is submitt~d,d1;blJ.t

for reasons given below, these ses~i,9;nsi'~9 l'\~t;~Un?I~; to· .Special Tribunals, which must ll therefore,. be i'leh qut of

;their consineration.'· !.rnese· sections· a.re corisidered "",,","" ,,',., L\u"'"

in the following par~g:raphs.

;(i) Section 246

120. Section 246, which is the first in this group·

of sections, runs as follows :-

2tp. "A (S,pecial Tribunal) may, un+!er s~ctio;n

243 (Jr se,ction 245, convict the accused of any ojfence

triable under this Chapt~r wMch from t~e fClPt$ admitted'or proved he appears to havf! committed, whatever

may be the nature of the complaint or summon;;."

The sect ion purports to empower the court to convictan accused of any offence which he admits to have comm­itted under S.243 or w)lich the court finds the accused

gqilty of, on th~ evidence under section 245, althoughit was nQt mentioned in the complaint or summons. Thequesticn is whether the Special Tribunal is entitled to

copvict the accoused of any offence outside the report in

writjng of the officer-in-cparge of the police station concer­ned on which tbe Tribunal has taken cognizance of theoffence. This is ,cOllsidered in the following paragraph.

121 The first thing to note in thi~ cQIlnectipn is thatthe Tribllnal ~as no pow:er to take cQgni~lnce,of any offence

u;nqer the Order, unless upon a report in wr,iting oLthe

officer~in·o)lflrgeofthe pql~ce station concerned; ,seeartic1e

7pf t4eOrder. Ex-hypothesi, theoffepc,e inqv.,estiqp. ;VV<;ls­not ,included iI)t~epoliye rep9rt on which cogni~a~q~ y/c;lS

t~keI;l by the Iribunal when the .~iise ,was sta.rt,e~. A,stpe

Tripv.n,a:~ .1l~s p.gtt,akep.cogni~3.PCep,! the off~p.C1e in9MM~it­

ion, it is submitted dlatit w,illhave no jurisdiction totry and punish any offence outside the r~port. Further t­

any offence under the 'Order is agrave'bne punishable­with heavy sentenceS of which -the accused· no·

Courtesy of MMR Jalal

Trial of· Collaborators S. 248 does not apply to Special Tribunals 61

nOtiee andon which the Tribunal the accused's plea nas

not been taken. The proper course insueh case ···it is,. ,submitted, in cases of this nature would be for the Stateto start a fresh case on a fresh police report under article

'1 of the Order. If section 246 is made applicable to a

Tribunal trying an offence, it would enable it topup,ish

the accused of any offence even outside the Schedule to

the Order, which is obviously absurd. Section 246 there­fore, does not apply to a Special Tribunal tryi~g anyspecific offence under the Order.

(ii) Section 247122. Seetion 247, which is next section In this group

'of sections, runs as follows g-

247. ., If the sumnwns has been issued on a c(jm~

plaint, and upon the day 'appointed for the appearance

of the accused, or ary day subsquent thereto to }l'hich

the hearing may be adjourned, the complainant, does

not appear, the ( special Tribunal) shall. notwithstand..

ing anything hereinbefoJ"e contained. aquit the accused,

unless for some reasons it thinks proper to adjournthe hearing of the case to some other day.

(The proviso to the section is omitted as it relatesto a case staT ted on the complaint of a public ser­

vant, who is not required to attend the court ).Section 247 plainly applies to a case started on the

,..complaint of a private individual under Chapter XVI of the

Code relating to complaint to Magistrates." The· case in

"question was started on a "report of an officer-in-charge

,of a police station" under article 7 of the Order. It is there­

fore submitted that section 247 does not apply to any

Tribunal trying an offence under the Collaborators Order.

(iii) Section 248.

123. Y'le then come to section 248, the last sectionin this group, which runs as follows :~.

248. "If a complainant, at anytime before aji'ial order is pass~d in any case ;JW'ld~r this Chapter.

satisfies the ( Special Trib~rt(J1 ) tha~ there· .aresufficient

grounds jor permitting him to withdrew his' complaint

the (Special Tribuntl1) may permit him .to withdraw

the same, and shall the~eupon acquit the accused."

The section plaiuly applies to a case started on com~

plaint and empowers the court to permit the complainantto withdrew his complaint, and acquit the accused. Underthe Collaborators Order the public Prosecutor is in chargeof the case and not any private complainant. The Public­

Prosecutor alone may with the consent of the· Tribunal,.

withdraw from the prosecution of any person with respect

to any offence in question; SEe section 494 of the Code

of Criminal Procedure. Section 248, therefore, appears

lllainly to be inapplicable to a Special Tribunal acting under

the Collaborators Order.

SECTION 249

124. Section 249 of the Code as adapted to thelanguage of the Collaborators Order, runs as follows:-

249. c· In any case iustituted otherwise than

upon a complaint' a (Special Tribunal) may ;top theprocedings at any stage without prouncing any judgmentof acquittal or conviction; and may thereupon release

the accused:'

125. The words used in the section are plain andunambiguous. To' make the section more plain if possible,

it is reproduced below without any change except that

its component psrts are shown arid numbered separalely

asunder :-Anatomy of section 249

1. "In any case instituted oiherwtse than upon a complaintl

.2' a Special Tribunal may stop the proceedings

1. "Complaint' is defined in SA (h) fo the ,pr.P, <:::ode~

Courtesy of MMR Jalal

127.. The Tribunal has, however, an unfettered

discretion in stopping the proceedings of a case before it ;and if it does so, it may release the accused. It is,

however, obvious that to act under the section, theTribunal must have some reasonable cause to do so.

128. To take a concrete casewhete a Tribun:a.lfuayact urider the section, it is necessary to narrate certainfacta 'which have come into prominence in' certa.in anti.-corruption cases unde'r the Prevention of Corruption Act'19471 a:u.d the Criminal Law Amendment Act, 19582,

under the procedure or su'innions:case by Magistrates.

Long expeHenbelll sucihtd~ls uriderCliapter ':XiX ofthe

1. Act II of 1947.2. Act·NL6f '195ft

3. and may thereupon. release the accused"

126. It win be seen that the essential condition for',tlle application,' ~f the section is that the case was riot

institute'd on a complaint. For if it was institutedupon a complaint., the cOillplafnant coulctterminate theproJeedings under section 217 by his non-appearance or

'by withdrawing his complaint under section 248. As:11as however been shown above, sections 247 and '24'8,do not apply to Special Tribunals. To come under

section 249, the case must have been instituted upon,(i) an information to the police Iii) or upon an in-formation to a Magistrate, (iii) or upon a Magistrate'5

,own knowledge of suspicion though forta"king cognizanceby the Spedal Tribunal a written report by an officer­in-charge of a police station is required under article

'7 of the Order-

129. In fou.r Cases4 'tfnder the anti-c8rruption lawsagainst the same persons, which were being' tried underthe summons-case procedure before a Special Judge. theprosecuti0f.l~as taking time after time to produce therecords of the cases which were before the MilitaryCourts till the Military Courts ceased to exist. Butthe case was being adjourned for over two years. Anspplication, was, however, made under section 249 to,stop the proceedings and release the accused. The case

was pending before a Special Judge at Dacca. The learned

Special Judge granted the prayer and stopped the proceedingsa'ridrdetlsed the accused This happened some :monthsagoa'nd nothing has Since been done by the prosecutionin the case.

130. The wording of section 249 is very guarded.It ohly requires the court to stop the prddeedings andteleafJe the accused. The Tribunal is not required toptonourtcea]udgemeht of 'acquittal or 'of convicti5n. Undersection 4(;13 of ·.the Code an ·accused ···who· is either'.. acquittedor convitredih a tfia:l,'ca'nnot be tried agaln:iJn the same

The Tribunalmay stb1JthelttohedinlgsAnidfelea.rt the accused 63

@oBe,hiis· arnp~y ;ShbWn. th~t adjournments after adjourn.."m'en!tg1Jl:£te;;taken the proseelilitiohto ;produce some of

"th'e'itjwibie~ses. Special [fudges'uilder diose 14\ots' h~ve

beren'ig~anHb'gadjournme'nts repeatedly ;aml interminably j

extenl:'liingJ over tw{),four~) five"six years or even mdre.The Special Juages;aregranting . these adjotir3mentsaUalong p~rhaps 'U.rtder the belief that they are bound totake all evidence that may be produced in support ofthe prosecution under seciion 244 (,) of the Code. andso they must go on adjourning the cases t,o ~nable the

prosecuion f6 p~oduce tlleit witnesses. An.d the proceedings

are dragged on for years in consequeri:ce.

conViction ;

Tiia1· cif COUab01'8tot&

(a) at any stuge

(0) without; ptoftouncing

a ju'dgemeat either of acquHhil

Courtesy of MMR Jalal

132. By a way of digression it may be suggested

that 'applications may be made to Special Judges under't't1e anti-corruption laws, for stopping the proceedings and'releasing the cases, if casses are delayed as above des­cribed and, if possible, to get a clarification from the HighCourt as to the scope of sect ion 249.

131. The stopping of the proceedings and. release ofthe accused under section 249 will not, therefore, bar any

rfresh proceedings, if the prosec ution so desires. We havereferred to these delays in some detail only to show someinstances where section 249 may usefully be applied intrials by Spedal Tribunals.

call

as rnay be

S.250Compensation to the accused

the ( Special Tribunal.) m JY, its order

or acquittal, the· .. Pt!rson upon whose

information the accusation was made is

upOtlhimforthwith to show cause lvhy

not pay compensation to such accused or to each or

to any oj such accused when there are more than

one, or. if such person is not present dfrect the issue

of a summons io him to appear and show cause asaforesaid.

(2) The {Special shall record and considerany cause which such complainant or informant may

show and if it is sati.ifjed that the accusation was

false and either friovolot:ls or vexatious

remons to be recorded, direct that compensation to.!Juch amount not exceeding one hundred rupees

as it may determine, be paid by .ruch complainant orinforment to the accused or to each or any oj

~ (2A) The (Special Tribunal) may by order directingpayment of the compensation under sub-sectionfurther order that, in default of payment, the person

ordered to pay such compenralion shall suffer simpleimprisonment for a period not exceeding thirty

(2B). fVhen any person is imprisoned under sub­section (2A), the provisions of sections 68 and 69the BorJgladesh Pen'll Code shall so~pry. '

(2C) No person 'who has been directed to paycompensation under this section shall, reason

of such order, be exempted from any civil or criminal

liability Of' in respect of the complaint made or Inl.""""'",

lion given by him :

PrOVided that any amount to an accused

person under this section be taken into account

in awarding compensation to such person in any sub&sequent civil suit relating to .the same matter.

5-'

Trial.of Collabor ators

facts the same offence. order section 249'is neither an acquittal nor a conviction, section 403 doesnot 'therefore bar afresh trial when an order has been, . ,passed releasing the accused under section 249. to·make assurance doubly sure, the E>{planation sec~ion

403 makes it clear that the "stopping of the proceeding

under section 249 is not an ocquiltal't for the purposes,

of that section.

Section 250

133. \Ve now take up section 250 which is the lastsection in Chapter XX. It is reproduced p~loW" as adapteclto the language of the Collaborators Order :-

250. "(1) in any case instituted upon compla-

int or upon information given to a JJ0 lice o!fiCf!'f or

to a Magtstrate~ one or more persons is or4re accused

before a ( Special Tribunal) of any oJfencetriable by

a (Special Tribunal). and the (Special Tribunal)/)xwhich

the ease is heard discharges or any'

of the accused, and is of that the accusation,agains,t,them ljlas . false and ei1her frivqlolJ~orvexa!iofls,.

64

Courtesy of MMR Jalal

66 1?ri~l 'Q£ ,Collaborators

(Sllb..sections (~) a:pd" (4) are omitted as theydQ not apply, to Special Tribunalsj.

134. Secti.on 250 deals with the payment 0fcompen­sation to th~ aGcu~ed whQ is or are discharged or acquittedby the Special Tribuna.l. The further condition is that

the Tribunal also finds tha.t the accusation was either0) false and frivolous or(ii) false and vexatious.

The section, however, applies oniy when the case arose

~n (aJ a cOIllplaint to a Magistrate or (b) on informationto the police or to a Magistrate. The order to pay com~

pensation may be made only against a complain~t or aninformant who had given the informant which ultimately res­ulted in prosecution. The Tribunal must, however, give thecomplainant or the informant notice to show cause why comp­ansation should not be paid to the accused or to the severalaccused persons. If the complainant or to the informant, as thecase may be, shows cause, the Tribunal must consider itand pass its final order accordingly. For non-paymentof the compensation awarded, the complainant or the infor­

mant is to be sent to civil jail for a period not exceeding30 days. The order for payment of compensation willnot however bar a civil suit for malicious prosecutionor 'any crim:nal proceeding that may be taken againsthim. The compensation paid would be set off against

any compensation awarded by the civii court for malicious

prosecution.

135. This completes the consideration of matters inconnection with the proceedings before the Tribunal, Anote on Accomplice Testimony is to be found in Chapter

.VIII.

Chapterc'VIII

Accomplice Testimony

136.. Article 10 of the Collaborators Order empowers'any Special Tribunal to lender pardon to any personwho is supposed to have been concerned in. or privy tot'he offence under triaL The object of such tender ofpardon i~ to obtain his evidence against the accusedabout the offence. The article follows the line of section337 of th~ Code of Criminal Procedure. Under thatsection pardon can be tendered by certain Magistrates.

Article 10, however. provides that for purposes of sections339 and 339A of the Code the pardon is to be demedto htlve been tendered under section 338 of the Code,which deal with tender of pardon by the Sessions Judges.

137. Any person who has accepted a tender of pardonas above is called an "approver", wh.o must be examinedas a witness for the prosecution on oath, who may then

be cross-examined by the accused and, if necessary,re-examined by the prosecution.

138. An approver is an accomplice who is a competentwitness under section 133 of the Evidence Act.Section 114, illustration (b) of the Act provides thatthe court may paesume that an accomplice is unworthy-of credit unless he is corroborated in material particulars,while section 133 provides that a conviction on theuncorroborated testimony of an accomplice shall not for

that reason only, be illegal.

139. The leading case on the absolute need forcorroboration of ac~ompHce testimony to base a conviction

Courtesy of MMR Jalal

upon, is Am?iea Charan Emperor1 • This was acase of terrorist conspiracy to prepare bombs and collectfire arms, with a view to end British rule in India.

Four the appellants were convicted on the uncorrobo­

rated or insufficiently corroborated evidence of one or

nlOre a~complices. The Special Tribunal which had

convicted the accused on such evidence, held that the­

conspiracy with which - the appellants were charged had

been carried on for months in secret and it was there­

fore impossible to demand independent corroboration of their

aets, and that therefore the Tribunal had acted on the

uncorroborated testimony of accomplices alone and had

convicted the appellants thereon, but the Tribunal were

satisfied beyond the possibility of doubt that their evidence

was true. The principal ground of law in the appeal was

whether the conviction of the appellants on such evidence

was sustainable in law.

69

Bimallana

Ambica's easel was followedBiswas V. Emperor'}.

V. Emperor'J.

142. The question finally came'Council in the case of Bhuboni

finally upheld the principle. laid by ......u.;u.J.>.~.u.Amble's easel as above stated~ The lawsettled and must be followed all courts.

,on the uncorroborated. testimony an accomplice is not

illegal, but observed COUTts not exist to,convictions which are not merely illegal; it must

that such conviction is safely basch ; courts must '-.LA\;'.L'-'LV.Lv

insist that thereis independent corroboration of accomplicetestimony both as to the crime as well as·to the '-'V'.U\JJ..l.V"'-

each accused in the befote itconniction.

of Collaborator68

140. This statement of the law by the Tribunal evoked

an outspoken protest by Rankin C. J. in the appeal. The­

learned Chief Justice said that when the legislature says

"may presume," it does not mean "shall presume", never­

theless, it was absolutely necessary that the plain rules

of the English practice must be followed, and that inde­

pendent corroboration was mandatory. His Lordship held

that there must be some independent corroboration of

accomplice testimony, both as to the offence as well as to the

complicity of each accused in the offence before the court

would affirm their conviction.

learned Chief Justice conceded that a coriviction_

1. '(1931) 35 C. W. N. (1274),2. (1935) I. L. R. 62 Cal. 819 (823),

3. (1937) 170 I. C. 1014. (1949)L. R. 76 I. A. 147 (158) P. C.

Courtesy of MMR Jalal

SCHEDULE I

1 121

Offence

Chllaborator waging war orattempting to wage orabetting the waging of, waragainst Bangladesh.( ,N. B. S. 121 Penal Codeincludes attempt and abetment.

The provision for attemptand abetment in the Sched ule:Part I as applicable to S. 121is therefore redundant. )

Art. 4 and ABy

Schedule Officer, per- be releasedPart I son empoweted bail, Art.

by the Govern.. 14.ment, may

arrestwi,thout

warrant: Art.3(1).

portafioE. forlife; and alsoliable''ta ,a :fine~

11 ~1).

Tribunal. '. f ~com.ustlI'lg 0 :::1-

a~ Sessions e..o

JUdge or Addi.. ;;tion~al Sessions e..Judge: g:

oG(l) ~

"""o'"'itI)

2 121-A Oollaboorator conspiring towage war against Bangladeshand attempting or abettingthe samE>,

Do Do Do

muder. or attempting to

commit or abetting the

commission of murder.

3 302Collaborator committing

Do Do Do Do

(N. B; Culpable homicide

h'H:lefined in S. 299, while

s. 304 explains when culpable

homicide amounts to murder.

Attempt to commit

is specially dealt wit in s.

307 of the Code; 'see,item No. 5 it

should dealt with under

that section and not as

Courtesy of MMR Jalal

2Serial Section of

the PenalNo. Code

Any Police Shall not Death or trans·Officer. or per- be released· portation forson empowered on bail, life, and alsoArt, by the Govern- 14 liable to a fine.ment, may Art. 11 (l)arrest withoutwarrent. Art.3(1)

4 304

3

Offence

Collaborator committingculpable homicide not amoun­ting to murder under S. 304and attempting to commit,or abetting the commissionof, the offence.

(N.B. Attempt to commitculpable homicide notamounting to murder, isspecially dealt with in S. 308falling under Part II of theSchedule; see item No. 8in Part II of the Sched ule.Attemptto commit culpabeehandcide not amounting tomurder is therefore redun·dant here. )

4Articleof theOrder

Art. 4 andShedule

Part I

5

Who mayarrest

6\Vhetherbailableor not

7

Punishment

8 -~

By whatTribunaltriable

Any Tribunalconsisting ofa SeassonsJudge or Add- ~

tional Seassons e:..oJudge 2)Art. 6 (1) g.;--

0'"o'"i

l"1"

5 307 Collaborator attempting to

commit murder or abetting Do Do Do Do Do

the eommission thereof.(See Dote under murder s.

302 Penal Code under item

No. 3 above). r.J)al:r'(1)

6 376 Collaborator committing or 0.-

Do Do Do Do Do aattempting to commit, or (1)

abetting the commission of'"t1~t-t..,.

rape. H

7 3<:6 Collaborator committing or

a tteIl1pting to commit, or Do Do Do Do Du.

abetting the eommission of,dacoity, where any of the five

or more persons, whoconjointly committed dacoity,

....::I

commits murder. {J,i

Courtesy of MMR Jalal

SerialNo.

Section ofthe Penal Offence

Code

SHEDULE PART II

bailableor not

PunishmentTriable

8

9

308 Collaborator attempting to commitculpable homicide not amounting tomurder or abetting sUjh attempt.( N. B. See note to s. 304 of thePenal Cole, item No. 4 above.Attempt to commit culpablehomicide not amounting to murdershould be dealt with under S. 308see the turms of S. 308 whic':1is omitted above.)

325 Collaborator voluntarily causingor attempting to Cause orabbettingthe causing of grievous hurt, except

on grave and sudden provocationas provided in Sec. 335 Penal Code(S. 335 Penal Code is not anoffence under the Order).

Article 4

read withthe Sche­dule

Part II

Police Shall not Rigorous Impri-Officer or any be relaased sonment notperson empow- on ball. exceeding tenered by the Art. 14 years and shallGovernmen may also be liable toarrest without a fine.warrent. Art. 11 (b)Art. 11 (b) forfeiture

property oncon­victioll Art.12.

Specialunal consis­ting of aSessions

dge or anAdditional

Sessions Jud.gee Art.6(1)

It> 326 Collaborator (except in thecase provided for in S. 335 ofthe Penal Code), voluntarilycausinggreivous hurt by means

~ (i) instrument forshooting, stabbing or cutt­ing, or (ii) of anywhich, used as a weapon of

is likely to causedeath, or (iii) by means offire or any heated substance,or (iv) by means of any explo­8ive substance or (v) by ~eans

any iti8deleterious to the human bodyto inhale, to swallow or to..-e:>t'·Aurr:> into the blood. or

by means of any animal ; andor

Do Do Do Do Do

Courtesy of MMR Jalal

.....::J(j}

By what-Tribunaltriable

Special Tribu-nal consisti'ng

of .a SessionsJudge or an ;?Additional Se- e.ossions Judge ;:;Art. 6 (1) e..

j;'"C'"0"~8''"'t00

Punishment

Rigorous imp­

risonment notaxceeding tenyears and shallalso be liableto ,a fine. Art 11(b) Also forfe­ture of proper­ty on convicti­

on. Art. 12

Offence

Collaborator administering,

to or causing to be taken by

any perSO:1 any poison or

stupifying intoxicating or

unwholesome drug or other

thing (i) with intention to

commit, or facilitate the

commission of, an offence,

(ii) or knowing it to be like­

ly that he will thereby cause

hurt; and attempts to commit

or abets the commission of

the offence.

328

No.

11

Article Who may Whetherof the bailablearrestOrder or not_....................;;;....;..,..-------_................-----_......................-

Article 4 Any police off-Shall not beread with icer, or any released on bailthe Sche- person empo- Art. 14dule part wered by the

II, Government to

arrest withoutwarran t. Art.

n(b)

12 Collaborator voluntarily caus­

ing or attempting to cause or

abetting the causing of griev­

ous hurt for the purpose of (i)

extorting from the sufferer or

any person interested in the

sufferer any property or valu­

aable security, (ii) or of cons­

training the sufferer or any

person interested in the suffe­

rer to anything tha t is

illegal, (iii) or which may fac­

ilitate the commission of an

Do Do Do Do Do

Courtesy of MMR Jalal

Any Police Shall not Rigorous Impri-Officer or any be released sonment . not

person empow- on ball. exceeding tenered by the Art 14. years and shall

Government may also be liable toarrest without a fine.warrent. Art. II (b). Also

Art. 11(b) forfeiture ofproperty on con­viction. Art. 12

13

".

330

Offence

Collaborator voluntarily cau­sing or attempting to causeor abetting the causing of (i)

hurt for the purpose of ex to"rting from the sufferer anyproperty or valuable security,or (ii) of constraining the

sufferer or any person inter­

ested in the sufferer to restore

re or cause the restoration of

any property or valuable sec­

urity, (iii) or to satisfy any

claim, or (iv) which may fac­

ilitate the commission of any

offence.

Articleof the

Article 4read withthe She­

dule

Part II

Who mayarrest

Whetherbailable Punishment

By whatTribunaltriable

Special Trib­unal compais­ting of aSeasons Judgeor an Additional E:

~

Seasons Judge. .......oArt. 6(1) ~

2...g:oS-o...to

14Collaborator voluntarily causing or Do

attempting to cause or abetting the

causing of grievous hurt (i) for the

purpose of extorting from the suff­

erer or any person interested inthe sufferer any confession or infor­

mation which may lead to the det­ection of an offence or misconduct,or (ii) for the purpose of constrai c

ning the sufferer or any personinterested in the sufferer (a) torestore or cause the restoration ofany property or valuable security~

(b) or to satisfy any claim or dem­and, (c) or to in(ormationwhich may lead to the restoration

any or valuable security.

Do Do Do Do

Courtesy of MMR Jalal

00oBy whatTribunal

riablePunishmentbailable

or not

Any Police Shall not Rigorous Impri- Special Trib-Officer or any be released sonment not unal compais..person empow- on ball. exceeding ten ting of aered by the Art. 14 years and a shall Seasons Judge ~

Government may also be liable to or an Additional Earrest without a fine. Seasion Judge.warrent Art 11 (b). Also Art. 6(1)Art. 11(b) forfeiture of

property on con­viction. Art. 12

of theOrder

Article 4read withthe Sche­dulePart II

Offence

Collaborator voluntarily caus­ing or attempting to cause orabetting the causing of grie­vous hurt (i) to any personbeing a public servant in thedischarge of his duty as suchpublic servant, or (ii) withintent to prevent or deterthat public servant or anyother public servant from dis..charging his duty as suchpublic servant, (iii) or incansequence of anythingdone or attempted to be doneby that person in the lawfuldischarge of his duty as suchpublic servant.

354 Collaborator who assaults or Do Do Do Do Douses criminal force or attemptsto assault or use criminal forceor abets the commission ofassault orJ,ithe use of criminalforce to any W01na IJ (i) intend-ing to outrage (ii) or knowingthat he will thereby outrageher modesty.

17 363 Collaborator who kidnaps or Do Do Do Do Doattempts to kidnap or abets the

"t1kidnapping any person from. l:l.l

"'1

1awful guardianship....,.

""""'""""'18 364 Collaborator who kidnaps or Do Do Eo Do Doabducts, or attempts to kidnapor abduct or abets the kidnap-ping or abduction of any per-son in order tha t such personmay be murdered or may be sodisposed of as to be in da-nger being 00

I-"

Courtesy of MMR Jalal

1 2 3 4 5 9 1 8

Any Police Shall notOfficer or any be releasedperson eU1pow- on bail.ered by the Art. 14

Government mayarrest withoutwarrent.Art. 11(b)

Regorous Impri- Special Trib-sanment not unal consistingexceeding ten of a Sessonsyears and shall Judge or analso be liable to Additionala fine. Sessons

oArt. 11 ~b). Also Judge. Art.6) H'>

("')foreiture of a

......property on, con- g.viction. Art. 12 ~

I:Il....o"'t\Il

By whatTribunal

TriablePunishmentbailable

or not

Who mayarrest.

Articleof theOrder

4

read withthe Sche­dulePart II

Offence

Collaborator who kidnaps orabducts or attempts to kidnapor abducts or abets the kidnap­ping or abduction of any per­son with intent to cause thatperson to be secretly and WIO­

ngrulJ y confined.367 Collaborator who kidnaps or

abducts or attempts to kidnapor abduct or abets the kidnapping

or abduction of any person(i) in order that such personmay be subjected or (ii) may

be so disposed of, as to be indanger of being subjected ormay be so disposed of as tobe in danger of being subjectedto grievous hurt, or slavery, orto the unnaral lust of any per­son or (iii) knowing it to belibely that such person willbe so subjected or disposed of.

20

21 368 Collaborator knowing thatany person has been kidna~

pped or has been abducted"wrongfully conceals or co:nfi~

nes such person or attemptswrongfully to conceal or con.fine or abets the wrongfulconcealment or confinement,of such person.

Do Do Do

Collaborator who kidnaps orabducts, or attempts to kidn­ap or abduct ·or abets thekidnapping or ahd uetion ofany child under the age of tenyears with the intention oftaking dishonestly any mova­ble property from the personof child.

Do Do Do Do

Courtesy of MMR Jalal

i 2S . 1 Section ofN1U

the Penalo. Order

3

Offence

4Articleof theOrder

5

Who mayarrest

7Whetherbailableor not

7

Punishment

8By whatTribunal

triable

Do

Special Tribuo

nal consist­

ing of a

Seasons Judgeor an Addi- ~

a.tional Seasions 0

I-h.

Judge.

Art. 6(1)

DoDo

Shall not Rigorous Impri­

be released sonment not

on bail. exceeding ten

Art. 14 years and shallalso be liabte toa fine.

Art. ll{b). Alsofo£ei ture ofproperty on con­viction. Art. 12

Do

Any Police

Officer or any

person empow­

ered by the

Governmentmay arrestwithout warrant.Art. 11(b)

Article 4

read. with

the She~

dule

Part II

Do

Collborator who commitstheft or attempts to comniittheft or abets the commission

of theft in any building t tentor vessel, which building,tent or vessel is used as a

human dwelling, or used forthe custody of property.

Collaborator c@mmitting or

attempting to commit or abe..tting the commission of theft,having made preparation for(i) causing death, or hurt, or(ii) of restraint, to any person,

fa) in order to the committing

of such theft, OT (b) in orderto ef fecting his escape,after the committing of suchtheft (c) or in order to the

releasing of property takell bysuch theft.

382

380

24

23

25 386 Collaborator who commits Do Do Do Do Doextortion by putting any per-son in fear of death or ofgrievous hurt to that personor to any other, or attemptsto commit or abets the comm-ission or of such offen.ce.

26 388 Collaborator who commits

extortion by putting any per- Do Do Do - Do DoC/)

in fear of an accusation 0son t::r'

against that parson or any other(i)0...c:

of having committed or atte- ~

mpted to commit any offence I-t;1I=l>'"1

punishable with death, or ~

"""""with transportation for """""or

life, or with imprisonment

which may extend to ten

years or having attempted to

induce any other person to

commit such offence, or of

attemting to commit or abett-

ing the commission of such 0001

offence.

Courtesy of MMR Jalal

Who may Whether By whatbailable Punishment Tribunalarrest. or not Triable

Article 4 Any Police Shall not Rigorous Special Tribu-read with Officer or any be released sooment not nal consist»;the She- person empow- on ball. exceeding len ing of adule ered by the Art 14 years and a shall Seasons JudgePart II Government also be liable to or an Addi-

I-jmay arrest a fine. tional Seasions lot

"",.

~

without warrant. Art. 11 (b). Also Judge. -0Art. II(b) fodeiture of Art. 6(1)

t-t->

(j

property on can- 0I:::::

viet ion. Art. 12 ~C""0

Do Do Do Do Do lotj:l.).....0~

Offence

7 389 Collaeorator who, in orderto the committing of extor­tion, puts or attempts to putany person in fear of an acc­usation against the person orany other of having commi­tted or attempts to commitan offenc<"punishable withdeath or with transportationfor life or with -imprison­ment £~r a term which myextend to ten years, or atte­mpts to cornmi t or abets thecommissin of such offence.

2:> Q92:J ...., Collaborator who commits or

attempts to commit or abetsthe commission of robbery,(N.B. Attempt to committobbery is specially dealt within S.393 of the penal Code,described below.) .

29 393 Collaborator attempting to Do Do Do Do Docommit robbery.

(N.B. se note to 5.392 above)

30 394 Collaborator who, in commit· Do Do Do Do Do

Hng or attempting to co~mit

robbery, voluntarlly causeshurt or attampts to commit orabets the commission of suchacts:

31 395 Collaborator who commits or Do Do Do Do Do'"0attempts to commit or abets ~"'t

the commission or dacoit.r.M-,......~

32 397 Collaborator who at the time Do Do Do Doof corr mitting robbery or da-coity, u.'es any deadly weaponor causes grievous hurt to anyperson or attempts to do orabets the doing any

00acts. .....:J

Courtesy of MMR Jalal

34 436 Collaborator committing orattempting to commit or abe­

tting the commission of mis­chief by fire or any explosivesubstance, intending to causeor knowing it to be likelythat he will thereby cause, thedestruction of any buildingwhich is ordinarily used as ahuman dwelling or as a placefor the custody of property.

33 435 Collaborator who commitsmischief by fire or any explo­sive substance, intending tocause or knowing it likelythat he will thereby cause,damage to any property tothe amount of rupees onehundred or upwards, or(where the property is agri­cultllral' produce) ten rupeesor upwards, or attempts tocommit or abets the commbs­iOll of any such acts.

1 2

Serial Section ofthe Penal

No. Code

3

Offence

4 5 6 7 00

Articte Whether By what00

of the,Who may

bailable Punishment TribunalOrder arrest. triable

Article 4 Any Police Shall not Rigorous Impri- Special Tribu-

read' with Officer or any be released sonment not nal consist-

the She person empow- on bail. exceeding ten iug of adule ered by the Art. 14 years and a shall Seasons JudgePa~t II Government also be liable to or an Addi-

~,

may arrest a fine, tional Seasions '"t1-0'

without warrant. Art. 11 b . Also J~dge.E:.

Art. 11 b) forfeiture of Art. 6(1) (")

property on con- e...Ii""

viction. Art. 12 t:::r'0'"t

Do Do Do Do Do \:l)...,.0'"t

,00

35 437 Colladorator who commit~ or Do Do Do Do bo

attempts to commit or

abets the commission of mis-

chief to any decked vesBel or

any vessel of a burden of

twenty tons or upwards, in-

tending to destory or render 'U)at:::r'

unsafe, or knowing it to beCD0..C

likely that he will thereby CD

destory or render unsafe, that

vessel. r--t~

36 438 Collaborator who commits or Do Do Do Do Do

attempts to commit or abets

the commission, by fire or

any explosive substance, of

such mischief as is described

in section 437 above.00t.O

Courtesy of MMR Jalal

Do

triable

Specialnal consist-ing of a l--j

Sepsons Judge ;.or an Addi- t-'

tional Seasions 0e

Judge. ~~

Art. 6(1) go~M­e""t(I)

Punishment

Rigorous impri­sonment notexceeding tenyears and a shaHalso be liable toa fine.Art. 11 (b). Alsoforfeiture ofproperty on con­viction. Art. 12

DoDoDoDo

Article 4 Any Police Shall notread with Officer or any be releasedthe She- person empow- on ball.dvle ered by the Art. 14

Part II Gevernmentmay arrestwithout warrant.Art. 11 (b)

of order bailableOrder or not

Offence

Collaborator who commits orattempts to commit or abetsthe commission of house­trespass in order to thecommitting of any offencepunishable with death.

Collaborator who commits orattempts to co:nmit or abetsthe commission of house-tre­spass in order to the commi­tting of any offence of puni­shable with transportation forlife,

45038

No.

37

SCHEDULE PART III

Art. 3(1)

triablePunishment

Any Police Shall not Rigorous Impri- Special Tribu­Officer or any be releasedr sonment fora term nal consistingperson~empow-on bail. not exceeding~five of an Assistantered by the Art. 14 years and a shall Seasions Judge W

t:r"Government also be liabla to Art. 6(2) ft

fi ~-may arrest a ne. (i)

without warrant. Art. ll(e).

Artcle 4andShedule

Part III

Offence

Except as provided in s. 334

of the Penal Code, a. ca.l1ab­orator who has voluntarilycaustdhurt by means of (i) anyinstrument for shooting, sta-

or ..cutting, or (ii) anyinstrument which, used as aweapon of offence, is likelyto cause death, or (iii) by fireor any heated substance or(iv) by means any poisonor any explosive substance,or (v) by means of any sub·stance which it is deleteriousto the human body to inhale,to swallow, or to receive in­to the blood, or by means

any animal, or attemptsto cause or abets the

such

32439

Courtesy of MMR Jalal

.-.~~ i/.ti:'.'$

1 2 3 4 5Section of

----_._----

3erlalthe Penal Offence Article of Who may

No. Code the Order arrest

6

Whetherb3.ilable

7

Punishment

8

By whatTribunaltriable

40 332 Collaborator who voluntarilycauses hurt to any person be­ing a public servant in thedischarge of his duty as such

public servant, or (ii) withintent to prevent or deterthat person or any other pub­lic servant from discharginghis duty as such public ser­vant, or in consequence ofanythi:1g done or attemptedto be done by that person inthe lawful discharge of his

duty as such public servant,or who attempts to cause or

abetts the causing of such

hurt.

Article 4

and

SchedulePart III.

Any Police Shall not Rigorous Impri- Special Tribu..Officer~ or any be released sonment for a term nal consistingperson empow~ on ball. not exceeding five of an Asistant

ered by the Art. 14 years, and shall Season Judge ;:

G ~'overnment also be liable to Art 6(2)

may arrest a fine.

without warrent Art.. 11 c)Art. 3(1)

41 338 Colla50rator who has caused Do Do Do Do Dogrievous hurt to any personby doing a.ny act so rashlyor negligent1 y a.s to endangerhuman life or the personalsafety of others, or attemptedto cause, or who abetted thecausing, of such grievoushurt.

42 343 Collabora tor who wrongfully Doconfines any person for three

Do Do Do Do

days or more, or attemptedso to confine or abetted suchconfinement.

43 346 Collaborator who wrongfullyconfines any person in such Do Do Do Do Domanner as to indicate anintentim:1 that the confine-ment of such person (i) maynot be known to any personinterested the person soconfined or (ii) to any publicservant, or (iii) that the placeof such confinement may notbe known to or discovered byany such person or publicservant, or attempted so towrongfully confine or abetthe ·commission of such wro- ~

confinement. Cfi

Courtesy of MMR Jalal

Serial Section ofthe Penal

No. CodeOffence

Article ofthe Order

Who mayarrest

Whetherbailable

not

By whatPuniElhment Tribunal

trible

44 248 Collaborator who wrongfullyconfines any person for thepurpose (i) of extorting fromthe person confined or anyperson interested in theperson confined any confess~

ion or any information whicmay lead to the detection ofan offence or misconduct or(ii) for the purpose of const­raining the person confinedor any person interested inthe person confined to restoreor to cause the restoration ofany property or valuable sec­urity, or attempts so to so

confine or abetts such con­

finement.

Article 4. and

SchedulePart III

Any PoliceOfficer, or any

person empow­ered by theGevernmentmay arrestwithot warrantArt. 3(1)

Shall notbe releasedon balLArt. 14

Rigorous Imri- Special Trib­sonrner. t for a term unal consistingnot exceeding five an Assistantyears and shall Seasons Judge.also be liable to 6(2)a fine.Art. 11 (c).

45 355 Collaborator who assaultes or Do Do Do Do Do

uses criminal force to any

person intending thereby to

dishonour that person, othe-

rwise than on grave and sud-den provocation, and attemp-ting to assault or use crimi-

nal force or abetted such ass-

ault or use of criminal force

for such purpose,

~p;ll"irt

~

H1-/

358 Collaborator who assaul tes or Do Do Do Do Do

uses criminal force to any

person, except on grave and

sudden provocation given by

that person or has attempted

or abetted such assault or the

use of criminal force. <.0l;"R

Courtesy of MMR Jalal

1 2 3 4 5 6 7 8 toCj)

Section of Article of Who may Whether By what

No.the Penal Offence the Ordea arrest bailabe Punishment Tribunal

Code or not triable

47 356 Collaborator who assaultes or Article 4, Any Police Shall not Rigorous Impri- Special Tribuses criminal force to any

and Officer, or any be released sonmentfora term unal c€msistperson in attempting to com-mit theft of any property Schedule person empow- on ball. not exceeding five ing of anwhich that person is than Part III. ered by the Art. 14 years, and shall Assistantwearing or carrying or who

Government, also be liable to Sessionsdattempts to use criminal ~force or abetted the use of may arrest a fine. Judge "1.....criminal force for such without warran t Art. 11(c) Art. 6(2) ~.....

0purpose. Art. 3(1) -48 379 Collaborator who committed n

Do Do Do Do Do e..theft or attempts to commit S-

O"'

or abetts the commission of 0"1

theft.~.....0

49 384 Collaborator who committs'"1en

extortion or attempts to co- Do Do Do Do Do

mmit or abetts the commi·ssion of extortion.

50 427 Col1aborator who committsmischief and thereby causingloss or damage to the amount Do Do 00 Do Doof fifty rupees or apwards i orwho attempts to commit orabetts the commission ofsuc.h mischief.

82Collaborator who commits Do Do Do Do Do

50mischief by killing, poison-ing, maiming or renderinguseless any animal of thevalue of ten rupees or up-

wards or attempts to comm-it or who abets the commi- UJ'ssion of such mischief. (')

t::r'

Collaborator whoCl>

51 429 commits 0..c:::

mischief by killIng, poison-.......Cl>

ing, maiming rendering Do Do Do Do Do 'i:'or ~

'"1

useless, (i) elephant,M-

any ~

camel, horse, mule, buffalo,~

~

bull, cow or ox, whatever

may be the value thereof

or (ii) any other animal of

the value of fifty rupees or

upwards or attempts to

commit or abets the comm-ission such mischief.

Courtesy of MMR Jalal

Special Trib·unal consisting

of anAssistantSessionsJudge.Art. 6(2)

By whatTribunalPunishment

Shall not Rigorous Impri­be released sonmen t for aon ball, term not excee­Art. 14 diug five years,

and shall also.be liable toa fine.Art. 11 (c)

VY'ho may'arrest

Any PoliceOfficer I or anyperson empow­ered by theGovernment,may arrestwithout warrent.

Articleof theOrder

Art. 4 andSchedule

Part III

Offence

Collaborator committing mis­

chief by doing any act

which causes or which

he knows to be likely to

cause a diminution of the

supply of water (ij for agri­

cultural purposes or, (ii) for

food or drink for (a) human

beings or (b) for animals

which are property or (iii) for

cleanliness or (Iv) for carry­

ing on any manufacture, or

attempting to commit or ab·

etting the commission of

such mischief.

43052

~Section of;Ila the Penalo. Code

53 431 Collab"~ra tor who commitsmischief by doing any

Do Do Do Doact which renders or which

he knows to be likely to

render any public road, bri~

dge, navigable river or nay!,"

gable channel, natural or ar-r..n

tificial, impassable or less 0P"'.-

safe for travelling or convey~(l)

0...C

ing property, or who ~

attempts to "4- orcommhabets the commission of

such mischief.Collaborator who commits Do Do Do Do Do

54 440mischief, having made pre-

paration for causing to any

P9ISOl1 death, or hurt orwrongful restraint, or attemptsto cause or abets the

causing such

Courtesy of MMR Jalal

SCHEDULE PART IV

Section ofthe Penal Offence

No. Code

Articleof theOrder

Who mayarrest

Whetherbailableor not

PunishmentBy whatTribunaltriable

l-'oo

Any Police Shall not Rigorous Impri- A Special JudgeOfficer or other be released sonment for a term consisting ofperson empow- on baiL not exceeding two an Assistantered by the Art 14. years, and shall Sessions Judge

Government may also be liable to Art. 6(2)arrest without a fine.

55 336 Collaborator who does any

act so rushly and negligently

as to endanger human life or

the personal safety of others

or attempts or abets the

same.

337 Collaborator who causes hurtto any person so .rashly ornegligently as to endangerhuman life or the personalsafety of others, or attemptsto commit or abets the comm­ission of such offence.

Article 4read withthe Sche­dulePart IV

warrent.Art. 3(1)

Do Do

,

Art. II (d).

Do Do Do

341 Collaborator who wrongfullyrestrains any person or atte'mpts to wrongfully restrainhim or abets the commissionthereof.

Do Do Do Do Do

58

59

342 Collaborator who wrongfullyconfines any person or attem..pts to wronfully confineshim or abets the commission

thereof,

352 Collaborator who assaults oruses force on any person oth­erwise than on grave andsudden provocation; or atte­mpts to commit or abets the....V'L~~U.~.L..".:>J,v.u. of the offence.

Do

Do

Do

Do

Do

Do

Do

Do

Do

Du

Courtesy of MMR Jalal

Do

Do

Do

Do

By whatPunishment Tribunal

riable

Rigorous Impri- Special Trib­sonment for a term unal consist~

not exceeding two ing of anyears, and shall Assistant'

also be liable to Sessions

a fine. Judge.

Art 11 (d). Art. 6,2)

Do Do

Whetherbailable

or not._~==~~=~~---~--

Any Police Shall not

Officer, or other be releasedperson empow- on bail.ered by the Art. 14

Government mlY

arrest without.

warrant.

Art. 3(1)

Do Do

Articleof theOrder

Article 4read with

the Sche­dule

Part IV

Do

Do

Section ofthe Penal Offence

Code..,.

357 Collaborator who assaults or

uses criminal force to any

person in attempting to wr­

ongfully confine that person,

or attempts to commit orabets the commission of that

offence.374(1) Collaborator who unlawfully

compels any person to labouragainst the will of that per­

son or a ttempts to commitor abets the commissson oEthe offence.

37 4~2l Collaborator who compels aprisoner of war or a protect·

ed person to ser ve in theArmed Forces of Pakistan or

attempts to commit or abetsthe commission of that

offence.

No.

62

61

Courtesy of MMR Jalal

104

--;; ...... 0

lDZif)

of Collaborators

BANGLADESH COllABORATORS SPEefAl

TRIBUNAL ORDER, 1972

(Promulgated by the President on the 24th January

President's Order No. 8 of 1972 (as amendedthc Bangladesh Collaborators (Special Tribunals) (Amend­

ment) Order, 1972, which came into force on

February, 1972. )

Whereas certain persons, individually or as membersof organisations, directly or indirectly; have been colla­borators of the Pakistan Armed forces, which had illegallyoccupied Bangladesh by brute force, and have aided orabetted the Pakistan Armed forces of oc:cupation Incommitting genocide and cnmes against humanity and

in committing atrocities against men, women and VL4L4'-U ........

and against the person, property and honour of thecivilian population of Bangladesh and have otherwiseaided or co-operated with or acted in the interest ofthe Pakistan Armed forces of o0cupation or contributedby any act, word or sign towards maintai fling, sustainingsrtengthening, supporting or furthering the illegal occupa­tion of Bangladesh oy the Pakistan Armed forces or

have waged war or aided or abetted In waging waragainst the People's Republic of Bangladesh;

AND WHEREAS such collaboration contributedtowards the perpetration of a reign of terror and the

commission of crimes against humanity on a scale which

has horrified the moral conscience of the people of ,Bangladesh and of right-thinking people throughout theworld;

Courtesy of MMR Jalal

1. (1) This Order may be called the Bangladesh- Collaborators (Special Tribunals) Order, 1972.

AND WHEREAS it is imperative that such personsshould be dealt with effectively and be adequately punishedin accordance with the due process of law.

AND WHEREAS it is expedient to provide for thesetting up of SP.ECIAL TRiBUNALS for expeditiousand fair trial of the offences committed by such persons:

NOW, THEREFORE, in pursuance of the Proclama~

tion of Independence of Bangladesh,l read with the Provi~

sional Constitution of Bangladesh Order, 1972 2 and inexercise of powers enabling him in that behalf the

President is pleased to make the following Order:

107Collaborator Order, Definitions

(iii) waged war or abetted in waging war againstthe People's Republic of Bangladesh;

(iv) actively resisted or s3botaged the efforts ofthe people and the liberation forces of Bangla­

desh in their liberation struggle against the

occupation army;(v) by a public statement or by voluntry participaa

tion in propagandas' within and outsideBangladesh or by association in any delegationor committee or by ps.rticipation in purportedbye-elections attempted to aid or aided theoccupation army in furthering its design of

perpetrating its forcible· occupation of Bangla­

desh.

Trial of Collabora tors106

(Z) It extends to the whole of Bangladesh.

(3) It shall come into force at once and shall be

deemed to have taken effect on the 26th day of lvlarch,1971,

2. In this Order,-

(a) "Code" means the Code ot Criminal Procedure,1898 ( Act V of 1898):

(b) "Coll",borator" means a peason who has--'-(i) participated with or aided, or abetted the

o::cupation army in maintaining, sustaining,strengthening, supporting or furthering theillegal occupation of Bangladesh by such army;

(ii) rendered material assistance in any way

whatsoever to the occupation army by anyact, whether by words, signs or conduct;

---Note 1. Append I.)\." "B"

2. Appenbix "C"

Explanation.

A person who has performed in good faithfunctionswhich he was required by any purported law in force

at the material time to do shall not be deemed to bea collaborator:

Provided that a person who has performed functionsthe direct object or result of which was the killin~ of

. any member of the civil populaion or the liberation

forces of Banglac esh or the destruction qf their property

OJ; the rape of or criminal assault on their women·folk~

even if done under any purported law passed by the

occupation army~ shall be deemed to be a collaborator.(c) "Government" means the Government of the

People's Republic or Bangladesh;(d) ··Liberation forces" includes all forces of the

People's Republie of Bangladesh engaged inthe liberation of Bangladesh ;

(e) 'tO~cupation army') means the Pakistan

Armed Forces engaged in the occupation" of

Bangladesh ;

Courtesy of MMR Jalal

108 Trial of Collaborators

'(f) "Special Tribunal" means a Tribunal set up, under this Order.

3. (1) Any police officer or any person empoweredby the Government in that behalf may, without a warrant,arrest any person who may reasonably be suspected ofhaving been a collaborator.

(2) Any police officer or person making an arrest under

clause (I) shall forthwith report such arrest to the "Sub­divisional Magistrate''! together with a precis of the infor­

mation or materials on the basis of which the arrest has'been made, and, pending receipt of the order of the '~Sub­

divisional Magistrate"l may. by order in writing, commit any

person so arrested to such custody as the Government mayby general or special order specify.

(3) On receipt of a report under clause (2), the "Sub­

divisional Magistrate" 2 may by order in writing, direct such

person to be detained for an initial period of six months

for the purpose of inquiry into the -case.

(4) The Government may exteI'd the period of deten­

tion if, in the opinion of the Government, further time is

required for completion of the inquiry.

(5) Any person arrested and detained before the

commencement of this Order who is alleged to be a coll-

Foot-note under Article 2(1)1. The words "Sub-divisional Magistrate" were substituted for the words

'-Government" by article 1, clause (1) (a) of the Bangladesh Collaborators(Special Tribunals) (Amendment) Order 1971 in the two places shownin Italics above, which came into force on Fabruary 7, 1972.

Foot-Note under Article 3(3)2. The words "Sub-divisional Magistrate" were substituted for the words

"Government" by article 2, clause (1) (b) of the Bangladesh Collaborators(Special Tribunals) (Amendment) Order, 1972, which came into force

"on the 7th February, 1972.

Collaborators Order, Cognizance

aborator, shall be deemed to be arrested and detained

under this Order and an order in writing authorising suchdetention shall be made by the Government;

Provided that the initial period of detention of sixmonths in the case of such person shall be computed from

the date of his arrest.

4. Notwithstanding anything contained in the Code orIn any other law for the time being in force, any colla­

borator. who has committed any offence specified in theSchedule shall be tried and punished by a Special Tribunal

set up under this Order and no other Court shall have anyjurisdiction to take cognizance of any such offence.

5. (1 i The Government may set up as many Special

Tribunals as it may deem necessary to try and punish

offences under this Order for each district or for such area

as may be determined by it.

(2) A Special Tribunal shall consist of one member.

(3) No person shall be qualified to be appointed amember of a Special Tribunal unless he is or has been

a Sessions Judge or as Additional Sessions Judge or an Ass­istant Sessions Judge.

6. (1) A Special Tribunal consisting of a Sessions

Judge or an Additional Sessions Judge shall try and punishoffences enumerated in parts I and II of the Schedule.

(2) A Special Trib Ilnal con sisting of an Assistant

Sessions Judge shall try and punish offences enumeratedin Parts III nd IV of the Schedule.

7. A Special Tribunal shall not take cognizance ofany offence punishable under this· Order except upon areport in writing by an officer-in-charge of a police station.

Courtesy of MMR Jalal

Trial Collabonifors Tender Conditional III

8. (1) provisions of the Code in so far as they

are not inconsistent with' the provisions ofthis Order, shall

apply to all matters cOl1.nected with, arising from or con­

sequent upon a trial by a Special TribunaL

(2) A Special Tribunal shal', for tke purpose, of the pro­

visions of the Code be deemed to be a Court of Sessions try­

ing cases without the aid of assessors or jury and without

the accused being committed to it by a Magistrate jor trial

·and shall follow the procedure prescribed by the Cod~for the

trial of summons cases by lv!agis!rate.

(3) A person cDnducting prosecution before a Special

Tribunal shall be deemed to be a Public Prosecutor.1

9. (1) A Special Tribunal shall not be bound to adjourn

a trial for any purp03e . unless such adjournment is, in its

opinion, necessary in the interests or justice.

(2) No trial shall be adjourned by reason of the absence

of any accused person, if such accused persons is represent­

ed by counsel, or if the absence of the- accused person or

his counsel has been brought about by the accused person

himself, and the Special Tribunal shall proceed with the

trial after taking necessary steps to appoint an advocate to

defend and (an ?) aCGused person who is not represented by

counsel.

JO. A Special Tribungl may, with a view to obtaining

the evidence of any person supposed to have been directly

or indirectly concerned in, or privy to the offence, ten­

der a pardon to such person on condition of his makinCl0>

rooItQ~~vte l!ll1ldel' t'!~"tide 8

1. Article 8 was remembered as clause (1) of the Article, and afterthe clause as remembered, the two new clauses (2) and (3) wereadded by the Bangladesh Collaborators eSpecial Tribunals) (Am~ndment)'

Order, 1972, which came into force on the 7th Februaty, 1972,

,a full true disclosure of the whole circumstancesin his knowledge relative to the offence and to every other

person cOllcerned, whether as principal or abettor, in the

commission thereof ;. and any pardon so tendered

for the purposes· of section 339 and 339A of the be

deemed to have been ter.dered under section 338

-Code.

11. Notwithstanding anything contained in any other

law for the time being in force,-

(a) any collaborator who is convicted for any of· the

offences specified in Part I of the Sched ule shall be pun­ished with death or transportation for life and shall also

be Hable to a fine;

(b) any collaborator who is convicted for any of the

offences specified in Part II the Schedule shall be

ished with rigorous imprisonment for a term not excee~

ding ten years and shall also be liable to a fine·,(c) any collaborator who is convicted for any of the

offences specified in Part III of the Schedule shall be

punished with rigorous imprisonment for a term not excee­

ding five years and shall also be liable to a fine;

(d) any collaborator who is convicted for any of theoffences specified in Part IV of the Schedule shall be pun­

ished with rigorous imprisonment for a term not exceedingtwo years and shall also be liable to a fine ;

12. Without prejudice to any sentence passed the

Special Tribunal the proper! y, immovable, or

any portion thereof, of a collaborator may, on his

conviction, be forfeited to the Government, upon an order

in writing made in this behalf by the Government.

13. If any accused is convicted and sentenced

for luore than one offence, the sentences of j,.U..qJ.LJ.LRJLLJUC:;U.

Courtesy of MMR Jalal

112 Trial of Collaborators A ttachment Property 1 3

shall run concurrently or consecutively, as determined

by the Special Tribunal.14. Notwithstanding anything contained in the Code,

no peson who is in custody. accused or convicted of

an offence punishable under this Order shall be released

on baiL

15. The provisions of Chapter XXVII of the Code'shall apply to a sentence of death passed by a Special

Tribuna1.

16. (1) A person convicted of any offence by a

Tribunal may appeal 10 the High Court.

(21 The Government may direct a Public Prosecutor

to present appeal to the High Court from an order of

acquittal passed by a Special Tribunal; upon intimationto the Special Tribunal by the Public Prosecutor thatsuch an appeal is being filed, the person in respect of

whom the order of acquittal was passed shall continue

to remain in custody.

(3) The period of ,limitation for an appeal underclause. (1) shall be 30 days from the date of sentence

and for an appeal under clause (2) shall be 30 days from

the date of the order of acquitbL(4) The appeal may lie on matters of fact as well

as of law.

] 7. (1) If the Government has reasons to believethat a person who, in the opinion of the Government,is required for the purpose of any investigation enquiry

or other proceedings connected with an offence punishable

under this Order, is absconding or is otherwise concealing

himself or remaing abroad to avoid appearance, the

Government, may, by a written proclamation published

in the official Gazette or in such other manner as may

considered suitable to make it widely known :-

(a) direct the person named in the proclamationto appear at a specified place at a specified time ;

(b) direct attachment any property~

or immovable, or belonging to the

proclaimed person.

Explanation

"Property belonging to the proclaimed person"

include property, movable and immovable, standing In

the name of the proclaimed person or in the name

his wife, children. parents, minor brothers, sisters ordependents or any benamdar.

(2) II the property ordered to be attached is a

or other movable property, the athchment "shall be madeby the Sub-divisional Magistrate".1

(a) by seizure; or

(b) by the appointment of an administrator; or(C) by an order in writing prohibiting

delivery of such property to the proclaimedperson or to anyone on his behalf; or

(d) by all or any two of the methods mentionedin sub-clauses (a) and (c) 2

(3) If the property ordered to be attached is immovable~

Fo}t note under Article 17, clause (2)1. The worbs "shall be made by the Sub-divisional Magisrate" were

substituted for the words "shall be made," by Article 2, clause 3 (a) ofthe Bangladesh Collaborators ( Speeial Tribunals) (Amendment) Order~

1972, which came into force on the 7th February, .1972.

Foot note under Article clause (2) (dJ2. The words "as the Government may my direct" occurring at tho

end, were omitted by .Article 2, dause (3) (a) of the Bangladeshcollaborators (Speeial Tflbnnab) (Amendment) Order, whichcame into force on the 7th February, 1972.

8-

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1

Provided that any claim preferred orwithin the period allowed by clause may, inth~ de-Glth of the claimant or objector, be CO:tltlllltled.1egal representative.

ller~on other th~.n the proclaimed pets()nt on, the clahna.nt or objector has. an interest such ........,nno..~'nthat such' interest is not liabl~ to attachment' ..

Ie, the claim or objection shall b~.allc;rwed' or disallowed in whole on

" Sub",divislonal

Trial of Col1ahor?tors

the attachment she 11 be made by the

Magistrate" J(a) taking possession of the property; or(b) by the appointment ofan administrator; or(c) by an order in writing prohibiting the payment

of rent or delivery of the property to the proch.'l­imed person or to anyone on his behalf; or

(d) by all or any two of the methods mentioned insub-clause (a), (b) and (c) 2

114

(4) If the propyrty ordered to be attached consists of'livestock or is of a perishable nature, the Sub.divisional Megis­

trate may, if he thinks fit 3 expedient, order immediate sale

thereof, and in such case the proce~ds of the sale shall qbide

the order, of the Goyernment.

(5) The powers, duties and liabilities of an administratorappointed under this Article shall be the same as those of a:receiver appointed under Chapter XXXVI of the Code of;Civil Procedure, 1908 (Act V of 1908).

A claim or an objection under clause may bepreferred or made before such person or authority as is

inted the Government.

(8) Any person whose claim or objection has

disallowed in whole or in by an order under clause

maY;l within a period of one month from the date ofOlder, appeal against such order to an appellateconstituted by the Government, for such purpose.ll but subjectto the order of such appellate authority, order shall beconclusive.

(6) U any claim is preferr~d or objection made to theattachment any property attached under this Article,within seven days from the date of such attachment, by any

Note under Article 17, clause (3)1. The words "by the SUb-divisional Magistrate" were substituted for'

the words "in the case of land paying revenue to Government, bythe Deputy Commissioner of the district in which the land is situatedand in all other Cases", by article 2, clause 3 (b) of the Bangladesh.Collaborators (Special Tribunals) (Ameadment) Order, 1972, which came

into force on the 7th February, 1972.

2. The wqrds "as the Government may direct", were omitted by article2., clause 3(b) of the above Amendment Grder., 3. The words' 'the Suh,divisional Magistrate may, if he things" weresubs~ituted for "Government may, if it th~nks by article 2, clause 3(0) of the

Amendment Order.

(9) If the proclaimed person appears within the timespecified in the proclamation, the Government mayanorder releasing the property from the attachment.

(10) If the proclaimed person does not appear within thetime specified in the procla.mation, the Government may PiilSS

an order forfeiting to the Government the property underattachment.

When the property has been fodei ted to the Gove-rnl11en,t under clause (10), it may be disposed in such man-ners as the Government directs.

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Trial of Collaborators

18. Notwithstanding the provisions of the Code or ofany other law for the time being in force, no action or proc~

eeding taken or purporting to be taken under this Ordershall be called in question by any Court. and there shall beno appeal from any order or sentence of a Special Tribunalsave as provided in Article 16.1

19. "The Government may, by order published in the official'Gazette, direct that any power or duty which is conferred or impo~

sed by this Order upon the Government shall t in such circumstan o

ces and under such conditionJ, if any, os may be specified in thedirection, be exercised or discharged by any officer or authoritysubordinate to it :"2

Note under Article 18.1. The word and figure "Article 16" were substituted for the word and

figure "Section 16" by Article 2, clause (4) of the Bangladesh Collaborators(Special Tribunals) (Amendment) Order, 1912, which came into force on the7th february, 1972.

Foot note under Article 192. New Article 19 was added after Article 18 by Article :2 clause (5) of

the Bangladesh Collaborators (Special Tribunals) (Amendment) Order, 1972,.which came into force on the 7th february, 1972

SCHEDULE

I

Offences under sections 302 30:1 307, , .396, of the Penal Code and attempts to commit or the abet-ment of the commission of any of such offences.

Offences under sections 308 325 326 328 329 3JO 331~ , , , ~ J ,

333, 354, 363, 364, 365, 367, 368, 369. 380, 382, 386, 388389, 392, 393, 394, 395, 397, 435, 436, 437, 438, and450 of the Penal Code and attempts to commit or thement of the commission of any of such offences.

Offences under sections 324 332 338 343 346, , , , ,356, 379, 334, 427, 428, 429, 430, 431, and 440 ofCode and attempts to commit or the abetment of the commi­ssion of any of the offences.

(a) Offences under sections 336, 337, 341, 342. 352~

374, 426. 447 and 448 of the Penal Code and attempts tocommit or the abetment of the commission of any theoffences.

(b) Any act which is mentioned in Clause (b) bf Article2 of this Order, but which is not covered by anyany of the parts in this schedule.

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APPENDIX "8"

THE PROCLAMATION OF INDEPENDENCE

ISSUED ON APRIL 10 1971,

On the 10th April 1971 the elected representativesof the people of Bangladesh constituted themselves into a

Constituent Assembly and after haviLlg mutual consultat­ions and in order to ensure for the people of Bangladeshequality, human dignity and social justice declared andconstituted Bangladesh to be a Soverign Paople's Republic

and thereby confirmed the declaration of independence

that had already been made by Sheikh Mujibar Rahman on

26th Mareh, 1971.

THE PROCLAMATION OF INDEPENDENCE

Mujibnagar, BangladeshDated 10th day of April, 1971.

WHEREAS free elections were held in Bangladesh from

7th December, 1970 to 17th January, 1971, to elect repre­sentatives for the purpose of framing a Constitution;

AND WHEREAS at these elections the people of Ban..

gladesh elected 167 out of 169 representatives belongingto the Awami League;

AND WHEREAS General Yahya Khan summoned theelected representatives of the people to :meet on the 3rdMarch, 1971, for the purpose of framing of Constitution;

AND WHEREAS the ASEembly so summoned was arbi­trarily and il1e;sally postponed for an indefinite period;

Proclamation of Independence

AND WHERE instead of fulfilling their promise

a.nd while still conferring with the representatives thepeople of Bangladesh, Pakistan authorities declared an un..just and treacher~m$war ;

AND WHEREAS in the facts and circumstances of suchtreacherous conduct B::lllga Bandhu Sheikh Mujibur Rahmanthe undisputed leaderor 75 million of people of Bangla­desh, in due fulfilment of the legitimate right of self deter­mination of the people of Bangladesh, duly made a declar­ation of independence at Dacca on March 26, 1971, and urgedthe people of Bangladesh to defend the honour integ~

rHy of Bangladesh:

AND WHEREAS in ~ the conduct of a ruthless and sav­age war Pakistani authorities committed and are stillcontinuously committing numerous acts of genocide and

unprecedented tortures, amongst others on the civilian andunarmed people of Bangladesh;

AND WHEREAS the Pakistan Government by levyingan unjust war and committing genocide and by other repre­ssive measures made it impossible for the elected represent­atives of the people of Bangladesh to meet and frame a

Constitution, and give to themselves a Government;

AND WHEREAS the people of Bangladesh by their hero­

ism, bravery and revolutionary fervour have establishedeffective control over the territories of Bangladesh,

We the elected representatives of the people of of Bangla~

desh, as honour bound by the mandate given to us by

people of Bangladesh whose will is supreme, constituted ourselves into a Constituent Assembly, andheld mutual consultations, and

in order to ensure for the people of Bangladesh

ty, human dignity and so~ial justice,

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120 Trial of Collaborators Proclamation of Independence

give effect to

Constit­Vicc-

PROF. YUSUFDuly Constituted PotentiaryBy and under the authorityof the Constituent Assemblyof Bangladesh.

(XII) We further resolve that in order tothis instrumen t we appoint Prof. Y usuf our

uted Potentiaryand to give to the President andPresident oaths of office.

(IX) We further resolve that this Proclama tion of Inde­pendence shall be deemed to have come into effect fromday of March, 1971.

(V) shall have the power to appoint Prime lVIinister andsuch other Ministers as he considers necess::ny,

declare and constitute Bangladesh to be a SovereignPeople's Republic and thereby confirm the declaration of inde­pendence already made by Banga Bandhu Sheikh MujiburRahman and

(II) do hereby affirm and resolvs that till such time as aConstitution is framcd

lBanga Bandhu Sheikh l\IIujibur

Rahman shall be the President of the Republic and thatSyed Nazrul Islam ~hall be the Vice-President of the Re­publia, and

(III) that the President shall be the Supreme Comm:lnder·of all the Armed Forces of the Republic,

(lV) shall exercise aIt the Executive and Legislative powers·of the Republic including the power to grant pardon,

(VI) shall have the power to levy taxes and expend monies,

(VII) shall have the power to summon and adjourn theC onsttituent L~ ssemly and

(VI I I) do all other things that may be necessary to giveto t~e people of Bangladesh an orderly and just Government.

(IX) We the elected representatives of the people ofBangladesh do further resolve that in the event of there beingno President or the President being unable to ~nter uponhis office or being unable to exercise his powers due toany reason whatsoever, the Vice-President shall have andexer-.',ise all the powers, duties and responsiblitles hereinconferred on the President,

(X) We further resolve that we undertake to observe and

.give effect to all duties and obligations that devolve upon

us as a member of the Family of Nations and to abide bythe Charter of the United Nations.

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PROVISIONAL CONSTITUTION ORDER

AND WHEREAS the unjust and treacherous waras referred to in the said Proclamation has now ended ;

AND WHERE AS it is the manifest aspiration ofthe people of Bangladesh that a parliamentary democracyshall function in Bangladesh ;

AND WHERE AS in pursuance of the saidit is necessary immediately to make certainin that behalf.

NOW THEREFORE in pursuance of the Pf(>clElffif'lt1Cln

of Independence Order, d.:<ted the 10th April, 1971 andother powers enabling him in that behalf the President is

pleased to make'and promulgate the following g

(1) This order may be called the Prov isional Constitu ~

tion of Bangladesh Order, 1972.

AND WFEREAS by the said Proclamation thePresident is invested with all executive and legislativeauthority and the power to appoint a Prime Minister;

WHEREAS by the Proclamation of Independence Order,dated April, 1971 provisional arrangements were madefor the governance of the People's Republic of Bangladesh;

( Beihg the President's Order dated the1972, published in the Bangladesh Gazetteof the same date)

PROVISIONAL CONSTITUTIONBANGLADESH ORDER, 1972

LAW~ CONTINUANCE ENFORCEMENT ORDER

Mujihnagar,

Dated 10th day of April, 1971.

SYED NAZRUL ISLAM

Acting Presidont.

1. Syed Nazrul Islam, the Vice-President Ilnd Acting

President of Bengladesh, in execise of the powers conferredon me by the Proclamation of Independence dated tenthday of April, 1971 do hereby order that all laws that

were in force in Bangladesh on 25th March, 1971, shallsubject to the Proclamation aforesaid continue to he soin force with such consequential changes as may benecessary on account of the creation of the Sovereignindependent State of Bangladesh formed by the will ofthe people of Bangladesh and that all Government officials­civil, military, judicial, diplomatic who take the oath ofallegiance to Bangladesh shall continue in their officeson terms and conditions of service so long enjoyed bythem and that all District Judges and District Magistrates,in the territory of Bangladesh and all diplomatic represen­tatives elsewhere shall arrange to admini ster the oath ofallegiance to all Government officials within theirjurisdictions.

This order shall be deemed to have come into effect

from 26th day of March, 1971.

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124 Trial of Collaborators I

"

3

96

1

118

(b)

(ii)

1242-243

,.

"

"

,,

,.

,j

ExplanationProviso

"Appendix "A"Appendix CI B'"Appendix He"cognizancecollaborators

clarificationdefinitionmeaning

Criminal CodeSection

accompJibe testimonyaccused, questioning byadjournmentsanatomy of Art.

Sub-clause

(2) It extends tu the whole of Bangladesh.(3) It shall come into force at once.(4) Definition:

"Constituent Assembly" referred to in this Ordermeans the body comprising of the elected represent~

atives of the people of Bangladesh returned to theN.E. and P E. seats in the elections held in Decem­

ber, 1970, January, 1971 and lvlarch, 1971 not other­wise disqualified by or under any law.

(1) There shaH be a Cabinet of Ministers, with the

Prime Minister at the head.

(6) The President shall in exercise of all his functionsact in accordance with the advice of the Prime .l\!linister.

(7) The President shall commission as Prime Minister a

member of the Constitutent Assembly, who commands theconfidence of the majority of the members of the ConstituentAssembly. All other Ministers, Ministers of State and Dea­uty Ministers shall be appointed by the President on the

advice of the Prime Minister.

(8) In the event of a vacancy occurring in the Office ofthe President at any time prior to the framing of the Consti­tution by the Constituent Assembly, the Cabinet shall appoi­nt as President a citizen of Bangladesh who will hold theoffice of President until another President enters upon theoffice in accordance with the Constitution as framed by theConstituent Assembly.

(9) There shall be a High Court of Bangladesh, consis­ting of a Chief Justice and so manlT other Judges as may beappointed from time to time.

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( ii )

Evidence Act. application of ­inter pretation of StatuesPublic Prosecutorretrospective operation of OrderSchedule to the Booksummons-case procedure to applywitnesses

court witnessesdefence witnessesprosecution witnesses -

Page

338

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