Generally, the decision of the higher courts is binding on its subordinate courts. Hence, a law declared by the High Court is binding on the Court of Session. As there is no sentencing guideline the mitigating and aggravating circumstances considered by the High Court to decide between death and imprisonment for life can serve as a guideline for the Court of Session to avoid individual sentimental or judge-centric judgments.
THE Section 302 of the Penal Code of Bangladesh provides, ‘whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.’ From scrutinising the section two facts are apparent. Firstly, a person convicted under the section shall be punished with death along with fine or imprisonment for life along with fine. Secondly, the section is reticent about when to award death or imprisonment for life. Thirdly, by remaining reticent, the section has provided the court with the discretion to decide the adequate punishment. As observed by the High Court Division in Nowsher Ali vs State [39 (1989) DLR (HCD) 57], ‘we judges do not share same view [..] and this is natural because everyone of us has his own philosophy of law and life moulded and conditioned by his own assessment of performance and potentials of law and garnered experience of life.’ But, does it means the judges can punish a convicted person with death or imprisonment for life depending on their sentiment? Or, the punishment shall be awarded in accordance with the fundamental principles of criminal justice [State vs. Bidhan Chandra Roy, 66 (2014) DLR (HCD) 500]?
Since there is no sentencing guideline followed by our judiciary inconsistency in the decision is possible. However, the HC decision on Death Reference cases can be a guideline for the Court of Session. As provided in Section 374 of the CrPC, ‘when the Court of Session passes sentence of death, the proceedings shall be submitted to the High Court Division, and the sentence shall not be executed unless it is confirmed by the High Court Division.’ Hence, the grounds depending on which the HC has to reject these DR cases can be considered by the Court of Session while deciding the appropriate punishment for the convict. As per the records of the Death Reference Branch of the HCD, there were 580 DR cases before the court in 2016. Of which 419 were pervious pending cases and 161 were newly submitted before the court for confirmation. Of these 580 DR cases, HCD could hear only 45 cases. Out of these 45 cases, 35 cases were studied from which it is ascertained that 32 DR cases were rejected. That means the rejection rate was approximately 91.4 per cent. Similarly, in 2017, HCD could hear only 66 cases, of these, 50 cases were studied, and the rejection rate was approximately 60 per cent. Does these data indicate that the Court of Session has wrongly convicted the person?
It is noteworthy to mention, rejection in DR case does not mean the conviction is changed. Instead, it means, the Court of Session has rightly convicted the person, but the punishment was not decided considering the mitigating and aggravating circumstances [State vs. Bidhan Chandra Roy, 66 (2014) DLR (HCD) 500]. Hence, the HC has commuted the sentence awarded by the Court of Session considering the mitigating and aggravating circumstances. In fact, it is apparent from the data that a guideline is followed by the HC while deciding DR case. But, can this guideline be followed by the Court of Session?
Generally, the decision of the higher courts is binding on its subordinate courts [Article 111 of the Constitution of Bangladesh]. Hence, a law declared by the HC is binding on the Court of Session. Since there is no sentencing guideline these mitigating and aggravating circumstances considered by the HC to decide between death and imprisonment for life can serve as a guideline for the Court of Session to avoid individual sentimental or judge-centric judgments.
As the famous maxim ‘An eye for an eye’ suggests, ‘the punishment corresponds in kind and degree to the injury.’ Hence, it is important to ensure that sentence to be awarded should be proportionate to the gravity of the offence [Md Yahia and others vs. State, 1 MLR (HC) 59] and is awarded in accordance with the fundamental principles of criminal justice not, on individual sentiments.
Sadiya S Silvee is a Research Assistant at Bangladesh Institute of Law and International affairs and adjunct lecturer at Green University of Bangladesh. She is also associated with the Centre for International Sustainable Development Law as a legal researcher.
Source: New Age.
