Condonation of Delay
According to S.3 of Limitation Act 1908, every suit, appeal or application is barred by limitation if
the same is not filed within the period prescribed in the First Schedule of the Act. In such cases, the
suit, appeal or application will be dismissed subject to what contained in Section 4 to 25 the Act.
The provision of condonation of delay is contained in S.5 of Limitation Act 1908. It means the count
can extend the limitation period if there is sufficient cause for delay.
The application for condonation of delay can be filed in respect of delay in
1.Appeal, or
2.Application for review, or
3.Application for revision
4.Application to leave to appeal or,
5.other application under any law where S.5 of Limitation Act made available.
For condonation of delay under S.5 of Limitation Act 1908, the appellant or the applicant must satisfy
the court that he had sufficient cause for not preferring the appeal or making the application within
such period. The term sufficient cause is not defined in the Act. But the explanation of S.5 provides
that the applicant or appellant was misled by any order, practice or judgement of the high court may
be a sufficient cause for delay.
Court can grant condonation of delay on its own discretion. The court has to apply its own judicial
mind for granting or rejecting condonation of delay. The general principle is that each and every day’s
delay is to be explained but the Appellate Division of the Supreme Court of Bangladesh in a case
reported in 51DLR (AD) 253, held that substantial justice shall take preponderance over technical
consideration. In a case reported in 14BLT (AD) 123, a delay of 4578 days was condoned when an
appeal was filed by the government. Time-banned appeal filed by the government is generously
condoned where there is no gross negligence in prosecuting the matter or where there is special
circumstance for delay is not deliberate and reasonable explanation for delay is offered.
If the explanation offered is not reasonable or acceptable due to lack of defigence, delay can not be
condoned; 6MLR(AD)295. But under special circumstances, delay even if not sufficiently explained
may be condoned where it is necessary to correct a gross error of law committed by the court below or
to put law in straight.
According to S.5 29(2) (b) of Limitation Act 1908 the provision of S.5 is not applicable of special
period is prescribe under special law where in a special law, special period for seeking relief or filing
application prescribe , there is no scope for condonation of delay under S.5 of limitation Act 1908. In
a case reported in 54 DLR 282, the High Court held that S.5 of Limitation Act has no application as a
special period is prescribed under S.30 of Special Power Act 1974.
Admission
An admission is defined in S.17 of Evidence Act 1872 as a statement, oral or documentary which
suggests any inference as to any fact in issue or relevant fact. S.21 of Evidence Act relates to the proof
of admission against persons making them by or on their behalf. The value of admission depends on
the circumstances in which it was made and to whom .
The conditions of admissions are as follows:
1.The statement must be oral or documentary.
2.The admission must suggest any inference as to any fact in issue or relevant fact.
3.The statement must be made by any party , or their agent on their representatives or persons who
have derived any interest in the title of suit (s.18 of Evidence Act 1872).
Confession
Confession is not defined in Evidence Act 1872. Confession is a form of admission consisting of
direct acknowledgement of guilt in a criminal charge. Confession is a type of admission. But not all
admission amounts to confession. This is because, to become a confession, the person making it must
admit it in terms of the offence or at any rate substantially all the facts which constituted any offence.
An exculpatory statement which negative the commission of the offence is not amount to a confession
(Pakala Narayan Swami vs Emperor).
To qualify as relevant evidence, a confessional statement must satisfy the condition laid down in
Section 24 to 30 of Evidence Act 1872.
Confession must be voluntary. According to S.24 of Evidence Act 1872, a confession is irrelevant if
obtained by inducement, threat or promise. But according to S.28 of Evidence Act 1872, a confession
is regarded as relevant after the impression caused by an inducement threat or promise has in the
opinion of the court been fully removed .
Section 25 of Evidence Act 1872 declares that no confusion made to a police officer shall be proved
as against a person accused of any offence. Similarly Section 26 of Evidence Act 1872 states that no
confession made by any person whilst he is in the custody of a police officer unless in the immediate
presence of a magistrate shall be proven as against such person.
Section 27 of Evidence Act provides for the admission of evidence which is discovered as a result of
information received from a person accused of any offence in the custody of a police officer whether
or not amounts to be proved .
Confession if made volumanity can be used against the person who made it. According to S.30 of
Evidence Act 1872, confusion of an accused can be used against persons tried jointly for the same
offence.
Now the question is whether confession can be the sole basis of conviction. To answer that question
we have to know that confession can be judicial or extrajudicial. Confession can also be retreated by
the person who made it.
Judicial confession made formally to a magistrate on the court. In Asgar Vs state 6BLD (HCD) 436,
it was held that confession is made voluntarily and without any fear, it can be the sole basis of
conviction. But in a case reported in 45 DLR(AD) 175, it it was stated under S.30 of Evidence Act, a
confession statement can not form the sole basis of conviction unless there is some other Evidence
against those persons.
If a person made a confession to a third party other than to the magistrate or court, it is called extra
judicial confession. In Nowsher Ali vs State, 39 DLR (AD) 194, the appellate Division held that
extra Judicial confession must be proved by very strong evidence. Extra Judicial confusion, if made
voluntarily and beyond any doubt that it may be the sole basis of the conviction.
A retracted confession is a statement made by an accused before the trial begins in which he admits to
have commited the crime but which he repudiates at the time of trial. This is the rule of prudence that
a retreated confession needs corroboration as much as it is always open to suspicion and can not be
acted upon unless corroborated by independent and credible evidence, (State vs Ali Kibria, 43 DLR
512).
Dying Declaration
Dying declaration is an important piece of evidence in the light of S. 32 of the Evidence Act. The term
dying declaration is not used in S.32. Dying declaration is considered as a statement made by a person
as to the cause of his death or circumstances which led to his death. Such statements may be oral or
reduced to writing by any person present at the time such declaration is recorded as far as it is
practicable in the words used by the maker. The person who recorded it is required to prove it in the
Court.
Generally, S.60 of Evidence Act provides that oral evidence must be direct in all circumstances. But
in certain situations the person who saw the fact or heard the fact or perceived the may be dead or
cannot be found or incapable of giving evidence on whose attendance cannot be produced without an
amount of delay or expense. To cover such a situation, S.32 of Evidence Act provides certain
situations statement even if not direct may be admissible. One such exception is the dying declaration.
The exception is made on the basis that the statement from a dying person is less likely to be
fabricated. To ensure the reliability, the Court must be satisfied that the deceased was in a fit state of
mind and had a clear opportunity to observe and identify his ascendants. Dying declaration cannot be
rejected solely on the basis that it does not narrate the whole story.
There is no requirement that the maker of the statement under expectation of immediate death. There
is also no requirement that the time limit within which said statement is to be made. In a case reported
in 20 BLD 484, it was held that the dying declaration is a substantive evidence and if believed may
form the basis of conviction. This is so even in the absence of corroborative evidence, 41 DLR (AD)
126.
If the person making the dying declaration is survives, then it cannot be used as evidence under S.32
of Evidence Act 1872. This is made clear by the Indian Supreme Court in Ram Prasad vs State of
Maharashtra. But in such case, the declaration can be used to corroborate other witness under S.157 of
Evidence Act 1872.
Unlike confessional statement under S. 164 of CrPC, there is no requirement that dying declaration
must be made in the presence of a Magistrate. A dying declaration cannot be rejected because it was
made to a police officer or a person of authority. But if the dying declaration made to a police officer
in the absence of doctors and nurses, it is not instantly recorded and sent it to the police station, then
the reliability of the dying declaration is put at a stake. In state of Karnatak vs sharif,it was held that
dying declaration even in the absence of magistrate is releuant of made in the presence of often
wtnessy .The main issue of whether dying declaration is reliable and true not wheter of made in the
presence of police or magistrate.
Investigative powers of police
The term investigation is defined in S.4(1)es of CrPC as ‘all the proceedings under this code for the
collection of evidence conducted by a police officer or by any person cotter than magistrate who is
authorized by a magistrate in this behalf.In R.H.Rishhand vs state of Delhi,the supremye court of
India state that investigation includes going is the place of occurrence , identification of facts and
context of the case , arresting the accused and collection of evidence regarding commission of an
offence . Sections 15 u r 176 of CrPC deal with the investigative powers of a police officer.
According is s.155(2) of CrPC , as police officer can investigate a non-cognizable offence without an
order of as magistrate.In Abdul Gaffar Munshi vs the state , 35 DLR 76, the court held half
investigation of a non-cognizable offence without an order of who magistrate is illegal.
According to S.156 of CrPC, the police can investigate a cognizable offence without an order of who
magistrate. S.156(2) of CrPC provides that no proceding of a police officer in such case shall at any
stage be called in question on the ground that the case was one which such officer was not empowered
under this section to investigate . In Bangladesh vs Tan Kheng ftaque , 31DLR(AD)69, the court held
raf in case of cognizable case, police enjoy unfelttered right under sections 154 and 156 of CrPC and
the ltigh court can not interfere with such powers of investigation,police officer while investigating
can summon the whitness under S.160 of CrPC . Police officer can issue search warrant under S.166
of CrPC.
Police officer who arreots a person can put him to detention for 24 hours. It the investigation is not
complete within 24 hours, officer in charge or the investigatigative officer shall send him to the nearst
Court of magistrate (S.167 of CrPC).
According to S.172 of CrPC, the investigative officer shall document his progress of investigation
into a case diary. Once the investigation into a case diary . Once the investigation is complete , he is to
submit the report without any delay as per required by S.173 of CrPC . This report many be two types
either charge sheet or final report.
According to S.173, of the magistrate is not satisfied, many order further investigation of an offence.
But the magistrate can not ask the police to submit supplementary charge sheet . Supolimentary
charge sheet is a process of investigation and the police has power submit suplimentary charge sheet.
But however the power of police can add new accused in the supplementary charge sheet; however
the police can not delete a person’s neare from the original charge sheet; the police can add the name
of a person whose name has earlier been dropped in the final report. In sultan Ahmed Alias Sentu vs
the state, the high court held that even after accepting the charge sheet submitted earlier, the police
can submit supplementary charge sheet. In Rehmatullah vs the state, the high court held that the
police can submit supplementary chare sheet at trial if any new and important evidence is discovered.
S.145
The object of S.145 is to enable the District Magistrate or specially empowered any executive
Magistrate to intervene and pass temporary order in regard to the passion of properly in dispute but
not to provide the parties with an opportunity to bring their civil suits before a criminal court. The
essential conditions under this section are as follows:
i)There must be a dispute.
ii)The dipute must be with regard to the possession of land , water or boundaries there of
iii)The dispute must come to the police as an FLR or an application to the Magistrate .
iv)The Magistrate must be satisfied that such dispute is liuely to cause breach of peace.
In Sudhanshu Kumar Day vs Abdul Aziz,25 DLR 322, the High court state that to make an order
under S.145, the basic question would be whether there is likelihood away breaeh of peace because of
dispute. If the Magistrate is in the opinion that there is likelihard of breea of peace , he then many
make an order under S.145 even on the basis of police report and there is no need to take evidence
from the spot.
According to S.145(5) of CrPC , noting in this section shall preclude any party so required to attend or
any other person interested , from showing that no such dispute as aforesaid exists or has exsisted ,
and in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be
stayed subject to such cancelation.
According to S.146(1) of CrPC , if the Magistrate decides that no such parties was then in possession
or is unable to satisfy himself as which of them was then in possession of the subject of dispute, he
many attach it until a competent court has determined the rights of parties thereto or the person
enhiled to possession thereof.jh ..
