Enforced Disappearance, Abduction, Kidnap, Killing: Words Creating Fear in Bangladesh

In last few days, the occurrences of abduction, kidnap, enforced disappearance, killing etc. have increased rapidly all over the country. Among them the recent seven murder case at Narayanganj has created most reaction among the citizens which exposed the cruelty and inhumanity of the incident as well as aware the country massively about the gravity of these offences. Apart from this, there are huge numbers of allegations in recent years regarding kidnap, abduction, forced disappearance, extortion and finally killing by unidentified perpetrators. 

Most of the incidents are still unsolved and a very few people are rescued successfully by the law enforcers. However, in most of the abduction cases family members, relatives and friends of the victim triggered their assertion towards law enforcement agencies and specifically they suspect and alleged that people wearing civil dress introduce them as member of Rapid Action Battalion (RAB) or Detective Branch (DB) are arresting and forcefully bringing the victim with them. 

But when victim’s family or media are asking the law enforcers, they repeatedly denied the matter and told that they even do not know anything about it or they did not conducted any such operation. Till now, none of the offenders have brought to trial. Moreover, the incidents are neither properly investigated nor any actions are taken with proper liabilities to prevent such events. Hence it is not impractical at all that the criminals took the opportunity and gained their desire by the name of law enforcement agency. 

However, in our existing law there is no existence of enforced disappearance. It is not only undefined in any penal law but also not treated as an offence in any way. It is a new form of crime in this country and launched last couple of years past. But there are provisions regarding kidnap & abduction in our Penal Code. According to section 362 of the Penal Code, 1860 a person is said to commit the offence of abduction when he by force compels or by any deceitful means induces any other person to go from one place to another. 

On the opposite side, section359 enumerates kidnapping is of two kinds i.e kidnapping from Bangladesh and kidnapping from lawful guardianship. Whoever conveys any person beyond the limits of Bangladesh without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from Bangladesh. On the contrary, whoever takes or entices any minor or any person of unsound mind, out of the keeping of the lawful guardian without such guardian's consent is said to kidnap such person. 

As per the provision of the Penal Code a person whoever kidnaps any person from Bangladesh or from any legal guardian shall be punished with detention of either description for a term which may extend to seven years and shall also be liable to fine. Further, section 364 prescribed the punishment for kidnapping or abduction where the intention is to murder up to imprisonment for life or rigorous imprisonment for a term, which may extend to ten years and fine also. 

Apart from this, if a person kidnaps or abducts any child under the age of ten, in order that such child may be murdered or subjected to grievous hurt, or slavery, or to the lust of any person, shall be punished with death or with imprisonment for life or with rigorous imprisonment for a term which may extend to fourteen years, and shall not be less than seven years. Additionally, if a person kidnaps or abducts any woman with intent that she may be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

The punishment for murder after abduction is death penalty or imprisonment for life as stipulated in section 302 of the Penal Code, 1860. In addition to this, if kidnapping or abduction is committed with an intention to wrongful confinement, the offender shall be punished with custody of either description for a term, which may extend to seven years and shall also be liable to fine.

However, enforced disappearance is a relatively new addition to state crime. After the expansion of this offence in December 2006, the UN adopted the International Convention for the Protection of All Persons from Enforced Disappearance. The convention aims to prevent enforced disappearances taking place, uncover the truth when they do occur, punish the perpetrators and provide reparations to the victims and their families. 

The Convention delivers a definition of the crime of enforced disappearance and necessary state action in order to both prevent the occurrence of the crime and to allow for the investigation and prosecution of the culprits. As per the language of Article 2 of the mentioned Convention an enforced disappearance takes place when a person is arrested, detained or abducted by the state or agents acting for the state, who then deny that the person is being held or conceal their whereabouts, placing them outside the protection of the law. 

Article 1(2) also furnishes, in no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance. In addition to this, under Article 4 each State party has an obligation to take necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law. Moreover, the said Convention added in Article 6(1) (a) & (b) that any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance; and a superior who: knew, or consciously disregarded information which clearly indicated, that subordinates under his or her effective authority and control were committing or about to commit a crime of enforced disappearance and he/she shall be liable for the commission of that offence.

Apart from this, the Rome Statute of the International Criminal Court, the Committee of the Red Cross Rules of Customary International Humanitarian Law, the Inter-American Convention on the Forced Disappearance of Persons prohibits the act and obliges the State parties to define forced disappearance of persons as a crime in their national law and to impose a appropriate punishment commensurate with its gravity. Hence we need to legislate a new law urgently to prevent the crime effectively.

Enforced disappearance is a crime under international law for which states are obliged to hold perpetrators responsible through criminal investigation and prosecution. Moreover, it amounts to a crime against humanity when it is committed as part of a widespread or systematic attack on a civilian population. Forced disappearance is a particularly cruel human rights violation; a violation of the person who has disappeared and a violation of those who love him/her. The disappeared person is often tortured and in constant fear for their life, removed from the protection of the law, deprived of all their rights and at the mercy of their captors while every person has the right to life, liberty and security of person.

 

Unacknowledged detentions or involuntary and forced disappearances constitute a violation of these rights including right to security and dignity of person; right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment; right to humane conditions of detention; right to consult with a legal personality; right to a fair trial; right to a family life and when the disappeared person is killed, the right to life which are guaranteed as fundamental rights and enforceable by the court under the provision of the Constitution.

Often, people who have disappeared are never released and their fate remains unknown. Their families and friends may never find out what has happened to them. But the person has not just vanished.  Someone, somewhere, knows what has happened to them.  Someone is responsible but all too often the offenders are never brought to justice. However, the sufferer and his/her family have right to get fair justice and to reparation. They also have the right to know the truth about the circumstances of an enforced disappearance and the fate of the disappeared person, and the right to freedom to seek, receive and impart information to this end.

State must commit to conclude the practice of forced disappearance by taking steps to respect, protect and fulfill the rights of individuals not to be subjected to enforced disappearance. Bangladesh should ratify the convention and incorporate the offence in domestic law immediately. Also the State should take effective legislation, administrative, judicial or other measures for the taxpayers to prevent and provide protection against unacknowledged or involuntary and forced disappearances. Further, states must undertake the issue of impunity and ensure that the criminals are brought to justice.

Published in precise form in the Law & Our Rights page (p. 12) of the Daily Star on 20.05.2014 
Published in the Daily Observer (Opinion-Editorial, P. 7) on 22.05.2014. 
published in the Financial Express (Views & Opinion, P. 4) on 22.05.2014. 

Register your deed & secure your property

Registration of all sorts of deed relating to transfer of immoveable property is mandatory after 1 July 2005 by amending the hundred years old Registration Act of the country. Hence, in the eye of law, an unregistered deed/document has no legal effect and no one can claim any right on the basis of it. Moreover, no court of law will admit this kind of instrument as an evidence. Consequently, an unregistered document may create complexity and one may lose his/her rights over his/her property only for the lack of registration. By taking the scope of this deficiency a transferor may transfer his/her property again and again which ultimately lead to multiplicity of suits. 

In our country most of the civil suits are arising out of this unconsciousness of the transferees. For this reason, registration of a deed is compulsory to avoid further complexity as well as to protect the property. So, all sale deed, gift deed, mortgage deed, partition deed, contract for sale deed, exchange deed, lease deed are need to be duly registered in the office of the Sub-registrar under the jurisdiction of which the property is located. Apart from this, registration of immoveable property is necessary to secure proprietary rights but not always obligatory.

Procedure for getting registration: Aside from sale deed of land, registration of contract for sale deed (Bainanama) is also mandatory now. A contract for sale deed must be registered within thirty days from the date of its execution. After completion of all requirements to register and fulfilling the conditions of contract for sale deed, the main sale deed has to be registered within three months from the date of execution. There is no scope to register after lapse of this stipulated time. However, a defaulter may appeal to the district registrar for registration after showing proper cause of delay.

Maintaining all legal formalities properly is the first pre requisite to register an instrument. Before presenting the documents to register, one has to scrutiny all necessary papers relating to the property cautiously and identifies the title, ownership, possession etc. over the property of the transferor. Now, it is essential to submit an affidavit by the transferor in this regard. Then draft the deed properly. It is very important for both the transferor and the transferee to set up their rights and liabilities in the deed appropriately. Usually some professionals draft the deed and the transferee depends on this as much that he/she does not even feel to read/check it. The language of the deed will be determined by the parties and understandable by the registrar. 

However, in fact the contents of the deed will determine the rights and liabilities of the parties. Hence, it is crucial to write up the rights and duties of the parties clearly, legibly & specifically. Without doing this, one may refuse to perform his/her duty by thanking the opportunity of this ambiguity and illiteracy. In addition, it is very important to write legibly and using simple words to construe the document easily, because sometime it makes confusion to determine the liability. However, our law (the Specific Relief Act) permits to correct/amend or even cancel the deed after the execution and registration of a defective deed through the court. But the process is complex, time consuming and expensive. Hence, it is better to take caution before doing error. 

Now, to transfer an immoveable property the parties will have to affix there attested photos on the deed and appear physically before the registry office. Moreover, in case of sale, the transferor will provide detail information and history about the chain of ownership since last 25 years. Further, he/she will explain the way by which he/she acquires the right to transfer and submit all original papers, records, khatiyans etc. relating to the property.  In addition, the seller will provide information regarding nature of the property, price, location map, description of surrounding properties, hand sketch map of the property, schedule of the land etc. in the sale deed. If the property is situated more than one Sub-registrar’s jurisdiction then the registration may be done in any of the place or the place at which larger portion of the land is situated. 

A receipt will be given at the time of registration which will be shown at the time of collection of registered deed. Hence, preserve your receipt carefully. Everyone should take a copy of registered deed after completion of the whole process and examine the papers thoroughly. In case of any discrepancy, inform the Sub-registrar and pray for correction. 

If the parties are unable to present physically before the Sub-registrar’s office then the officer will come to the convenient place to register the document. It is necessary to remember that a deed is being effective from the date of execution and not from the date of registration. If anybody executes a deed in foreign state then the deed will must be registered within four months after reaching in Bangladesh. The language of the deed may be translated for the convenience of the parties and the registrar also.

Sometimes parties are showing less value than the original in the deed to avoid fees and taxes which may create obstacle to get proper legal protection. Do not take aid from any unauthorized person to register your property. In reality, there are a lot of middlemen or touts who instigate you to appoint them for money to do your registration swiftly and promptly. It may affect adversely and it is also prohibited under the Registration Act, 1908.

Introduction of a digital system can bring changes to the registration administration. Hence digitalization of the whole system is obvious as well as demand of time. It can make the system easy and reduce complexity. Moreover, it will be effective to prevent forgery. The government can introduce prescribed form for illiterate peasants who want to transfer their assets. In addition, a well structured database of owner can diminish sufferings of the citizens of our motherland and can bring transparency in this sector. Hence, it is our utmost appeal to the policymakers to think about it and take necessary steps regarding this immediately.

Registration fees: The registration fee for contract for sale deed may vary depends upon the value of the property. The fee is tk 500, if the value of the immoveable property is less than tk 500000. It is tk 1000, if the value is between tk 500000-5000000 and it is tk 2000, if the value of the property is more than tk 5000000.

In case of a mortgage deed it depends upon the mortgage amount. If the amount is less than tk 500000, then the amount of fee is 1% of total mortgage money but the amount must not be less than tk 200 and not more than tk 500. If the amount is between tk 500000-2000000, then the fee is 0.25% of total amount, but not less than tk 1500 and not more than tk 2000. If the amount exceeds tk 2000000 then the fee will be 0.10% of total amount which will be not less than tk 3000 and not more than tk 5000.

If it is a gift/heba (heba is for the Muslims only) deed and executed between husband-wife, parents-children, grandfather-grandmother, brother-sister, grandfather/grandmother-grandson/granddaughter then the fee is tk 100 only and for rest of the cases the fee is same as sale deed.

In case of partition deed the fee is tk 500, if the market price of the property is within tk 300000, if the value is between tk 300000-1000000, then the fee is tk 700. If the value is between tk 1000000-3000000, then the fee is tk 1200 and if the value is between tk 3000000-5000000, then the fee is tk 1800. However, in this case the highest amount of fee is tk 2000 when the market price of the property exceeds tk 5000000.

Published in the Dhaka Tribune at Juris page (page-7) on 15.05.2014. 

Consequences of appearance & non-appearance of parties in civil litigation

Introduction: Appearance and non-appearance is a major issue to settle a dispute. Because, mere appearance or non- appearance may determine the result of the suit. The provisions of the Code of Civil Procedure, 1908 are based on a general principle that, as far as possible, no proceeding in a court of law should be conducted to the detriment of any party in his/her absence[1]. It is the duty of the concern party to appear before the trial court at a due time. Otherwise, the result may turn reverse to the non-appeared party. However, if the suit is determine at that date for the lacking of non-appearance of a party, the affected party may have a chance to revive the suit by following the provisions of The Code of Civil Procedure, 1908.

Actually, Order-IX of the Code of Civil Procedure, 1908 enumerates the provision of consequence(s) of appearance and non-appearance of parties in a civil litigation. Especially, Order- IX, rule- 2 enumerates the consequence of failure of deposit of process fees by the plaintiff; rule- 3 & 4 provides the consequence of non-appearance of both (Plaintiff & Defendant) parties. Rule- 8, 9, 9A enumerates the consequences of non-appearance of Plaintiff and lastly rule- 6, 13 & 13A deals with the provision of non-appearance of Defendant. Lets us discuss all these three one by one.

Connotation of the word appearance: The word “appearance” has a well-recognised meaning and means appearance in person or through advocate for conducting a case[2].

So, appearance may be by a party in person or by an advocate or by a party in person along with his advocate[3].

“Appearance” by a pleader within the meaning of Order IX does not, as if appearance by a party in person means mere presence of the court; it means “appearance by a pleader” duly instructed an able to answer all material questions relating to suit[4].      
Appearance of the parties: Rule 1 of Order IX deals with the provision of appearance of the parties. On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court.

Rule 1 requires the parties to the suit attend the Courthouse in person or by their respective pleaders on the day fixed in the summons for the defendant to appear. So the rule relates to the appearance of the first hearing of the suit.[5]

Thus, it is not sufficient for them to take any course, short of appearance. It is not sufficient for the defendant to send a letter to the court or for his advocate merely to file a Vokalatnama, while remaining absent[6].

Dismissal of the suit for the lacking of process fee by the plaintiff: If the plaintiff is failed to deposit process fees to the court within the stipulated time stipulated by the court, then the suit may dismiss[7] as per rule- 2 of the said Order. As per the language of the Code the provision is:

“Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges, if any, chargeable for such service, or failure to present copies of the plaint as required by rule 9 of Order VII, the Court may make an order that the suit be dismissed:

Provided that no such order shall be made, if, notwithstanding such failure, the defendant attends in person or by agent when he is allowed to appear by agent on the day fixed for him to appear and answer he attends in person or by agent when he is allowed to appear by agent”.

Consequences of non-appearance by the plaintiff: On the date of peremptory hearing, if the plaintiff not appears but the defendant appears then the suit will dismiss under O- 9, r- 8.

(The rule said: “Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder”.)

Remedies: If a suit is dismissed under Order- 9 or 3 then the plaintiff has two-fold options to revive his dismissed suit. Those are as follows:

i)                    Filing a fresh suit before the competent court, if the suit is not bar by law and

ii)                  The Plaintiff may files a petition under O-9, R- 4.

(The Rule- 4 is: “Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for [such failure as is referred to in rule 2], or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit”.)

This petition under O-9, R- 4 is one type of Misc. case. The case should be filed within 30 days from the date of cancellation of such suit as per Art. 162 of the Limitation Act. However, after the expire of that 30 days the case mat be filed by virtue of Sec. 5 of the Limitation Act. The phrase “Sufficient cause” mentioned in sec. 5 of the mentioned law means the cause, which is beyond the control of the alleged person. It may an act of God or a mere man made disaster. Where there are concurrent remedies are available the duty of the concern lawyer is to choice the best one for the benefit of the party.

If the suit is, dismiss under O- 9, r- 8; then the plaintiff have two concurrent remedies:

i)                    He may file a petition by swearing an affidavit to the concern court within 30 days from the date of such dismissal along with a fees not more than 1000Tk. and

ii)                  He may file a fresh suit.

Consequence of non-appearance by the defendant: On the date of peremptory hearing, if the plaintiff is present but the defendant not present then the suit will decreed ex-parte as per O-9, r- 6.

(The rule is: “(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-

[(a)] When summons duly served-if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex pane.]
(b) When summons not duly served-if it is not proved that the summons was duly serve, the Court shall direct a second summons to be issued and served on the defendant;
(c) When summons served but not in due time-if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.

(2) Where it is owing to the plaintiffs' default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement”.)

Proceedings under Order- 9, rule 9A is a special type of Litigation and there is no scope of condonation of delay.

A Misc. case must be file before the trial court. If a Misc. case under O-9, r- 4 is dismissed, the remedy is revision and if a misc. case under O- 9, r- 9 (“(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit. and shall appoint a day for proceeding with suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party”.) is dismissed then the plaintiff files an appeal because it is an appeal able order and it is called as Misc. Appeal. Order- 43, r- 1(a-w) provides the list of appeal able order. If the filed misc. case is granted, then whether opposite party can file appeal against such order is not clear by law, that’s why this type of matter deal by revision, because where there is no appeal there is a provision of revision.

Remedies: If an ex parte decree is passed against the defendant then the defendant has to take five types of action against such decision among them three is most vital. These are:

i)                    In accordance with O- 9, r- 13A defendant has to file a petition by swearing an affidavit within 30 days to the trial court to set aside the decision with a fine not more than Tk. 3000. Defendant can get this opportunity once as per the provision of law,

ii)                  As per O-9, r- 13 he may apply for setting aside the ex parte decree. In this case, the defendant shall prove sufficient case but in former case, a defendant need not prove sufficient cause for non-appearance,

iii)                He may file an appeal under Sec. 96 of CPC. No appeal can continue in compromise decree but an appeal may file against ex parte decree,

iv)                The defendant may file a review petition before the same court under O- 47, r- 1, Sec. 114 of CPC and

v)                  The defendant may file an independent suit for cancellation of the decree as per Sec. 42 & 39 of the Specific Relief Act.

Application for set aside ex-parte decree: Rule 13 as follows: “In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also”.

Rule 13 deals with setting aside ex-parte decree passed against the defendant. Whereas the remedies by way of appeal and review is available to any person against whom a decree is passed, the remedy provided by this rule can be available  of only by the defendant for whose default of appearance an ex-parte decree is passed.

“Sufficient cause” has not been defined anywhere in the Code. It is a question of fact. It is determine by the fact and circumstances of each case[8].

Consequences of non-appearance of both the parties (plaintiff & defendant): On the date of peremptory or final hearing if both, the parties (Plaintiff & Defendant) absent from the hearing then the suit may dismiss according to O- IX, rule- 3. The rule said: “Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed”.

Ending Remarks: Hence, non-appearance has a great impact upon a civil proceeding. It is duty of the concern parties to appear before the learned court at the due time and helps the court to settle the dispute; otherwise, the absent party may suffer and not entitled to get justice.

Selected Bibliography:

1. The Code of Civil Procedure, 1908- Ministry of Law, Justice & Parliamentary Affairs;

2. The Code of Civil Procedure: Concept, comment & case- Mohammad Gholam Rabbani;

3. Law of Civil Procedure- Mahmudul Islam & Probir Niogi;

4. Law of Civil Procedure- Naim Uddin Ahmed;

5. Civil Procedure- C K Takwani;

6. Principles of Civil Litigations- Ishrat Azim Ahmed & Md. Ershadul Karim.

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[1] 28 DLR159 SC

[2] 59 Cal 736

[3] 11 CWN 329

[4] 1987 BLD 89 AD

[5] 2 All 67 PC.

[6] 1945 Sind 98

[7] Begum Para Nasir Khan V Fernandes

[8] UCO Bank V Lyengar Consultancy Service

A precise form published in the Dhaka Tribune (Juris, P. 7) on 22.05.2014