DEATH OF JIHAD: CRIME AND TORT

Published by The Daily Star on 27th January, 2015 (Link Above)

This week Your Advocate is Barrister Omar Khan Joy, Advocate, Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely, ‘Legal Counsel’, which has expertise mainly in commercial law, corporate law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies.

Query
The recent situation of a child name ‘Jihad’ fallen to a dug hole in the road, if his parents want to bring an action against those responsible then what remedy will they get? I am concerned because anything can happen to me in this Dhaka city so I want to be aware of it.
Tania Noor
Uttara, Dhaka.

Response

Thank you for your query. It is our understanding that you would like to know about the possible remedies that the Court may grant in tragic incidents like that of Jihad’s. The answer depends mainly on whether death or injury has resulted from such mishap and what sort of proceeding has been brought before the Court by the aggrieved.

Firstly, a criminal proceeding may be initiated.  A criminal proceeding is concerned to punish the accused person for his crimes. The relief that a court may grant, in the form of punishment, in a criminal proceeding may extend from fine to imprisonment or even death. In cases like Jihad, where the victim suffers a death, the responsible person/persons may be charged accused under section 299 of the Penal Code for committing culpable homicide. As per section 299 of the Penal Code whoever causes death by doing an act with the knowledge that he is likely by such an act to cause death commits the offence of culpable homicide. Culpable homicide may also amount to murder if a clear intention of causing death or causing serious injury ultimately amounting to death, can be established against the accused. However, in cases like Jihad such intention may be difficult to prove.

The one that has more probability of being established in the eye of the Court is culpable homicide without an intention to cause death or serious injury amounting to death, as there is no requisition of establishment of intention to cause death or serious injury amounting to death. The punishment for such culpable homicide has been codified in the Penal Code under section 304, whereby a person who has been found guilty for such offence shall be sentenced with imprisonment for term that may extend up to 10 years, or with fine or with both.

Further the responsible persons may also be held liable under section 304A of the Penal Code for causing death by their negligence, which is my view, is more appropriate in the given scenario. Negligence need not be absolute rather it is the failure to observe such care as the occasion demands to protect interest of other persons. If such an offence is proved against the accused, the accused shall then be punished with imprisonment for a term of five years or with fine or with both.

However, in cases where the victim does not suffer death but inflicts injury or serious injury, the accused may be charged under section 337, 338 etc. of the Penal Code respectively. Under these, the accused if found guilty of the offence shall be faced with imprisonment for a term of six months or two years respectively. The court has also the discretion to sentence the accused with fine or both fine and imprisonment under the aforesaid sections of the Penal Code.

Jihad’s family has already filed a case for negligence conduct causing death to Jihad at the Shahjahanpur Police Station against several accused. Since it is a specific matter and now dealt with by the court, I refrain from making any specific comment/observation on the specific incident.

Secondly, parallel to the issuance of a criminal proceeding, in cases like this, the victim or his family is left with options of bringing a tortuous claim for negligence against the persons responsible before the civil court. To establish negligence the claimant needs to establish to the court that the defendant/the responsible person owed a duty towards the plaintiff and duty was breached because the defendant was negligent in performing his duties as a result causing death or injury to the plaintiff. If the same can be proved the court will award damages in the form of compensation for death/injury. However, it is a matter of regret that tortuous claims are very infrequently used and raised before the courts of Bangladesh. In the absence of a coherent application of tort law in Bangladesh, a more practiced course for bringing an action in such cases may be by filing a writ of mandamus petition before the Hon’ble High Court division of Bangladesh.

For detailed query contact: omar@legalcounselbd.com.