Legal practitioners are questioning the inconsistent court procedures followed while filing cases before the courts.
Some prosecutors, who file cases to Thimphu dzongkhag court, alleged that the court is shifting its burden by mandating them to bring defendants ‘in person’ while filing cases.
They also said there is a lack of uniformity in courts, as some courts in the country accepted cases without having to bring defendants ‘in person’ while registering the case and conducting the miscellaneous hearing.
A prosecutor said courts have to follow bench book and the Civil and Criminal Procedure Code of Bhutan (CCPC) in filing cases and petitions. “But here, even the case registration depends on judges and is not uniform.”
He explained that according to section 32 of CCPC, once a petition is filed before the court as a civil suit, the court should conduct a miscellaneous hearing, where it determines whether the case merits registration.
“If the case merits registration, then the plaintiff should provide addresses of the defendants with their proper addresses and the court should conduct a preliminary hearing within 108 days after the miscellaneous hearing,” the lawyer explained. “But Thimphu dzongkhag court, prosecutors have to bring the defendants ‘in person’ to the court even while registering the case.”
Lawyers said that in criminal cases, the same procedure should be followed while conducting the miscellaneous hearing but the preliminary hearing should be conducted within 10 days after the miscellaneous hearing.
A lawyer, who did not want to be named, said there is confusion in some courts on miscellaneous and preliminary hearing, as the two are considered the same. “Our courts follow the same procedures in both hearings, and the preliminary hearing is just a repetition of the miscellaneous hearing.”
Section 32.1 of the Code states that during the miscellaneous hearing, the Court shall (a) make an initial determination whether sufficient legal cause exists to admit the case for proceedings according to the law; (b) hear the case within the prescribed period, and (c) give written reasons, if the petition of a party is dismissed.
Section 81.1 of the Code states, “The purpose of preliminary hearing is to enable the Court to (a) entertain challenges to pleadings based on cause, procedure and jurisdiction; and (b) clarify substantive or procedural legal issues.
Thimphu dzongkhag court officials, however, disagree.
An official said he made it mandatory for petitioners to bring proper addresses of the defendants to ensure the court summon orders reach the right person. “We cannot give ex-parte judgment, as it is mandatory to listen to all litigants. We don’t allow judgments in absentia and give default judgments.”
He explained that Thimphu is different from other dzongkhags, as lots of people reside in Thimphu and it is difficult to locate people. “People shift their place of residence frequently and unlike other dzongkhags, gups will not be able to locate people if the addresses are not proper.”
Court officials said many people confront them, saying they didn’t receive the summon order because of which they had to ask prosecutors to give proper addresses as per section 138 (d) of CCPC, which states that the pleading of the petitioner should state the name, description and place of residence of the plaintiff and respondent or defendant, so far as they can be ascertained.