Arrest without warrant, death in police custody and existing laws

In our country, a saying is uttered in the mouths of the people, “Police are the friend of the people.” But some things are sad. We see that a young man named Rabiul died in police custody in Lalmonirhat a few days ago.

The court has the exclusive right to punish, if the court thinks it will ensure the punishment of the offender. In that case, the police are not the ones to punish. The police have no right to beat any accused. The police are not a legitimate authority to punish.

According to Section 54 of the Code of Criminal Procedure, the police can arrest a person without a warrant for a reasonable reason. The 1st directive of the judgment of the Hon’ble High Court was that the police cannot arrest anyone under section 54. (Blast vs Bd)

Another name for police harassment is remand. Many times I see the accused being tortured and beaten in remand. No matter how great an unforgivable crime an accused commits, the police cannot punish him.

Where the police will protect the people from danger, if the police are a threat to the people, then it is an omen for us. Article 35 (5) of the Constitution of Bangladesh provides for legal protection in cases of trial and punishment and states that no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

In Bangladesh Bangladesh, a large number of people know that remand means a torture cell of inhuman and it’s the absolute right of torture of police or other law enforcers.

What is a police remand?

The issue of granting police remand for the accused has been mentioned in sections 61 and 16 of the Criminal Procedure Code and Regulation No. 324 of the PRB. Section 167 of the Code of Criminal Procedure states that “whenever a person is arrested and detained in custody, and it appears that the The investigation cannot be completed within the period of twenty-four hours fixed by Section 61. If more than 24 hours are required for interrogation, the officer-in-charge will immediately present the person to the nearest magistrate with a copy of the case diary and request the accused to be in his (IO’s) custody. If the application is granted, the police remand will be in such custody.

Why is police remand granted?

1.Revealing the real truth of the case

2. If there is the name of the main accused, the person concerned may be involved and the original from him

3. Trying to know the name of the accused.

4. Know the source of the incident

5. Information of other accused involved

6. If there are signs, get news to rescue it

7. The goal is to uncover clues to the incident.

Rules of remand prayer

(CRPC section 167, PRB rule 324)

(1) The detainee must appear before a magistrate during the remand prayer.

(2) A copy of the case diary of the case related to the remand application should be submitted.

(3) Remand application must be made through the appropriate authority.

(4) For which the detainee has to describe in the required application for remand.

(5) If it is necessary to remand the detainee again at the end of remand, the detainee must be produced before the Magistrate on the basis of the first remand application and again by stating the reason for seeking remand.

(6) As soon as the remand is over, the detainee has to appear in court with the report.

Magistrate who can grant police remand: Police can grant remand:

(01) Chief Metropolitan Magistrate,

(1) District Magistrate,

(2) The Metropolitan Magistrate,

(3) Upazila Magistrate,

(4) First class magistrate and

(5) Second class magistrates specially empowered by the government.

(6) If the magistrates of the third and second classes are not specially empowered by the government. Cannot allow detainee to be kept in police custody [CRPC 167 (2) (4) section and PRB 324 (f) regulations]

Term of Police Remand: (PRB-324 (i) Regulation):

1) In case of granting police remand, as per the directions of the High Court Division, remand should be granted for as short a period as possible.

2) The remand period will not be more than 15 days. And even these 15 days will not be allowed together. If remand is granted more than once, the maximum can be 15 days.

The uplift direction of Honorable HCD

On April 7, 2003, the High Court Division finally gave 15 points directive including those of arrest and remand of persons to the government and asked it to implement the directives within 6 months.

Those directives include-

1.Law enforcers must not arrest anyone under section 54 to put him / her into detention.

2.They shall show their identity cards while arresting the person.

3.They shall inform the person of the reasons behind the arrest within three hours.

4.They must inform relatives of a person arrested anywhere outside his / her house or workplace within an hour of arrest through telephone or a messenger.

5.The detainee shall be allowed to meet lawyers and relatives for legal assistance.

6.If the law enforcers want to quiz the person in custody, they must need to take permission from a magistrate and the interrogation must take place in a glass made room inside the prison. Relatives and lawyers of the detainee can be present outside the room.

7.The detainee must be checked by a doctor before and after the interrogation.

8.If the detainee alleges physical torture during interrogation, the magistrate shall form a medical board to check his / her health condition. If the allegation is found to be true, the magistrate shall take action against the law enforcers responsible under Section 330 of the CrPC, 1898.

Meanwhile, 1,426 incidents of custodial deaths took place from January 2017 to July 2020, according to a report of Ain o Salish Kendra.

Of the incidents, 195 were in 2016, 162 in 2017, 474 in 2018, 388 in 2019 and 207 from January to July 2020.

The incidents occurred due to “encounters, crossfire and gunfight” with the law enforcers.

The ASK prepared the report based on the news published in different leading newspapers, including The Daily Star and the Prothom Alo.

Ordinary people are afraid of lawsuits and courts. As a result, they are often deprived of justice.

Therefore, if the police arrest someone, his family should be informed within an hour. The arrested person must be brought before a magistrate within 24 hours of the arrest. And the arrested person should be given an opportunity to consult with his preferred advocate. In order to stop the harassment of remand, the directions of His Excellency the High Court must be followed.

What to do if you confess to torture in police custody

As a signatory to the UN Convention against Torture, Bangladesh enacted the law on torture and death in custody. According to the Torture and Death in Custody (Prevention) Act 2013, if a person is a victim of torture, he can file a complaint in the court.

Section 4 of the Torture and Death in Custody (Prevention) Act, 2013 deals with the process of criminal charges in court. Section 4 states that in spite of anything contained in the Criminal Procedure Code, 1898, if a person complains to a court of jurisdiction under this Act that he has been tortured, that court shall immediately record the statement of that person; An autopsy will be ordered immediately by a registered physician; If the complainant is a woman, she will be examined by a registered female doctor. The physician will make a report within 24 hours stating the complainant’s injuries and signs of torture and the probable time of torture. The concerned physician shall also submit a copy of the prepared report to the complainant or his nominee and to the court. Also, if the doctor suggests that the examinee needs medical attention, the court may order that the person be admitted to the hospital.

If the physical and mental torture is proved, the punishment is a minimum of 5 years imprisonment or a fine of Taka 50,000. In addition, death as a result of torture can result in life imprisonment or a fine.

Police arrested two brothers Ishtiaq Hossain Johnny and Imtiaz Hossain Rocky from a wedding party in Mirpur on the night of February 9, 2014. The elder brother Johnny died in police custody. The younger brother Rocky filed a case.

The court sentenced three of the five accused in the case to life imprisonment. The other two have been sentenced to seven years in prison. This is the first death sentence for death in police custody in Bangladesh.

Professor Ali Riaz thinks, If there is a complaint against the police, the police investigate themselves, whatever the outcome, if the police do not want to take up the case, there is no reason for it to be any different. It is also easy to see that the government has no desire or interest in setting up an independent commission of inquiry into the police or law enforcement agencies.

Nevertheless, we believe that His Excellency the Court will ensure justice. End of the day people go to the Court for Justice. We want Stop death in police custody, stop this destructive practice. Stop any kind of inhuman practices in the custody of police. They have always think that they are not the Authority to give sentence, they are just law enforcers.

Author: Faijul Islam from Chittagong University Law Department

References: Code of Criminal procedure; Special Power Act, 1974; Bangladesh Constitution; BBC Bangla, 9 September, 2020; BBC Bangla, January 9, 2020; Honourable Barrister Abdul Halim; BLAST vs Bangladesh