Abuse of power by police and the rights of an arrested person
Md. Shakil Sadman Shuvo is a Barrister-at-Law
Human rights infringement is a major concern throughout the world. Bangladesh is not an exception. In Bangladesh, the police power is generally abused under two sections of the Code of Criminal Procedure (CrPC)-section 54, which empowers police to arrest on suspicion without any warrant and section 167 under which police can take an accused on remand to police custody where, it is generally accepted, the accused is subjected to torture for eliciting confession and information.
The police, however, do not need an arrest warrant in a number of situations in Bangladesh.
An officer after arresting someone without warrant has to take the person arrested before a Magistrate or before the officer in charge of a police-station without any unnecessary delay. No police-officer shall detain in custody a person arrested without warrant for a period longer than 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court, without any special order of a Magistrate under section 167.
The shocking death of Rubel in 1998, a young student of Independent University, because of brutal torture in police custody had led to widespread public condemnation and outcry, which ultimately led to the High Court’s Order on Section 54 and Section 167 of CrPC dated April 7, 2003 in Bangladesh Legal Aid and Services Trust vs. Bangladesh (55 DLR (HCD) 2003 363).The High Court Division of the Supreme Court of Bangladesh provided elaborate guidelines in the form of fifteen directives on arrest without warrant, detention, remand and treatment of suspects to be followed by law enforcement agencies and magistrates.
As per the guidelines of High Court, a police officer shall not arrest any person under section 54 of the Code for the purpose of detaining him under Special Powers Act, 1974, and the magistrate shall not make any such order of detention. The guideline requires every arresting officer to disclose his/her identity to the arrestee/detainee, and to inform their relatives about the arrest. Most importantly a police officer is required to take record of marks of injury on an arrestee, and to take him for treatment. The police officer shall furnish reasons for arrest within three hours of bringing the person to the police station and avail the arrested person to consult a lawyer. A police officer shall incorporate reasons as to why investigation could not be completed within 24 hours of arrest of a person under section 54 of CrPC. The reason why the police believes that the person must be arrested has to be logged in a case diary. Thereafter, this case diary has to be submitted to court when the arrestee is produced before a magistrate.
The magistrate must be satisfied with the reasons before making any order for detention in jail. Otherwise he shall release the person. For interrogation purpose the accused can only be interrogated in a room inside the prison with glass walls. Lawyers and relatives are allowed to observe the interrogation.
In the application for taking the accused on remand in police custody for interrogation, grounds for taking the accused to the custody has to be stated. Moreover, only a Criminal Investigation Department (CID) or Detective Branch (DB) police officer can wear plainclothes to perform his investigation or arrest a person or persons accused in an existing case. However, they cannot arrest based on suspicion.
On October 25, 2013, parliament enacted a law, the “Torture and Custodial Death (Prohibition) Act-2013,” to prevent torture and deaths in police custody. However, the law has merely been used to date. Moreover, the said Act contains some drawbacks. As per the review made by BLAST, the definition of ‘torture’ should not be limited to torture for the purpose of obtaining information and confession only. There needs to be a clear definition of ‘custody’ in the Act to make the law more effective. The definition of law enforcement agencies should cover all law enforcement agencies and security forces including the Department of Narcotics Control and the Anti-corruption Commission.
Effective policing along with safeguards for arrestees and detainees needs to be ensured. Rights are given to arrestees taken in without a warrant in order to make the arrest constitutional. Still, it is being used as a weapon against many people and thus causing violation of human rights. In this regard, various social incentives to the police could prove to be vital to achieve better output.