<%-- Page Title--%>
<%-- Navigation Bar--%>
<%-- Navigation Bar--%>
Judgement on Sections 54 & 167 of CrPC
Compensation can be obtained for torture or death in the police custody
Court Division (Special Original Jurisdiction),
The Supreme Court of Bangladesh,
Writ Petition No 3806 of 1998,
Bangladesh Legal Aid and Services Trust (BLAST)
Bangladesh and others,
Before Mr. Justice Md Hamidul Haque and Justice Salma Masud Chowdhury.
Date of Judgement: April 7, 2003.
Result: Rule is disposed with directions.
from the previous issue)
Md Hamidul Haque, J: Now, we like to discuss what safeguards may be suggested
for ensuring the liberty of the citizen and enforcement of the fundamental
rights as guaranteed in the Constitution. In section 54 of the Code we
have found from the language used, the police can exercise the power abusively.
There is nothing in this section which provides that the accused be furnished
with the grounds for his arrest. It is the basic human right that whenever
a person is arrested he must know the reasons for his arrest. As the section
54 now stands, a police officer is not required to disclose the reasons
for the arrest to the person whom he has arrested. Clause (1) of Article
33 of the Constitution provides that the person who is arrested shall
be informed of the grounds for such arrest. It is true that no time limit
has been mentioned in this Article but the expression "as soon as
may be" is used. This expression "as soon as may be" does
not mean that furnishing of grounds may be delayed for an indefinite period.
According to us, "as soon as may be" implies that the grounds
shall be furnished after the person arrested is brought to the police
station after his arrest and entries are made in the diary about his arrest.
Unfortunately, this provision of the Constitution is not followed by the
police officers. It is strange that they are very much over jealous in
exercising the powers given under section 54 but they are reluctant to
act in accordance with the provisions of the Constitution itself. Constitution
is the supreme law of the country and shall prevail over any other law.
It is the duty of every one in the country to adhere to the provisions
of the Constitution. It is unfortunate that instead of adhering to the
provisions of the Constitution, the police officers are interested in
exercising the powers given to them under the Code without any hindrance.
The constitution not only provides that the person arrested shall be informed
of the grounds for his arrest, it also provides that the person arrested
shall not be denied that right to consult and to defend himself by a legal
practitioner of his choice. We are of the view that immediately after
furnishing the grounds for arrest to the person, the police shall be bound
to provide the facility to the person to consult his lawyer if he desires
so. Here, again we like to mention that the persons arrested by the police
under section 54 are not allowed to enjoy this constitutional right. Not
only this right is denied, even the police refuses to inform the nearest
or close relation of the person arrested. We are of the view that the
person arrested shall be allowed to enjoy these rights immediately after
he is brought to the police station from the place of arrest and before
he is produced to the nearest Magistrate. We like to give emphasise on
this point that the accused should be allowed to enjoy these rights before
he is produced to the Magistrate as this will help him to defend himself
before the Magistrate properly. He will be aware of the grounds for his
arrest and he will also get the help of his lawyer by consulting him.
If these two rights are denied, this will amount to confining him in custody
beyond the authority of the Constitution. So, we like to suggest some
amendments in section 54 so that the provisions of this section are made
consistent with the provisions of part-III the Constitution. Similarly,
we have also noticed that some provisions of section 167 are inconsistent
to some extent with the provisions of the Constitution such as clause
(4) and (5) of Article 35 and in general provision of Article 27, 31 and
32. So, we shall also suggest some amendments in section 167 of the Code.
To give full effect to the proposed amendments, we are also of the view
that some other related sections are also to be amended -- for example,
section 176 of the Code, section 44 of the Police Act, section 220, 330
and 348 of the Penal Code. Before, we like to set out our recommendations
for the amendment of those sections, we like to give our consideration
about the other points raised by the learned Advocates.
Mr. Amir-ul Islam has pointed that now a days in most of the cases different
persons are arrested under section 54 of the Code on political grounds
in order to detain him under the provisions of section 3 of the Special
Powers Act, 1974. According to him, this is a concrete example of colourable
and abusive exercise of power by the police. We accept the argument of
Mr Amir-ul Islam. Mr Abdur Razzaque Khan, the learned Additional Attorney
General conceded that arrest of a person under section 54 of the Code
for the purpose of detaining him under section 3 of the Special Powers
Act is not proper. As we have quoted the section 54 earlier, we have found
that a police officer may arrest a person under that section, under certain
conditions. Main condition is that the person arrested is to be concerned
in a cognisable offence. So, first requirement to arrest a person under
section 54 is that the same person is concerned in any cognisable offence.
The purpose of detention is totally different. A person is detained under
the preventive detention law not for his involvement in any offence but
for the purpose of preventing him from doing any prejudicial act. So,
there is no doubt in our mind that a police officer cannot arrest a person
under section 54 of the Code with a view to detain him under section 3
of the Special Powers Act, 1974. Such arrest is neither lawful nor permissible
under section 54. If the authority has any reason to detain a person under
section 3 of the Special Powers Act, the detention can be made by making
an order under the provision of that section. And when such order is made
and handed over to the police for detaining the person, the order shall
be treated as warrant of arrest and on the basis of that order, the police
may arrest a person for the purpose of detention. But a person cannot
be arrested under section 54 of the Code for detaining him under section
3 of the Special Powers Act.
Now, as regards the custodial death and torture we have already mentioned
about the clause (4) and (5) of Article 35 of the Constitution. Torture
or cruel, inhuman or degrading treatment in police custody or jail custody
is not permissible under the Constitution. So, any such act is unconstitutional
and unlawful. Now, a question is raised whether this court is competent
to award compensation to a victim of torture or to the relation of a person
whose death is caused in police custody or jail custody. We have considered
the principle laid down in the case reported in AIR 1977 (SC) 610. According
to us, this Court, in exercise of its power of judicial review when finds
that fundamental rights of an individual has been infringed by colourable
exercise of power by the police under section 54 of the Code or under
section 167 of the Code, the Court is competent to award compensation
for the wrong done to the person concerned. Indian Supreme Court held
the view in the above case that compensatory relief under the public law
jurisdiction may be given for the wrong done due to breach of public duty
by the state of not protecting the fundamental right to the life of a
citizen. So, we accept the argument of the learned Advocate for the petitioner
that compensation may be given by this Court when it is found that confinement
is not legal and death resulted due to failure of the state to protect
the life. But at the same time we like to emphasis that it will depend
upon the facts and circumstances of each case. If the question of custodial
death becomes a disputed question of fact, in that case, under the writ
jurisdiction it will not be possible to give compensation. But where it
is found that the arrest was unlawful and that the person was subjected
to torture while he was in police custody or in jail, in that case, there
is scope of awarding compensation to the victim and in case of death of
a person to his nearest relation. As regards the occurrence of death which
are mentioned in this writ petition, it appears that specific cases were
filed and trial of those cases were completed in accordance with law and
appeals are now pending. In those cases, the Writ Court has not given
any decision as to whether the arrest or detention was unlawful. In view
of this position, we do not think it proper to award any compensation
in this writ petition.
In view of
our discussion above, the Rule is disposed of with a direction upon the
respondent Nos. 1 and 2 to implement the recommendations made above within
six months. All the respondents are also directed to implement the directions
made above immediately.
1) No police officer shall arrest a person under section 54 of the Code
for the purpose of detaining him under section 3 of the Special Powers
2) A police officer shall disclose his identity and if demanded, shall
show his identity card to the person arrested and to the persons present
at the time of arrest.
3) He shall record the reasons for the arrest and other particulars as
mentioned in recommendation A (3) (b) in a separate register till a special
diary is prescribed.
4) If he finds, any marks of injury on the person arrested, he shall record
the reasons for such injury and shall take the person to the nearest hospital
or Government doctor for treatment and shall obtain a certificate from
the attending doctor.
5) He shall furnish the reasons for arrest to the person arrested within
three hours of bringing him in the police station.
6) If the person is not arrested from his residence or place of business,
he shall inform the nearest relation of the person over phone, if any,
or through a messenger within one hour of bringing him in the police station.
7) He shall allow the person arrested to consult a lawyer of his choice
if he so desires or to meet any of his nearest relation.
8) When such person is produced before the nearest Magistrate under section
61, the police officer shall state in his forwarding letter under section
167 (1) of the Code as to why the investigation could not be completed
within twenty four hours, why he considers that the accusation or the
information against that person is well-founded. He shall also transmit
copy of the relevant entries in the case diary B.P. Form 38 to the same
9) If the Magistrate is satisfied on consideration of the reasons stated
in the forwarding letter as to whether the accusation or the information
is well-founded and that there are materials in the case diary for detaining
the person in custody, the Magistrate shall pass on order for further
detention in jail. Otherwise, he shall release the person forthwith.
10) If the Magistrate release a person on the ground that the accusation
or the information against the person produced before him is not well-founded
and there are no materials in the case diary against that person, he shall
proceed under section 190 (1) (c) of the Code against that police officer
who arrested the person without warrant for committing offence under section
220 of the Penal Code.
11 If the Magistrate passes an order for further detention in jail, the
Investigating officer shall interrogate the accused if necessary for the
purpose of investigation in a room in the jail till the room as mentioned
in recommendation B (2) (b) is constructed.
12) In the application for taking the accused in police custody for interrogation,
the Investigating officer shall state reasons as mentioned in recommendation
13) If the Magistrate authorises detention in police custody, he shall
follow the recommendations contained in recommendation B(2)(c)(d) and
B(3) (b) (c)(d).
14) The police officer of the police station who arrests a person under
section 54 or the Investigating officer who takes a person in police custody
or the jailor of the jail, as the case may be, shall at once inform the
nearest Magistrate as recommended in recommendation B (3)(e) of the death
of any person who dies in custody.
15) A Magistrate shall inquire into the death of a person in police custody
or in jail as recommended in recommendation C (1) immediately after receiving
information of such death.
portion of the judgement will be published in the next issue).
Kamal Hossain with Mr. M. Amir-ul Islam, Mr. Md. Idrisur Rahman, Mr. M.
A. Mannan Khan, Mr. Tanzibul Alam, Mr. Abu Obaidur Rahman and Mr. Kowsan
Ahmed, for the petitioner.
Mr. A. F. Hassain Ariff, Attorney General with Mr. Abdur Razaque Khan,
Additional Attorney General, Mr Zaman Akter, AAG and Ms. Kumrunnessa,
AAG for the respondents.