Police power of arrest and remand
Barrister-at-Law Md. Abdul Halim
Both the methods of policing in this country and the police power have been questioned over times. The work of the police is often characterised by brutality. Abuse of power by the police under section 54 of the Cr.PC and the Special Powers Act 1974 have been identified by different human rights watchdog agencies as the main sources of human rights violation in the country. This is because the provisions of both the laws allow the arrest of any person by the law enforcers without recourse to court order. Legal loopholes provide the police with the excuse for arresting someone with impunity. The arrest is not everything. The method of extracting information from the arrested persons by the police is barbarous and this is the reason behind so many custodial deaths. The most of the custodial deaths are pure ransom killing by criminals in uniform are a fact of life in Bangladesh. Abuse of power under sections 54 and 167 by the police and Magistrates have been elaborately discussed by the High Court Division of the Supreme Court in BLAST v Bangladesh (55 DLR 363). In this case the HCD has given 15 directives to the Government to follow along with recommendations to implement by way of amending the CrPC. Of these 15 directions first 8 relates to the police power of arrest under section 54 of the CrPC which are as follows:
- 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 Act, 1974.
- 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.
- Immediately after bringing the person arrested to the police station, the police officer shall record the reasons for the arrest including the knowledge which he has about the involvement of the person in a cognisable offence, particulars of the offence, circumstances under which arrest was made, the source of information and the reasons for believing the information, description of the place, note the date and time of arrest, name and address of the persons, if any, present at the time of arrest in a diary kept in the police station for that purpose.
- If at the time of arrest, the police officer 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 about the injuries.
- He shall furnish the reasons for arrest to the person arrested within three hours of bringing him to the police station.
- 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 to the police station.
- He shall allow the person arrested to consult the lawyer of his choice if he so desires or to meet any of his nearest relations.
- 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) if the Code as to why the investigation could not be completed within 24 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 BP form 38 to the same Magistrate.
Police Remand, Use of Force and Extorting Information from the Accused (Section 167)
Section 167 of the Code implies two situations: (1) when an investigation can be completed within 24 hours; and (2) when investigation cannot be completed within 24 hours. The provision of section 167 also implies that while producing a person arrested without warrant before the Magistrate, the police officer must state the reasons as to why the investigation could not be completed within 24 hours and what are the grounds for believing that the accusation or information received against the person is well-founded. Second, the police officer also shall transmit to the Magistrate the copy of the entries in the case diary (B. P. Form No. 38) (B. Police Regulation No. 236). After examining information in the case diary and the reasons shown by the police officer, the Magistrate will decide whether the person shall be released at once or detained further. This is the mandatory law which the Magistrates have to follow. However, in absence of any proper guideline unfortunately the Magistrates have been accustomed to follow a 'parrot like' order on the forwarding letter of the police officer authorising detention either in the police custody or in jail. And this non-application of proper judicial mind in view of sub-sections (1), (2) and (3) of section 167 of the Code by the Magistrates has ultimately resulted in so many custodial death and incidents of torture in police custody.
Application for Remand and the Abuse of Power
A police officer makes a prayer for 'remand' stating that the accused is involved in a cognisable offence and for the purpose of interrogation 'remand' is necessary. In sub-section (2) of section 167 though it is not mentioned that 'remand' can be allowed for the purpose of interrogation, at present, the practice is that an accused is taken on 'remand' only for the purpose of interrogation or for extorting information from the accused through interrogation. There is no proper guideline as to when such prayer should be accepted and when rejected by the Magistrate and this legal lacuna give both the police officer and Magistrates power to abuse the same. Police officers being motivated or dictated by the executive organ or out of their personal conflict seek unreasonable remand under section 167 of the Code. And the Magistrates in absence of any proper guideline, either being dictated by the executive organ or otherwise have been accustomed to follow a 'parrot like' order on the forwarding letter of the police officer authorising detention either in the police custody or in jail. The views expressed in favour of police remand is that it is a civil necessity that if some force is not used, no clue can be found out from hard-nut criminals. On the other side of the spectra there is a widely held view that to send the arrested person to the police remand prima facie upholds the idea that the accused person did not give the confession voluntarily. When the entire state machinery acts against him, he cannot confess voluntarily and as such the provision for granting police remand several times (although not exceeding 15 days in the whole) totally destroys the purpose behind it. This is because a person coming before the Magistrate has no guarantee that he will not be sent again to the police remand unless he has already completed 15 days. It is therefore imperative on the Magistrate to give reasons for granting a remand. Again, article 35(4) of the Constitution states that no person shall be compelled to be a witness against himself. So the provisions of the CrPC under section 167 are in direct contrast with the provisions of the Constitution. This CrPC was passed by the British Government back in 1898 when there was no fundamental rights as we have now in our Constitution. In view of the present provision in article 26 this provision of police remand seems to be void and this is largely the decision of the HC in the BLAST case which is outlined next. However, given that fact that there is provision of police remand in most democratic countries including the UK, we need to wait until the apex seat of the Supreme Court, i.e. the Appellate Division gives its judgement on the matter
High Court Division's Decision on Police Remand
Recently the HCD has ruled in the BLAST v Bangladesh 55 DLR 363 that this view is contrary to the express Constitutional provisions in articles 27, 30, 31, 32, 33 and 35. The court also held that if the purpose of interrogation of an accused is to extort information, in view of the provisions of article 35(4), information which is extorted from him cannot be used against him. Clause (4) of Article 35 clearly provides that no person accused of an offence shall be compelled to be a witness against himself. Second, the court also held that Clause (4) of Article 35 is so clear that information obtained from the accused carries no evidentiary value against the accused person and cannot be used against him at the time of trial. Third, in view of Article 35 of the Constitution which provides that no person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment, the court held that even if the accused is taken in police custody, no law in the country gives any authority to the police to torture that person or to subject him to cruel, inhuman and degrading treatment. Fourth, the court suggested that interrogation may be made while the accused is in jail custody if interrogation is at all necessary but not in police custody and no torture or inhuman treatment is allowed by the Constitution. Apart from the recommendations about interrogation into jail custody as mentioned above, the court has also given 15 recommendations regarding interrogation into police custody which are beyond the scope of this article.
The author is an advocate of Supreme Court of Bangladesh.