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April 18, 2004

Custodial deaths: Let's bell the cat

Barrister M. Moksadul Islam


No one is safe anywhere in this country. It simply has become a dangerous place to live. The entire nation is living in fear. Unnatural deaths in the hands of terrorists have become a common phenomenon of this country. Last year on average 10.5 people were murdered everyday. On top of that scores of people are dying in the police and jail custody under suspicious circumstances. This has made people more fearful for their safety and lives. There is nothing call safe custody in this country. It is not the foreign terrorists but it is the insiders the people are scared about. People are pointing their fingers towards the law enforcing agencies as well. On many occasions people are not hesitating to term the police as the lawful terrorists of the country. It is not desirable that the force which supposed to protect us can possibly torture us to death.

Under the guise of actions like 'Operation Clean Heart' or otherwise people are dying in the police and jail custody allegedly due to cardiac attack. General people, however, are not readily willing to buy this cheap excuse without a convincing corroboration. People are a bit suspicious about all these custodial deaths.

There are safeguards in our Constitution against violation of human rights. Article 32 states that 'No person shall be deprived of life … save in accordance with law'. An arrested person must be produced before the nearest magistrate within 24 hours of his arrest is a mandatory requirement under Article 33 of our Constitution. Similar provisions are also present in Sections 60 and 61 of the Criminal Procedure Code (Cr. P. C) and Section 324 of the Police Regulations of Bengal (P.R.B). Section 467 of PRB has explained the duties of a Magistrate in this connection elaborately and clearly. Besides the abovementioned there are many judicial pronouncements and observations made by our Courts in different landmark cases. For example Easmin murder case observed investigation by someone else other than the police when the police themselves are the accused. And in the case of 'Bangladesh Legal Aid and Services Trust (BLAST) and others vs. Bangladesh' the High Court Division gave 15 point directives in aid of Sections 54 and 167 of the Cr. P. C. However, nothing is working and still people are dying in police and jail custody under suspicious circumstances. We are not sure whether the police or the Magistracy are following any of the provisions narrated in the book.

No one knows why all these custodial deaths are not properly investigated. Is closing or transferring or even suspension of a police officer is enough punishment for all these alleged unnatural deaths?

Police takes recourse to section 167 to take a detainee to their custody or remand on the plea that they need more time to investigate the matter. The very word 'remand' is missing in this section. However, this taking to the police custody is popularly known as 'taking on remand'. Oxford Dictionary of Law (New Edition) defines remand as 'to commit an accused person to custody.' However general people of this country by the word 'remand; understand inhuman torture, assault, beating up and death.

Any evidence extracted by oppression is not admissible. Then what is the reason behind the alleged tortures inside the police custody? It is alleged by many that to extract money illegally from the accused or his relatives police inhumanly tortured them. Many other alleged that they were tortured at the instigation of interested quarter e.g. political opponent.

Law and order of this country is going down to bad to worse everyday. Government has taken different kind of measures including draconian action like Operation Clean Heart, RAT etc. However, it has failed to control the uncontrolled insecurity. In an independent country all her citizens want to think that they are safe at least in their own country. But the reality is different. Let's not count the number of people who died in police custody since liberation because even a single illegal death in the hand of law enforcing agencies is unacceptable.

Our police force is not only ill trained but somewhat arrogant and probably lacks human compassion. What about the magistracy? Are they taking steps in accordance with the law to protect human right? Well, it is now accepted fact that there are many who are ready to file an application before the Court by swearing affidavits in the negative.

Regarding recording of confession by Magistrates section 467 of PRB states that Magistrates should clearly understand the great importance of giving their closest attention to the procedure to be followed, from first to last, in recording of confessions. The said procedures, amongst others, in short are that (1) try to record confession during court hours (2) ascertain when and where the accused was first placed under police observation, control or arrest, (3) the accused shall be given three hours for reflection, during which period he shall not be in contact with any police officer, (4) during examination normally police officer should not be present, (5) accused should understand all the possible legal niceties, (6)(a) accused should be able to speak voluntarily, (6)(b) cognizance of ill-treatment should promptly be taken and any indications of the use of improper pressure should be at once investigated. If any injury is noticed on the body of the accused or is referred to him then the accused should be asked how he came by them and should seek medical attendance. Similarly section 176 of the Cr. P. C. requires a Magistrate to hold an independent inquiry to the cause of a suspicious death in the custody of the police. We are not aware of many cases where magistracy has acted in accordance with all the provisions outlined above.

In the prevailing circumstances not only we need to ensure that all laws and procedures are followed by the police and Magistracy but also it has become imperative that all the police custody should be monitored through CC (Close Circuit) TV. All the custodial deaths must be verified by another independent doctor nominated by the victim's family. Here a chronological priority list of a typical family is necessary to avoid confusion.

Unless we change our perception about life and look at other fellow human being with compassion our citizens will always become the victims of unnatural deaths. No civilised nation can allow suspicious deaths in the hand of law enforcing agencies and let them off the hock very easily. Time has come that we speak out clearly to bell the cat immediately and ensure that no one is above the law.

Barrister M. Moksadul Islam is an advocate of the Supreme Court