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June 27, 2004

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Criminal responsibility for torture under Bangladesh law

Advocate Arafat Amin

The criminal laws prevailing in Bangladesh do not have the definition of torture in particular. The definition of torture as stated in the Article-1, of the Convention against Torture and Other Cruel, Inhuman, or degrading Treatment or Punishment is as follows:

"Torture" means any act by which sever pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

But in Bangladesh such kind of definition of torture has not been enacted yet. However the Bangladesh Penal Code 1860, and the Criminal Procedure Code 1898 provide some definitions of offences and procedures to be followed which very narrowly covers the area of torture.

In the Bangladesh Penal Code Chapter XVI contains the offences affecting the human body-
Offences affecting Life (Section 299-311)
Offences causing miscarriage, injuries to unborn child and concealment of birth. (Section 312-318)
Offences relating to Hurt (section 319-338A)
Offences relating to wrongful restraint and wrongful confinement (Section 339-348)
Offences relating to criminal force and assault (Section 339-358)
Offences relating to kidnapping, abduction, slavery and forced labour (Section-359-374)
Offences relating to rape (Section 375-376)
Unnatural offences (Section 377)

The offences mentioned above are all cognisable offences which means that in case of an information given to the police relating to the commission of such offences the police can arrest such person involved with the offence committed without any warrant issued from the Magistrate.

In case any of the offences mentioned above is caused the procedure enumerated in the Criminal Procedure Code 1898 is followed. Part V, Chapter XIV of the Code of Criminal Procedure deals with the Police and their powers to investigate. As per section 154 when any information relating to any commission of a cognisable offence if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant and every such information whether given in writing or reduced to writing shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer. This is generally known as FIR (The First Information Report).

It has been discussed earlier that there is no specific definition of torture in the Penal Code of Bangladesh. If any injury is sustained by any person either the accused shall be charged with hurt, grievous hurt, attempted to murder, murder, kidnapping or abducting etc. if any of the these element is present. But no criminal liability of torture can be imposed upon the accused. According to the definition of torture it means to cause pain or suffering, whether physical or mental, on a person for the purposes of obtaining any unlawful gain. But the Bangladesh Penal Code did not mention anything about such offence. Though it has stated about the offences affecting the human body but not the offences affecting the human body with a view to obtain any unlawful gain. Therefore the law relating to torture in Bangladesh is very inadequate to cover the crime of torture.

Torture Committed by the Governmental Agencies
Torture by Police: At present it has become a major social issue, which has threatened the fundamental rights of the people in Bangladesh. There are many reports of death in police custody mostly due to torture. The Police have been given with immense power in Bangladesh. According to section 54 of the criminal procedure code the police can arrest anyone whom it suspects to be involve with any crime. And after the arrest police forward the person before the magistrate with a prayer for remand under section 167 of the criminal procedure code. And if remand is approved by the Magistrate the arrested person is taken into the police custody for interrogation for the interest of investigation. And in the name of interrogation usually the police torture the arrested person to obtain information or confessional statement. Now a days it has become a practice by the police and they also take money from the arrested person just not to torture him. After the expiry of the remand period the arrested person is brought before the Magistrate and if there is any confessional statements the Magistrate records it and the police also may pray for further remand. There is no provision of compulsory medical examination of the arrested person after remand period and therefore the police have the opportunity to utilize the situation. If at the time of appearing before the Magistrate it appears to him that the person is sick he may be sent to the hospital for treatment and medical examination and the arrested person may also apply before the magistrate for medical examination. There are no specific procedures to be followed in case of death in police custody. The same procedure mentioned earlier is followed.

There have been several cases of conviction of police officers for causing death in custody. The leading cases are- 1. Arun Murder Case
2. Yasmin Murder Case
3. Rubel Murder Case.

Torture by Army: In the recent past due to the rise of terrorist activities and crimes in country the Government deployed Army to arrest the top criminals. The Army in the name of arrest of the criminals arrested thousands of people without any proper ground and put them into torture to obtain information whether they can get it or not. There has been however 44 reported deaths at the time of the operation by the army during the period of 16 October 2002 09h January 2003. But not a single case was investigated and the Government on 24 February 2003 passed an Act called 'Joutha Abhijan Daemukti Ain-2003 by which all the acts of the army at the time of the operation from 16 October- 9 January 2003 were legalised and it has been also contended in the said Act that no action of the army during the said period can be challenged in any court.

Constitutional Safeguards against Torture
Though there are no specific laws relating to torture in Bangladesh hence the Constitution of Bangladesh provides safeguards against torture. It has been made a fundamental right under the Constitution. Article 35(5) of the Constitution provides that "No person shall be subject to torture or to cruel, inhuman or degrading punishment or treatment."

The writer is a researcher of ODHIKAR.


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