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November 28, 2004

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Bangladesh & Indian Perspective

Police interrogation & the role of judiciary

Sheikh Hafizur Rahman Karzon

Police interrogation constitutes a part, though not important, of existing criminal justice system. Evidencing law and Criminal Procedure Code do not cast much weight on any statement coming out of an accused person while interrogated by the police. Nevertheless police personals are applying third degree method to extract statement which may help the investigation. Allegations are frequent that they torture accused under custody to elicit confessional statement, though it is made to a magistrate and that judicial officer has to maintain some civility when recording confessional statement of any individual.

Interrogation by Police
A plain reading of sections 61 and 167 of the CR.P.C. reveals that the police investigation of the offence in the case of a person arrested without warrant should be completed in the first instance within 24 hours under section 61 or if not then within 15 days under section 167. Any police officer making an investigation may examine orally any person supposed to be acquainted with the facts and circumstances of the case. Section 161 (2) provides what civilities should be followed by police officer when making oral examination. A person during oral examination shall be bound to answer all questions relating to the case put to him by the concerned police officer, other than questions the answers to which would have a tendency to expose him/her to a criminal charge or to a penalty or forfeiture. Any statement made to a police officer cannot be used for any purpose of any inquiry or trial in respect of any offence under investigation. This statement may be used to contradict such witness. [ Section 162 of the Cr.P.C.]

The Evidence Act provides some safeguards as to the time when a person is interrogated by police. While interrogating a suspect the questioning the questioning must not be coercive or too intimidating. The police should not extract admission or confession by third degree method. [ Section 25 of the Evidence Act.] Statement made to police officer by the accused is not admissible in evidence except that part of the statement which leads to discovery of incriminating material. The caution as to the admissibility of confession made to a police officer is intended to protect the accused person against third degree method by the police The evidencing law is very clear in that a confession made to a police officer is not admissible, but it can be used in evidence of the thing recovered as a result of the confession made to a police officer by the accused. [ Section 27 of the Evidence Act.] Thus if a weapon used in a number of cases is recovered by the police as a result of confession made by an accused person, the recovery is a relevant piece of evidence. [ State of U. P. V Deoman Upadhyaya AIR 1960 SC 1125.] The provisions of the Evidence Act clearly maligned the police and do not keep trust on them. Article 35 (4) of Bangladesh Constitution provides that no person accused of any offence shall be compelled to be a witness against himself. At the same time no person shall be subjected to torture or to cruel, inhumane, or degrading punishment or treatment. [ Article 35 (5) of the Bangladesh Constitution. ]

If we read together the provisions of the Constitution and the Evidence Act, the message is very clear. There is no mandate under the scheme of the Constitution and Evidence Act that a person can be threatened, tortured or any way manipulated for the purpose of extracting any kind of statement which has incriminating impact on the arrested or accused person.

In spite of the provisions of the Constitution and Evidence Act, Police is applying third degree method.

Police custodial torture has become so endemic that every year many people died of or severely injured of police torture. Because of various reasons third degree method is in practice. In the first place hardened criminals have some training to survive tough treatment so, police cannot extract information from them without the aid of third degree method.

Secondly, police arrests some persons and threatens to torture or torture them because of eliciting money. This type of allegation has been frequently leveled against police. Thirdly, commoners have some typical ethos as to how criminals should be treated by the police.

A large section of police heavily consider that police cannot be effective if they do not take resort to tough treatment against hardened criminals.

Fourthly, criminal justice system of the Indian sub-continent is based on the Anglo-Saxon accusatorial system under which the focus of the judiciary is not on truth, but on evidence.

In a Gory murder case a man killed another man with an axe by splitting his head in the middle. The investigating police officer did not find the original axe with which the man was killed and he took another axe and put it within the split head of the deceased and collected some of the deadman's blood on it.

The murderer was arrested some days later and the axe was shown as "recovered " from him on his confession and this axe (not the original one) was considered a very important piece of evidence.

Role of the Supreme Court of India
In the context of wide custodial violence India has developed constitutional tort. In Nilabati Behra V State of Orissa (AIR 1993 SC 1960) the court ordered that the government of Orissa to give Rs. 1,50,000 as compensation to deceased's mother. In this case one Suman Behra (22) died when he was under the custody of police in the District of Sundergarh in Orissa. After the death Nilabati Behra, mother of Suman Behra, sent a letter addressing the Supreme Court of India. The Supreme Court treated the letter as a writ petition under article 32 of the Indian Constitution and Nilabati Behra claimed compensation because of the death of her son. In favor of the police the state government argued that the deceased tried to escape from the custody and run over by a train when chased by the police. Contending the incident not a case of custodial death the state government also claimed the sovereign immunity of a state. The Supreme Court outright rejected the contention and held that in case of constitutional remedy, defense of sovereign immunity is not available. Supreme Court emphatically said that evidence on record had no indication that the death was accidental and ordered the government of Orissa to give compensation to Nilabati Behra.

A nine-year old child was died of torture while under custody of Anand Prabhat Police station in Delhi. On behalf of the deceased's mother SAHELI, a women Civil Rights Organisation, filed a writ petition under article 32 of the Indian Constitution for recovery of compensation. The Court ordered to give Rs. 75,000 to the deceased mother as compensation. [SAHELI V Commissioner of Police, (1990) 1SCC 422]

In India Supreme Court has taken a pioneering role in protecting the rights of citizens. In Nandini Satpati V P.L. Dhani (AIR 1978 SC 1075) the Supreme Court observed that, if police applied any mode of pressure which is subtle or crude, mental or physical, direct or indirect, that is not a matter to be considered, but if it is sufficiently substantial in obtaining information from the accused, it becomes a case of custodial torture. Supreme Court clearly declared that custodial torture is violative of right against self-incrimination and an arrested person cannot be bound to answer self-incriminatory questions.

In Niranjan Singh V. Prabhakar Rajaram (AIR 1980SC 785) the Supreme Court emphatically observed that, "The police instead of being protector of law, have become engineer of terror and panic putting people into fear." The Supreme Court again expressed its concern in Kishore Singh V. State of Rajastan (AIR 1981 SC 625) and observed that, "Nothing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts deeper wound on our constitutional culture than a state official running berserk regardless of human rights."

Supreme Court of Bangladesh on Police Abuses
The Supreme Court of Banglades has issued a number of directives to the police as to arrest and detention of suspects and provide civilised treatment to the people under police custody. In Blast V Bangladesh [55 DLR 363] a Division Bench of the High Court Division recommended to amend the existing law. The Bench issued fifteen directives henceforth to be followed by the police. Among them most important are-- disclosure of identity of the arresting officer at the time of arrest; recording reasons for arrest, if not arrested from home; getting the arrestee; examined by a government Doctor if injury is found on his person; allowing him to be interrogated in the presence of a lawyer appointed by him.

In Saifuzzaman V State [56 DLR 324] another Division Bench of the High Court Division took notice of the severe violation of the fundamental rights of the citizens by police and failure of the Magistrate in acting in accordance with law. SK Sinha J. observed that, "There are complaints about violation of human rights because of indiscriminate arrest of innocent persons by law enforcing agencies in exercise of power under section 54 of the Code and put them in preventive detention on their prayer by the authority and sometimes they are remanded to custody of the police under order of the Magistrate under section 167 of the Code and they are subjected to third degree methods with a view to extract confession. This is what is termed by the Supreme Court of India as 'state terrorism' which is no answer to combat terrorism."

The Division Bench issued eleven guidelines to the police and magistrates as to arrest, detention and remand of suspects. The Court hoped that the fulfillment of the requirements will eliminate the abusive power of the police and harassment of citizens in their custody.

Investigation of criminal cases and interrogation of accused and witnesses by police are inevitable and important part of criminal justice system. Without this mechanism police cannot detect criminal cases and cannot bring wrongdoers before a court of law. They must have the authority to investigate and interrogate, but at the same time constitutional requirements should be fulfilled. Legal, constitutional and state dispensation should be arranged in a way not to let any innocent person to be harassed or tortured by law enforcing staffs.

Author is a Lecturer, Department of Law, Dhaka University.

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