Custodial death, ministerial warning and police reforms

Suman's death in custody evoked criticism in the press in various forms. Deaths in police or in other forms of custody are looked upon as blatant violations of human rights. Pointing an accusing finger at the newly constituted Rapid Action Battalion (RAB), an editorial made some important comments. This was followed by another news of custodial death titled "Man arrested by Rab dies in Kushtia."

The major parts of the editorial comments include (a) Suman was handed over to Tongi Thana police after he fell grievously sick, (b) he was taken to the Thana Health

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Complex where he succumbed to his injuries, (c) RAB denied their involvement in torture, and (d) there is no shred of doubt that Suman died in custody. A columnist also referred to the need for police reforms on which successive governments have dragged their feet.

Reactions from State Minister for Home Affairs

The reactions from the State Minister for Home Affairs have also been published in the press. The state

minister at a law and order review meeting on July 19 told police officials that deaths in custody always embarrass the government. But is it really a matter of embarrassment or enforcement of laws and regulations that are intended to be followed by the police?

What is police custody?

Police Regulations of Bangladesh (PRB) define police custody. It means and includes custody on the authority of the police; every person who is kept in attendance to answer a charge in such a way that he is practically deprived of his freedom shall be considered as in custody.

What are the safeguards?

There are several safeguards for the person in police custody provided by the PRB. It is laid down in PRB that when a person is placed under arrest, the investigating officer (IO) shall ask him whether he has any complaint of ill-treatment by the police.

If an allegation of ill-treatment is made, the IO shall then and there examine the prisoner's body and with his consent see the marks of injury and shall record the results of the examination. If the IO has reasons to believe the allegation of ill-treatment, he is required, under the PRB, to forward the prisoner with his complaint, the record of corporal examination and any other available evidence, to the nearest Magistrate having jurisdiction to try the case.

PRB also lays down that before admitting a prisoner to a police lock-up, the officer-in-charge shall carefully examine the person of the prisoner for any signs of injury and record in the general diary a full description of any marks of injury found on him, if necessary calling independent witness from the neighbourhood to see the existence of the injuries at the time of admission to the lock-up. The object of this provision of PRB is to protect the police from subsequent allegations of torture of an arrested person.

The basic legal safeguard

The above provisions of PRB are intended for protection of an accused person against ill-treatment or torture as well as protection of the police against allegations of torture. The Code of Criminal Procedure (CrPC) makes magisterial inquiry mandatory in case of

any death in police custody. Such inquiry is intended to ascertain the cause of death in addition to any police investigation. In conducting the inquiry, the magistrate shall have all the powers for an inquiry into offence.

Constitutional safeguards

One of the fundamental rights guaranteed by our Constitution is (a) every person who is arrested and detained in custody shall be produced before the nearest magistrate

within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of magistrate, and (b) no such person shall be detained in custody beyond the said period without the authority of a magistrate. Indeed similar provision exists in CrPC, which was prepared more than a century ago.

Other form of police custody

The other form of police custody is what is known as remand. This refers to a situation when within twenty-four hours the investigation cannot be completed and there are reasons to believe that the accusations are well-founded. In such a situation, the investigating officer may apply for remanding the accused to police custody in the interest of completion of investigation. Magistrates are required to be cautions in granting remand to police custody. PRB,

which was framed in 1943, refers to the orders of the High Court. The orders read as follows:

"The attention of all Magistrates is invited to the provision of section 167 of the Code of Criminal Procedure and to the importance of exercising a sound judicial discretion in the matter of granting or refusing remands thereunder. Orders under this section, it is to be observed, should be made in the presence of the prisoner and after hearing any objection he may have

to make to the proposed order. When further detention is considered necessary the remand should be for the shortest possible period. Application for remands to police custody should be carefully scrutinized and in general should be granted only when it is shown that the presence of the accused with the police is necessary for the identification of persons, the discovery or identification of property, or the like special reason. In particular, the court is of opinion that applications, if ever made, for the remand to police custody of a prisoner who has failed to make an expected confession or statement should not be granted."

Police reforms

During the past few months or so, newspaper reports indicated that there would be projects funded by multilateral and bilateral donors to support police reforms. UNDP, for instance, would be supporting such a project. More recently, the British High Commissioner also made statements indicating his government's interest in police reforms. The question is how more reforms would protect the citizens from custodial deaths when the existing constitutional, legal, and regulatory safeguards appear to have failed to provide the protection. Is it then a question of further reforms or enforcement of the protection granted by existing laws and rules?

It is felt, however, that there may still be some areas where interventions in the form of reforms are necessary. One such area, as identified in a discussion session in an electronic media on July 23 relates to capacity building of the police in conducting investigation based on scientific methods. This, in the view of two former Inspectors General of Police, will minimise custodial deaths. It does not necessarily mean that existing legal protection to which an accused person is entitled should be overlooked or totally sacrificed.

The locus of responsibility

As already stated there are set rules and procedures in CrPC and in PRB to deal with custodial deaths. The locus of responsibility for enforcement evidently lies with the government in the ministry of Home Affairs. The reported death in custody in Kushtia came immediately after the state minister had expressed the embarrassment of government. Since then the media have continued to report incidents of custodial deaths, in particular those in RAB custody. Whether aberrant behaviour of the police or of RAB will continue to embarrass the government or whether the government will act to chasten such behaviour in accordance with law remains the key question.

AMM Shawkat Ali, PhD, is a former Secretary, Ministry of Agriculture.