Respect, protect people's rights

To deny citizens their rights guaranteed by the constitution is to disrespect the country's independence and what it stands for, the Supreme Court has said and issued a 19-point guideline for police, magistrates and judges to stop arbitrary arrests on suspicion and torturing arrestees on remand.

The SC came up with the guidelines and some observations in its full verdict yesterday on the arbitrary use of powers by law enforcement agencies using section 54 and several others of the CrPC.

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Section 54, seen as a nefarious provision, empowers police to arrest anyone on mere suspicion. Under several other sections of the criminal law, arrestees are placed on remand and detained in violation of their fundamental rights to protection of life and liberty.    

The SC ordered police to use this power judiciously, curtailing police's authority to arrest anyone applying this section for the purpose of detaining him under the Special Powers Act.

The apex court also directed law enforcers to allow the detainees in question to consult lawyers of their choice or to meet their closest relatives if they so desire.

And the magistrates and judges should not pass an order of detention of a person in the judicial custody if the police forwarding report says that the arrest has been made for the purpose of preventive detention, the court said.   

Preventative detention is the imprisonment of a person with the aim of preventing them from committing further offences or of maintaining public order.

On a critical note on law enforcers' integrity and professionalism, the SC said, "On a look into the law and order situation, we have reasons to believe that it [law enforcement agencies] has forgotten its core value that it is accountable to the community it serves, and at the same time the prevention of crime is its prime operational priority."

Law enforcers must earn public respect and this will see crime rate fall in the country, it said, adding that the police department must preserve and advance the principles of democracy.

The custodians of the laws must not only respect but also protect the rights guaranteed to each citizen by the constitution.

"If we deny the rule of law and the right of the people, we will surely disrespect our long cherished independence," said the SC.

The Appellate Division delivered the verdict in May, upholding a High Court judgment against law enforcers' arbitrary use of powers.

The HC verdict delivered on April 7, 2003, asked the government to amend some provisions of the Code of Criminal Procedure (CrPC) of 1898.

The verdict came in response to a petition by a group of human rights organisations and individuals after the tragic death of Shamim Reza Rubel, a student of Independent University, in police custody on July 23, 1998.

The then BNP-led government appealed against the verdict and the AL government did the same.

But the SC dismissed the appeal.

"If we cannot maintain the fundamental rights of the citizens of the country and allow police officers [to] use abusive power it will be difficult to establish constitutional law and the rule of law in this country at any point of time," asserted the court.

The SC directed the inspector general of police and the director general of Rab to circulate the guidelines to all police stations and units for compliance by their officers.

It also ordered the registrar general to circulate the guidelines for compliance by the magistrates.

DRACONIAN LAW

The SC said the CrPC was promulgated by the British colonial ruler to consolidate their power through the exercise of abusive powers by the police. There was no constitution at the time and the fundamental rights of a citizen were a far cry. 

"After driving out two colonial powers, one of course by negotiation and the other by the sacrifice of three million martyrs, we cannot detain and prosecute an offender with a draconian law," observed the SC.

The object of the CrPC for which it was implemented then does not exist now. Also, the present procedures for holding trials by magistrates and judges are inadequate and conflicting.

The SC said sections 54 and 167 as well as three chapters of the CrPC dealing with the process for producing documents and other moveable properties and for the discovery of persons wrongfully confined, the trial of cases by magistrates and summery trials are inconsistent with the constitution and the judgment in the Masder Hossain case.

Some sections of three other chapters of the CrPC dealing with the jurisdiction of the criminal courts in inquiries and trials, complaints to magistrates and appeals are also inconsistent with the constitution and the judgment in the Masder Hossain case, popularly known as the judgment on separation of judiciary.

The apex court however did not declare them illegal.

"In fact the present Code is not at all suitable for the administration of criminal justice after so many changes made in the meantime and it is high time to promulgate a new Code," said the SC.

RESPONSIBILITIES OF LAW ENFORCERS 

It should be kept in mind that the very nature of the job of law enforcement agencies is to respect the law even when their lives are at stake, observed the SC.

"A police officer should not exercise his power of arrest on the basis of his whims and caprice merely saying that he has received information of his being involved in a cognisable offence.

"He is required to exercise his power depending upon the nature of the information, seriousness of the offence and the circumstance unfurled not only in the complaint but also after investigation on the basis of information or complaint."

In other words, the police officer shall not exercise the power arbitrarily violating the dignity, honour, liberty and fundamental rights of a citizen, said the SC.

THREE MONTHS' DEADLINE

Under the current CrPC, a magistrate or judge has no power to direct detention of an accused in the judicial custody beyond 15 days from the date of producing him in court over a cognisable offence.

The CrPC, said the court, is totally silent about dealing with an accused allegedly involved in a cognisable offence if the police officer fails to conclude the investigation of the case within this period.

If the magistrate has no power to order such accused person to be detained in judicial custody, he will be left with no choice but to release him on bail till the date of submission of police report.

In most cases the police officers cannot complete the investigation within the stipulated period sanctioned by law and normally they take years together, the SC observed.

The detention or remand of an accused person beyond 15 days is not only an exercise of power not sanctioned by the law but also violative of article 32 of the constitution dealing with protection of right to life and liberty, it noted. 

It is, therefore, necessary to take legislative measures authorising the judicial magistrate to direct the release of such offenders in judicial custody if the investigation cannot be concluded within the stipulated time.

"We allow three months moratorium period for the interest of justice and to maintain the law and order in the country, but in presence of specific constitutional provision protecting right of a citizen the court cannot remain a silent spectator for an indefinite period."