Rights of the accused must be upheld
Everyone has the right to justice. Photo: Deborah Van Kirk
SENSITIVE issues like taking an alleged offender on 'remand,' 'extra-judicial killings' through cross-fire or 'death in custody' have become a source of concern for those who are interested in the upholding of human rights and due process of law. Controversy has also been generated because of less than clear answers from those in charge of maintenance of law and order in the ministry of home affairs. I have tried to understand good governance and human rights within the context of the various principles laid out in the different Sections of the Code of Criminal Procedure, 1898 and the Articles of our Constitution. Ambiguity with regard to certain phrases within certain Sections of this Code has made the matter more complex. This effort on my part has recently led me to an important judgment of our High Court Division issued on April 7, 2003 as reported in 23 BLD (HCD) 2003. It has raised some crucial points which I want to share today with my readers. Referring to Section 54, the Judges in this case have drawn attention to aspects pertaining to the role to be played by police officers to avoid prisoners suffering abuse of process. Para 11 of this judgment observes that if a person is arrested on the basis of 'credible information,' nature of the information and source of information must be disclosed by the police officer and also the reason why the officer believed the information. After that a fundamental distinction is made -- 'Credible means believable. Belief does not mean make-belief.' The judgment then goes on to distinguish between an ordinary layman and a police officer. It is stated that a layman may believe any information without any scrutiny but a police officer is supposed to possess knowledge about criminal activities in the society, nature and character of the criminals etc. It is also stressed that police officers must refrain from believing any 'vague information' received from any person. In this context it is reiterated that if the police officer receives any information from a person who works as a 'source' of the police, even in that case, the police officer before arresting the person named by the 'source' should try to verify the information by perusal of the diary kept in the police station about the criminals. This will have to be done to ascertain whether there is any record of any past criminal activities against the person named by the 'source.' This is a crucial issue that needs to be followed carefully. Sometimes our law enforcement authorities tend to overlook or forget its implications. It is also suggested in the landmark judgment that if a person is arrested on 'reasonable suspicion,' the police officer must record reasons on which his suspicion is based. In this regard the Judges have taken one further step. They have pointed out that if the police officer justifies the arrest only by saying that the person is suspected of being involved in a cognizable offence, such a 'general statement' cannot justify the arrest. Such a view about governance within the police structure would greatly reduce arbitrary detention and misuse of power. Another nuance in this important judgment clarifies that 'suspicion' on the part of the law enforcement authorities 'must be based on reasons' that in turn will be based 'on existence of some facts which is within the knowledge of that person.' Consequently, it is underlined that when the police officer arrests a person without warrant 'he must have some knowledge of some definite facts on the basis of which he can have reasonable suspicion.' The judgment given in a writ petition filed by Bangladesh Legal Aid and Services (BLAST) also refers to the question of deaths taking place in police custody and accused persons being remanded in police custody. Public anxiety in this regard has been re-affirmed once again with the High Court recently issuing Rule once again on the government asking it to show cause as to why extra-judicial killings should not be declared as illegal and without lawful authority. It is no use having an ostrich syndrome and denying that torture and inhuman treatment are sometimes meted out to a person in custody and that at times there are cases of deaths while in custody. Some of these tragic deaths are due to 'sweeping and unhindered power' given to a police officer under Section 54 of the Code of Criminal Procedure. We however know that such exercise of power is more often than not inconsistent with the provisions of Part III of our Constitution. Accordingly, it is required that our authorities concerned and our Parliamentary Committee for Law take necessary action to bring in greater consistency and uniformity between the stipulations in Section 54 of the Code and Articles 27, 31, 32, 33 and 35 of our Constitution. This can be achieved through amendment of the provisions of the requisite Sections of the Code. The next aspect that needs to be examined is the question of granting 'remand' to the police custody. It is generally believed that once remand is granted, the police try to extort information or confession from the accused person through physical or mental torture. This sometimes leads to death from 'unknown causes'. Such granting of remand is generally allowed under subsection (2) of Section 167 of the Code of Criminal procedure. The word remand does not exist in the subsection, but it is used in the Order passed by a Magistrate 'in the sense' of authorizing detention and for the accused to being sent back to police custody. Section 61 of the Code implies that if there is a special Order of a Magistrate under Section 167, the police may keep a person in its custody for more than 24 hours. Mandatory provisions of law also stipulate that the police officer concerned must state reasons why the required investigation could not be completed within 24 hours in the first place. Unfortunately, such provisions are rarely followed in spirit and meaning. In this context it would however be useful to note that provisions of Article 35(4) of the Constitution mentions that information which is extorted from a person (through torture or force) cannot be used against him. This clause provides that no person accused of an offence shall be compelled to be a witness against himself. Our law enforcement officials need to avoid the temptation of abusive action by restraining themselves from arresting a person under Section 54 of the Code for the purpose of detaining him under Section 3 of the Special Powers Act, 1974. The impugned judgment referred to by me has correctly identified this aspect. It is the duty of every public official to adhere to the provisions of the Constitution. In that context, all efforts need to be made to inform a person of the grounds for his arrest at the earliest and to provide him with the right to consult a legal practitioner of his choice. Sometimes this is not followed, particularly if there is a political shadow associated with the detention of the person concerned. We have to be very careful, because arbitrary lapses can easily lead to the next unfortunate step of torture or cruel inhuman or degrading treatment in police custody and serious debate and disagreement. Human dignity and human rights have to be upheld at all times. Muhammad Zamir is a former Secretary and Ambassador and can be reached at mzamir@dhaka.net
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