Jonny’s custodial death case: Lessons learned from the verdict
On September 9, the Dhaka Metropolitan Sessions Judge's Court passed the first-ever verdict under the Torture and Custodial Death (Prevention) Act, 2013 for the custodial death of one Ishtiaque Hossain Jonny. The incident took place on February 8, 2014, after Jonny, along with his brother, was picked up by the police from a wedding ceremony following a vexatious complaint by two police informants. The police tortured Jonny and his brother in custody; the torture led to Jonny's death the next day. The court sentenced the three police officers of Pallabi police station to life imprisonment and the two police informants to seven years' imprisonment for the offence. The court fined each of the policemen BDT 1 lac and ordered a further six months' jail term for failure to pay the fine. It also fined the two informants (BDT 20,000 each) and ordered a further three months' jail term for failure to pay the fine. Lastly, the court ordered each of the policemen to pay compensation worth BDT 2 lac to the petitioners within 14 days, failure of which would bar them from appealing to the High Court Division (HCD) against their conviction.
This is a landmark verdict for several reasons. Firstly, ever since the passing of the 2013 Act, only 17 cases have been filed whereas Ain o Salish Kendra (ASK), a human rights organisation reports that 53 people have died only in the last 8 months in police custody. Hence, this long struggle has finally led to Jonny's family to get justice – making this the first verdict under the 2013 Act. However, this was a difficult battle as his family was pressurised and threatened by influential people and were even proposed a lump sum of BDT 20 lac to compromise and withdraw the case. At one point, the accused even filed a petition to the HCD to get the proceedings quashed. Although the HCD initially stayed proceedings for 6 months, it finally rejected the petition and ordered the trial court to complete the proceedings within 180 days of the filing of the case. Sadly, the trial court took years to dispose of the case.
Secondly, of late, there has been a tendency for justice seekers to directly approach the HCD for violations of fundamental rights. While this itself is a fundamental right, this has a negative bearing upon the existing statutory provisions in place to give relief to the victims. Many similar incidents of police brutality and custodial deaths have been referred to the HCD to be dealt with under its writ jurisdiction, rather than filing a case to the Metropolitan Sessions Judge's Court under the existing law. There is also a trend of seeking compensation under the HCD's writ jurisdiction, not under the statutory provisions already in place. It also tends to show a general mistrust among the citizens in the subordinate judiciary. Hence, this verdict is a welcoming sign as it establishes the notion that it is possible to seek redress under the existing laws and to get the same from the subordinate courts too.
Thirdly, the life imprisonment verdict also gives a warning to the delinquent policemen of Bangladesh to be wary of their actions. Very often, it is found that these delinquent officers show little, if any, respect to due process under the Code of Criminal Procedure (CrPC), 1898 while arresting and taking the accused to custody. This verdict will give a strong message to them that no one is above the law and that the illegal actions committed by the law enforcing officials will have consequences. Moreover, courts should be determined to order for judicial investigation under section 5(2) of the 2013 Act, similar to what was done in Jonny's case, if such applications are filed by the victims. Besides, enabling third parties to file complaints under sections 6 and 7(1) of the 2013 Act will also help in ensuring the continuation of the trend initiated by the Jonny verdict, of punishing policemen for custodial torture as well as death.
Lastly, a forgotten aspect of this verdict, due to it being the first one under the 2013 Act as well as laying down the maximum punishment of life imprisonment, is that the court also ordered the policemen to pay compensation to the victim's family under section 15(2). Moreover, as per section 15(4), they cannot file any appeal without first paying this compensation within 14 days. This is quite welcoming to see our laws recognise compensation expressly in their provisions. However, the quantum of compensation is significantly low (BDT 2 lac only). The provision needs to be amended to keep up with the needs of time and to ensure complete justice for the victims.
The writer is the Junior Legal Analyst of iProbono (Bangladesh).