Provisions relating to arrest, remand and detention require amendment to protect citizens' rights

High Court Division (Special Original Jurisdiction),
The Supreme Court of Bangladesh,
Writ Petition No 3806 of 1998,
Bangladesh Legal Aid and Services Trust (BLAST)
and others
Vs
Bangladesh and others,
Before Mr. Justice Md Hamidul Haque and Justice Salma Masud Chowdhury.
Date of Judgement: April 7, 2003.
Result: Rule is disposed with directions.

(Continued from the previous issue)

In the above, we have scrutinised two sections of the Code and have found that the provisions of these sections are to some extent inconsistent with the provisions of the constitution and requires some amendments. To remove the inconsistencies, now we would like to make some recommendations, which are as follows:

Recommendation-A
(With regard to section 54 of CrPC)
1. The first condition of section 54 of CrPC may be amended as follows:
first, any person against whom there is a definite knowledge about his involvement in any cognisable offence or against whom a reasonable complain has been made or credible information has been received or a reasonable suspicion exists of his having been so involved;
2. The seventh condition may be also amended like the first condition.
3. A sub-section (2) shall be added which shall contain the following provisions:
(a) Whenever a person is arrested by a police officer under sub-section (1) he shall disclose his identity to that person and if the person arrested from any place of residence or place of business, he shall disclose his identity to the inmates or the persons present and shall show his official identity card if so demanded.
(b) Immediately after bringing the person arrested to the police station, the police officer shall record the reasons for the arrest including the knowledge which he has about the involvement of the person in a cognisable offence, particulars of the offence, circumstances under which arrest was made, the source of information and the reasons for believing the information, description of the place, note the date and time of arrest, name and address of the persons, if any, present at the time of arrest in a diary kept in the police-station for that purpose.
(c) The particulars as referred to in clause (b) shall be recorded in a special diary kept in the police station for recording such particulars in respect of persons arrested under this section.
(d) If at the time of arrest, the police officer finds any marks of injury on the body of the person arrested, he shall record the reasons for such injury and shall take the person to the nearest hospital or to a Government doctor for treatment and shall obtain a certificate from the attending doctor about the injuries.
(e) When the person arrested is brought to the police station, after recording the reasons for the arrest and other particulars as mentioned in clause (b), the police officer shall furnish a copy of the entries made by him relating to the grounds of the arrest to the person arrested by him. Such grounds shall be furnished not later than three hours from the time of bringing him in the police station.
(f) If the person is not arrested from his residence and not from his place of business or not in presence of any person known to the accused, the police officer shall inform the nearest relation of the person over phone, if any, or through a messenger within one hour of bringing him in the police station.
(g) The police officer shall allow the person arrested to consult a lawyer, if the person so desires. Such consultation shall be allowed before the person is produced to the nearest Magistrate under section 61 of the Code.

Recommendations B
(With regard to section 167 of CrPC)
1. Existing sub-section (2) be re-numbered as sub-section (3) and a new sub-section (2) may be added with the following provisions;
Sub-section (2) (a): If the Magistrate, after considering the forwarding of the Investigating officer and the entries in the diary relating to the case is satisfied that there are grounds for believing that the accusation or information about the accused is well-founded, he shall pass an order for detaining the accused in the jail. If the Magistrate is not so satisfied, he shall forthwith release the accused. If in the forwarding of the Investigating Officer the grounds for believing that the accusation or information is well founded are not mentioned and if the copy of the entries in the diary is not produced, the Magistrate shall also release the accused forthwith.
(b) If the Investigating Officer prays for time to complete the investigation, the Magistrate may allow time not exceeding seven days and if no specific case about the involvement of the accused in a cognisable offence can be filed within that period, the accused shall be released by the Magistrate after expiry of that period.
(c) If the accused is released under clause (a) and (b) above, the Magistrate may proceed for committing offence under section 220 of the Penal Code suo motu against the police officer who arrested the person without warrant even if no petition of complaint is filed before him.
2. Sub-section (2) be substituted by a new sub-section (3) with the following provisions:
(a) If a specific case has been filed against the accused by the Investigating Officer within the time as specified in sub-section (2) (b), the Magistrate may authorise further detention of the accused in jail custody.
(b) If no order for police custody is made under clause (c), the Investigating officer shall interrogate the accused, if necessary for the purpose of investigation, in a room specially made for the purpose with glass wall and grill in one side, within the view but not within hearing of a close relation or lawyer of the accused.
(c) If the Investigating officer files any application for taking any accused to custody for interrogation, he shall state in detail the grounds for taking the accused in custody and shall produce the case diary for consideration of the Magistrate. If the Magistrate is satisfied that the accused be sent back to police custody for a period not exceeded three days, after recording reasons, he may authorise detention in police custody for that period.
(d) Before passing an order under clause (c), the Magistrate shall ascertain whether the grounds for the arrest was furnished to the accused and the accused was given opportunity to consult lawyer of his choice. The Magistrate shall also hear the accused or his lawyer.
3. Sub-section (4) be substituted as follows:
(a) If the order under clause (c) is made by a Metropolitan Magistrate or any other Magistrate he shall forward a copy of the order to the Metropolitan Sessions Judge or the Sessions Judge as the case may be, for approval. The Metropolitan Sessions Judge or the Sessions Judge shall pass order within fifteen days from the date of the receipt of the copy.
(b) If the order of the Magistrate is approved under clause (a), the accused, before he is taken in custody of the Investigating officer, shall be examined by a doctor designated or by a Medical Board constituted for the purpose and the report shall be submitted to the Magistrate concerned.
(c) After taking the accused in custody, only the investigating officer shall be entitled to interrogate the accused and after expiry of the period, the Investigating officer shall produce him before the Magistrate. If the accused makes any allegation of any torture, the Magistrate shall at once send the accused to the same doctor or Medical Board for examination.
(d) If the Magistrate finds from the report of the doctor or Medical Board that the accused sustained injury during the period under police custody, he shall proceed under section 190(1)(c) of the Code against the Investigating officer for committing offence under section 330 of the Penal Code without filing of any petition of compliant by the accused.
(e) When any person dies in police custody or in jail, the Investigating officer or the Jailor shall at once inform the nearest Magistrate of such death.

Recommendation-C
(With regard to section 176 of CrPC)
Existing sub-section (2) be re-numbered as sub-section (3) and the following be added as sub-section (2).
(2) When any information of death of a person in the custody of the police or in jail is received by the Magistrate under section 167(4)(e) of the Code (as recommended by us), he shall proceed to the place, make an investigation, draw up a report of the cause of the death describing marks of injuries found on the body stating in what manner or by what weapon the injuries appear to have been inflicted. The Magistrate shall then send the body for post mortem examination. The report of such examination shall be forwarded to the same Magistrate immediately after such examination.

Recommendation-D
(With regard to section 202 of CrPC)
1. A new subsection (3) be added with the following provisions:
(3) (a) The Magistrate on receipt of the post mortem report under section 176(2) of the Code (as recommended by us) shall hold inquiry into the case and if necessary may take evidence of witnesses on oath.
(b) After completion of the inquiry, the Magistrate shall transmit the record of the case along with the report drawn up under section 176(2) (as recommended by us), the post mortem report, his inquiry report and a list of the witnesses to the Sessions Judge or Metropolitan Sessions Judge, as the case may be and shall also send the accused to such Judge.
(c) In case of death in police custody, after a person taken in such custody on the prayer of the Investigating officer, the Magistrate may proceed against the Investigating officer, without holding any inquiry as provided in clause (a) above and may send the Investigating officer to the Sessions Judge or the Metropolitan Sessions as provided in clause (b) along with his own report under sub-section (2) of section 176 and post mortem report.

Recommendation-E
(With regard to Sections 330, 302 and 348 of the Penal Code)
1. (a) One proviso be added in section 330 providing enhanced punishment up to ten years imprisonment with minimum punishment of sentence of seven years if hurt is caused while in police custody or in jail including payment of compensation to the victim.
(b) 2nd proviso for causing grievous hurt while in such custody providing minimum punishment of sentence of ten-year imprisonment including payment of compensation to the victim.
(c) A new section be added as section 302A providing punishment for causing death in police custody or in jail including payment of compensation to the nearest relation of the victim.
(d) A new section be added after section 348 providing for punishment for unlawful confinement by police officer for extorting information etc as provided in section 348 with minimum punishment of imprisonment for three years and with imprisonment which may extend to seven years.

Recommendation-F
(With regard to Evidence Act 1872)
If death takes place in police custody or in jail it is difficult to prove by the relations of the victim as to who caused the death. In many cases, this court has decided that when a wife dies while in custody of the husband, the husband shall explain how the wife met her death. Similar principle may be applied when a person dies in police custody or in jail. To give a legal backing to the above principle, we like to recommend that a section in the Evidence Act (after section 106) or a clause may be added in section 114 of that Act incorporating the above principle.
The new section in the Evidence Act shall provide that when a person dies in police custody or in jail, the police officer who arrested the person or the police officer who has taken him in his custody for the purpose of interrogation or the jail authority in which jail the death took place, shall explain the reasons for death and shall prove the relevant facts to substantiate the explanation.

Recommendation-G
(With regard to Police Act 1861)
In the Police Act of 1861, there is no provision for maintaining any diary for recording the reasons for arrest without warrant and other necessary particulars as have been mentioned in the recommended sub-section (2) of section 54 of the Code. So, we like to recommend that a new section be added after section 44 of the Police Act.
The new section in the Police Act shall provide that the officer in charge of a police station shall keep a special diary for recording the reasons and other particulars as required under recommended new sub-section (2) of section 54 of the Code.
We have already mentioned that the provisions of the existing sections 54 and 167 of the Code are to some extent inconsistent with the provisions of Article 27, 30, 31, 32, 33 and 35 of the Constitution and we have recommended that the above two sections may be amended for the purpose of safeguarding the liberty and fundamental rights of the citizens. We also like to emphasise that the respondents are to be directed to remove the inconsistency within the time fixed by us.

Dr. Kamal Hossain with Mr. M. Amir-ul Islam, Mr. Md. Idrisur Rahman, Mr. M. A. Mannan Khan, Mr. Tanzibul Alam, Mr. Abu Obaidur Rahman and Mr. Kowsan Ahmed, for the petitioner.
Mr. A. F. Hassain Ariff, Attorney General with Mr. Abdur Razaque Khan, Additional Attorney General, Mr Zaman Akter, AAG and Ms. Kumrunnessa, AAG for the respondents.