Permission for arrest: It’s to protect some corrupt govt officials

The provision of the Government Service Act that makes it mandatory for the law enforcers to take permission before arresting public servants in criminal cases is nothing but a way to protect some corrupt government officials, the High Court has observed.

If this provision remains in force, investigations of criminal cases against government servants will not end, the court also said.

"So, the very incorporation of Section 41(1) in the Ain (Government Service Act, 2018) is nothing but to indemnify a handful of corrupt government officials, which the state must not encourage because our past history dictates that granting indemnity to a certain group of people, for whatever manner or purpose it may be, has brought nothing good for our nation.

"Furthermore, in our country it is a common practice that investigation of a criminal case takes a long time, even years together. So, if that provision remains in place as it stands now, then there will be no ending of investigation of any criminal cases filed against the government servants," the HC bench of Justice Md Mozibur Rahman Miah and Justice Kazi Md Ejarul Haque Akondo said in the 17-page full text of the judgement, which was released recently.

Earlier on August 25, the same HC bench delivered a short judgement on this issue following a writ petition, filed by rights organisation Human Rights and Peace for Bangladesh, challenging the legality of Section 41(1) of the Government Service Act-2018.

The HC in its verdict scrapped the section and also declared the provision contradictory to fundamental rights and the constitution.

However, on September 1, the Appellate Division of the Supreme Court stayed the HC verdict till October 23 and asked the government to file an appeal in the meantime.

The apex court passed the stay order following a petition filed by the state seeking a stay on the HC verdict.

In the full text of the verdict, the HC said, "There has been nothing in section 41(1) of the Ain as to what consequence will follow if prior permission is not given by the government or the appointing authority against the delinquent government servant and in such a situation, the criminal case filed against any government servant will stay in limbo and on that score, Section 41(1) is an incomplete one."

Apart from government servants, a host of professional bodies and private employees are performing their respective jobs and if they demand the same privilege as the government servants, anarchy would be created in the administration of criminal justice, and the constitution, the supreme law of the country, does not approve such discrimination, it added.

"However, what argument has been canvassed in this regard by the government is absolutely based on hypothesis far from any legal basis," the HC judges said.

They also observed, "Further, Section 3 of Sarkari Charkri Ain-2018 provides overriding effect of the Ain, meaning the provision of the Ain will prevail over other laws of the country which will have a knock-on effect on various investigating agencies, including the Anti-Corruption Commission, involved in investigating criminal cases if offence is committed by the government servants.

"Because when such agencies or the Anti-Corruption Commission will proceed with investigating criminal cases against government servants, they might need to arrest the accused for the purpose of interrogating him/her, but they will have to wait for the permission of the government or the appointing authority of the said official when there has been no such provision for other accused involving same offence."