When There Is No Warrant

On the afternoon of December 29, 2017, Nurnabi Sarkar, a senior reporter from Jamuna Television was having tea at a stall near the capital's Technical bus stop in Mirpur. Sarkar was waiting for his aunt, who was due to arrive from Sirajganj. All of a sudden, two police constables came to him and said that their senior official was asking for him.

"After that, they picked me up in a leguna kept on the opposite side of the road, where a man wearing plainclothes started asking me very curtly what I was doing there, where I live and what I do. I answered him calmly. But when he heard that I'm a journalist, he seemed to get a little bit uncomfortable. I asked him about his identity and why he ordered the constables to pick me up. He told me to leave without answering any of the questions," says Sarkar.

When Sarkar pushed for answers, the man became very angry and at one point threatened to arrest him. The constables also behaved very rudely. Meanwhile, Sarkar called his family members and colleagues about the matter and told them to come immediately. At one point, the man had introduced himself as a human rights activist.

"When I asked him that under which law a human rights activist can interrogate the public with a police team, he became very rude. The sub-inspector of the team was having tea in a nearby stall. I begged his assistance, but he didn't pay heed to what I was saying. Soon, the man along with the police team, left the place," adds Sarkar.

According to the people who have small businesses near the Technical bus stop—Sarkar, by dint of being a journalist and having the requisite education and wherewithal—was one of the lucky few to be able to avert harassment.

For example, in January 2016, sub-inspector Masud Shikder of Mohammadpur Police station, along with three to four constables of his team, beat up Golam Rabby, a news presenter and central bank official. They also demanded BDT 500,000 from Rabby. The SI also threatened to kill him in a "shootout" and frame him in narcotics cases if he did not pay them the money.

The incident caused widespread public outrage throughout mainstream and social media. A search on Google still shows the video, where Rabby was crying and talking to the journalists about the police brutality that had happened to him for three hours at a stretch, the night before. According to what Rabby said to the journalists, at one point the police team took him to Beribandh and fabricate a story about how Rabby was supposedly going to the Bihari camp with illegal weapons, and that he was conspiring against the government. The video also shows that the next day, SI Masud Shikder refused the allegations brought against him and told the journalists that he ordered his constables to tell Rabby to contact his nearest relatives, but Rabby did not agree to do that. Luckily, Rabby got justice, based on a writ petition filed by Supreme Court lawyers AKM Ehsanur Rahman and SM Zulfiqure Ali and journalist Jahid Hasan. SI Masud Shikder was suspended after this.

In 2015, Bangladesh Legal Aid and Services Trust (BLAST) and Commonwealth Human Rights Initiative (CHRI) jointly conducted a study titled "Arrest without Warrant and Remand: High Court's Guideline and Reality", where they interviewed a total of 56 warrantless arrested persons. Although the police officer is supposed to give the person to be arrested a reason why he or she is being suspected of a cognisable offence, 34 of them said that the police did not inform them about the reason for their arrest. Also, 48 of the arrested persons and their family members said that the police did not give them any scope to contact their family members. 45 said that the police did not allow them to appoint a lawyer or contact their relatives and 37 revealed that the police treated them badly and tortured them.

According to eminent human rights activist Nur Khan Liton, police nowadays wait for opportunities to arrest people at different points of the city, just like robbers. "Putting yaba into someone's pocket has become a very common trick these days and this has come to the eyes of the media frequently. Besides, misusing section 54 is another shield for them. Although section 54 has some specific directives given by the High Court, in reality the police are not willing to obey the rules and instead fabricate an incident to arrest people randomly under this section. Media remains the major witness to such happenings," says Liton.

Liton was talking of the High Court directives related to arrest under section 54 and remand under section 167 that came from a writ petition by BLAST in 2003. The writ petition sought the implementation of the recommendations of a judicial committee that investigated the custodial death of Shamim Reza Rubel, a student of Independent University of Bangladesh, who was arrested under section 54 in 1998.

Although in 2004, the state applied for a "leave to appeal" against the HC's directives, seeking the sections 54 and 167 unchanged, the HC granted that without postponing the directives. Though finally in May 2016, the appellate division rejected the appeal after the hearing, it brings some modifications in the guidelines. Currently, a 19-point guideline is applicable—10 for every member of law enforcement agencies in case of arrest and detention and nine for magistrates, tribunals, courts and judges who have power to take cognisance of an offence as a court of original jurisdiction.

However, Liton argues that although there are provisions for police, in reality, the implementation is very weak. "Here, police work as the watchdogs of the ruling party; so they are ready to protect them. It is also being established that common people cannot win the fight against the police," he adds. 

Supreme Court lawyer Jyotirmoy Barua urges that there should be strict action on the magistrate. "It is the responsibility of the magistrate that the High Court order is implemented accordingly. For example, if a magistrate finds that the police officer has not maintained the diary properly, mentioning the reason why he suspected that the person is involved with a cognisable offence, as per the HC's order, he will order the arrest of the officer for his higher authority to take reasonable proceeding against him. In this way, if the magistrates could set at least one example of punishing a police officer, that would be effective. But sadly, from 2003 till today, there has been no such incident of punishing a police officer for such offences," says Barua.

"Also, we observe a negligence of the lawyers and the magistrates when it comes to knowing the HC's order properly. We even trained the magistrates about it. But most of the time, they give an invalid excuse for their ignorance," claims Barua.

Barua also highlights that people should be more careful about this law. "For example, when a police officer arrests a person unlawfully, the person must ask the officer about his identity, the reason for the arrest, as the police is legally bound to give him/her a legitimate answer. If s/he doesn't have a mobile phone to contact his/her family members, s/he can ask for it from the police officer. The person should be educated that s/he can contact lawyers and nearest relation. Besides, s/he must know that the police are bound to produce him/her before the court within 24 hours of the arrest," he explains.

According to a police spokesperson, they give certain training, counselling and instruction to the police officers about the dos and don'ts while checking and charging a person. If any police personnel do not obey this, or people complain to them, they take actions against that personnel, in accordance with the police regulation Acts. When asked about the plainclothes arrests, he informs us that police can perform their duties in plainclothes. But for this, the officer is bound to show his identity card and necessary information while detaining or arresting a person.

On the other hand, Barua mentions that a Criminal Investigation Department (CID) or Detective Branch (DB) police officer can wear plainclothes to perform his investigation or arrest a person or persons accused in an existing case. They are not assigned to arrest based on suspicion. At the same time, the regular police have no right to work in plainclothes.

Also, beating or torturing someone mercilessly itself is a criminal offence, and it is the police who are the offenders. However, in a country where the maximum punishment for a police officer is "closing", proper justice is always denied. However, if we can create an environment where police are accountable for their misdeeds, the beneficiaries will be the common people the police are meant to serve. It is high time for social and human rights organisations to work against the oppression of police.

Know Your Rights

1)            A law enforcement officer making the arrest of any person has to write a memorandum of arrest immediately after, and collect the signature of the arrestee along with the date and time.

2)            A law enforcement officer who arrests a person must contact the nearest relative of the arrestee, or a suggested friend. This should within 12 hours of arrest.

3)            A diary entry describing the ground on which the person was arrested must be made. It must also include the name of the person based on whose complaint the arrest is being made. Also, must include the name of the relative or friend who is the arrestee's contact, and the particulars of the police officer supervising the custody.

4)            A case has to be registered in order to detain the arrestee.

5)            The officer making the arrest has to show his identity card if requested.

6)            If, during the time of arrest, there are any marks of injury on the arrestee, the officer needs to record them, go to the nearest hospital and obtain a medical certificate for them.

7)            The arrestee is allowed access to a preferred lawyer.

8)            When the arrestee is brought before a court, the police officer needs to state in written form why s/he needs more than 24 hours for inquiry.