Arrests Without Warrant: Is s.54 of CrPC Being Used or Abused?

Police officers authorized to make an arrest have the power to “actually touch or confine the body of the person to be arrested,” unless that person submits to the custody by word or action. But s.50 of the Code of Criminal Procedure 1898 circumscribes this power by providing that “the person arrested shall not be subjected to more restraint than is necessary to prevent his escape.”

A police officer under s.54 of the Crpc may arrest any person without a warrant on any of the following grounds: (1) the person arrested has been concerned in a criminal offence: (2) a reasonable complaint has been made against him; (3) credible information has been received of his having been so concerned; and (4) a reasonable suspicion exists of his having been so concerned.

Furthermore, if a police officer knows of a design to commit a criminal offence, he is authorized under s.151 of the Code to arrest, without orders from a Magistrate or a warrant for the purpose of preventing the commission of the offence.

After an arrest has been made without a warrant, s.60 requires the police officer to take the person arrested before a Magistrate having jurisdiction in the case or before the officer in charge of a police station “without unnecessary delay.”

Police officers receive training that teaches them to set aside their personal biases, use their powers under the law properly, and avoid committing acts of police brutality, police harassment, police discrimination and false arrest. Despite their training, however, it is not uncommon for officers to abuse their power or to act on unjust assumptions.

The unfortunate reason behind the brutality of the Police in Bangladesh is Politics. It is Politics which enables the ruling party to consider the Police force to be its ultimate strength. An IRIN (2011) report states that Odhikar, a local human rights organization, said at least 10 people had been tortured to death by law enforcement agencies in the first six months of 2011. It documented 67 torture cases in 2010, which led to 22 people reportedly dying. There were 68 cases of reported torture in custody in 2009.

Abdul Kadar, a Dhaka University student, told IRIN he was recently tortured and arrested on trumped-up charges on his way home from his sister’s house.  He said police beat him and used sticks and sharp objects to make him confess to crimes he did not commit. He was charged with possessing lethal weapons, robbery and carjacking, then put in jail.

Following campaigns by the media and rights activists, the high court ordered him to be released on 3 August after 18 days in detention. One of the officers involved has been suspended.

According to Banna T (2016), addressing Police Brutality [online], a police team led by Mohammadpur Police Station sub-inspector Masud Sikder on January 9, reportedly tortured Bangladesh Bank assistant director Golam Rabbi and sought Tk 5 lakh from him. Otherwise, he threatened to kill Rabbi in crossfire. According to media reports, the incident occurred when Rabbi came out of an ATM booth at Mohammadpur’s Tajmahal Road after withdrawing money. Three or four police personnel dragged him to a police van waiting nearby. SI Masud then took away his wallet and other documents, and demanded Tk 5 lakh. When he refused, the SI threatened to kill him in crossfire.

On a later incident, an inspector named Bikash Chandra Das was severely beaten by a team of policemen of Jatrabari Police Station at Dholaipar, Dhaka on January 15 for no apparent reason. According to Mizanur Rahman, chairman of the National Human Rights Commission, “Torture by police should be stopped now and responsible cops in any incident of torture must be given exemplary punishment. Otherwise, people will feel insecure”

An Asian Human Rights Commission (AHRC) (2006) report queries that a pregnant woman, who is diabetic patient, was tortured by the police on the street and in a prison van on 12 March 2006. This occurred in Dhaka during a demonstration of political parties while the woman was waiting outside her son’s school. Two Deputy Commissioners (DC) of Dhaka Metropolitan Police (DMP) were directly responsible for the brutality.

According to a report of Human Rights Watch (2009) On May 27 2009, RAB killed two Dhaka polytechnic students, Mohammad Ali Jinnah and Mohsin Sheikh, in what RAB referred to as a “shootout.” However, witnesses stated that the two men were arrested at night at their campus. Jinnah’s family has filed a murder case against 10 RAB officers questioning how the victims, while allegedly running to escape, were shot in the chest, abdomen, and throat.

Hossain Z (2004) states few cases of Arbitrary Arrests that took place in the year 2004. They are in the following:

Saibal Saha Patha:
Partha was arrested and charged on two counts: the first was sending an email threat to the then opposition leader Sheikh Hasina. According to a police report he was arrested in a cyber cafe, even though there was no technical track record that he had used the case to send an email. Subsequent charges were filed to implicate him in the grenade attack on the Awami League meeting on the 21st August. Although under the law, the police were required to show a warrant of arrest and produce before the magistrate after five days, when the court approved a police request for remand. His manner of arrest and its purpose were questioned by media. Partha had returned to Bangladesh only a few months before arrest after completing his studies in Chennai, India. He remained in jail for seven months, and was refused bail six times by the lower court.

Vicitimization of NGOs
Non-governmental organizations (NGO) who were perceived to oppose Government policies were at risk of harassment and some even had to face persecution. Dr. Quazi Faruque Ahmed and David William Biswas, the President and Vice President of Proshika, one of the largest NGOs of Bangladesh were arrested on 22nd May and several cases were filed against them. Their arrest appeared to be politically motivated as they were arrestsed amidst allegation that Proshika had engaged in political campaigning against the current ruling alliance during the last general election.

Mass Arrest:
In April, thousands of citizens were arrested arbitrarily by law enforcement agencies in Dhaka under section 86 of the Dhaka Metropolitan Ordinance, to pre-empt a threatened protest by the major opposition party. The High court cautioned against such illegal arrests and issued an order staying operation of the arrests.

Protective Measures:
Article 11 guarantees freedom and dignity of every citizen. He failure of the law enforcement agencies to observe this guarantee has been partially used for political victimization. But it has also been said that the law enforcing agencies need more effective education in citizen’s rights. Article 27 of the Constitution of Bangladesh guarantees citizens under the laws. But the lengthy court procedures have denied this guarantee. Poor litigants often have to wait for three to four years for a hearing when their sentence would probably be no more than five or ten years.

Ways to prevent Wrongful Arrests:

In the case of Bangladesh Legal Aid and Services Trust (blast) vs. Bangladesh, the High Court Division of the Supreme Court of Bangladesh laid down few rules which may help a person to prevent a wrongful arrest. They are:

  No police officer shall arrest anyone under Section 54 for the purpose of detention under Section 3 of the Special Powers Act, 1974.
  A police officer shall disclose  his/her identity and show his/her ID card on demand to the person arrested or those present at the time of arrest.
 A record of reasons of arrest and other particulars shall be maintained in a separate register till a special diary is prescribed.
 The concerned officer shall record reasons for marks of injury, if any, on the person arrested and  take him/her to nearest hospital or government doctor.
  The person arrested shall be furnished with reasons of arrest within three hours of bringing him/her to the police station.
 If the person is not arrested from his/her residence or place of business, the relatives should be informed over the phone or through messenger within one hour of bringing him/her to police station.
  The person concerned must be allowed to consult a lawyer of choice or meet nearest relations.

An Article in Dhaka Tribune by Abdullah Al Arif (2013) states identifies how a person can avoid a wrongful arrest legally. In an event where the police wants to arrest you, you have certain things to do.
You may ask the police whether they have a warrant against you or not. You may also ask for reason behind your being arrested and the concerned police officer is bound to answer your queries. Article 33 of Bangladesh Constitution says “no person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.”
 If you feel that the police is apprehending you out of a mistake, do present your proper identity (your name, address, occupation etc.) to the police. Produce your photo ID card in support of your claim.
  Try to inform your family, friends or a lawyer about the arrest.
  If you could not inform anybody about the arrest, tell this fact in front of the magistrate. He may help you contact your friends, family or a lawyer. Article 33 of our Constitution also says “every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.”
  The police may take you to a lockup and ask you to give your mobile phone, money or any other belongings that you have. Then the police will prepare a list of seizure stating the items they receive from you. Do carefully check the list and then sign it.
  Once you get arrested by the police, you are not obliged to answer any question asked by them. However, if you give any statement and the police write it down and ask you to sign it, make sure that the statement is properly written before you put your signature on it.
  If you feel unwell at any stage of the arrest, you may ask for a medical treatment or a medical checkup through the court. If you go through any such medical treatment or checkup, carefully store the medical reports and other related documents. These documents will be treated as evidences in the trial stage.
Recent Developments:
A Newsnext BD (2016) report queries that, The Appellate Division of the Supreme Court of Bangladesh has termed arrest by police not in uniform as dangerous. The appeal bench headed by Chief Justice Surendra Kumar Sinha also came up with the view that the members of the law enforcement agencies must be in uniform in case they go for arresting anyone.
The court’s observation came when the bench was dealing with an appeal against a High Court ruling on arrest under Section 54 (arrest without warrant) and custodial interrogation under section 167 (interrogation after someone remanded in custody) of the Code of Criminal Procedure.
The chief justice, during the hearing, told the Attorney General that the government did not pay heed to a set of specific guidelines by the High Court on the arrest without warrant and custodial interrogation for the last 13 years.
The Code of Criminal Procedure is a colonial law, said the Chief Justice adding that Malaysia amended the law in 1970. India has also amended the code. “But we could not amend it yet,” regretted Sinha.
Responding to the Chief Justice, the Attorney General said the High Court orders were not appropriate in terms of Bangladesh’s social reality.
“We have laws to deal with, in case anyone dies during custodial interrogation, to take actions against the police officers concerned,” said the chief law officer of the state.
The Chief Justice said the judiciary is overburdened with cases because the laws were formulated without proper thoughts.
He said the chairman of the Human Rights Commission informed him that the law enforcements had picked up a son of a freedom fighter, who was bodyguard of Bangabandhu Sheikh Mujibur Rahman. He is still traceless, said the Chief Justice.

 

http://www.humanrights.asia/news/urgent-appeals/UA-105-2006 [accessed 16th May 2016]
Tankebe J. (2010), ‘Public Confidence in the Police’, The British Journal of Criminology
East R. (1987) ‘Police Brutality: Lessons of the Holloway Road Assault’, New Law Journal
Tareq GM, “Present Human Rights Situation in Bangladesh’ [online], available: https://www.academia.edu/5763150/Present_human_rights_situation_in_Bangladesh_and_Political_orders [accessed on 15th May 2016]
Hossain Z (2004) ‘Arbitrary Arrests’ in Human Rights in Bangladesh (2004), Ain O Shalish Kendra, 47-54.
Chaki, Sanjoy (2009). One Eleven Abong Oshavabik Sarkar Er Golpo; Nirbachita Prokashon :,Sanjoy tried to explained the law and order situation though improved in the period of Caretaker government of 2008. But they unlawfully arrested some high profile political leaders

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