Lawyer burnt alive inside prison: A case of Custodial Death?

An enrolled Advocate of the Bangladesh Bar Council and an active member of the Dhaka Bar Association, Mr. Palash Kumar Rai breathed his last on 30th April 2019 after he was allegedly set on fire inside a prison cell in Panchagarh. His actual dying declaration stated “On 26th April 2019 at about 10am, two persons threw something on my body from a tiger (energy drink) bottle to set me on fire and bring my life on the verge of death. I want justice.” Soon after his death, the Panchagarh jail authorities attempted to stage it as a suicide on their report.

This horrific incident was about to get sidelined until a Supreme Court lawyer filed a writ petition demanding a full proof judicial investigation on this matter. The Honorable High Court instantly formed a judicial committee to probe into the matter and submit a report within thirty days.

Advocate Palash used to work in the legal department of a chemical company who falsely accused him of embezzling 3.1 Million taka back in 2016. On 25th March 2019, He along with his family members were present infront of the Panchagarh Deputy Commissioners office, demanding the withdrawal of the case. They later formed a human chain on the highway. As the pressure kept on building, a local person accused Mr. Palash for using defamatory statements against the Prime Minister while speaking at the procession and filed a complaint with the Police. Subsequently, Mr. Palash was arrested upon a baseless acquisition and the Panchagarh Court sent him to jail the very next day. He was about to be sent to Dhaka for the hearing of the previous case on April 26th 2019 but ended up in Rangpur Medical College Hospital for suffering severe burns.

According to the Evidence Act, statements written, verbal of relevant facts made by a person who is dead shall be relevant when it relates to the cause of is death. In this case, Advocate Palash’s dying declaration proves his death was due to setting fire on him inside the cell. This points at the possibility of a custodial death, since no outsider can access it.. Death resulting from torture in police custody is a serious offence in the country and around the world. There are few reported cases of such torture but the one involving a lawyer is heard for the first time. Such an incident further raises a concern, how safe are the inmates inside prisons around Bangladesh?

What does the law say about custodial death?

Section 54 and Section 167 of the Code of Criminal Procedure 1898 gives police the power to arrest without a warrant and take into remand, respectively. According to Section 167 of the Code, if the arrested person is detained in police custody and investigation cannot be completed within 24 hours, the Police can request time from the Magistrate. The Magistrate would allow a further 15 days time to complete the investigation. The detainee shall remain in the police custody for the next fifteen days, creating the possibility of him facing torture or even death, if the concerned official does not abide by the laws.

On a landmark judgment in the case of Blast v Bangladesh and Others in 2003, a High Court bench issued a 15 point directive to be followed by the Government while arresting, detaining or remanding an accused. The 15th point stated A Magistrate shall inquire into the death of a person in police custody or in jail as recommended and recommendation, immediately after receiving the information of such death.” In light of Article 35 of The Constitution, The bench also remarked that taking an accused and extorting information by obtaining force is unconstitutional.

The Constitution, in its Article 35 clause 5, expressly prohibits torture and acts amounting to torture. But it also states that this clause will not affect the operation of any existing law which prescribes any punishment or procedure for trial. This lack of a proper law made the Parliament consider this pressing issue.

It enacted the Torture and Custodial Death (Prohibition) Act, 2013 giving effect to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This act defines Custodial Death to be the death of a person in the custody of a police officer. It also implies death of a person during an illegal detention, at the time of arrest or taken into detention.

Section 15(ii) states that if any person dies because of the torture in custody, then the perpetrator shall be punished with a rigorous imprisonment for life or be liable to pay Tk.100,000 or both, in addition to a minimum of Tk.200,000 to the victim. The Act enables the aggrieved person to apply directly to the court for a judicial investigation, understanding the possibility of bias.

One of the notable cases filed under this Act was that of Sub Inspector Jahidur Rahman Khan’s who was implicated for the custodial death of a garment-waste trader in Mirpur in 2014. However four years later, the Bangladesh Police demanded an amendment to this Act as they it finds it will obstruct their normal activities. Human Rights Organizations believe revising this law would undermine the human rights in the country.

Despite the 2003 High Court judgment and the 2013 Act, there have been many reported custodial deaths at the hands of the law enforcers. The case of Advocate Palash is the latest one but it surely did raise an eyebrow about the custody situation post 2013 Act.

The citizens of the country consider the Police their guardians. But the actions of a few give the entire force a bad name. The last place to die is inside a prison cell, away from family. As goes with its tagline Rakhibo Nirapod, Dekhabo Alor Poth (We will keep you safe and show you the path of light), the Bangladeshi prsions are not only a correctional facility but a safe haven. The case of a lawyer being burnt alive must not go unnoticed. The involved officials must be identified and brought to justice by the jail authorities in order to remove the stigma from their name.

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