e_Paper (11 November 2016)

4
FRIDAY, NOVEMBER 11, 2016
DT
News
Supreme Court verdict on arrest and remand
• Ashif Islam Shaon
The Bangladesh Supreme Court has
issued guidelines for the law enforcement
agencies and magistrates
over sections 54 and 167 of the Code
of Criminal Procedure (CrPC).
Section 54 empowers the police
to detain any person under suspicion
while Section 167 empowers them to
question an accused in remand.
In its full verdict the Appellate
Division has issued 10 guidelines for
the law enforcers about detaining
anyone on suspicion and nine guidelines
for magistrates, judges and tribunals
to deal with an accused.
A four-member Appellate Division
bench headed by Chief Justice
Surendra Kumar Sinha had passed
the order on May 24 this year, upholding
the High Court’s 2003 verdict
in a writ petition filed by Bangladesh
Legal Aid and Services Trust
(BLAST). The petition had sought
implementation of a judicial committee
recommendations which
investigated a private university
BIGSTOCK
student’s death after arrest under
Section 54.
In its verdict the High Court had
asked the government to amend
the sections within two months in
line with instructions given by the
court. The apex court has, however,
made some changes and issued
the final guidelines.
The Appellate Division yesterday
said that the court has formulated
some basic responsibilities
for the law enforcement agencies
to maintain at all level.
The Supreme Court has directed
magistrates, tribunals, courts and
judges – who have the power to take
cognisance of an offence as a court
of original jurisdiction – to ensure
observance of these guidelines.
The court also directed the inspector
general of police and the
director general of Rapid Action
Battalion (RAB) to circulate the
guidelines to all police stations for
compliance. It asked the registrar
general to circulate it for compliance
by the magistrates.
Guidelines for law enforcement agencies
(i)
(ii)
(iii)
(iv)
(v)
A law enforcement officer making the arrest of any person shall prepare a memorandum
of arrest immediately after the arrest and obtain the signature of the
arrestee with the date and time of arrest in the memorandum.
The law enforcement officer must inform a nearest relative of the arrestee – or,
in the absence of such relative – a friend suggested by the arrestee of the arrest
and the place of custody as soon as possible but not later than 12 hours.
The ground of arrest; name and address of the complainant; the name and address
of the relative or friend to whom information about the arrest is given;
and particulars of the law enforcement officer in whose custody the arrestee is
staying must be registered.
Registration of a case against the arrested person is a must for seeking detention
either in law enforcement officer’s custody or in judicial custody under Section
167(2).
No law enforcement officer shall arrest a person under Section 54 for the purpose
of detaining him under Section 3 of the Special Powers Act 1974 (for detention
or deportation).
(vi) A law enforcement officer shall disclose his identity and if demanded, shall
show his identity card to the person arrested and to those present at the time of
arrest.
(vii) If the law enforcement officer finds any marks of injury on the person arrested,
he must record the reasons for such injury and take the person to the nearest
hospital for treatment and obtain a certificate from the attending doctor.
(viii) If the person is not arrested from his residence or place of business, the officer
must inform the nearest relative of the arrestee in writing within 12 hours of
bringing the arrestee to the police station.
(ix)
(x)
The law enforcement officer shall allow the person arrested to consult a lawyer
of his choice if he so desires or to meet any of his nearest relation.
If an arrestee needs to be kept in custody for more than 24 hours, the law enforcement
officer must state in the forwarding letter to a magistrate why the
investigation cannot be completed within 24 hours and why he considers that
the accusations against the person are well founded. He shall also provide the
magistrate with a copy of the case diary.
Guidelines for magistrates, judges and tribunals
(i) If a person is produced for detention in custody without a copy of the case diary,
the magistrate or the court or the tribunal must release the person upon taking
a bond.
(ii) A magistrate/court/tribunal must not allow showing an arrestee arrested in another
case unless a copy of the case diary for that case is produced or if the
ground of the prayer is found not well founded or baseless.
(iii) On fulfilment of the above conditions, if the investigation of the case cannot be
concluded within 15 days of detention and if the case is exclusively triable by a
court of Sessions or Tribunal, a magistrate may send the accused on remand for
a term not exceeding 15 days at a time.
(iv) If the magistrate is satisfied that the accusation or the information about the
arrestee is well founded and that his detention is justified, the magistrate shall
pass an order for further detention in such custody as he deems fit and proper,
until legislative measure is taken as mentioned above.
(v) If a magistrate realises that a prayer aims at preventive detention, then the magistrate
shall not make an order of detention of a person in the judicial custody.
(vi) It shall be the duty of the magistrate/tribunal, before whom the accused person
is produced, to satisfy that these requirements have been complied with before
making any order under section 167 of the CrPC.
(vii) If the magistrate has reasons to believe that a law enforcement officer who has
legal authority to commit a person in confinement has acted contrary to law,
the magistrate shall proceed against such officer under Section 220 of the Penal
Code.
(viii) Whenever a law enforcement officer takes an accused person in his custody on
remand, it is his responsibility to produce that person in court upon expiry of
the remand period; and if it is found that the arrested person is dead, the magistrate
shall direct for the examination of the victim by a medical board; and in
the event of burial of the victim, he shall direct exhumation of the dead body for
fresh medical examination; and if the report of the board reveals that the death
was homicidal in nature, the magistrate shall take cognisance of the offence
punishable under Section 15 of the Hefajate Mrittu (Nibaran) Ain 2013 against
the officer concerned and the officer-in-charge of the police station concerned
or the commanding officer of such officer in whose custody the death of the
accused took place.
(ix) If there are materials or information to a magistrate that a person has been
subjected to torture or died in custody within the meaning of Section 2 of the
Nirjatan and Hefajate Mrittu (Nibaran) Ain 2013, the magistrate shall refer the
victim to the nearest doctor in case of torture and to a medical board in case of
death for ascertaining the injury or the cause of death; and if the medical evidence
reveals that the person detained has been tortured or died due to torture,
the magistrate shall take cognisance of the offence on his own under Section
190(1)(c) of the CrPC and proceed in accordance with law.