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Safeguards in arrest: Exploring judicial guidelines

Published : Monday, 11 February, 2019 at 12:00 AM  Count : 271
S M Shahidullah Mamun

Safeguards in arrest: Exploring judicial guidelines

Safeguards in arrest: Exploring judicial guidelines

The term arrest is very familiar to all. But its judicial guidelines are not familiar to all. In our country, arrest is a serious matter of concern since in most of the cases; arrested individuals are cruelly tortured under the legal terms of detention and remand. Now, it turns into a social curse. In order to prevent such a curse from society, country and world numerous national and international laws, guidelines as well as precedents continuously come from judicial decisions of different nations. Bangladesh judiciary is not exception here.

In this regard, the Supreme Court of Bangladesh laid down a set of guidelines in BLAST Vs. BD [55 DLR (2003) HCD, P. 380], Saifuzzaman v State [56 DLR (2004) HCD, Pp. 342-43] And BD v. BLAST [8 SCOB (AD) 2016, P. 1] with regard to exercise of power of arrest, detention and remand consecutively under section 54, 161 and 167 of the CrPc along with section 3 of the SPA and 316 of PRB where these sections provide the Police and LEA excess power which is mostly abused by them.

In case of arrest without warrant, section 54 of the CrPc is mostly abused by the Law Enforcement Agencies (LEA) which also mostly causes torture as well as violation of right to life, violation of safeguard as to arrest and other related whereas our constitution ensures directly and indirectly right to protection from torture in arrest, detention and remand under article 33, 35 (5), 32, 31, 27, 26 and 7 of the Constitution of the People's Republic of Bangladesh; sections 15 (1), (2) and (3) of the Prohibition to Torture and Death in Custody, 2013; section 29 of The Police Act of 1861.

On the other hand, in international laws, article 7 of ICCPR; art. 5 and 7 of UDHR; art. 5 (2) of ACHR; art. 3 of ECHR; art. 1-3 & 13-16 of CAT Convention; art. 32 Geneva Convention; art. 37 (a) of CRC also protect right to protection from torture in arrest, detention and remand.

But, sadly in spite of having a set of national and international laws in place, section 54 goes against constitution where specifically section 54 (1) contains two vagueness and ambiguous terms:  'Suspicious Reasons' and another one is "Credible Information" because these two terms don't illustrate the nature and character of suspicious reasons as well as credible information in arresting any person.

In this respect, Appellate Court in a case BD v. BLAST [8 SCOB (2016) AD 1]defined the terms as "so vague" where there is chance for misuse of the power by a police officer, and accordingly, a police officer while exercising such power, his satisfaction must be based upon definite facts and materials placed before him and basing upon which the officer must consider for himself before he takes any action.

In Saifuzzaman v State [56 DLR (HCD) 324]  the High Court Division held that what is a reasonable suspicion must depend upon the circumstances of each particular case, but it should be at least founded on some definite fact tending to throw suspicion on the person arrested and not on a mere vague surmise. Generally, the law enforcement agencies abuse the terms and following this terms they are used to cause any different types of brutal torture and inhuman treatment through arrest, detention and remand in police custody.
In addition, the word "concerned" used in section 54 of CrPC is a vague word which gives unhindered power to a police officer to arrest any person stating that the person arrested by him is concerned in a cognizable offence. Now, the police officers must write the reason of arrest and mustn't arrest any offender until him/her meet with his family member on the matter of arrest and must have facility to choose advocate.

In case of Mrs Aruna Sen v. Government of Bangladesh it is held that the ground on which order of detention is made must be communicated to the detent to enable him to make represented at the earlier opportunity. There are complaints of indiscriminate arrest of innocent persons who are subjected to third degree methods with a view to extracting confessions. This is termed by the Supreme Court of India as "State terrorism". In this regard,    some reliable guidelines for arrest are mandated in BLAST v. Bangladesh [8 SCOB 1 (AD 2016)], Saifuzzaman v. State and Bangladesh v. BLAS those have been pointed out below.

Firstly, a police officer shall not arrest anyone under section 54 in order to detain under section 5of the Special Power Act, 1974. Secondly, at the time of arrest, a police officer shall disclose his/her identify and show ID card on demand to the person arrested. Thirdly, the concerned officer shall record the reason of arrest and other particulars in a separate registrar.

Fourthly, the concerned officer shall marks injury and if arrested person is injured shall take him/ her to hospital or government doctor. Fifthly, the concerned police officer shall records the reasons of arrest within three hours of bringing him/her to the police station. Sixthly, the police officer shall within one hour inform over the phone or through messenger to the relatives of person arrested if he is not arrested from residence or place of business; The person arrested must be allowed to choose a lawyer for defence or to meet nearest relation;

Seventhly, the police officer shall prepare a memorandum of arrest after arrest and shall take signature of arrestee with date and time of arrest in the memorandum.

Eighthly, the police officer shall inform on about arrest to the relative of arrestee or suggested friends within 6 hours after notifying the time and place of arrest and the place of custody but in 2016 appellate division extended the time limitation of notifying from 6 hours to 12 hours;
Ninthly, the police officer shall record of the ground of arrest and the name of informer along with address and shall also record the name of relatives to whom information is given about the arrest.

In general, It can be rightly said that role of judiciary in protecting the rights of the citizens is crucial. And in ensuring rule of law, these above mentioned guidelines should the LEA be followed in arresting any person without any warrant. And as per article 7 and 26 of our constitution, the terms contained vagueness should also as soon as possible be amended by concerned authority.

The writer is a student of law of Britannia University



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