Argumentation of the Need to Amend Article 54 of the Code of Criminal Procedure of 1898

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We all know that the law of Bangladesh prescribes different punishments for different crimes. Similarly, the Code of Criminal Procedure which is called the Criminal Code. It is a law regulating criminal activities in Bangladesh.

There are currently 365 sections in the CrPC. One of the controversial sections is Section 54. Section 54 basically provides for the arrest of a criminal without a warrant. Basically, in order to arrest a criminal, the first thing to do is to get an affidavit from a first-class magistrate, but if the police think it is possible to arrest a person without a warrant for a suspected crime, then the police can do it under this section. Where it is said that in some cases the police can arrest the accused without a warrant.

Fact

There has been a lot of controversy over the abuse of CrPC Section 54 and this section which we have already known. In this section 54, Chief Justice Surendra Kumar Sinha and some wise legal experts presented a paragraph script and judgment in 2016. Where we find a case of BLAST vs Bangladesh (55 DLR 363) where a student of a private university, Shamim Reza Rubel (20) who was a BBA student of Independent University, was arrested by the police under Section 54 of the CrPC, and the police He died in police custody as a result of excessive torture and remand. Many wise lawyers, including the then Prime Minister, condemned the incident and felt that Section 54 needed to be amended. More than 260 people have died in police custody alone in the past six months as a result of police arrests and inhumane torture under this section. And during that time, several women were raped in police custody, including Yasmin of Dinajpur and Kalpana Chakma of Adivasi. Following Rubel’s death, BLAST and several other law enforcement agencies appealed to the High Court over the inhumane treatment of the police.

Argument

The writ respondents to refrain from unwarranted and abusive exercise of powers under section 54 of the code or to seek remand under section 167. The Law enforcing is violated to 27,31,33 and 35 of the Constitution. To show cause as to why the respondents should not be required to compile with the guidelines such as those set out in paragraph 21 of the petition and in Annexure ‘C’ to the petition. Cause as to why the respondent No.4 shall not be directed to compile and make a report from 1971 to date of persons who died in custody or jail or in police locks up. The respondents shall not be directed to make monetary compensation to the families of victims of custodial death, torture and custodial rape. Though writ respondent No.2 denied any police abuse, torture and death in police and jail custody the writ petitioners have annexed.

Based on the above findings, the High Court Division recommends amendments to Sections 54, 16, 17 and 202 of the Criminal Procedure Code, as what is mentioned in the judgment is inconsistent with Part III of the Constitution.

Decision

On this case the judgment of the High Court Division can’t be directed the government to legislate or amend the existing sections 54, 167, 176, 202 of the code and provisions of the Penal Code. Any police officers taking advantage by using section 54 who are arresting innocent citizens without any complain which are violated the fundamental rights under sections 27, 30, 31, 32, 33 and 35 of the Constitution. It has observed that it is the basic human rights when a person arrested by police, he must know the reason. These rights are always denied and the police officer did not inform the nearest or relatives which are violated of fundamental rights. The High Court Division made some recommendations to amend section 54, 167 of the Code and other provisions.

On these recommendations it is observed that most of the recommendations are in the conformity with the part 3 of the Constitution but some of them are redundant, some of them are not practically viable and some of them are exaggeration. For an example, a magistrate can’t decide any case relying the postmortem report of a victim. On the doctrine stare decisis if a decision followed for a time, it has been acted by person in the formation of contracts or disposition of their property of general conduct of affairs, legal procedure, any other ways generally followed by courts. The high court division added a new section after section 44 of the police act. This section contains if a person dies in the police custody or jail the police officer who has arrested r taken him in custody for the relevant interrogation. On 5th October 1998, as in Article 35(5) of the Constitution prohibits torture and cruel, in human degrading treatment and punishment. All the recommendation are not relevant under changed circumstances. The high court division judge the case and gave some responsibilities of law enforcing agencies. These are:

Law agencies fulfill the duty impost upon them by law;
Respect and protect human dignity;
Use force only when strictly necessary;
Protect the human rights guarantee;
Most importantly protect of human life and dignity;
Prevention of crime.

On the relevant case the high division gave the guide lines for the law of enforcement agencies. The government could not take it comfortably on this case. The high court division give power to the magistrates, judges and tribunals. The appeal is dismissed the recommendation and guide lines without any order as to costs. The inspector general of recommend the guide lines to all the police stations for the compliance forthwith to the letter and spirit. At the same time the director general of Rapid Action Battalion is also directed the recommendation for compliance of its units and officers. The register general is also directed to circulate for compliance by the magistrates. The register general also directed to transmit copy of the Judgement to the Secretary, Legislative and Parliamentary Affairs Division, Ministry of Law, Justice and Parliamentary Affairs, Ministry of Home Affairs, IGP Police, DG of RAB for taking necessary steps by recommendation, observations and guide lines which made in the body of the judgement.

Recommendations

Cognizable offenses may be recommended if suspicious or involvement information is found. It can also be recommended under the following conditions:

If a person is arrested by a police officer from a place, home or business establishment under sub-section-1, the arrested person will have to show his/her identity card to the police if he she wants.
After the arrest of a person on the basis of a cognizable offense, all the information of the accused, such as the crime, the reason for the arrest and the time of arrest, etc., must be recorded in the diary immediately after the arrest.
Special evidence has to be recorded in the diary on the basis of clause (2).
If the arrested person is in an injured condition at the time of arrest, the cause of the injury must be recorded and a medical certificate must be collected after treatment at the nearest hospital or government doctor.
All the information such as the reason for the arrest, the crime, etc. must be recorded within three hours of bringing the arrested person to the police station. f. If the accused is arrested in the absence of his home or business establishment or acquaintance, the police officer must notify the next of kin via mobile call or message within one hour of bringing the accused to the police station.
If the arrested person wants, the police officer will allow him to consult a lawyer. Consent to this consultation shall remain in force until the Magistrate resolves in accordance with Article 61.

The following recommendations under section 167. The existing sub-section-2 has been made sub-section-3 in the new issue and the following provision has been added as new sub-section-2.

If a magistrate is satisfied with the information about the accused, the diary, the police officer’s investigation, he can order the accused to be sent to jail, but if the incident is not satisfied with the investigation, he will release him.
If the investigating officer asks for time to investigate, the magistrate will give him time, but that time will not be more than seven days. If the involvement of the cognizable offense is not proved within that period, the magistrate will release the accused.
If the accused is released in accordance with clauses a and b, the magistrate will issue a Suo motu Penal Code under Section 220 against the police officer who made the arrest without filing a complaint or without an arrest warrant

The provisions of sub-section 2 shall be marked as sub-section 3 in the following manner:

If a case is filed within the period specified in sub-section 2, the magistrate may send the accused to jail; the investigating officer may inquire.
If the investigating officer wants to keep the accused in custody through an application in the context of the investigation, he has to show a specific reason to the magistrate. If the magistrate is satisfied, he will be sent to police custody for a maximum of three days.
Before any order comes, the magistrate will give the accused an opportunity to consult with the lawyer and listen to the lawyer of the accused or his party.

Related to subsection 4:

If you want to issue an order through a metropolitan magistrate, a copy must be sent to the metropolitan judge. The Metropolitan Judge will execute the order within 15 days.
In case of police investigation, all the reports have to be submitted by checking through the medical board before being kept in custody.
Only the investigating officer can interrogate him while in custody. If an accused makes a complaint about torture, the previous medical report will be checked by a magistrate.
If the allegation of torture is proved, action will be taken against the investigating officer under sections 190 (1) and 330 of the Penal Code.
If a person dies in prison or custody, the magistrate must be notified.

Attorney General Argument

Article 112 does not mention the word ‘parliament’, which is why executives cannot legislate. Abuse of power cannot be presumed. The High Court exceeds its jurisdiction in advising Parliament on what to do and what not to do. While law enforcement agencies have failed to comply with the 15 guidelines that have led to the ever-increasing violence, revisions and appeals alone are not acceptable for all these atrocities. As the guardian of the law, the Supreme Court has the power to prohibit torture in order to uphold the rule of law. Other countries in South Asia have been able to take necessary action and amend the law against law enforcement atrocities.

Findings of the High Court Division

To safeguard the life and liberty of the citizens and to limit the power of the police the word concerned used in section 54 of the Code is to be substituted by any other appropriate word despite specific interpretation given to the words reasonable, credible the abusive exercise of power by the police could not be some restrictions so that the police officers will be bound to exercise the power within some limits and the police officers will not be able to justify the arrest without warrant. The police officer receives any information from a person who works as source of the police before arresting the persons. The police officer must record the reasons on which his suspicion is based. A person arrested without warrant before a magistrate, the police officer must state the reasons as to why the investigation could not be completed within 24 hours. The case diary used in section 172 is the diary which is meant in section 167(1). The police officer shall be bound to transmit a copy of the entries of the case diary to the magistrate. The detention of an accused person in police custody is an evil necessity, inasmuch as, unless some force is not applied, no clue can be obtained from hard core criminals and such us is unauthorized. A police officer cannot arrest a person under section 54 of code with a view to detain him under section 3 of the special powers Act, 1974.

Observation

S.54 CrPC is a constitutional provision where the police can arrest any person on suspicion without proof or arrest warrant. As a result, many innocent people are either being harassed or dying in police custody. For this reason, an appeal was lodge in the high court against the Act and it was recommended that some changes be made. Because of this law, so that no innocent person is admitted to harassment and does not have to give his life. These recommendations state that, how can the police make arrests, when and how will they interrogate, should they be under the magistrate, how long will they be in police custody? All the benefits have been given and as a result, if this law can be changed as per this recommendation it will reduce the discordant power of the police and it will also reduce the deaths in police custody. The recommendation further states that the accused may consult his lawyer while in police custody. The family will know that he is in jail and there will be a record of everything and the police will not be able to do what they want and rape and death in police custody will decrease. Only, if someone is arrested and harassed on suspicion and failure to give the accused any opportunity to defend himself would be a violation of other articles of the Constitution, which would be considered a violation of human rights and would be against the freedom of the individual anyone. Who dies in police custody will be given a fair trial and the family of the deceased will be compensated. By doing so, no other law will be violated and there will be no injustice. If this recommendation is implemented, the abuse of excessive power of the police will be reduced and corruption will also be reduced. The biggest thing is that the way in which where is no trial in case of arbitrary arrest and harassment or death and the law says that only how to arrest can be made. So, this law should be changed and something should be added. So, our comment is that police are abusing it because of the unparallel power of the police and because of this many innocent people are being punished which is depriving them of their rights as per the Constitution and it is increasing corruption which is not desirable. Therefore, the law should be changed as per the recommendations given and this will reduce and bring under control the extra power of the police. Therefore, if the recommendation is implemented, the Constitution will be protected, rights will be protected and the law will be used properly. In our opinion law should be changed by implementing these recommendations.

Conclusion

The obvious purpose of this case is to amend the section 54 of the Code of Criminal Procedure 1898 as it was no police officer can arrest any person without warrant. A proposal to amend this section was raised in the high court but it was futile. If we take a look at the judgement of the high court closely, it can’t be said that it has directed to amend or enact the several provisions of Penal Code. But it can be said that if the helpless citizen is arrested without lodging a complaint or not investigating the matter in the pursuance of the complaint, the fundamental rights of article 27 of the Constitution are violated without doubt and also the article of 30, 31,32,33, 35. So, it has been clearly mentioned that whenever any person is apprehended by the police, who must let him know the reason. And it is unlawful to misbehave with arrestee who is under police custody. The arrestee has a right to appoint an advocate for his defence without any obstacles and similarly the police have no right to debar from meeting an advocate. But it has been seen the arrestee deprived of executing such privileges. So, the fundamental rights are infringed. For instances, decisions of any case can’t be held depending on only for post mortem report. The case must be investigated. Magistrate are not obliged to obey the police report if not found any complexities of accused after investigation. In case any person dies on the police custody, the jail authority and the police who arrest the person and take him custody for interrogations shall expound the causes of death and must show the relevant proofs. Lastly the whole reason behind arresting that person accused must be expressed.

The government has enacted an Act regarding aforementioned facts. And it has been said, that as Bangladesh signed in the declaration paper of New York against inhumane and scandalous behavior and those country that signed in that paper have claimed to enact a law. The government has issued a law which is in reach of its for implementing the form. The law covers all indecencies mentioned above. We make guidelines so that the police forces follow that in case of detaining and arresting the suspicious person and directing the magistrate, tribunal court and the judges for ensuring that whether they adhere to those or not, who have powers to take in account a crime as per jurisdiction.

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