Compensation can be obtained for torture or death in the police custody

High Court Division (Special Original Jurisdiction),
The Supreme Court of Bangladesh,
Writ Petition No 3806 of 1998,
Bangladesh Legal Aid and Services Trust (BLAST)
and others
Vs
Bangladesh and others,
Before Mr. Justice Md Hamidul Haque and Justice Salma Masud Chowdhury.
Date of Judgement: April 7, 2003.
Result: Rule is disposed with directions.

(Continued from the previous issue)

Md Hamidul Haque, J: Now, we like to discuss what safeguards may be suggested for ensuring the liberty of the citizen and enforcement of the fundamental rights as guaranteed in the Constitution. In section 54 of the Code we have found from the language used, the police can exercise the power abusively. There is nothing in this section which provides that the accused be furnished with the grounds for his arrest. It is the basic human right that whenever a person is arrested he must know the reasons for his arrest. As the section 54 now stands, a police officer is not required to disclose the reasons for the arrest to the person whom he has arrested. Clause (1) of Article 33 of the Constitution provides that the person who is arrested shall be informed of the grounds for such arrest. It is true that no time limit has been mentioned in this Article but the expression "as soon as may be" is used. This expression "as soon as may be" does not mean that furnishing of grounds may be delayed for an indefinite period. According to us, "as soon as may be" implies that the grounds shall be furnished after the person arrested is brought to the police station after his arrest and entries are made in the diary about his arrest. Unfortunately, this provision of the Constitution is not followed by the police officers. It is strange that they are very much over jealous in exercising the powers given under section 54 but they are reluctant to act in accordance with the provisions of the Constitution itself. Constitution is the supreme law of the country and shall prevail over any other law. It is the duty of every one in the country to adhere to the provisions of the Constitution. It is unfortunate that instead of adhering to the provisions of the Constitution, the police officers are interested in exercising the powers given to them under the Code without any hindrance.
The constitution not only provides that the person arrested shall be informed of the grounds for his arrest, it also provides that the person arrested shall not be denied that right to consult and to defend himself by a legal practitioner of his choice. We are of the view that immediately after furnishing the grounds for arrest to the person, the police shall be bound to provide the facility to the person to consult his lawyer if he desires so. Here, again we like to mention that the persons arrested by the police under section 54 are not allowed to enjoy this constitutional right. Not only this right is denied, even the police refuses to inform the nearest or close relation of the person arrested. We are of the view that the person arrested shall be allowed to enjoy these rights immediately after he is brought to the police station from the place of arrest and before he is produced to the nearest Magistrate. We like to give emphasise on this point that the accused should be allowed to enjoy these rights before he is produced to the Magistrate as this will help him to defend himself before the Magistrate properly. He will be aware of the grounds for his arrest and he will also get the help of his lawyer by consulting him. If these two rights are denied, this will amount to confining him in custody beyond the authority of the Constitution. So, we like to suggest some amendments in section 54 so that the provisions of this section are made consistent with the provisions of part-III the Constitution. Similarly, we have also noticed that some provisions of section 167 are inconsistent to some extent with the provisions of the Constitution such as clause (4) and (5) of Article 35 and in general provision of Article 27, 31 and 32. So, we shall also suggest some amendments in section 167 of the Code. To give full effect to the proposed amendments, we are also of the view that some other related sections are also to be amended -- for example, section 176 of the Code, section 44 of the Police Act, section 220, 330 and 348 of the Penal Code. Before, we like to set out our recommendations for the amendment of those sections, we like to give our consideration about the other points raised by the learned Advocates.
Mr. Amir-ul Islam has pointed that now a days in most of the cases different persons are arrested under section 54 of the Code on political grounds in order to detain him under the provisions of section 3 of the Special Powers Act, 1974. According to him, this is a concrete example of colourable and abusive exercise of power by the police. We accept the argument of Mr Amir-ul Islam. Mr Abdur Razzaque Khan, the learned Additional Attorney General conceded that arrest of a person under section 54 of the Code for the purpose of detaining him under section 3 of the Special Powers Act is not proper. As we have quoted the section 54 earlier, we have found that a police officer may arrest a person under that section, under certain conditions. Main condition is that the person arrested is to be concerned in a cognisable offence. So, first requirement to arrest a person under section 54 is that the same person is concerned in any cognisable offence. The purpose of detention is totally different. A person is detained under the preventive detention law not for his involvement in any offence but for the purpose of preventing him from doing any prejudicial act. So, there is no doubt in our mind that a police officer cannot arrest a person under section 54 of the Code with a view to detain him under section 3 of the Special Powers Act, 1974. Such arrest is neither lawful nor permissible under section 54. If the authority has any reason to detain a person under section 3 of the Special Powers Act, the detention can be made by making an order under the provision of that section. And when such order is made and handed over to the police for detaining the person, the order shall be treated as warrant of arrest and on the basis of that order, the police may arrest a person for the purpose of detention. But a person cannot be arrested under section 54 of the Code for detaining him under section 3 of the Special Powers Act.
Now, as regards the custodial death and torture we have already mentioned about the clause (4) and (5) of Article 35 of the Constitution. Torture or cruel, inhuman or degrading treatment in police custody or jail custody is not permissible under the Constitution. So, any such act is unconstitutional and unlawful. Now, a question is raised whether this court is competent to award compensation to a victim of torture or to the relation of a person whose death is caused in police custody or jail custody. We have considered the principle laid down in the case reported in AIR 1977 (SC) 610. According to us, this Court, in exercise of its power of judicial review when finds that fundamental rights of an individual has been infringed by colourable exercise of power by the police under section 54 of the Code or under section 167 of the Code, the Court is competent to award compensation for the wrong done to the person concerned. Indian Supreme Court held the view in the above case that compensatory relief under the public law jurisdiction may be given for the wrong done due to breach of public duty by the state of not protecting the fundamental right to the life of a citizen. So, we accept the argument of the learned Advocate for the petitioner that compensation may be given by this Court when it is found that confinement is not legal and death resulted due to failure of the state to protect the life. But at the same time we like to emphasis that it will depend upon the facts and circumstances of each case. If the question of custodial death becomes a disputed question of fact, in that case, under the writ jurisdiction it will not be possible to give compensation. But where it is found that the arrest was unlawful and that the person was subjected to torture while he was in police custody or in jail, in that case, there is scope of awarding compensation to the victim and in case of death of a person to his nearest relation. As regards the occurrence of death which are mentioned in this writ petition, it appears that specific cases were filed and trial of those cases were completed in accordance with law and appeals are now pending. In those cases, the Writ Court has not given any decision as to whether the arrest or detention was unlawful. In view of this position, we do not think it proper to award any compensation in this writ petition.

In view of our discussion above, the Rule is disposed of with a direction upon the respondent Nos. 1 and 2 to implement the recommendations made above within six months. All the respondents are also directed to implement the directions made above immediately.

Directions
1) No police officer shall arrest a person under section 54 of the Code for the purpose of detaining him under section 3 of the Special Powers Act, 1974.
2) A police officer shall disclose his identity and if demanded, shall show his identity card to the person arrested and to the persons present at the time of arrest.
3) He shall record the reasons for the arrest and other particulars as mentioned in recommendation A (3) (b) in a separate register till a special diary is prescribed.
4) If he finds, any marks of injury on the person arrested, he shall record the reasons for such injury and shall take the person to the nearest hospital or Government doctor for treatment and shall obtain a certificate from the attending doctor.
5) He shall furnish the reasons for arrest to the person arrested within three hours of bringing him in the police station.
6) If the person is not arrested from his residence or place of business, he shall inform the nearest relation of the person over phone, if any, or through a messenger within one hour of bringing him in the police station.
7) He shall allow the person arrested to consult a lawyer of his choice if he so desires or to meet any of his nearest relation.
8) When such person is produced before the nearest Magistrate under section 61, the police officer shall state in his forwarding letter under section 167 (1) of the Code as to why the investigation could not be completed within twenty four hours, why he considers that the accusation or the information against that person is well-founded. He shall also transmit copy of the relevant entries in the case diary B.P. Form 38 to the same Magistrate.
9) If the Magistrate is satisfied on consideration of the reasons stated in the forwarding letter as to whether the accusation or the information is well-founded and that there are materials in the case diary for detaining the person in custody, the Magistrate shall pass on order for further detention in jail. Otherwise, he shall release the person forthwith.
10) If the Magistrate release a person on the ground that the accusation or the information against the person produced before him is not well-founded and there are no materials in the case diary against that person, he shall proceed under section 190 (1) (c) of the Code against that police officer who arrested the person without warrant for committing offence under section 220 of the Penal Code.
11 If the Magistrate passes an order for further detention in jail, the Investigating officer shall interrogate the accused if necessary for the purpose of investigation in a room in the jail till the room as mentioned in recommendation B (2) (b) is constructed.
12) In the application for taking the accused in police custody for interrogation, the Investigating officer shall state reasons as mentioned in recommendation B (2)(c).
13) If the Magistrate authorises detention in police custody, he shall follow the recommendations contained in recommendation B(2)(c)(d) and B(3) (b) (c)(d).
14) The police officer of the police station who arrests a person under section 54 or the Investigating officer who takes a person in police custody or the jailor of the jail, as the case may be, shall at once inform the nearest Magistrate as recommended in recommendation B (3)(e) of the death of any person who dies in custody.
15) A Magistrate shall inquire into the death of a person in police custody or in jail as recommended in recommendation C (1) immediately after receiving information of such death.

(Recommendation portion of the judgement will be published in the next issue).

Dr. Kamal Hossain with Mr. M. Amir-ul Islam, Mr. Md. Idrisur Rahman, Mr. M. A. Mannan Khan, Mr. Tanzibul Alam, Mr. Abu Obaidur Rahman and Mr. Kowsan Ahmed, for the petitioner.
Mr. A. F. Hassain Ariff, Attorney General with Mr. Abdur Razaque Khan, Additional Attorney General, Mr Zaman Akter, AAG and Ms. Kumrunnessa, AAG for the respondents.