Your
Advocate
Q:
In our country police enjoy unlimited power in arresting people, entering
into houses, searching and seizing goods and articles. Instances of
victimisation of innocent persons are not also rare. During search suppose,
a police officer who is acting at the behest of any rival quarters may
himself plant some weapon pistol or contraband like heroin and having
staged a show of recovery from the custody of anyone may arrest him
and implicate him in a false case. In such cases prospect of bail is
slim and chance of conviction is not less.
Needless
to say about the harassment and humiliations of the accused and his
family and friends. The questions that disturb my mind are a) if a person
is really arrested on a false case showing that heroin was recovered
from his possession and charge-sheeted is there any remedy for him?
b) is there any safeguard against arbitrary or intentional search by
police? c) can anybody be convicted on a false case ? if convicted what
is the prospect in appeal? d) suppose that the conviction remain undisturbed
up to the last court , should an innocent man suffer in this way e)
in your opinion in the face of deep rooted conspiracy to victimise an
innocent man how much he can depend upon courts e) do you think that
every innocent man who may be victimised may feel 100% safe that he
would be acquitted? I would be highly obliged if you kindly take my
anxiety seriously and answer at your earliest convenience. Thank you.
Dr.
Animesh Chandra Roy
Jessore.
Your
Advocate: Your anxiety touches deep into the question of success
and failure in our national life. The questions that trouble you like
many others are composite problem emanating from many different aspects
of our lives not to be addressed by a lawyer. The disquiet and lack
of confidence that has taken root in our minds and hearts is the result
of our failure in improving things around us and bringing about a feel
good situation anywhere in our lives. The answer, therefore, must be
given together by the lawyers, doctors, police, politicians, teachers,
and all others who make up the society as whole.
Nonetheless,
I, as a lawyer would try to address your anxiety from the legal point
of view not as much for redress as for demonstration of legal position
in this regard. Since your queries are closely interrelated it would
serve the purpose if I give you a boiled reply.
There
is, in your words, a reflection of some specific sufferings experienced
by you. Be that as it may, I do not and no one can possibly deny that
police in general have failed to inspire confidence of the people and
in fact suffer mistrust in more cases than not. It is, therefore, not
unlikely to suspect an investigating officer (I/O) as acting under the
influence of any powerful quarters inimically disposed to the person
affected. If one is damn convinced about the innocence of the accused
implicated image of police is bound to be badly shattered in his estimation.
The
area of investigation you have indicated is a very sensitive and intricate
area of police activity. There is ample scope for victimisation in such
cases if the I/O wants to for any reason. Law has taken notice of possible
foul-play and provided for guidelines for search and seizure in such
circumstances. Law says, the I/O , before entering upon anybody's premises
must call upon at least two respectable persons of the locality to attend
and witness the search and the occupant of the place also be permitted
to attend during the search. Law does not allow police to go escort-free
in searching a house or place possessed by anyone. There are provisions
for the I/O to be searched himself by the witnesses before he enters
the premises to be searched.
Still
there are loopholes in law and scope of victimisation is there. Besides
other variables lack of legal awareness of our people coupled with lack
of professionalism of the police to a great extent contribute to cases
of victimisation. Remedy does not lie exclusively in the police. Many
different interrelated factors must interplay harmoniously to fit into
the public confidence.
As
for court, in cases of recovery of heroin there may not be possibility
of bail and even there may be conviction if proved. Our anxiety is if
somebody suffers in a false case what is his remedy, or why should he
suffer anyway? Reply is not simple. Courts depend on the papers and
the nature of proof presented in a particular case. I, of course, do
not deny the questions of experience, acumen and ability of a particular
judge to assess evidence and attendant circumstances of the case. Judgement
may go wrong and less is the experience and acumen of the judge the
more would be the risk of wrong judgements passed. It is no denying
that if any innocent man stands convicted for any reason courts suffer
substantially in terms of public confidence. In that case higher courts
are there. But questions basically remains the same. There is no alternative
of the experience and acumen of the judges no matter what is the hierarchy
of the court. Because people cannot afford to suffer for too long precisely
because court is the last resort of suffering masses. Here again you
have to take into consideration the standard of the Bar. i.e., the lawyers.
Can the court reach a just decision without able assistance of the lawyers?
No less the doctors.
But
the question that overrides all- no organ or organizations can work
in isolation. Police, Bar and the Bench are directly related to justice
delivery system. All the agencies must have adequate skill, training
and experiences in their respective fields and work and be allowed to
work harmoniously to the exclusion of any manner of fear, favour, affection
or ill-will. These institutions must be developed by political commitments
to do good to the society. Unless we can overcome our limitations your,
for that matter, our inner cry will linger unabated only to destroy
our souls.
Your
Advocate M. Moazzam Husain is a lawyer of the Supreme Court of Bangladesh.
His professional interests include civil law, criminal law and constitutional
law.
Corresponding
with the Law Desk
Please send your mails, queries, and opinions to: Law Desk, The
Daily Star 19 Karwan Bazar, Dhaka-1215; telephone 8124944,8124955,fax
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