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Private person's power to arrest: When and how?
Tanjib Rashid Khan
FROM a long time, the common people of our country hold a severe misconception about the power to make an arrest. They think that only the members of the law enforcing agencies such as Police, RAB etc, can make arrest. Such misunderstanding has gradually spread over the time, because most of these people are not aware of those certain situations where the law of Bangladesh empowers a private person to arrest a suspected criminal, even without a warrant. From my viewpoint, our weak legal infrastructure could be partly blamed for this lack of awareness among the general people. The absence of even a single case on this issue over the last 20 years in the record of our Supreme Court supports my aforesaid statement.
Though no existing law has yet defined the phrase- 'Private Person's Arrest', but literally it denotes to an arrest that is made by a person who is not a member of the law-enforcing agency. It is also known as Citizen's Arrest in some common law countries. In Bangladesh, such arrest can be made with or without the issuance of a warrant. Though in case of arrest without warrant, there is a major jurisdictional difference between police/RAB and private person. That is, a police/RAB officer has the power to arrest suspected criminals before, while or after committing the crime, but if we interpret the related laws of our country, we will find that a private person can arrest only while committing the very act of crime. Moreover, the law of our country has restricted a private person's power to arrest by some particular statues.
The statute named Code of Criminal Procedure, 1898 contains mandatory guidelines to be followed in conducting criminal procedure in our country. This statute empowers a private person to arrest only those suspected criminal who commits an offence, or is a declared offender by the government (Section 59). Then again, we have another statute namely the Explosives Act, 1884, which was enacted with a view to regulating the manufacture, possession, use, sale, transport and importation of Explosives in our country. This statute gives a private person the jurisdiction to arrest a suspect who tends to cause explosion or fire in any explosive manufacturing factory, explosive containing store, railway, port, carriage, ship or boat (Section 12). Nevertheless, the Arms Act, 1878 that was enforced for consolidating the laws relating to arms & ammunition also authorizes a private person to arrest anyone who is found carrying any unlicensed arms & ammunitions (Section 13).
Despite the existence of these provisions in our legal system, most of our citizens are not entirely conscious of it. Moreover the small portion that are conscious, do not even know how to implement. Furthermore ambiguity arises when we find no pre-defined statutory section directing the very procedure of making an arrest by a private person. However as a common law country, the following customary process should be followed in Bangladesh-
The first step of making a citizen's arrest would be to warn the suspect by telling them to stop committing the very act of crime, and also to notify them that they're not allowed to leave until a police officer comes. It must be kept in mind that the private person has no right to question or search the suspect, or to seize any kind of evidence. If the suspect tries to leave, the person should think very carefully before physically restraining the suspect, as by doing so, not only will he put himself in physical danger, but also he could be subject to legal liabilities for use of excessive force. After restraining the suspect, he should call the local police department from his cell-phone, or send someone to call. It is not recommended to transport the suspect to the local authority himself. When the police arrive, the person should let them know his identity, what he saw, and why he held the suspect. He must remember that he will probably need to be in court to provide eyewitness testimony for the crime.
A citizen's arrest is only an emergency measure to stop a suspect until law enforcement officials can take matters into their own hands. But no doubt, if adequate public awareness can be developed, it could certainly become one of the most functional tools to assist our law enforcing agencies to shrink crime through the actual involvement of the citizen.
The writer is an Associate in 'LawDev Associates'.
