Arrest and remand: Behind the apex court's salutary directives

Media reports have it that the Supreme Court has issued a 19 point guideline for police, magistrates and judges to stop arbitrary arrests on suspicion and torturing arrestees on remand. The concerned section of the procedural legislation that is the Criminal Procedure Code has been termed as draconian. The Supreme Court observes that "In fact, the present Code is not at all suitable for the administration of criminal justice after so many changes made in the meantime and it is high time to promulgate a new Code".

It is interesting to note that media reports project Section 54 of the Code as a nefarious provision that empowers police to arrest anyone on mere suspicion (the law says reasonable suspicion), the apex court did not declare the said provision illegal. It would appear that in doing so the court displayed wisdom and pragmatism and therefore, there is a need to understand and appreciate the relevant issues and its import from a broader perspective.

Coming to law enforcement scenario of the developing countries, a cynical view is that politicians do not want to professionalise the police because control over it is central in a polarised society. Ironically, our political leaders who since 1947 occupied positions of power were enamoured by the administrative and police system left behind and enjoyed exercising power and authority, oblivious of their own demand of yesteryears for far-reaching administrative reforms. The periods of unconstitutional rule in Bangladesh brought out in full virulence the repressive role of the inherited police system.

Historically speaking, for the British, the maintenance of their rule in India was the prime consideration. Crime control was only a secondary objective to be achieved through fear of the police. The Penal Code, Criminal Procedure Code and the Evidence Act put in place a legal framework and a police force equipped for the maintenance of British rule by force. The Penal Code prioritises offences against the state and the maintenance of public order. It begins consideration of traditional crime only from Section 299 onwards. The Criminal Procedure Code begins with the "arrest of persons" and the "maintenance of public order and tranquillity" before getting to grips with criminal procedure relating to investigation and trial.

It would be relevant to remember that our political leaders have failed to introduce administrative changes in tune with the provisions of the republican Constitution of Bangladesh. The police have remained distant from the people and are as disliked as before.

The blanket power of superintendence vested in the government by the Police Act, 1861, is not appropriate in a democracy. Further, the role of intelligence agencies has not been redefined to protect the fundamental right to freedoms of association, expression and movement. The police in Bangladesh still keep a watch on all political activities without discrimination, which gives them authoritarian powers antithetical to the democratic spirit.

The CHRI (Commonwealth Human Rights Initiative) study on South Asian Policing says that it is a considered view that there must be clear understanding of what kind of policing is required by a democracy. Policing in South Asia requires reform of the relationship between police and the political executive, improvement in the management and leadership of police, attitudinal changes of all stakeholders, improvements in provisioning and, most of all, much better external oversight and accountability. These issues have to be considered at the outset and kept at the forefront of any discussion on reform.

The enforcement situation on the ground is admittedly complex; and both the law enforcers and the rights advocates know the difficulties that exist between establishing principles on the one hand and applying them on the other. The political will has to be established along with embarkation of long-term plan with a multifaceted approach and adequate financial resources.

The primacy of political will lies in the fact that it is at the level of government that law is established. It is thus impossible not to evaluate this aspect when one is considering the subject of human rights and law enforcers. It has to be remembered that the police are required in accordance with law, and it is the law that establishes the condition in which they operate.

Legally speaking, Section 167 of the 'Code of Criminal Procedure' states that "whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 61, and there are grounds for believing that the accusation or information is well-founded, the officer-in-charge of the police-station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time forward the accused to such magistrate."

The magistrate has to decide, though prima facie, on the material contained in the diary relating to the case, whether or not the detention in prison of an accused person is necessary, and in coming to a conclusion, he has to exercise his judicial mind. Only when the magistrate could and did apply that mind can it be said that the order made for the additional detention in police custody is a valid order.

Real-life experience shows that the power to grant remand has not been applied as discreetly as desired in the law. The police as investigator has resorted to prayer for remand on far too many occasions and not enough judicial application of mind has been there in the process. A complaint is often made to the effect that remand is sought to apply to third degree methods with a view to obtaining judicial confession.

In view of the doubts and uncertainties, if the investigating agency stands accused of being dictated by the wishes of successive establishment, as is the apprehension, then we need to find out why this has happened. In the same vein, one needs to know why some very high-profile politically sensitive accused did not have the benefit of obtaining bail in any one of the multiple cases lodged against them at a particular point of time but subsequently got it in all the cases with the ushering in of another political regime.

From a literal reading of the law, one may not be able to make much of an issue, but the real problem lies in the application of the law on ground. There is no denying that both law enforcement personnel and the lower judiciary have failed to control or lessen the ill effects of indiscriminate action under Section 54.

So far as police officers are concerned, the register for enquiry under Section 54 maintained at police stations has not been properly supervised. Every enquiry of arrest under Section 54 needs to be disposed of within fifteen days and if no specific case is made by then, the arrestee has to be discharged. This has not been ensured. The majority of such arrests lead to no case being made against the arrested persons. However, for unlawful arrest or damage in terms of liberty or honour, no police officer is charged.

As far as the subordinate judiciary is concerned, the provision of bail for arrests under Section 54 is considered mandatory, unless the subject has been shown as 'unidentified'. Arrest under Section 54 for prosecution under preventive detention cannot be entertained. Preventive detention requires specific evidence.

If superior police officers and members of subordinate judiciary apply their mind, assert their authority and decide to act proactively, the abuse and misuse of Section 54 of the Criminal Procedure Code can be substantially controlled to the relief of hapless citizens.

The fact is that when investigative skills entailing unbiased efforts emerge consequent upon a strong political direction, there would be no need to resort to extra-legal measures. In such an atmosphere, information and intelligence would come voluntarily to the benefit of victims of crime.

The rule of law and criminal jurisprudence may appear to be unequivocally in favour of the offenders, the criminals, the law-breakers, the accused persons. That does not automatically give a license to resort to illegal measures because a civilised government must earnestly strive to demonstrate that law-enforcement effectiveness and civil liberties can co-exist in a society governed by the rule of law.

The writer is a columnist of The Daily Star.