1

An arrest is the act of apprehending a person and taking them into custody, usually because
they have been suspected of committing or planning a crime. After the person is taken into
custody, usually at a police station, they can be questioned further and/or charged. An arrest
is an important procedure in a criminal justice system.

Police and various other officers have powers of arrest. In some places, a citizen's arrest is
permitted; for example in England and Wales, any person can arrest "anyone whom he has
reasonable grounds for suspecting to be committing, have committed or be guilty of
committing an indictable offence," although certain conditions must be met before taking
such action.[1]. Similar powers exist in France, Italy, Germany, Austria and Switzerland if a
person is caught in an act of crime and not willing or able to produce valid ID.

As a safeguard against the abuse of power, many countries require that an arrest must be
made for a thoroughly justified reason, such as the requirement of probable cause in the
United States. Furthermore, the time that a person can be detained in custody is relatively
short (in most cases 24 hours in the United Kingdom and France and 24 or 48 hours in the
United States) before the detained person must be either charged or released.

https://en.wikipedia.org/wiki/Arrest

Arrest
A seizure or forcible restraint; an exercise of the power to deprive a person of his or her
liberty; the taking or keeping of a person in custody by legal authority, especially, in
response to a criminal charge.

The purpose of an arrest is to bring the arrestee before a court or otherwise secure the
administration of the law. An arrest serves the function of notifying the community that an
individual has been accused of a crime and also may admonish and deter the arrested
individual from committing other crimes. Arrests can be made on both criminal charges and
civil charges, although civil arrest is a drastic measure that is not looked upon with favor by
the courts. The federal Constitution imposes limits on both civil and criminal arrests.

An arrest may occur (1) by the touching or putting hands on the arrestee; (2) by any act that
indicates an intention to take the arrestee into custody and that subjects the arrestee to the
actual control and will of the person making the arrest; or (3) by the consent of the person to
be arrested. There is no arrest where there is no restraint, and the restraint must be under real
or pretended legal authority. However, the detention of a person need not be accompanied by
formal words of arrest or a station house booking to constitute an arrest.

The test used to determine whether an arrest took place in a particular case is objective, and it
turns on whether a reasonable person under these circumstances would believe he or she was
restrained or free to go. A reasonable person is one who is not guilty of criminal conduct,
overly apprehensive, or insensitive to the seriousness of the circumstances. Reasonableness is
not determined in light of a defendant's subjective knowledge or fears. The subjective intent
2

of the police is also normally irrelevant to a court's determination whether an arrest occurred,
unless the officer makes that intent known. Thus, a defendant's presence at a police station by
consent does not become an arrest solely by virtue of an officer's subjective view that the
defendant is not free to leave, absent an act indicating an intention to take the defendant into
custody.

An arrest constitutes a seizure under the Fourth Amendment to the U.S. Constitution, and
thus the procedures by which a person is arrested must comply with the protections
guaranteed by the Fourth Amendment or the arrest will be invalidated and any evidence
seized during the arrest or confessions made after the arrest will typically be suppressed. The
U.S. Supreme Court has ruled that arrests made without a valid arrest warrant based on
Probable Cause are presumptively invalid under the Fourth Amendment. Similarly, arrests
made pursuant to a warrant that is later ruled defective may also be declared invalid, unless
the officer in procuring the warrant and making the arrest acted in Good Faith.

However, warrantless arrests do pass constitutional muster under some circumstances. The
Supreme Court has ruled that warrantless arrests can be made when the circumstances make
it reasonable to do so. For example, no warrant is required for a felony arrest in a public
place, even if the arresting officer had ample time to procure a warrant, so long as the officer
possessed probable cause that the suspect committed the crime. Felony arrests in places not
open to the public generally do require a warrant, unless the officer is in Hot Pursuit of a
fleeing felon. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). The
Fourth Amendment also allows warrantless arrests for misdemeanors committed in an
officer's presence.

The exceptions to the Fourth Amendment's warrant requirement are based on the court's
reluctance to unduly impede the job of law enforcement officials. Courts attempt to strike a
balance between the practical realities of daily police work and the privacy and freedom
interests of the public. Always requiring police officers to take the time to obtain an arrest
warrant could result in the destruction of evidence, the disappearance of suspects, or both.

When an officer does seek an arrest warrant, the officer must present evidence to a neutral
judge or magistrate sufficient to establish probable cause that a crime has been committed.
The Supreme Court has said that probable cause exists when the facts within an officer's
knowledge provide a reasonably trustworthy basis for a person of reasonable caution to
believe that an offense has been committed or is about to be committed. Courts will deny
requests when the warrant fails to describe in particularized detail the person to be arrested.
The evidence upon which a warrant is based need not be ultimately admissible at trial, but it
cannot be based on knowingly or intentionally false statements, or statements made in
reckless disregard of the truth. However, inaccuracies found in a warrant due to ordinary
Negligence will not typically jeopardize a warrant's validity.

Police officers need no justification to stop someone on a public street and ask questions, and
individuals are completely entitled to refuse to answer any such questions and go about their
business. However, the Fourth Amendment prohibits police officers from detaining
pedestrians and conducting any kind of search of their clothing without first possessing a
reasonable and articulable suspicion that the pedestrians are engaged in criminal activity.
Terry v. Ohio, 392U.S. 1, 88 S. Ct. 1868, 21 L. Ed. 889 (1968). Police may not even compel
a pedestrian to produce identification without first meeting this standard. Similarly, police
may not stop motorists without first having a reasonable and articulable suspicion that the
3

driver has violated a traffic law. If a police officer has satisfied this standard in stopping a
motorist, the officer may conduct a search of the vehicle's interior, including the glove
compartment, but not the trunk, unless the officer has probable cause to believe that it
contains contraband or the instruments for criminal activity.

Investigatory stops or detentions must be limited and temporary, lasting no longer than
necessary to carry out the purpose of the stop or detention. An investigatory stop that lasts too
long turns into a de facto arrest that must comply with the warrant requirements of the Fourth
Amendment. But no bright line exists for determining when an investigatory stop becomes a
de facto arrest, as courts are reluctant to hamstring the flexibility and discretion of police
officers by placing artificial time limitations on the fluid and dynamic nature of their
investigations. Rather, the test is whether the detention is temporary and whether the police
acted with reasonable dispatch to quickly confirm or dispel the suspicions that initially
induced the investigative detention.

Not all arrests are made by members of law enforcement. Many jurisdictions permit private
citizens to make arrests. Popularly known as citizen's arrests, the circumstances under which
private citizens may place each other under arrest are normally very limited. All jurisdictions
that authorize citizen's arrests prohibit citizens from making arrests for unlawful acts
committed outside their presence. Most jurisdictions that authorize citizen's arrests also allow
citizens to make arrests only for serious crimes, such as felonies and gross misdemeanors,
and then only when the arresting citizen has probable cause to believe the arrestee committed
the serious crime. Witnessing the crime in person will normally establish probable cause for
making an arrest.

Both private citizens and law enforcement officers may be held liable for the TORT of false
arrest in civil court. An action for false arrest requires proof that the process used for the
arrest was void on its face. In other words, one who confines another, while purporting to act
by authority of law which does not in fact exist, makes a false arrest and may be required to
pay money damages to the victim. To make out a claim for false arrest, the plaintiff must
show that the charges on which he or she was arrested ultimately lacked justification. That is,
the plaintiff in a false arrest action must show that the arrest was made without probable
cause and for an improper purpose.

Arbitrary arrest and human rights violation

26 June, 2016 12:00 AM

All human beings are born free and equal in dignity and rights (Article 1, United Nations
Universal Declaration of Human Rights). This short sentence carries a great value for
mankind. As human being, we have some inalienable rights by birth. Our Constitution also
refers to many rights which are very crucial for our daily living. Articles 27, 31, 32, 33 and
35 deal with the rights of arrested and detained persons, their protection under law, right to
4

liberty etc. Needless to say, according to our legal system, the Constitution of The People’s
Republic of Bangladesh is the supreme law. Now the issue is what will happen if any other
law in force fails to maintain the essence of the Article/s of our Constitution.
After the first war of independence in 1857, the British Raj enacted the Code of Criminal
Procedure (CrPC). In Bangladesh CrPC 1898 is used for dealing with the criminal
proceedings. A report submitted by BLAST (Bangladesh Legal Aid Services and Trust)
named ‘The Suspense of Suspicion’ defines that within the CrPC, the British rulers
introduced Section 54, to try the sepoys and those who participated in the revolt against the
Empire. As the British legacy continues in respect to criminal laws, Section 54 has sustained
the reflection of the colonial mentality. This Section mentions certain circumstances when
police may arrest without warrant. This sounds pretty much acceptable for the maintenance of
law and order as sometime it becomes so urgent to arrest an accused that to wait for the order
of magistrate and arrest warrant, may be quite impossible for the police. That is why police
can arrest someone without warrant under section 54 of the CrPC. But in reality, the scenario
is different and harsh. The members of law enforcement agencies of our country are often
accused of abusing their power under this Section and also violating human rights, which is
really a threat for every citizen.
This article would analyse the abusive aspects of Section 54 of the CrPC and will show, how
for this abuse, the essence of human rights under our Constitution is being denied.
In BLAST and others v Bangladesh and others (Rubel killing case) Writ Petition No. 3806 of
1998, Rubel, a student of the Independent University Bangladesh, who was an innocent
victim, implicated under section 54 of CrPC and eventually remanded under section 167. The
latter section is applicable when investigation cannot be completed within 24 hours and a
remand needs to be sought from the court for further interrogation. He eventually died after
being tortured in the police custody. The petitioners referred to recent incidents of custodial
deaths due to abuse of power under Sections 54 and 167. Subsequently on April 7, 2003, a
Division Bench of the High Court, upon its hearing, issued a set of fifteen guidelines
regarding arrest and remand (55 DLR 2003 363) observing how the abuse of power violates
citizens’ fundamental rights to life and liberty (Article 32 of Constitution), to equal protection
of law (Article 31 of Constitution), safeguards as to arrest and detention (Article 33 of
Constitution), protection during trial and punishment (Article 35 of Constitution) and so on.
But the sad part is that even after an era, these guidelines are not being followed thoroughly
and the abuse of power is still going on unabated as has been recently commented by the
Appellate Division of the Supreme Court. In fact, it is even worse that many members of law
enforcement agencies are not so clear about the guidelines provided by the court yet. So what
can we expect from them? Hundreds of innocent victims are being arrested under this Section
every month and they are being harassed.
Many eminent legal persons of our country have voiced their concerns about this malpractice
of the members of law enforcement agencies. Most of them believe that this Section has lost
its original purpose and now it is rather abused to extort money from the innocent victims.
‘‘Instead of using it (section 54) to protect the interest of the people, it is rather used to extort
money from persons or implicate political activists,’’ says Adilur Rahman Khan, secretary of
human rights coalition Odhikar and also an advocate of the Supreme Court. An opinion
expressed by Dr Shahdeen Malik , an eminent jurist is that when no one (in the law
enforcement) is made accountable even for killing, in that context, abuse or arrest without
any reason for harassment and extortion is bound to become almost routine for police and law
enforcing agencies.
Now, the vital point is what we should do to stop this misconduct; otherwise more innocent
lives will be wasted in vain. Recently on 24 May 2016, the Supreme Court of Bangladesh has
dismissed the Government’s appeal and has upheld guidelines which were provided by the
5

High Court Division in 2003, for ensuring that police powers of arrest without warrant
(section 54 of CrPc) and magistrate’s powers on remand (section 167 of CrPC) are used
consistent with constitutional safeguards on arrest and the prohibition on torture. It is
obviously the beginning of a new chapter where all the controversies regarding section 54
and 167 may be solved in a citizen-friendly manner. Relationship between police and the
citizens may witness a new dawn and our justice system may achieve a remarkable progress
through this decision. The law enforcement agencies have to be given training on this burning
issue. The government of Bangladesh has to play a leading role in this matter. But it is also
true that it is quite impossible for the government alone to overcome this immense problem.
The citizens also have to be aware of their rights and they must be concerned about the
relationship between them and the police and try to make it smooth. Bangladesh Legal Aid
and Services Trust (BLAST) has taken initiatives to create awareness about the guidelines
provided by the Court regarding arrest and remand among the judges, magistrates, lawyers,
media, elected public representatives and most importantly the police. Without collaborative
efforts, we cannot overcome this threat.

http://www.daily-sun.com/arcprint/details/147228/Arbitrary-arrest-and-human-rights-
violation/2016-06-26

Section 54 and 167 of CrPC: Some Recommendations

Shadeka Jahan

Arbitrary arrest under section 54 of Cr.P.C is a common practice of entire Bangladesh. The
Law Enforcement Agencies are always accused for abusing their powers.

In the year 1998 Bangladesh Legal Aid and Services Trust (BLAST) filed a writ petition
(BLAST VS. Bangladesh reported in 55 DLR page-363) and got specific recommendations
and 15 point directions from the High Court Division of Bangladesh. The judgment was
delivered by Hon'ble Justice Hamidul Haq and Justice Salma Masud Chowdhury.

BLAST organized a roundtable on "Seeking Effective Remedies: Prevention of Arbitrary

Arrests and Freedom from Torture and Custodial Violence" held on 7th April, 2005 in
CIRDAP Auditorium. Barrister Moudud Ahmed, Minister of Law, Justice and Parliamentary
Affairs was chief guest of the roundtable. The Ex Minister of Law, Justice and
Parliamentary Affairs Mr. Abdul Matin Khosru, Justice Habibur Rahman Khan, Barrister
Rokanuddin Mahmud, Dr. Shahdeen Malik, Advocate Nizamul Haq Nasim, Advocate Khan
Saifur Rahman were the special guest of the program. Beside this many civil society
members, Lawyers, NGO and Media representatives attended the roundtable meeting.
6

Some important recommendations were come up through this meeting, such as:

 Sufficient Human rights training should be given to the police personnel.

 A good number of people suggested to establish a monitoring cell in different thanas
to figure out whether there is any abuse of power by the police under section 54 and
167 of Cr PC or not.
 There should be equality and fairness at the time of recruitment and training of the
police.
 The Government receives donations for many unproductive sectors which remain
idle and this money can be used to increase the number of police and police reform.
 Police must behave humane with the person arrested and if there is good discussion
between police and the person arrested then the trend of violence will be reduced.
 The government must establish police ombudsmen.
 Police commissioners should be made responsible to find out the causes of abuse of
police power.
 Some people recommended that, BLAST should take steps to provide necessary
awareness training to the police. Further some participants suggests that BLAST
should send there representative to every thana to monitor the situation.
 Police should be kept free from any Political influence.
 The benefits like salary, Ration, bonus of the Police should be increased, otherwise
they can't work fairly. If a person is arrested without any sufficient ground and
harassed by the police, then the police must be forced to give compensation to the
arrestee, so that the abusing tendency of the police power reduces.

Actually arbitrary arrest and custodial violence is a universal problem. It is true that police
have legal duty and have right to arrest and interrogate the offenders. But he should be aware
that law does not permit him to torture or treated any inhumane behavior with the arrestee
during the time of investigation or questioning. So awareness among police and general
people is necessary

12:00 AM, June 15, 2016 / LAST MODIFIED: 02:06 AM, June 15, 2016

News Analysis

Blatant abuse of power

7

https://www.thedailystar.net/frontpage/cops-flouting-sc-verdict-1239757

A policeman frisks a biker on Darussalam Road in the capital yesterday as a nationwide

crackdown against militants and other criminals continues. Police have so far rounded up 85
suspected militants and over 5,000 other people since the drive began early Friday.

Incidents of police arresting people facing no criminal charges run counter to a Supreme
Court verdict against the police's century-old discretionary powers of arrest on suspicion.

Police legally lost their discretionary powers three weeks ago when the SC upheld a High
Court verdict against the arbitrary use of their sweeping powers.

The High Court in its judgment in 2003 had recommended bringing necessary changes to the
laws to limit the arbitrary use of police powers. Issuing a 15-point directive, it asked the
government to comply with the instruction immediately to stop cops from making arbitrary
arrests on suspicion.

But the arbitrary use of powers by cops has been evident in the arrests of Milon Hossain in
Natore, Mohammad Sekandar in Chittagong and Shimul Ahmed and Sohanur Rahman in
Rajshahi during the ongoing special drive against militants.

All the youths were innocent in the eyes of law prior to their arrests. Even the policemen who
picked them up admitted that none of them were facing any specific cases. They were
detained on suspicion. Cops arrested them in exercise of their discretionary powers of section
54 of Code of Criminal Procedure. This newspaper ran a report yesterday about the ordeal
they faced following arrests.

Like Milon and Sekandar, there are many more who have been victim of the ongoing special
drive. Many incidents remain unreported by media.

Another youth Zahidul Islam in Kustia had to experience brutal use of police powers as he
was picked up on suspicion of having engaged in anti-government activities. This shocked
Zahid's father as he and all his family members are diehard supporters of the ruling Awami
League. [Read the details in our today's report about it.]

Why police are so enthusiastic about arresting people facing no criminal charges? It is for
money? Picking up people on suspicion has long been a means for policemen to make
money. It's one of the major sources of corruption. This practice has been named “arrest
trade”.

This is allegedly happening again in the ongoing special drive. The strategy is -- pay money
to buy freedom or face cases for serious crimes.

Milon of Natore was released only after his uncle gave a police official Tk 5,500. His uncle
agreed to pay the money as the cop threatened to implicate Milon in a motorcycle theft case.

Zahid's father alleged he had to bribe cops Tk 10,000 to ensure that his son was not framed.
8

All these incidents show how some policemen were ignoring the SC's latest verdict and
paying no heed to people's fundamental rights.

Police said they arrested around 12,000 people in the last four days. The police chief claimed
that no innocent people were picked up. But the reality is that many people facing no criminal
charges have been arrested.

If the drive goes on, the number of arrestees would surpass all the previous figures.

According to media reports, around 12,000 people were detained in June 2008 and carted off
to prison in the first eight days of a special drive during the tenure of the caretaker
government.

Over 15,000 people were rounded up in an eight-day dragnet ahead of the April 30, 2004
deadline set by then opposition AL to topple the BNP government.

On both occasions, a large number of political activists were put behind bars in connection
with cases filed by opponents with political motives.

In the ongoing drives, many grassroots BNP leaders and activists have been arrested. It's true
that they are facing cases, but most of them have been accused of street violence during anti-
government agitations.

Assuming office in January 2009, the previous AL-led government withdrew more than
7,000 cases filed against its leaders and activists during the tenures of the past BNP and
caretaker governments. Most of the cases were filed for street violence during anti-
government agitations.

The BNP did the same thing in 2001. The BNP-led government withdrew around 6,000
cases. And if the party returns to power, it is most likely to withdraw all the cases filed in last
few years against its leaders and workers.

The records of filing and withdrawing cases against political opponents say the main problem
lies in our conflicting political culture and tendency to strip away rule of law by the
influential people. In such a political culture, the country's apex court's verdict is not
honoured properly.

Now, the crucial question is: Can only a record number of arrests improve law and order and
ensure rule of law? Or will this cause harassment to many common people and allow a lot of
cops to make money ahead of the Eid?
9

Remand

According to the Criminal Procedure Code, police are not supposed to keep any arrested
person in their custody for more than 24 hours, if the investigation cannot be completed
within 24 hours, police have to produce the arrested person before the court and if any further
interrogation is needed, they can apply for Police custody remand. In any case, irrespective of
the nature of the case the police custody remand cannot be more than 14 days. Thereafter the
accused the transferred to judicial custody till his gets bail.

One more type of remand is transit remand. If an accused is arrested at a place away from the
jurisdiction, he can be produced in local court and a request for transit remand is submitted.

In one of my case in Mumbai, accused persons were arrested in Motihari, Bihar and after
obtaining their transit remand, they were being brought to Mumbai. Near Jabalpur the
acuysed had jumped from running train and escaped in forests. After searching them for three
days, we returned to Mumbai. After about 40 days I obtained arrest warrants for the accused
persons and then traced them in the jungles of Sikkim after 20 days, they were produced in
Darjeeling court and after obtaining their transit remand were brought to Mumbai, where they
were finally tried and convicted.

Remand (also known as pre-trial detention or provisional detention) is the process of

detaining a person who has been arrested and charged with a criminal offense until their trial.
A person who is held on remand may be held in a remand prison, or sometimes in a regular
prison. Varying terminology is used, but "remand" is generally used in common law
jurisdictions. Detention before charge is referred to as custody and continued detention after
conviction is referred to as imprisonment.

Because imprisonment without trial is contrary to the presumption of innocence, in liberal

democracies pre-trial detention is usually subject to safeguards and restrictions. Typically, a
suspect will only be remanded if it is likely that they could commit a serious crime, interfere
with the investigation, or fail to turn up in court. In the majority of court cases, the suspect
will be outside of custody while awaiting trial, often with restrictions such as bail.
10

What is Police Remand? Does it mean permission to torture accused?

Meaning explained.
What is Police Remand? Does it mean permission to torture accused? Meaning explained.

After arresting a person, police officer cannot keep arrested person with him for more than 24
hours.

Within 24 hours police officer has to produce this man physically before a judge. (Here, the arrested
man can also complain to judge if police had beaten him.)

Judge then takes this man in his "Judicial Custody- Judge's custody" and then he sends arrested man
to Jail Authority to keep him on Judge's behalf till further order.

Here, two more things can happen:

1) A lawyer can move an application that his client is innocent, he may be given bail, he will come in
court when required.

2) Here, police officer can oppose grant of bail and he can also make an application, that instead of
sending arrested man to jail, his custody may be given to police.

He will give reasons for such requirement ...like: accused needs to be taken to place of offence to
identify place,..... needs to ask him several things connected with crime... etc etc... List of permissible
reasons is long.

The Judge hears arguments of police through public prosecutor. He also hears lawyer of accused
about why custody should not be given to police. If the arrested person has fear that he could be
beaten up in by police, his lawyers can say also.

Then, if the Judge thinks that it necessary, he gives custody of arrested person to police for few days
so that police can complete investigation. He will also give some safety directions if arrested person
fear that he may be beaten by police.

This is called Remand. There are detailed procedure for what is simplified above. I have written
minimum to explain general idea.

The Remand does not give police any power to torture arrested person for information. After this
given period, he has to again produce arrested person before Judge.

This is the short substance of Remand Order.

There is NO LAW authorising police to torture during custody. If the power is abused and if arrested
person is tortured, there are some ways to complain to judge
11

http://hareshraichura.blogspot.com/2013/09/what-is-police-remand-does-it-mean.html

Police remand and judicial confession

Muhammad Nurul Huda

The subject of taking accused persons to police custody on remand and obtaining judicial
confessions from them has generated lot of heat and discussion and criticisms due to
apparently justifiable reasons. However, it is felt that ordinary members of the public are not
desirably aware of the necessity and ramifications of those two processes of law. Therefore,
in the fitness of things, some discussions on these two judicial measures may serve the public
interest.
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 to whom an accused person is forwarded under this section may, whether he
has or has not jurisdiction to try the case, from time to time authorise the detention of the
accused in such custody as such magistrate thinks fit, for a term not exceeding fifteen days in
the whole."
It needs to be clearly understood that the intention of the legislature, in meeting the
requirements of justice, is to bring the accused to the competent magistrate with as little delay
as possible. The law does not authorise a police office to keep an accused person in his
custody for an indefinite period.
The law evidently views with disfavour the continued detention in the custody of policy
beyond the initially permissible 24 hours; therefore, sending an accused to police remand can
be allowed only in special cases and for reasons to be stated in writing, and not as a matter of
course.
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
can and does apply that mind can it be said that the order made for the additional detention in
police custody is a valid order.
It needs to be clarified that production of an accused person before a magistrate under Section
167, as mentioned earlier, does not amount to taking cognisance or commencement of
judicial proceedings. All that is intended under this section is to authorise continued detention
of the accused.
By requiring the magistrate to record his reasons the law contemplated that the magistrate
should consider whether on the facts placed before him there are good grounds for allowing
such detention. There must be at least something to satisfy the magistrate that the presence of
the persons arrested would, during police investigation, assist in discovery of some evidence.
An accused person may be remanded if it is likely that further evidence may be obtained; but
he cannot be remanded on a mere expectation that time will show his guilt or that further
12

facts would come to light; or simply for the purpose of verifying his confession judicially
recorded, or merely because he is wanted by the police for the purpose of pointing out the
places through which he passed on his way to commit a dacoity, or for the purpose of
obtaining his identification in the village.
It needs to be pointed out that in police remand the accused is entitled to have access to legal
advice under reasonable restrictions because he is in police custody during the course of an
investigation.
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, have resorted to prayer for remand on far
too many occasions than would be desirable and not enough judicial mind application has
been there in the process. A complaint is often made to the effect that remands are sought to
apply third-degree methods with a view to obtaining judicial confession.
Let us, therefore, venture to look at the provision of recording statements and confession as
stipulated in Section 164 of The Criminal Procedure Code. It states that "any magistrate of
the first class and any magistrate of the second class specially empowered may, if he is not a
police officer, record Procedure Code." It states that "any magistrate of the first class and any
magistrate of the second class specially empowered may, if he is not a police officer, record
any statement or confession made to him in the course of an investigation … or at any time
afterwards before the commencement of the inquiry or trial."
It needs to be pointed out that the confession or statement under Section 164 almost always
raises a suspicion that it has not been voluntarily made. In fact, accused persons or witnesses
cannot be pinned down by statements made under this section. Statements thus recorded lead
to a presumption on the showing of the prosecution itself that evidences are weak.
The genuineness and truth of the confession and the fact of its being voluntarily made are
matters which are within the exclusive province of the court of sessions and of the High
Court; and neither the court of sessions nor the High Court can blindly accept the ready-made
opinions of the recording magistrate on those points without having before it materials from
which it could arrive at an independent opinion on those crucial questions on which the fate
of the accused hangs.
It would appear from the foregoing that judicial confession as a piece of credible evidence is
extremely difficult to come by. However, there are frantic efforts to obtain such confessions
without realising the perils to the prosecution's case. Equally disconcerting is the spectacle of
undue request for remand and the apparently less than reasoned granting of such remand to
police custody.
The need now is to cultivate a scientific frame of mind by the investigators and to move from
evidence to accused, and not the other way round, with a view to minimising the abuse and
misuse of remand and confession.

https://www.thedailystar.net/news-detail-162354

Torture in Police remand

December 20, 2014 - ASK Legal Action, Writ Petitions - no comments
13

Writ Petition No. 11138 of 2014

Petitioner: Ain o Salish Kendra (ASK)

Respondents:

1. Secretary, Ministry of Home Affairs, Bangladesh Secretariat, Dhaka.

2. Inspector General of Police, Police Headquarters, Fulbaria, Dhaka.
3. Commissioner of Police, Sylhet Metropolitan Police, Naiorpul, Sylhet.
4. Office-in-Charge, Kotwali Police Station, Sylhet Metropolitan Police, Sylhet
5. Jailor, Sylhet Central jail, Sylhet.

A news item published in the daily Sangbad dated 20.11.2014 under title “সিলেট সিমালে
এলে োিীি উপি ববলিাসিত ব সের্াতে”
ব stating that a woman Anita Vattyacharya was
subjected to torture by police during remand. The same news was also published in the Daily
Prothom Alo and Daily Manabjamin on the same date. According to the news report, Anita
was taken for three days remand as a suspected accused of a criminal case. During remand
Office-in-charge (Investigation), Mr. Monirul Islam and Sub-Inspector Hasina Akhter alias
Akhi of Katwali police Station, Sylhet tortured Anita in an inhuman manner. O.C Monirul
pushed wine to her stomach inserting a pipe into her throat. He also put the boot on her throat
to give confessional statements about the abduction. Even he threatened her to rape. Sub-
Inspector Hasina Akhter Akhi severely assaulted on her sensitive organ. Moreover Anita was
subjected to torture in various manners. Due to the continuous torture in three days remand
Anita became critically sick and she was sent to the court by the police. As per direction of
the learned Magistrate police took Anita to Osmani Medical Collage and Hospital for medical
treatment. But avoiding the advice of the on-duty doctor to admit Anita in the hospital, police
took her to Sylhet Central Jail after giving some minor treatment. Jail authority refuse to
receive Anita, but later on they received her and admitted her to Osmani Medical College and
Hospital.

Ain o Salish Kendra (ASK) filed a writ petition in the above mentioned incident and the same
was moved on 30.11.2014 before a Division Bench of the Hon’ble High Court Division
comprised with Mr.Justice Quazi Reza-Ul Hoque and Mr. Justice Abu Taher Md. Saifur
Rahman. After hearing the Hon’bel court issued a Rule Nisi on the respondents to show cause
as to why they shall not be directed to refrain from unwarranted and abusive exercise of
power resulting torture to the citizen and as to why the respondents should not be directed to
take departmental and criminal actions against the persons responsible for torture in custody
to Anita Vattachariya wife of Kishore Vattachariya of village Alishakool, Police station-
Shreemongol, District- Moulovibazar, at Katwali Police Station, Sylhet. The Court was also
pleased to direct the respondents to submit report as to what steps have been taken against the
persons responsible for torture in police custody to Anita Vattachariya at Katwali Police
Station, Sylhet and to submit report before this Hon’ble Court on or before 06-01-2015.

Advocate Abu Obaidur Rahman conducted the Writ petition and Advocate Abantee Nurul,
Mahjabin Rabbani and Md. Samiul Alam Sarkar assisted him.

http://www.askbd.org/ask/2014/12/20/torture-police-remand/
14

BLAST and others vs. Bangladesh and others [‘Section 54 Guidelines Case’, or ‘Rubel
Killing Case’ or ‘Guidelines on Arrest and Remand Case’]
Writ Petition No. 3806 of 1998

High Court Division of the Supreme Court of Bangladesh

Facts: BLAST, Ain o Salish Kendra, Shonmilito Shamajik Andolon and several individuals
filed a writ petition in the High Court challenging the abuse of police powers to arrest without
warrant under Section 54 of the Code of Criminal Procedure (CrCP) and the abuse of powers
regarding taking the accused into remand (police custody) under Section 167 of the CrPC. The
petitioners referred to recent incidents of gross abuse of power, including allegations of
custodial death, torture and inhuman treatment, especially the killing of a young student,
Rubel, in remand after arrest under Section 54 of the CrPC.

Argument: The petitioners argued that law enforcing agencies routinely abuse the powers
granted under Sections 54 and 167 of the CrPC, and further that these provisions suffer from
vagueness and allow for arbitrary exercise of power. The petitioners argued that the Court
should enunciate safeguards to prevent or curtail police abuse of powers and arbitrary actions
by Magistrates, which constitute violations of citizens’ fundamental rights to life and liberty,
to equal protection of law, to be treated in accordance with law and to be free from cruel,
inhuman and degrading treatment and punishment as guaranteed under articles 32, 27, 31, 33
and 35 of the Constitution.

Order: The High Court initially issued a Rule Nisi, and upon full hearing delivered judgment
on 07.04.2003, observing that Sections 54 and 167 of the CrPC are not fully consistent with
constitutionally guaranteed freedoms and safeguards. The Court laid down a comprehensive
set of recommendations regarding necessary amendments to both sections of the CrPC, along
with the Police Act, The Penal Code and the Evidence Act, and directed that these should be
acted upon within six months. It also laid down a set of fifteen guidelines with regard to
exercise of powers of arrest and remand:

 No Police officer shall arrest anyone under Section 54 for the purpose of detention
under Section 3 of the Special Powers Act, 1974
 A police officer shall disclose his/her identity and show his/her ID Card on demand
to the person arrested or those present at the time of arrest
 A record of reasons of arrest and other particulars shall be maintained in a separate
register till a special diary is prescribed
 The concerned officer shall record reasons for marks of injury, if any, on the person
arrested and take him/her to nearest hospital or government doctor
 The person arrested shall be furnished with reasons of arrest within three hours of
bringing him/her to the Police Station
 If the person is not arrested from his/her residence or place of business, the relatives
should be informed over the phone or through messenger within one hour of bringing
him/her to Police Station
 The person concerned must be allowed to consult a lawyer of choice or meet nearest
relations
15

 While producing the detained person before the Magistrate under Section 61 of the
CrPC, the police officer must forward reasons in a forwarding letter under Section
167 (1) of the CrPC as to why the investigation could not be completed within
twenty four hours and why s/he considers the accusation and information to be well
founded
 On perusal of the forwarding letter, if the Magistrate satisfies him/herself that the
accusation and information are well founded and materials in the case diary are
sufficient for detaining the person in custody, the Magistrate shall pass an order of
detention and if not, release him/her forthwith
 Where a person is released on the aforesaid grounds, the Magistrate shall proceed
under 190(1)(c) of the CrPC against the Officer concerned under Section 220 of the
Penal Code.
 Where the Magistrate orders detention of the person, the Officer shall interrogate the
accused in a room in a jail until a room with glass wall or grille on one side within
sight of lawyer or relations is constructed
 In any application for taking accused in custody for interrogation, reasons should be
mentioned as recommended
 The Magistrate while authorizing detention in police custody shall follow the
recommendations laid down in the judgment
 The police officer arresting under Section 54, or the Investigating Officer taking a
person to custody or the jailor must inform the nearest Magistrate about the death of
any person in custody in compliance with these recommendations
 The Magistrate shall inquire into the death of any person in police custody or jail as
per the recommendations.

Status: The Government has preferred an appeal (Civil Appeal No. 53/2004), which is now
pending before the Appellate Division. However, no stay was granted and the Guidelines are
in force.

Laws Cited: Constitution, Articles 27, 31, 32, 33 and 35; The Code of Criminal Procedure,
1898
https://www.blast.org.bd/issues/justice/214-3806of1998

Abuse of Police Power:

Many human rights activists and media express that police often abuse their power of
unwarranted arrest under section 54 of CrPC 1898. Some ambiguous phrases such as
‘reasonable suspicion’, ‘reasonable complaint’, ‘credible information’, ‘any person who has
been concerned in any cognizable offence’ etc help police to do this in the name of discretion.
16

Another way to abuse is the power under section 167 of the Act in the name of police remand
for completing police investigation with the permission of magistrate beyond 24 hours. Here
many occurrences happen against human right of the detainee. Inhumane torture and custodial
death often occurs, causing severe violation of human rights. But for the sake of justice or as
an official duty, most of the time magistrates often allow this reprimand.[8]

BLAST, ASK and Others vs. Bangladesh and Others [9] case is an example in regard where
Arbitrary Arrest and Unreasonable Police Remand have been challenged. In this case, Shamim
Reza Rubel, a student of Independent University ,was arrested by Detective Branch Police and
later on he died in custody through brutal torture by police in the name of remand. This
shocking incident raised immense criticism and protest against police among human right
organization and civil society for abusing power of section 54 and 167 of CrPC 1898. [10]

Problems faced by Police:

Among various problems, followings are notable barriers which hinder the police to perform
their duty:

Political and Bureaucratic Interferences

Political and bureaucratic interference are the most significant impediments to police efficiency
and have resulted in the worst forms of abuse including illegal detention, death in custody,
torture and pervasive corruption. All governments, till now, have used the police to crush
political enemies while many politicians have used them to advance their personal interests.
Low police salaries and government control of promotions and transfers etc remind that police
are dependent on the political leadership, which prevents investigation of serious issues of
corruption, organized crime or other matters. In other words, some political leaders would
remain untouched by law enforcements.[11]

http://www.lawjournalbd.com/2016/08/protection-of-human-rights-and-effective-policing-
bangladesh-perspective-2/
17

Police remand: Concept and procedure

Police remand: Concept and procedure

Put in very simple terms, a remand is another name for an adjournment of a case. However,
in criminal justice system remand is known as having a particular meaning. When a case is
adjourned, the court may have the power or duty to remand the accused in police custody or
in jail, rather than simply adjourn the case for another day. It would be accurate to say that
while all remands are adjournment, not all adjournments are remands. The difference
18

between ‘remanding’ a defendant and simply ‘adjourning’ the case is that when the court
remands a defendant, it is under a duty to decide whether the defendant should be released on
bail or kept in police custody or in jail custody. Thus remanding the defendant may be of
three types: remand on bail, remand in police custody, and remand in prison custody or jail.
In England there is a system of disposing of a criminal case within 24 hours where there is
straight forward guilty plea by the accused. However, in Bangladesh even the simplest
criminal case would not be completed in a year let alone a day. And this is mostly because of
corruption by the police in investigation and lack of knowledge and lack of proper guidelines
and training for magistrates in dispensation of criminal cases.As mentioned above, remanding
means committing the defendant into the custody or placing him in bail. The most
objectionable remand in Bangladesh is remanding on police custody since police uses
unlawful torture on the defendant on the pretext of extracting information from the
accused.Duration of remands At the stage of investigation: Provisions are laid down in
section 167 of the CrPC which are as follow: (i) Not more than 15 days in a whole in police
custody or jail custody. (ii) When the investigation cannot be completed within 120 days
from the date of receipt of information relating to the commission of the offence or the order
of the Magistrate for such investigation, the Magistrate empowered to take cognisance of
such offence or making the order for investigation may, if the offence is not punishable with
death, imprisonment for life or imprisonment exceeding ten years, release the accused on
bail.(iii) When the investigation cannot be completed within 120 days from the date of receipt
of information relating to the commission of the offence or the order of the Magistrate for
such investigation, the Court of Session may, if the offence is punishable with death,
imprisonment for life or imprisonment exceeding ten years, release the accused on bail.(iv) If
the accused is not released on bail under this section, the Magistrate or the Court of Session
shall record the reason for it. Thus there is no maximum period fixed by law for order of
detention in police custody by the Magistrate. For how many terms not exceeding 15 days
can the Magistrate authorise detention? This is not mentioned. In Indian CrPC provisions
have been made that the total period of detention in custody must not exceed 60 days and
such detention must not be in police custody. It is to be noted that in England there is
provision of remand in police custody for not more than three days in total. If the defendant is
on bail, there is no statutory time limit for remand.Police remand, use of force and extorting
information from the accused Section 167 of the CrPC implies two situations: (1) when an
investigation can be completed within 24 hours; and (2) when investigation cannot be
completed within 24 hours. The provision of section 167 also implies that while producing a
person arrested without warrant before the Magistrate, the police officer must state the
reasons as to why the investigation could not be completed within 24 hours and what are the
grounds for believing that the accusation or information received against the person is well-
founded. Second, the police officer also shall transmit to the Magistrate the copy of the
entries in the case diary (B. P. Form No. 38) (B. P. Police Regulation No. 236). After
examining information in the case diary and the reasons shown by the police officer, the
Magistrate will decide whether the person shall be released at once or detained further. This
is the mandatory law which the Magistrates have to follow. However, in absence of any
proper guideline unfortunately the Magistrates have been accustomed to follow a ‘parrot like’
order on the forwarding letter of the police officer authorising detention either in the police
custody or in jail. And this non-application of proper judicial mind in view of sub-sections
(1), (2) and (3) of section 167 of the Code by the Magistrates has ultimately resulted in so
many custodial deaths and incidents of torture in police custody. Application for remand and
abuse of power A police officer makes a prayer for ‘remand’ stating that the accused is
involved in a cognisable offence and for the purpose of interrogation ‘remand’ is necessary.
In sub-section (2) of section 167 though it is not mentioned that ‘remand’ can be allowed for
19

the purpose of interrogation, at present, the practice is that an accused is taken on ‘remand’
only for the purpose of interrogation or for extorting information from the accused through
interrogation. There is no proper guideline as to when such prayer should be accepted and
when rejected by the Magistrate and this legal lacuna gives both the police officer and
Magistrates power to abuse the same. Police officers being motivated or dictated by the
executive organ or out of their personal conflict or aggrandisement seek unreasonable remand
under section 167 of the Code. And the Magistrates in absence of any proper guideline, either
being dictated by the executive organ or otherwise have been accustomed to follow a ‘parrot
like’ order on the forwarding letter of the police officer authorising detention either in the
police custody or in jail. The views expressed in favour of police remand is that it is a civil
necessity that if some force is not used, no clue can be found out from hard-nut criminals. On
the other side of the spectra there is a widely held view that to send the arrested person to
police remand prima facie upholds the idea that the accused person did not give the
confession voluntarily. When the entire state machinery acts against him, he cannot confess
voluntarily and as such the provision for granting police remand several times (although not
exceeding 15 days in the whole) totally destroys the purpose behind it. This is because a
person coming before the Magistrate has no guarantee that he will not be sent again to police
remand unless he has already completed 15 days. It is therefore imperative on the Magistrate
to give reasons for granting a remand. Again, article 35(4) of the Constitution states that no
person shall be compelled to be a witness against himself. So the provisions of the CrPC
under section 167 are in direct contrast with the provisions of the Constitution. This CrPC
was passed by the British government back in 1898 when there was no fundamental rights as
we have now in our Constitution. In view of the present provision in article 26 this provision
of police remand seems to be void and this is largely the decision of the High Court Division
in the BLAST v State.

https://amjonotablog.wordpress.com/2014/01/31/police-remand-concept-and-procedure/

Home | News | Bengali news

Bangladesh Supreme Court Orders Police to Change Arrest Practices

Kamran Reza Chowdhury
Dhaka
2016-05-24

Tweet
20

 Share
 Comment
 Email

Under a Supreme Court ruling, police, shown here presenting a group of suspects to the media, must
show their badges and be in uniform when making arrests, May 24, 2016.

FocusBangla

In a move aimed at bolstering civil liberties and preventing police abuse of power,
Bangladesh’s Supreme Court ruled Tuesday that law enforcement agencies could no longer
arrest suspects without a warrant, among other things.

Human rights advocates hailed the ruling stipulating that officers must also inform suspects
of the reason for their arrests within three hours as well as notify their relatives. In addition,
the court order requires officers to identify themselves by showing their badges, saying they
can no longer carry out arrests in plainclothes but in uniforms, rights advocates said.

The lack of such practices and arrests made under Sections 54 and 167 of the country’s penal
code have led to the disappearance of hundreds of innocent people over the years, after they
were arrested by law enforcement officials, according to advocates.

“This is victory for us, for the people in general. The section 54 and the section 167 have
been being misused for decades. Today’s Supreme Court judgment is historic,” Nur Khan,
acting executive director of rights body Ain-O-Salish Kendra, told BenarNews on Tuesday.

Some police officers arrest innocent people as suspects and remand them to extract
confessions through torture, he alleged.

“This sort of practice cannot go on. We hope the police will abide by the apex court order,”
Khan said.
21

The case before the apex court dates to 2003 and stems from a writ petition filed after a
university student, Shamim Reza Rubel who was arrested under Section 54. According to a
medical report, he died of torture while in police custody.

“The court has rejected the state appeal and upheld the 2003 High Court orders on amending
the sections 54 and 167. Now the government must abide by the 15-point guidelines of the
High Court,” Kamal Hossain, a lawyer who pleaded against the state, told reporters,
according to local media.

“They must show identity cards before [making arrests] and inform the accused of the reason
within the next three hours,” Bangladeshi news outlets quoted Barrister Amir-ul-Islam as
saying.

Section 54: Necessary deterrent?

Attorney General Mahbubey Alam defended the record of law enforcement agencies, telling
local media that all officers abide by the practice of showing suspects their badges.

For his part, Home Minister Asaduzzaman Khan Kamal told reporters at his office that police
were careful in enforcing sections 54 and 167.

“We must abide by the directives of the Supreme Court in this regard. In case any police
official is found guilty of misusing the two sections, he will face departmental actions,” the
minister said.

But Law Minister Anisul Huq voiced disagreement over the court’s decision, saying that
Section 54 in particular was an emergency provision that was essential in fighting crime.

“This is not right that the law enforcers should only be active after a crime takes place. The
police [should] have the authority to arrest a criminal suspect [as a deterrent measure],” Huq
said.

https://www.benarnews.org/english/news/bengali/court-arrest-05242016155852.html