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Law for Resisting torture: Bangladesh Perspective

Advocate Shahanur Islam

In spite of Article No. 35 (5) of the constitution of the People’s Republic of Bangladesh, prohibited torture completely, incident torture is increasing day by day. International Convention Against Torture (CAT) has also been declared torture as the punishable offence.

As the member state of above mentioned convention Bangladesh is bound to comply with this convention i.e it is bound to take necessary step regarding this matter. Rather, without ratify that article No. 14 of the international convention against Torture which is most effective against torture, Bangladesh has made the convention against torture totally ineffective.

Moreover, Bangladesh did not promulgate any act till now treating torture as an offence in the prevalent law. As a result, way of getting relief by the victim of torture in the prevalent law remained closed i.e. it is not becoming possible to get any relief against the perpetrators in the prevalent law of Bangladesh.

Main weapon of torture by the police in Bangladesh remains within the laws prevalent in the country. Especially they oppress at different time by abusing section no. 161, 54 and 167 of the criminal procedure code. Rules and provision of taking and writing down of the evidence of witness at the time of investigation of any complain has been described in section of 161 of Cr. P.C. According to the said section, in the case of recording of witness after taking a witness by a witness there is no requirement of signature of the said witness. As a result, investigation officer gets the opportunity for recording witness according to his wish and makes abuse of that.

At many occasions, they get the opportunity to complete investigation by recording information according to their wish without appearing to the witness or without taking their statement. In the majority of cases it is seen that, as a result of personal enmity with the investigation officer or for realizing illegal money or being influenced by others through taking of unlawful money they record names of different innocent person in pursuance of witness given by the previous witness subsequently he realizes unlawful money and mitigates his aggression.

Many people die as a result of it and many become disabled for their whole life. If after making amendment of section 161 of the Cr. P.C provision shall be made for taking of signature of the witness by his own hand after reading out it for the hearing of the witness, then the way of harassment or oppression or torture of the innocent people by implicating an innocent person through the recording of false witness in the way shall be thwarted to some extent.

Besides, police is oppressing or violating human rights on regular basis through the application of Section no. 54 of the Criminal Procedure Code. Said section gave police extensive power to arrest without warrant. Even Police can arrest any one due to suspicion by the without warrant. However, suspicion must be logical.

There must be strong basis of suspicion. Suspicion must not be whimsical. But the police administration is continuing merciless torture by arresting innocent persons by abusing the said power. Although in the said section nine conditions were mentioned clearly, yet police don’t care the said condition in the least and they arrest according to their wish and realize money and make oppression. In this way by making abusing section 167 of the Criminal Procedure Code Police is continuing torture and violation of human rights regularly.

In section 167 of Cr.P.C has been given power to make interrogation of the accused in the interest of investigation. In this case it has been said that, if it shall not become possible to complete the works of investigation within 24 hours of arrest of an accused and if it shall appear relevant police official logically that more information shall be received from him, then he may take him under remand subject to the permission of the learned Magistrate. But they can not make torture upon an accused by the name of remand.

In the Writ petition No. 3806/1998 regarding the killing of the meritorious student Rubel popularly known as BLAST case filed by the Bangladesh Legal Aid and Services Trust (BLAST) on 07 April, 2003 a bench of High Court Division of the Bangladesh Supreme Court comprising Justice Md. Hamidul Haque and Justice Salma Masud Chowdhury pass an epoch making judgment regarding section no. 54 of the criminal Procedure Code relating to arrest on suspicion and for amendment of Section no. 167 of Cr. P.C regarding police remand and directed the government for amending the relevant act. Simultaneously High Court opined to abide by some specific guide lines in these two cases until the time of promulgation of new act.

In the direction given by the court mainly two recommendations have been made. firstly, in it has been said to add sub-Section (2) to the section no. 54 of the Cr. P. C and amend sub section (3), (4) and (5) of Section no. 167 of Cr.P.C Simultaneously it has been said to increase the extent of the awarded punishment under the section 220 and 348 of the penal code by making amendment of these to section.

Guideline given in the case of Section no. 54 of the criminal Procedure Code includes- for arresting any person under this section, after expressing their own identity that matter shall have to be informed to his close relative. And it has been said that if arrest is done from the road, then for what cause the arrested person has been arrested that shall have to be informed within three hours.

In special case of arrest, medical check up shall have to be done immediately after the arrest. The court also recommended that, if there shall have any mark of injury on the body of the arrested person, then the relevant police officer shall record the matter properly and if there shall not be any proper cause, order of detention shall not be given after arrest under section no. 54 of the Criminal Procedure Code.

The Court said about remand given under section 167 of the Criminal Procedure code, no accused shall be given remand to police. If it shall be necessary to make interrogation in the interest of investigation, then only Investigation Officer may do that in a separate room of the jail. In its opinion the Court further said that, for giving remand in any case relevant Magistrate shall have to be sure that, specific policy has been followed in that case. In this case Magistrate shall have to hear the saying of the arrested and his advocate.

Above all, Metropolitan Sessions Judge or Sessions Judge shall ensure the order of remand. Arrested persons shall have the opportunity of opposing or objecting in there also. For giving remand in this case medical cheek up shall have to be done instantaneously and if the arrested person shall complain about torture after completion of remand, then medical cheek up shall have to be done again. If the doctor (Physician) shall become sure about torture, Magistrate shall take lawful measure against the investigation officer immediately without any formal petition.

The court further mentioned that, if there shall be requirement of interrogation of some one, then interrogation of the arrested person of a jail shall have to be done in a glass room in presence of advocate appointed by him and his relatives. So that in the interest of the investigation relatives and advocate of the arrested person shall not hear any question-answer. But they may observe on the matter whether or not any torture is inflicted. But we did not follow the above mentioned direction.

The writer is Founding Secretary General, JusticeMakers Bangladesh

25 Nov 2012   07:33:28 PM   Sunday
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