Kathmandu School of Law Review

P-ISSN : 2091-2110, E-ISSN : 2773-8159, DOI : 10.46985, Publisher : Kathmandu School of Law, Nepal
Annual flagship journal of Kathmandu School of Law, Nepal

Volume 5, Issue 1, April 2017
Articles

Arrest on Reasonable Suspicion and Credible Information: Policy and Practice in Bangladesh

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  • Hussain Mohmmad Fazlul Bari
Hussain Mohmmad Fazlul Bari
Deputy Secretary at the Law and Justice Division, Ministry of Law, Justice and Parliamentary Affairs, Bangladesh Secretariat, Dhaka
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Published 2017-04-30

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How to Cite

Bari, H. M. F. . (2017). Arrest on Reasonable Suspicion and Credible Information: Policy and Practice in Bangladesh. Kathmandu School of Law Review, 5(1), 92–108. Retrieved from https://kslreview.org/index.php/kslr/article/view/164

Abstract

In Bangladesh, a police officer has the discretion to arrest an individual on the pretext of “reasonable suspicion” and “credible information" even without a warrant of arrest from the Magistrate. Though there are statutory and constitutional safeguards to protect liberty, security and human rights of the arrestee, practically there are numerous allegations of misuse or abuse of Section 54 of Code of Criminal Procedure 1898 by the police officers. High Court Division (HCD) in ‘BLAST HCD case’ and ‘Saifuzzaman Case’ rightly denounced all sorts of such abuses. HCD held that some provisions were, to some extent, inconsistent with the Constitution and also recommended for amendment of those questionable provisions. HCD also provided some directives to be followed while applying those existing provisions for arrest until such laws are modified. However, after rigorous hearing for about 12 years, Appellate Division (AD) dismissed the appeal preferred against BLAST HCD judgment. While AD concurred with the observations and findings of the HCD, it found recommendations and directives of the HCD as being either redundant or an exaggeration. In view of the observations of the AD, the legislature should also make a holistic review of Code of Criminal Procedure.

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References

  1. M. Shah Alam, Legal Reforms in Bangladesh and Law Commission, New Warsi Book, Dhaka, 2016, p. 122.
  2. KaziEbadul Haque, Administration of Justice in Bangladesh, Asiatic Society of Bangladesh, Dhaka, 2003, Preface.
  3. Hussain M. F. Bari, ‘Evolution of Criminal Justice System in Bangladesh: Colonial Legacy and Current Issues’, vol. 2, Jagannath University Journal of Law, 2016.
  4. Bangladesh Legal Aid Services Trust and others V. Bangladesh(2003) 55 DLR 363 (HCD).
  5. Saifuzzaman V. State and others(2004) 56 DLR 342 (HCD).
  6. Bangladesh V. Bangladesh Legal Aid Services Trust and others(2016) (Civil Appeal no.53 of 2004) (AD).
  7. Adam Geareyetal, The Politics of the Common Law:Perspectives, Rights, Processes, Institutions,Routledge-Cavendish, London, 2009, p. 355.
  8. Chilperic Edwards, The Oldest Laws in the World, Watts & Co., London, 1906, pp. 14-26.
  9. Sarker Ali Akkas, ‘Constitutional Rights against Arbitrary Arrest and Detention: The Case of Bangladesh’ vol. 11, Bangladesh Journal of Lawp. 55, 2003, p. 57.
  10. Magna Carta, 1215, clause 39.
  11. A V. Home Secretary [2004] UKHL.
  12. Declaration of the Rights of Men and of the Citizens, 1789, art 7.
  13. Universal Declaration of Human Rights,1948, art 9.
  14. International Covenant on Civil and Political Rights,1966, art 9.
  15. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.
  16. Khondoker Mohammad Mushfiqul Huda et al, ‘Impact of Torture and Torture Evidence in the Human Rights and Criminal Justice System: International Context’, in Mir Shamsur Rahman et al (eds), Understanding Crime and Policing in Bangladesh, Center for Criminological Research, Dhaka, 2009, pp. 177-209.
  17. David A. Jones, The Law of Criminal Procedure: An Analysis and Critique, Little Brown, Boston, 1981, p. 142.
  18. Non-cognizable offence is an offence in which a police officer cannot arrest an accused without the order or warrant of arrest (Code of Criminal Procedure 1898, s 4(f)).
  19. Any police-officer may, without an order from a Magistrate and without a warrant, arrest-firstly , any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned;Second, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking;Third, any person who has been proclaimed as an offender either under this Code or by order of the Government;Fourth, any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing;Fifth, any person who obstructs a police-officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody;Sixth, any person reasonably suspected of being a deserter from the armed forces of Bangladesh;Seventh, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Bangladesh, which, if committed in Bangladesh, would have been punishable as an offence, and for which he is, under any law relating to extradition or under the Fugitive Offenders Act, 1881, or otherwise, liable to be apprehended or detained in custody in Bangladesh; Eighth, any released convict committing a breach of any rule made under section 565, sub section (3);Ninth, any person for whose arrest a requisition has been received from another police officer, provided that the requisition specified the person to be arrested is to be made and it appears there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition.(Code of Criminal Procedure 1898, s 54).
  20. Without any qualifying word, to a Magistrate, shall be construed as a reference to a Judicial Magistrate (Code of Criminal Procedure 1898, Section 4A (1) (a).
  21. RidwanulHoque, ‘Criminal Law and Constitution: The Relationship Revisited’, Special Issue,Bangladesh Journal of Lawp. 46, 2007.
  22. Constitution of the People's Republic of Bangladesh, 1972, art 7.
  23. Ridwanul Hoque (n 21), p. 49.
  24. For instance, Constitution, arts 27, 33, 35 provide for some procedural dueprocess in criminal trials.
  25. See L. H. Packer, 'Two Models of Criminal Process', in George F. Cole (ed.), Criminal Justice: Law and Politics, Massachesstes, 1990, pp. 17-33. However, as failure of the law enforcing agencies to quickly apprehend and prosecute the real offenders for trial, long delay in disposal of cases, increasing costs of litigation and at times those give rise to lack of respect in the law and induces many to take the law in their own hand. See generally Kazi Ebadul Hoque, Administration of Justice in Bangladesh, Asiatic Society of Bangladesh, Dhaka, 2003, p. 252.
  26. Mahmudul Islam, Constitutional Law of Bangladesh, Mullick Brothers Dhaka, 2012, p. 247.
  27. Constitution of the People's Republic of Bangladesh, 1972, art 33.
  28. Ibid.
  29. Hussain M. F. Bari (n3).
  30. Dumbell v Roberts[1944], ER 326, p. 329.
  31. Redmond-Bate vDPP[1999], Crime LR, 998.
  32. Castorina v Chief Constable of Surrey[1988], 138 NLJ 180.
  33. Christie v Leachinshky[1947] AC.
  34. Kurt v Turkey, 1988, EHRR 373.
  35. BLAST HCD Case(n 4), para 31.
  36. Saifuzzaman Case(n 5) p. 341.
  37. BLAST HCD Case(n4), para 10.
  38. Ibid.
  39. Ibid, para 11.
  40. Ibid, para 12.
  41. Ibid, para 27.
  42. Ibid, para 26.
  43. Ibid, paras 10, 29.
  44. SaifuzzamanCase(n5), p. 349.
  45. Ibid, p. 352.
  46. Ibid.
  47. Md. Yusuf Aliv State(1995) 8 BLC 74 (HCD).
  48. Saifuzzaman Case(n5), p.351.
  49. CPLA 498 of 2003 (AD).
  50. BLAST AD Case(n5), p. 191.
  51. Ibid.
  52. SG Jaisinghani v Union of India, SCR, 1976, SC;Khurdiram Das v State of West BengalSCC, 1975, SC.
  53. BLAST AD Case(n6) p. 178.54General Assembly Resolution 43/173, adopted on 9 December 1988.
  54. General Assembly Resolution 34/169, adopted on 17 December 1979.
  55. BLAST AD Case(n 6), p. 199.
  56. Ibid.
  57. James Holland et al, Learning Legal Rules, Oxford University Press, London, 2006,pp. 248-251.
  58. Pepper v Hart [1992] WLR 1032.
  59. BLAST AD Case(n 6), p. 91.
  60. Ibid, p. 93.
  61. Ibid, p.76.
  62. Ibid, p. 79.
  63. Ibid, p. 171.
  64. BLAST AD Case(n6), p. 200.
  65. Ibid, p. 223.
  66. Ibid, p. 248.
  67. Ibid, p. 250.69Saifuzzaman Case(n 5), p. 339.
  68. CPLA no. 498 of 2003 (n48).
  69. BLAST HCD Case(n4), p. 251.
  70. BLAST AD Case(n6), p. 263.
  71. Ibid.
  72. BLAST AD Case (n6), p. 267.
  73. Ibid.
  74. Ibid.
  75. SaifuzzamanCase(n5), p. 350.
  76. Muhammad Nurul Huda, ‘Taming Rogue Policemen’, The Daily Star, 2016.
  77. Ibid.
  78. Dhaka Law Reports, The Law on Bail, DLR, Dhaka, 2016, p. 4.
  79. Hussain M. F. Bari, ‘An Appraisal of Sentencing in Bangladesh: Between Conviction and Punishment’, vol. 14, Bangladesh Journal of Law, 2014, pp.89-115.
  80. Shahdeen Malik, ‘Arrest and Remand: Judicial Interpretation and Police Practice’, Special Issue, Bangladesh Journal of Law, p. 291, 2006.
  81. Shahdeen Malik, ‘Perceiving crimes and criminals: Law making in the early 19thcentury Bengal’ vol. 6 Bangladesh Journal of Law, p. 59, 2002.83Ibid.84BLAST AD Case (n 6), p. 387. 5BLAST HCD Case(n 4), para 23.