Arrest and Remand: Towards a Rights Paradigm 255

ARREST AND REMAND: TOWARDS A RIGHTS PARADIGM

Shahdeen Maik *
1. INTRODUCTION
… we made an endeavour to refer to some decisions from our own
jurisdiction, but there was hardly any reported decision on the subject. 1
The above comment, in a writ petition alleging police excesses and non-
compliance of Police Rules and Regulations, clearly indicates the paucity and
dearth of case on judicial restraining of police of power of arrest, search and
seizure. The abuses of power remain unreported for fear of reprisal by police
as the court observed in this case: “. ordinary citizens neither have the
resources nor the ability to stand up against police excess and bring such
incidents to the Court’s notice for redress.” 2
The first major case to question the abuse of police power of arrest
under section 54 of the Code of Criminal Procedure, 1898 – Bangladesh
Legal Aid and Services Trust (BLAST ) vs Bangladesh and others 3 -- was possible
precisely because it was taken up and pursued not by a victim or his family
but by a nationally prominent legal aid organisation. Secondly, the death of
the victim Rubel (a young undergraduate student of a private university), in
this particular case, as a result of being beaten up by police in clear view of
many was widely reported by the media, evoking public sympathy and the
resultant pressure on police establishment to desist from harrassing
harassment of the petitioner's family.
Practically, all instances of abuse of power by police in arresting
citizens and torturing them on police remand (in police custody) go
unchallenged precisely because victims lack the resources as well as
confidence in the efficacy of the judicial system. The very few cases in
which the abuse of police power was challenged were litigated either in
“public interest” by national organisations or by rich and powerful persons
who were subjected to such abuse by police. 4

*
Shahdeen Malik, LL.M. (Moscow), LL.M. (Philadephia), Ph.D. (London(, is an
Advocate of the Supreme Court of Bangladesh and the Director, School of Law,
BRAC University.
1
Justice Zubayer Rahman Chowdhury in Brigadier (Retd) A.H.M. Abdullah vs
Government of Bangladesh and others, 25 (2005) BLD (HCD) 384, at p. 387.
2
Id.
3
55 (2003) DLR (HCD) 363, hereinafter the BLAST .
4
See discussion on Afzalul Abedin and others vs Bangladesh, 8 (2003) BLC (HCD) 601.
256 Special Issue: Bangladesh Journal of Law

In recent years, a small number of such cases has elicited critical comments
and observations of the judiciary on the abuses of power by police. 5 At the same
time, it needs to be mentioned, that the judiciary seems to have embarked on a
path of “conservative interpretation” 6 of many of the provisions of substantive
and procedural laws for imposing long term prison sentence on the convict. 7
This, in turn, was fuelled by a host of draconian penal laws enacted in recent
years which provided for a spate of sentence of death and life imprisonment for
a wide range of loosely defined crimes.
The jurisprudence of liberty, as a result, is shrouded, if not in mystery
then, in fuzziness. The fuzziness stems, primarily, from the lack of a rigorous
scrutiny by the judiciary of the parameters of right to liberty, which, in turn,
has been brought about by the absence of challenges against the power of
arrest and remand by the police. In many ways, it is a typical “Catch 22”
situation in which the power of police is not challenged and, hence, the
judiciary do not scrutinise it to put checks and balance on the police power. 8
And since hardly any checks and balances are in place, the power continues
to be abused, which, in turn, discourages challenges. 9

5
See Saifuzzaman vs State, 56 (2004) DLR (HCD) 324 below.
6
We use the expression “conservative interpretation” in tune with the conventional use
of such charaterisation which posits a dichotomy between “conservative” and “liberal”
interpretation where “liberal” is taken to be more individual-right-sensitive and
“conservative” adheres more to the collective interest of the society and polity.
7
State vs Billal Hossain Gazi, 56 (2004) DLR (HCD) 355 is a good recent example. In
this case the accused was charged under section 10(1) of the Nari O Shishu Nirjaton
Domon (Bishwesh Bidhan) Ain, 1995 for murder of his wife on account of demand for
dowry. He was convicted by the Nari O Shisu Nirjaton Domon Adalat and sentenced
to death. In appeal, the High Court Division found that the charge of demanding dowry
was not proved and hence the offence alleged should have been one of murder and not
of murder on account of demand for dowry. Thus, the crime should have been tried by
Sessions Judge under section 302 (murder) of the Penal Code and not by the Nari O
Shisu Nirjaton Domon Adalat. Hence, the HCD sent the case for re-trial by a Sessions
Judge under section 302 of the Penal Code.
It is clear that such a re-trial could be barred under Article 35(2) of the
Constitution prohibiting “prosecution and punishment for the same offence more
than once”, but see section 403 of Cr.P.C (explain).
8
“It is also a sad reality that although police excesses occur regularly, such
incidents are rarely challenged.” Brigadier (Retd) A.H.M. Abdullah vs Government
of Bangladesh and others, ibid, at p. 391
9
“…. most people are either reluctant to initiate any actions against the police or are very
skeptical about any disciplinary action that may be taken against errant officers.” Id.
Arrest and Remand: Towards a Rights Paradigm 257

The police power is abused under two sections of the Code of Criminal
Procedure, 1898 (hereinafter CrPC) – section 54 which empowers police to
arrest on “suspicion”, and section 167 under which police can take an
accused on remand to police custody where, it is generally accepted, the
accused is subjected to torture for eliciting confession and information
about his accomplices and other crimes. The recent judgement in BLAST
vs Bangladesh, as indicated earlier, was the first major scrutiny of the police
power under these sections. The judgement also offered guidelines for the
police to follow and these were intended to reduce the scope and
possibility of the misuse and abuse of police-power.
The guidelines, in line with the American Miranada 10 dictates 11, have
virtually been ignored by the police, one justification being that it has been
appealed against in the Appellate Division of the Supreme Court and,
hence, not final yet.
The BLAST judgment is clearly an important judicial pronouncement
for restraining police power, though, as indicated, this judgment was
pronounced in the backdrop of (i) a conservative trend in judicial
pronouncement, (ii) frequent enactments of draconian penal laws and a
general lack of sympathy for rights of accused in criminal cases.
The paper, in such a backdrop,
• undertakes a detailed analysis of the normative provisions regarding
arrest and remand in the light of the relevant constitutional
mandate;
• explores the situations in which police usually abuses its powers;
• offers, from secondary sources, some recent empirical evidence
regarding application of the police power of arrest;
• delves into interpretative frameworks which may facilitate further
expansion of right to liberty for curtailing the scope of abuse of
such power; and lastly
• advocates for further judicial intervention to reduce the abuse of
police power.
10
Miranda vs Arizona, 384 U.S. 436 (1966)
11
“The waring of the right to remain silent must be accompanied by the explanation
that anything said can and will beused against the individual in court.”, Miranda,
ibid, at p. 469, as quoted in William J. Stuntz, “Miranda’s Mistake”, 99:5 (2001)
Michigan Law Review, 975, at p. 979, fn. 13, or as the TV shows put it, “anything
you say can and will be used against you in a court of law.” Id.
258 Special Issue: Bangladesh Journal of Law

2. NORMATIVE PROVISIONS
Freedom from arbitrary arrests is usually grounded in constitutional
provisions. Article 32 of the Constitution of the People’s Republic of
Bangladesh encapsulates this freedom in the following words:
32. Protection of right to life and personal liberty: No person shall
be deprived of life or personal liberty save in accordance with law.
The conventional right to liberty was understood to have restricted the
power of the state to arrest a citizen only to the following situations or instances:
where there were reasons to believe that a citizen has committed a serious
crime; and continued denial of the right to personal liberty was possible only
upon conviction, through a fair and open trial, on a charge of having
committed a crime which was punishable by imprisonment and, hence, the
resultant denial of liberty upon conviction.
The origin of this right to personal liberty and the implicit protection
against arbitrary arrest is conventionally traced to the French Declaration
of Rights of Man and the Citizen, 1789 12 as well as the first Ten
Amendments of the American Constitution of the same era (1791) 13,
though seeds of this freedom can also be found in earlier legal documents
such as the Bill of Rights, 1689 of England. 14
In modern times, both state constitutions and international human rights
instruments, have explicitly provided that arrest can only be made in
accordance with law. While no exceptions to the freedom from arbitrary

12
Article 7: — “No man can be accused, arrested or detained except in the cases
determined by the law, and according to the methods that the law has stipulated.
Those who pursue, distribute, enforce, or cause to be enforced, arbitrary orders
must be punished; but any citizen summoned, or apprehended in accordance with
the law, must obey immediately: otherwise he makes himself guilty by resisting.”
(underline added for emphasis)
13
5th Amendment of the US Constitution: “No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public danger; nor shall any person be
subject for the same offence to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself, nor be deprived of
life, liberty, or property, without due process of law.”
14
“That excessive bail ought not to be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted”.
Arrest and Remand: Towards a Rights Paradigm 259

arrest is provided in international legal instruments 15, national constitutions

have often inserted restrictions on right to liberty (primarily) on grounds of
national security and public order. In other words, state constitutions often
contain proviso to the right to personal liberty to the effect that certain types
of arrest and/or detention are legal and justified, even though these arrests
and/or detentions derogate from the right to liberty. Such exemptions to the
right to liberty are phrased in the following words in our Constitution:
Article 33: Safeguards as to arrest and detention: (1) No person who is
arrested shall be detained in custody without being informed, as soon as may
be, of the grounds for such arrest, nor shall he be denied the right to consult
and be defended by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of twenty-four
hours of such arrest, excluding the time necessary for the journey
from the place of arrest to the court of the magistrate and no such
person shall be detained in custody beyond the said period without
the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply to any person –
(a) who is an enemy alien; or
(b) who is arrested or detained under any law providing for
preventive detention.
The language used to curve out the above exception in our
Constitution is almost identical 16 with Article 22 of the Indian
Constitution, while the language of the Constitution of Pakistan does not
include an “enemy alien”. 17

15
For example, Article 3 of the Universal Declaration of Human Rights provides:
“Everyone has the right to life, liberty and security of person” while Article 9
proclaims: “No one shall be subjected to arbitrary arrest, detention or exile”.
Similarly, Article 9 of the International Covenant on Civil and Political Rights,
1966 provides, also in Article 9: “Everyone has the right to liberty and security of
person. No one shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance with such
procedure as are established by law.”
16
Article 22(3) of the Indian Constitution:
“Nothing in clauses (1) and (2) shall apply –
to any person who for the time being is an enemy alien; or
to any person who is arrested or detained under any law for preventive detention”
17
Article 10(3) of the Pakistani Constitution:
260 Special Issue: Bangladesh Journal of Law

Arrests and detentions under these “preventive detention” laws are,

almost by definition, arbitrary as the person arrested and then detained has
neither committed nor been convicted of any offence. 18
These exceptions to the conventional right to liberty are legislated by
“preventive detention” laws. Given the prima facie negation of right to
liberty by the preventive detention laws, the courts have, over the years,
struggled to limit the exercise of the power by the executive to preventively
detain citizens on the plea of deterring prejudicial acts, i.e., acts for which a
person can be detained by the order of the executive. However, both in
cases of detention under preventive detention laws and arrests on suspicion
by police under the power given to them in the criminal procedural law,
the denials of liberty are exercised in terms of prevailing laws of the
country and, hence, are “in accordance with law”.

“Nothing in clauses (1) and (2) shall apply to any person who is arrested or
detained under any law providing for preventive detention.”
As for Sri Lanka, while Article 13 of the Constitution enshrines personal liberty in
the following words:
“Freedom from arbitrary arrest, detention and punishment, and prohibition
of retroactive penal legislation. 13 (1) No person shall be arrested except
according to procedure established by law. Any person arrested shall be informed
of the reason for his arrest.
(2) Every person held in custody, detained or otherwise deprived of personal
liberty shall be brought before the judge of the nearest competent court according
to procedure established by law, and shall not be further held in custody, detained
or deprived of personal liberty except upon and in terms of the order of such judge
made in accordance with procedure established by law”.
while the exceptions are expressed, in Article 15(7), in following manner:
“(7) The exercise and operation of all the fundamental rights declared and
recognized by Articles 12, 13(1), 13(2) and 14 shall be subject to such restrictions
as may be prescribed by law in the interests of national security, public order and
the protection of public health or morality, or for the purpose of securing due
recognition and respect for the rights and freedoms of others, or of meeting the just
requirements of the general welfare of a democratic society. For the purposes of
this paragraph "law" includes regulations made under the law for the time being
relating to public security.”
18
Article 35 of the Constitution provides:
“Protection in respect of trial and punishment. (1) No person shall be convicted
of any offence except for violation of a law in force at the time of the commission
of the act charged, nor shall be subjected to a penalty greater than, or different
from, that which might have been inflicted under the law in force at the time of the
commission of the offence.”
Arrest and Remand: Towards a Rights Paradigm 261

However, a plain textual reading of “in accordance with law” or under

“due process of law”, needless to say, does not make all these detentions
and arrests legal and proper as the conditions contained for detention and
arrest are not always automatically satisfied. In other words, though the law
authorises (preventive) detention and arrest (on suspicion), yet such
derogation of liberty must also meet other standards carved out by judicial
pronouncements. The relevant laws do provide for the power of the state
to derogate from the right to personal liberty in general terms, yet the
courts, over the years, have read a number of conditions and requirements
into the general terms of these enactments and the ambit of these
requirements and the fulfilment of the conditions constitute the real
parameters of the right to personal liberty.
In general terms, detention is authorised for “prejudicial acts” while
arrest can be made on valid “suspicion” of criminal wrong-doing. It follows
from these propositions that it is the duty of the court to ensure that the
conditions or requirements laid down by law is strictly adhered to and the
deprivation of personal liberty satisfies the requirement of “in accordance
with law” or under the “due process of law” not only when the deprivation
is authorised by law but also when the requirements and conditions
embedded in the authorisation have been meticulously followed.
Similar to most other fundamental rights, the right to personal liberty is
not an absolute right and needs of the society may dictate derogation from this
right in the greater interest of the state and society. Preventive detention and
arrest on suspicions are the two most common aberrations of the right to
personal liberty, justified by the primacy of societal interest of incarcerating
citizens, over the citizen’s right to his personal liberty. Needless to say,
derogation of right to liberty (imprisonment as punishment) upon conviction
is accepted universally as such derogation is clearly necessary to preserve the
society against the harm committed by the criminal act of the convicted
prisoner. However, conviction and subsequent or resultant punishments are
also subject to laws of criminal justice system and any punishment in
derogation of the legal framework established by the criminal justice system
also makes the deprivation of liberty illegal. Our concern, in this paper,
needless to say, primarily, surrounds the derogation of personal liberty in
terms of preventive detention and arrest laws, and not the deprivation inflicted
upon criminal trial and conviction.
2.2. “In accordance with law” and the “due process of law”
Deprivation of personal liberty is permitted only “in accordance with
law”, i.e., deprivation can be affected by means and methods authorised by
262 Special Issue: Bangladesh Journal of Law

law. The Constitution mentions this requirement of “in accordance with

law” twice – in Articles 31 and 32. As we have seen above, Article 32
permits derogation of personal liberty only in accordance with law.
Similarly, Article 31 provides:
31: Right to protection of law. To enjoy the protection of law, and to be
treated in accordance with law, and only in accordance with law, is the
inalienable right of every citizen, wherever he may be, and of every other
person for the time being within Bangladesh, and in particular no action
detrimental to life, liberty, body, reputation or property of any person shall be
taken except in accordance with law.
A casual reading of these two Articles (31 and 32) may indicate identity
and, hence, repetitions, as both the Articles require that actions in derogation
of liberty may only be taken in accordance with law. Article 31 protects not
only liberty, but also life, body, reputation and property, while Article 32
protects only life and liberty. A seeming repetition of a provision, requirement
or norm in a Constitution cannot be taken as superfluous or redundant and
must be taken to import two different meanings or requirements. 19 Hence, by
providing that deprivation of life and liberty must be affected only in
accordance with law, the Constitution sets a higher standard for laws which
purport to deprive life and liberty. While laws affecting body, reputation and
property have to be reasonable and non-arbitrary, those touching upon life
and liberty must, in addition to being reasonable and non-arbitrary, also
indicate other compelling state or societal interest.
Other rights and freedoms are not protected as stringently as personal
freedom. Thus, though the Constitution recognises right to profession or
occupation yet the exercise of this right can reasonably be made
conditional upon fulfilment of a host of conditions of varying degrees of
qualification, experience, suitableness, and such other terms which are not
discriminatory or injurious to public policy. More importantly, almost any
regulatory body or even a private organisation may impose conditions and,
thereby, restrict the exercise of these rights. Furthermore, while many
constitutional rights are subject to reasonable restrictions, 20 yet the right to

19
Mahmudul Islam, Constitutional Law of Bangladesh, 2nd edition, reprint, Dhaka,
2003, pp. 193-197.
20
For example, Article 43 provides:
“Protection of home and correspondence. Every citizen shall have the right,
subject to reasonable restriction imposed b y law in the interest of the security of
the State, public order, public morality or public health –
Arrest and Remand: Towards a Rights Paradigm 263

personal liberty (though not absolute) must be judged by yard-sticks of

such reasonableness which are more exacting and clearly and immediately
connected to greater interest of the society and the state.
2.2.i. “Due process” in “law”
The expression “in accordance with law” does not include any law, but
only laws which are (a) not violative of fundamental rights, and (b)
incorporates both procedural and substantive safeguards.
If personal liberty could be curtailed by any law, i.e., whimsical and
arbitrary, the protection against deprivation of liberty would become
meaningless. Hence, the real import of protecting personal liberty in two
Articles of the Constitution lies in the fact that laws depriving personal
liberty must be a reasonable legislation reasonably applied.
A law providing for deprivation of life or personal liberty must be objectively
reasonable and the court will inquire whether in the judgement of an ordinary
prudent man the law is reasonable having regard to the compelling, and not
merely legitimate, governmental interest. It must be shown that the security of
the State or of the organised society necessitates the deprivation of life or
personal liberty. 21
While deprivation of individual liberties in individual instances have
routinely been challenged, yet only one “partially-successful” challenge has
ever been mounted against a law providing for deprivation of personal
liberty, i.e., a penal law.
A penal law, Public Safety (Special Provision) Act, 2000, was enacted for
ensuring speedy trial of a specific number of crimes such as wilful and
wanton destruction of property, extortion, abduction, causing bodily harm,
preventing normal movement of traffic, etc. However, most of these
criminal activities under the Act were also crimes under the primary
criminal law of the country, i.e., the Penal Code, 1860. While many of these
crimes are non-bailable under the Penal Code, 1986, yet the courts have
frequently released persons arrested for alleged commission of these crimes
on bail for the period of trial. However, the Public Safety (Special Provision)
Act, 2000 had provided that an accused under this Act could not be
released on bail within 90 days of arrest. As anyone arrested under this

to be secured in his home against entry, search and seizure; and to the privacy of
his correspondence and other means of communication.”
21
Mahmudul Islam, Constitutional Law of Bangladesh, 2nd edition, reprint, Dhaka,
2003, at p. 193.
264 Special Issue: Bangladesh Journal of Law

2000 Act was bound to suffer imprisonment for at least 90 days, it was seen
as a “political” weapon in the armoury of the government to penalise,
harass and intern its political opponents by filing allegations of crimes
under the Act and, in fact, a number of the then opposition leaders and
activities were arrested under this Act. The filing of criminal cases for the
same alleged criminal acts under the Penal Code, it was deemed, would not
have subjected the accused to the stringent non-bailable provisions of the
Public Safety Act, 2000.
The constitutional validity of this Act was challenged within a few
months after it’s enactment. The arrest of a very prominent leader of the
main opposition party, BNP, along with his sons for allegedly vandalising a
“sweet-shop” prompted filing of criminal cases against them under this Act.
Initially, the leader and his sons were charged under the Penal Code, 1860 but
crimes under some sections of the Public Safety (Special Provision) Act, 2000
were later alleged by the police, calculated to intern the accused for at least
90 days in jail as bail could not have been granted under the Act.
The Act was challenged on a number of grounds, including that the Act
was prone to arbitrary and discriminatory use; its provisions overlapped with
Penal Code and, hence, police could ‘pick and chose’ in deciding to charge
under this Act or under the Penal Code, with differing penal consequences; it
was primarily enacted to harass political opponents of the government; it had
taken away the power of courts to grant bail within the period of 90 days; it
derogated from the procedural safeguards and fairness of trial as the cases
under this 2000 Act were to be tried summarily and for a number of other
reasons. Moreover, the Act was passed as a “Money Bill” without, in fact,
being a Money Bill and, as such, through a fraudulent process. 22

22
Article 80 of the Constitution provides that after a Bill has been passed by
Parliament, it will be presented to the President for his assent. The President may,
however, return it to Parliament for reconsideration of the whole Bill or a part
thereof, if he does not assent to the Bill. In cases of “Money Bill”, so certified by
the Speaker [Article 81(3)], the President does not have the option of returning it
to Parliament for reconsideration, but his assent is mandatory.
The Constitution also details which is a Money Bill and which is not (Article 81).
Generally, levying of taxes, custody of the Consolidated Fund and such other
matters come under the definition of Money Bill while, Art. 81(2) provides: “A
bill shall not be deemed to be a Money Bill by reason only that it provides for the
imposition or alternation of any fine or other pecuniary penalty, or for the levy or
payment of a licence fee or a fee or charge for any service rendered, or by reason
only that it provides for the imposition, regulation, alteration, remission or repeal
of any tax by a local authority or body for local purposes.”
Arrest and Remand: Towards a Rights Paradigm 265

A huge number of petitioners who were arrested or charged under the

Public Safety (Special Provision) Act, 2000 joined the first writ petition challenging
the constitutionality of the Act and, ultimately, a total of 486 writ petitions
were heard analogously over a number of days during May and June of 2001.
Ultimately, a split-judgment was delivered by the two-Judge Division Bench of
the High Court Division. 23 While Justice Mr. M. A. Aziz found the whole Act
to be ultra vires of the Constitution, the other judge, Mr. Justice Shamsul
Huda, held that “sections 16(1), (2) and 18(Kha) of the Act are inconsistent
with the provisions of the Constitution and in the result, the aforesaid sections
of the Act are struck down.” 24 Differing verdicts by the two judges required
the case to be sent to a third Judge (by the Chief Justice) and this was done.
However, the new BNP government, soon after coming to power, repealed
the Public Safety (Special Provision) Act, 2000 and the third judge, Mr. Justice A. T.
Manowaruddin, held, on 30.4.2002, that:
Since the Public Safety (Special Provision) Act, 2000 (Act VII of 2000) …
which is under challenge in all the rules has in the mean time been
repealed …. I find all the above rules have been infructuous.
Accordingly, the rules are disposed of as being infructuous. 25
Consequently, a final decision regarding the constitutionality of the
impugned Act was not reached and the judgments were not reported
(published) in any law report. As a result of the divergence of the opinions and
without a conclusive finding as to the constitutionality of the Act or otherwise
by a majority judgment and hence the judgment was not reported as a
precedent, to be cited and followed.
Nevertheless, as indicated above, this seems to be only “semi-
successful” exercise vis-à-vis constitutionality of a penal law and, hence, a
discussion of this judgement is deemed not irrelevant. Moreover, both the
judges agreed on the unconstitutionality of a number of sections, including
section 16 of the 2000 Act. On section 16, Justice M.A. Aziz held:
Section 497 [of] Cr.P.C., unlike section 16 of Public Safety Act, 2000 ., does not
deny the jurisdiction and power of courts and does not run contrary to the
fundamental right of the petitioners guaranteed under Article 33(2) of the
Constitution. Section 16 of the Public Safety Act, 2000. is therefore, without any
doubt ultra vires of Article 33(2) of the Constitution and as such void. It is also

23
Afzalul Abedin and others vs Bangladesh, 8 (2002) BLC (HCD) 601
24
Afzalul Abedin and others vs Bangladesh, ibid, at p. 635 of Mr. Justice Shamsul
Huda’s judgment.
25
Ibid., Judgement of Mr. Justice A. T. Monwaruddin, at p. 10.
266 Special Issue: Bangladesh Journal of Law

void for contravening the Article 116A of the Constitution which enjoins that
“subject to the provisions of the Constitution, all persons employed in the judicial
service and all magistrates shall be independent in the exercise of their judicial
functions inasmuch as under Section 16 of the public safety act, 2000, the magistrate
has been transformed into a lame, deaf and dumb duck. …… Had the
magistrates been under the judicial control of the sessions judge and that of the
Supreme Court, there could be no violation of Article 116A of the Constitution
and there could be no law like Section 16 of the Public Safety Act, 2000 . The
magistrates can never act independently so long they are under the control of the
Executive inspite of Article 116A and 33(2) of the Constitution. It should be
sacred duty of the legislature to pass a law placing the magistrates under the
control of the Supreme Court to secure fair and impartial justice from them in
discharge of their judicial functions. 26
Both the Judges also agreed that section 18(1)(kha) of the Public Safety Act,
2000 , which provided for recording the substance of the evidence and not the
testimony in its entirety, was unconstitutional. By not requiring the recording
of the testimony in its entirety, Justice M.A. Aziz held, the accused may be
prejudice as those parts of the testimony which alludes to his innocence may
be omitted by the Tribunal. 27
As for police and their power of arrest “in accordance with law”, the
judgement by Mr. Justice M.A. Aziz pointed out:
The rule of law is a basic feature of the Constitution of Bangladesh. To attain
this fundamental aim of the State, the Constitution has made substantive
provisions for the establishment of a polity where every functionary of the State
must justify his action with reference to law. ‘Law’ does not mean anything that
Parliament may pass. Arts. 27 and 31 have taken care of the qualitative aspects
of law. Art, 27 forbids discrimination in law or in State action, while Art. 31
imports the concept of due process, both substantive and procedural, and thus
prohibits arbitrary or unreasonable law or State action. 28
As for our penal laws and police’s power of arrest, Justice M.A. Aziz
elaborated:

26
Ibid., Judgement of Mr. Justice M.A. Aziz, at pp. 140-41.
27
Ibid., at p. 142. Justice M.A. Aziz also held:
“Offences calling for imprisonment for life and triable by the Tribunal who is a
sessions Judge would be allowed to re record substance of the evidence and that the
Tribunal shall follow the Procedure laid down under Chapter XX of the Cr.P.C. (of the
Trial of Cases by magistrates) is by any standard a novel, ingenious and revolutionary
idea unknown in the criminal jurisprudence of any civilised country.”
28
Ibid., at p. 131.
Arrest and Remand: Towards a Rights Paradigm 267

I am rather of the opinion that it is not the enacting of law, rather sincere,
faithful and honest enforcement of the law which is required to check
lawlessness and crime. Penal laws in the guise of special enactments made in
Bangladesh in the last 30 years will surely exceed Penal laws made in say
England over 200 years. Questions may be raised that England is a highly
advanced and civilised country, so Bangladesh should not be equated with
England. It is quite true and logical but can harsh law provide the panacea?
Besides the Public Safety Act, 2000 , we have some other harsh laws. What
result did those laws yield? Take the case of the impugned Public Safety Act,
2000 . After it was enacted has the rate of crime gone down?
Law enforcing Agency is an institution. Its employees are public servants. They
must [profess] allegiance to the State and serve the people. …. They have been
over the years made to owe allegiance to and serve a class of people having
political clout. They serve individuals and parties in power instead of their real
masters namely the people. Through the illegal and partisan use, the police
department has been allowed to rot and degenerate so mush so that it has lost its
human face. It has been consistently, unethically and so unscrupulously used as a
tool of oppression that it has lost its identity beyond recognition. The discipline
and chain of command have totally and completely collapsed. The police no
longer act as the enforcers of law. In collusion and connivance with the police,
the “maastans” under the protective umbrellas of the godfathers sitting in high
position go on committing crimes against the properties, lives and liberties of
innocent people with impunity. ……
Many more unfortunate victims fell prey to the predators in “khaki uniform”
[who are] supposed to protect the victims of crimes and maintain law and order.
And this is the police force entrusted to implement the public safety act, 2000 , and
to choose whether to prosecute some one under the Public Safety Act, 2000 , or
under the Penal Code alleged to have committed the identical offence. … . Public
Safety Act, 2000 , in the hands of the police force that we have, is nothing but a
lethal and deadly weapon in the hands of an overindulgent, frolicsome,
mischievous, whimsical and capriciously unscrupulous and wicked child. The
weapon and the child are equally baneful and dangerous. 29
We have quoted in length from this judgement to indicate the judicial
reflection on the quality and performance of our police. It is these aspects of
policing which need to be taken into serious consideration 30 in understanding
the normative framework of the police’s power to arrest on suspicion.

29
Ibid., at pp. 154-55.
30
Our empirical data below reinforces these perceptions of arbitrary policing.
268 Special Issue: Bangladesh Journal of Law

3. ARREST AND REMAND

As indicated earlier, deprivation of liberty is effected under the
Criminal Procedure Code, 1898 and the Special Powers Act, 1974. We now
proceed by, first, stating the law, and, then, analysing the relevant
interpretations of these provisions.
3.1. ARREST
Section 54 of the Code of Criminal Procedure, 1898 (Cr.P.C.) is the
centrepiece of police’s power to arrest on suspicion. And section 167 of
the Code authorises police, with the permission of a Magistrate, to take an
accused to police custody for further investigation and interrogation, if
investigation cannot be completed within 24 hours of arrest. The
maximum term for which an accused can be kept in police custody (under
section 167) is 15 days.
Section 54 enumerates nine circumstances in which a police-officer
may arrest a person without a warrant. The first set of these nine
circumstances is wide and general while other circumstances enumerated in
the section, such as “thirdly, any person who is proclaimed as an offender
either under this Code or by order of the Government”, or “fifthly, any
person who obstructs a police-officer while in the execution of his duty, or
who has escaped, or attempts to escape, from lawful authority” are specific
and due to their specifications are not liable to much misuse. It is the first
set of circumstances which has been widely misused by police and has been
the primary tool for harassment and abuse of police power. This first set of
circumstances of section 54 reads:
54. When police may arrest without warrant – (1) Any police-officer may,
without an order from a Magistrate and without a warrant, arrest – first, 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; ”
A plain reading of these circumstances indicates that the last two
conditions, i.e.,
(a) credible information has been received, or
(b) reasonable suspicion exists of his having been concerned with a
cognizable offence can easily be manipulated to justify any arrest
by a police-officer. The law requires that either “credible”
information has been received or there is a “reasonable” suspicion
Arrest and Remand: Towards a Rights Paradigm 269

but no test or threshold of information or suspicion has been

elaborated as prerequisites for the arrest to be proper and legal.
Over the years, somewhat surprisingly, the contents or meaning or
threshold-requirements of “credible information” or “reasonable suspicion”
have not been elaborated or interpreted in any authoritative judgment. Issues
such as what would make an information “credible” in terms of content, source,
accuracy, reliability, etc. or what would make the suspicion “reasonable” has not
been judicially scrutinised. No less importantly, subsequent finding that the
information was not credible or the suspicion was not reasonable has not led to
adverse consequences in terms of disciplinary or other measures against
arresting officers. As a result, the police power of arrest under section 54 has
widely been used and misused. Similarly, it is generally acknowledged that an
arrestee is often subjected to torture in police custody when he/she is brought
back on “remand” under section 167.
In such a background, BLAST vs Bangladesh 31 was practically the first
judgement to scrutinise the meaning or interpretation of “credible”
information and “reasonable” suspicion, leading to the formulation of a
number of guidelines to be followed by police and magistrates in arrest and
granting remand, respectively. A year later, many of the issues interpreted
in the BLAST judgement was also taken up in another judgement –
Saifuzzaman vs State 32 -- which added a few more directives for police and
state. The primary concern of this later judgement, however, was the
power of preventive detention under the Special Power Act, 1974. Usually,
a detainee is initially arrested under section 54 and then a detention order
under the Special Powers Act, 1974 is served on the arrestee and in this
Saifuzzaman judgement court discussed in detail the power of arrest under
section 54 and the subsequent detention under the Special Powers Act, 1974
and not the power of arrest under section 54 per se.
3.2. REMAND
Section 167 provides that, when investigation cannot be completed in
twenty four hours of the arrest, a Magistrate can authorise the detention of an
accused in police custody for upto 15 days for further investigation. Under this
section, police requests and Magistrates allows this request to bring the accused
back to the police station for further questioning.

31
55 (2003) DLR (HCD) 363.
32
56 (2004) (HCD) 324.
270 Special Issue: Bangladesh Journal of Law

Such questioning during remand, carried out in police station, in total

isolation and without the presence of any outsider, often leads to unearthing of
evidence to prove the involvement of the accused in criminal activities, i.e., his
guilt. It is readily believed that police takes recourse to torture and other
improper and illegal methods to extract such evidence.
Though there are a good number of formal requirements for recoding
confession by a Magistrate to ensure that confessions are “voluntary”, yet tortures
in police custody during remand have often led to “confession” by arrestees who
had spent a few days in police custody. “Voluntariness” of confessions has been
an issue in much criminal litigation but, again, these had hardly been scrutinised in
terms of Article 35(4) and 35(5) of the Constitution. 33 It, however, needs to be
mentioned that the accused confesses only to a Magistrate in the court premises
and not to police when in police custody during remand. Remand is seen as to
'persuade' the accused to confess to Magistrate.
4. EVOLUTION OF INTERPRETATION OF RIGHT TO LIBERTY
As indicated earlier, the focus of this study is on two dimensions of the
deprivation of liberty through (i) arrests under “suspicion” of section 54 of
the Criminal Procedure Code, 1898, and (ii) “preventive detention” under
the Special Powers Act, 1974. Remand – a corollary of arrest under section 54
is another important component of this paper. This section now deals with
judicial interpretation of the right of the executive (police) to arrest under
section 54 and preventively detain citizens under the Special Powers Act, 1974.
The BLAST and Safiuzzaman judgements are the only two significant
pronouncements of our highest courts on sections 54 and 167 while the
“liberty-jurisprudence” to, virtually, negate the power of the executive to
detain under the Special Powers Act, 1974 has evolved through a large
number of judgments over a quarter of a century. We first take-up section
54 judgments and then elaborate upon the more important ones under the
Special Powers Act, 1974.

33
Article 35:
Protection in respect of trial and punishment: …
“(4) No person accused of an offence shall be compelled to be a witness against
himself.
(5) No person shall be subjected to torture or cruel, inhuman or degrading
punishment or treatment.”
Arrest and Remand: Towards a Rights Paradigm 271

4.1. The BLAST Judgement: Background

The judgement in Writ Petition No. 3806 of 1998 was delivered on 7th
April, 2003 and later reported as Bangladesh Legal Aid Services Trust and others
vs Bangladesh and others in 55 (2003) DLR (HCD) 363.
The case was filed by BLAST , as already indicate, a few months after
the shocking death of Rubel in police custody. Brutal torture of Rubel (a
young student of the Independent University of Bangladesh) by police in
custody and then in front of his relatives near his house had led to
widespread public condemnation and outcry, compelling the then
government to set up an inquiry commission. A number of police
personnel’s who had beaten up Rubel were later prosecuted.
The judgement in the BLAST case was delivered by a Division Bench of
the High Court Division comprising of Mr. Justice Md. Hamidul Haque (the
author judge) and Ms. Justice Salma Masud Chowdhury on the 7th April, 2003.
4.1.i. Section 54
The crux of the judgement is, of course, on sections 54 and 167.
Section 54 of the Code of Criminal Procedure empowers any police officer
to arrest a person.
The provision of this section that of ‘there is a reasonable suspicion’
about a person’s involvement in a crime  is what enables police to arrest
anyone, claiming that the police had suspected the person of being
involved in a crime. Police can arrest anyone on this suspicion which, until
this judgement, was not limited by any criterion or ground of
reasonableness of suspicion. To limit the abuse of police power, the
judgement laid down that if a person is arrested on suspicion:
“… the police officer shall record the reasons for the arrest including the
knowledge which he has about the involvement of the person in a cognizible
offence, particulars of the offence, circumstances under which arrest was made,
the source of information and the reasons for believing the information …” 34
Any suspicion now, after the judgement, is not good enough. The
arresting officer has to record all the relevant information which led to his
suspicion regarding the involvement of the arrestee in a crime. The
judgement distinguished between suspicion and knowledge. “A police
officer can exercise the power if he has definite knowledge of the existence
of some facts and such knowledge shall be the basis of arrest without
34
55 (2003) DLR (HCD) 363, at p. 374.
272 Special Issue: Bangladesh Journal of Law

warrant,” further emphasising that “There can be knowledge of a thing

only if the thing exists.” The ‘suspicion’, which has been abused and
misused by police as the alleged reason for arrest can no longer, after this
judgement, be an indefinite and undefined guess or imagination or whim of
police. The judgement elaborated:
“If a person is arrested on the basis of ‘credible information’, nature of
information, source of information must be disclosed by the police officer and
also the reason why he believed the information. ‘Credible’ means believable.
Belief does not mean make-belief. An ordinary layman may believe any
information without any scrutiny but a police officer who is supposed to posses
knowledge about criminal activities in the society, nature and character of the
criminal etc., cannot believe any vague information received from any person. If
the police officer receives any information from a person who works as ‘source’
of the police, even in that case also the police officer, before arresting the person
named by the ‘source’ should try to verify the information by perusal of the diary
kept in the police station about the criminals to ascertain whether there is any
record of any past criminal activities against the person named by the ‘source’.
…… Use of the expression ‘reasonable suspicion’ implies that the suspicion
must be based on reasons and reasons are based on existence of some fact
which is within the knowledge of that person. So when the police officer
arrests a person without warrant, he must have some knowledge of some
definite facts on the basis of which he can have reasonable suspicion.” 35
After arrest on such suspicion, which now has to be grounded on
known fact and knowledge and these grounds have to be recorded by the
arresting police, the person arrested must be informed of the grounds for
which he has been arrested. After any arrest, the Constitution provides that
the arrested person shall not be denied the right to consult and be
defended by a legal practitioner of his choice.
What usually happened until now is that after arrest on vague and
undefined ‘suspicion’, police would keep the person in police/thana
custody and produce him to the Magistrate within 24 hours without any
obligation of informing the persons of the reasons for his arrest, nor
communicating the fact of his arrest to any relative or friend of the arrested
person and the arrested person would not be allowed to talk to a lawyer.
Now all these would have to change; as the judgement laid down that:
(a) the arrested person has to be informed of the reasons for his arrest;

35
Ibid., at pp. 367-68.
Arrest and Remand: Towards a Rights Paradigm 273

(b) the police would have to inform a friend or relative of the person
arrested, unless he is arrested from his home or work place (the
assumption is that in such an instance of arrest his relatives/friends
would know of the fact of arrest and take appropriate measures); and
(c) the arrested person must be allowed to consult a lawyer, if he so chooses.
The judgement re-iterated:
“We like to give emphasis on this point that the accused should be allowed to
enjoy these rights before he is produced to the Magistrate because this will
help him to defend himself before the Magistrate properly, he will be aware of
the grounds of his arrest and he will also get the help of his lawyer by
consulting him. If these two rights are denied, this will amount to confining
him in custody beyond the authority of the constitution.” 36
These are very important propositions of citizens’ charter of liberty,
which would now be our duty to safeguard and preserve.
4.1.ii. Section 167
Section 167 of the Code of Criminal Procedure, 1898 comes into play
when police, after arresting a person and producing him before a Magistrate
within 24 hours, ask the Magistrate to return the arrested person to the
police custody (remand) on the ground that the police believed that the
arrested person should be further interrogated for information about crimes.
It is a common knowledge that Magistrates routinely allow this request for
remand –– the word ‘remand’ is not mentioned in the section but has come to
mean this 'taking back of the arrested person to the police thana', instead of sending
him to jail. After bringing the arrested person back to the thana on remand “the
police tries to extort information or confession from the person arrested by physical
or mental torture and in the process sometimes also causes death.”
Needless to say, the Constitution guarantees freedom from torture.
Under Article 35 of the Constitution, no one can be tortured or subjected
to cruel or inhuman or degrading punishment or even treatment and none
can be compelled to be a witness against himself, i.e., no one can be
compelled to confess to a crime, even if he has committed that crime. If
someone voluntarily confesses to a crime, that is a different matter.
In many ways, the power conferred to police by section 167 to ask the
Magistrate for remand for further investigation is an exceptional power to be
applied only in exceptional instances. In ordinary course of things, police must

36
Ibid., at p. 372.
274 Special Issue: Bangladesh Journal of Law

have enough credible and justifiable information implicating the arrested person in
the commission of a crime. However, to say, as the police often seem to do, that a
person may be connected with a crime, so lets arrest him first and then find out
whether he is actually connected with any crime or not is obviously a travesty of
the most fundamental of fundamental rights, i.e., right to liberty. One of the most
fundamental premises of rule of law and governance under the constitution is that
the right to liberty is the most cherished right and it can be curtailed only when it
is absolutely necessary to prevent a person from committing another crime by
keeping him confined in jail during the process of his trial for the crime and to
imprison him only if he is convicted of a crime. Instead, what we have is the often
whimsical arrest, and request for remand to find out whether the person has
committed any crime. This is surely a notion of the feudal era when the powerful
could do anything as they were not bound by any law.
The judgement points out that before asking for remand, “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
the information received against the person well founded.”
Besides, the judgement also points out that there is a third requirement to be
fulfilled before asking for remand. Police Regulations require the arresting police
officer to record the relevant information about the involvement of the arrested
person in the commission of a crime, what investigation has been undertaken by the
police, the places visited, the persons questioned, and so forth. However, police
hardly ever produce these records to the Magistrates when asking for remand. But
Magistrates without being satisfied of these legal requirements, routinely grant
remand. Such practice is illegal. The judgement very forcefully held that:
So we do not understand how a police officer or a Magistrate allowing ‘remand’ can
act in violation of the Constitution and provisions of other laws including this Code
and can legalise the practice of remand. …. Such interrogation may be made while
the accused is in jail custody if interrogation is necessary.
Next, the use of force to extort information can never be justified. Use of force is
totally prohibited by the Constitution. ….. So we find that even if the accused is
taken in police custody for the purpose of interrogation for extortion of
information from him, neither any law of the country nor the Constitution gives
any authority to the police to torture that person or to subject him to cruel,
inhuman and degrading treatment. Thus, it is clear to us that the very system of
taking an accused on ‘remand’ for the purpose of interrogation and extortion of
information by application of force on such person is totally against the spirit and
explicit provisions of the Constitution. 37

37
Ibid., at p. 371.
Arrest and Remand: Towards a Rights Paradigm 275

It must be recognised that police may need to further interrogate an

arrested person. It seems that the Hon’ble Justices delivering this landmark
judgement were aware that it may not be practically possible to monitor
whether the police is continuing with their illegal practice of torture in police
thana hazat or not when the arrested person is brought back there on ‘remand’.
To eliminate the possibility of torture the Court directed that such
interrogation can take place only in the jail. By implication, it seems that the
judgement has totally prohibited ‘remand’ of the accused to the thana hazat.
This is a most remarkable aspect of this extraordinarily forward-looking
judgement. Development, advancement and civilisation are all about
expanding and safeguarding rights of citizens and this principle of the
centrality of rights has been most explicitly enunciated in this judgement.
4.1.iii. Punishment of Police Officers for Torture and Death
The Writ Petition provided detailed accounts of deaths in police
custody over a number of years and these numbers, as we all know, are
large and horrific. Over the years many people have been killed in thana
hazat or jails, but there has hardly been any prosecution of the persons
responsible for these murders and tortures in custody.
The judgement points out that: “If a person dies in custody either in
jail or in police custody, the relations are reluctant to lodge any FIR or
formal complaint due to apprehension of further harassment.”
Under our present laws, a Magistrate can initiate legal proceeding upon
a complaint lodged by a complainant. For deaths in police custody, as
indicated in the judgement, the relatives are reluctant to lodge any
complaint and police does not do so to implicate themselves in the crime
of murder in police custody. Hence, the judgement recommended that in
cases of death in police or jail custody, where post mortem indicates foul
play, a Magistrate should be empowered to initiate legal proceedings
against the suspect police without waiting for a complaint from the
relatives of the murdered person.
Also the Penal Code, 1860 provides for punishment for extorting
confession or information from any person and for confinement to extort
such information. But these sections of the Penal Code do not provide for
any specific crime of extortion for confession in police custody. The
judgement, therefore, recommends that the relevant sections be modified
to include a new crime of hurt in police or jail custody for extorting
confession and such a crime be punished with imprisonment of upto ten
276 Special Issue: Bangladesh Journal of Law

years, with a minimum sentence of seven years of imprisonment as well as

compensation.
The judgement also held that:
According to us, this Court, in exercise of its power of judicial review when
finds that fundamental rights of an individual has been infringed by colourable
exercise of power by the police under section 54 of the Code or under section
167 of the Code, the Court is competent to award compensation for the wrong
done to the person concerned. 38
4.1.iv. Recommendations for Amendment of Laws
Another most important aspect of the judgement is the detailed
recommendations for the necessary amendments to the relevant sections of
the Code of Criminal Procedure,1898, the Penal Code, 1860 and the
Evidence Act, 1908 to ensure that the directions, guidelines and safeguards
enunciated in the judgement are strictly followed as a matter of law.
Obviously, judge-made laws through precedents often suffice to change the
meaning and application of laws and these are done routinely by judgments
of both the Divisions of the Supreme Court. However, the Hon’ble Justices
clearly recognised that their interpretation of sections 54, 167 and some
sections of the Penal Code and Evidence Act are so far reaching that the
goal of safeguarding rights and liberties of the citizens would best be served
by amendments of the relevant provisions of the laws.
The judgement made a total of seven sets of recommendations
(Recommendations A through G in the judgment). For most of these
recommendations about amendment of laws, the judgement quoted the relevant
sections as they now stand and side by side formulated the recommended
amendments. The judgement suggested amendments to sections 54, 167, 176, and
202 of the Code of Criminal Procedure; section 302, 330 and 348 of the Penal
Code; section 106 of the Evidence Act (or in the alternative section 114 of the
Evidence Act); and section 44 of the Police Act.
The amendments proposed indicate the painstaking exercise undertaken
by the Hon’ble Justices. Needless to say, as the judgment itself re-affirms, the
High Court Division, under Article 102 of the Constitution, does have the
power to recommend amendments of laws. However, whether the
amendments would be accepted verbatim is a completely different issue.

38
Ibid., at p. 373.
Arrest and Remand: Towards a Rights Paradigm 277

Until the sections are suitably amended, as recommended by the judgement,

the 15 directives at the end of the judgment should protect and safeguards the
rights and liberties of citizens from misuse and abuse by the police.
It needs to be recognised though that the legislature is not limited by
the recommendations for amendment of law. The legislature is free to
amend the relevant laws as it deems fit, keeping in view the concerns of the
Court and the safeguards of rights of people which the Court has directed
to be implemented.
Enacting and amending laws is the domain of the legislature and
Article 112 of the Constitution recognises that, albeit indirectly, when it
provides that “All authorities, executive and judicial, in the Republic shall
act in the aid of the Supreme Court”. By omitting the legislature from the
list of authorities which shall act in the aid of the Supreme Court, the
framers of the Constitution clearly reinforced the separate, independent
and sovereign law making role and authority of the Parliament. Needless to
say, laws enacted by the Parliament are subject to the scrutiny of the
Supreme Court and the Supreme Court may declare any law enacted by the
Parliament invalid, i.e., unconstitutional and void. Though the
recommendations of the Court are not binding in terms of the exact words
and forms, it is a natural expectation that the Parliament will amend the
recommended sections of the laws, as suggested by the Court.
The 15 directives of the judgements, though, are certainly mandatory
for the executive, i.e., police and magistrates. They must begin to act in
terms of the directives of the judgments.
4.1.v. Conceptual Complexities in the judgment
An important aspect of the BLAST judgment is that it did not find any
part or provision of section 54 unconstitutional. The application of section 54
and the resultant arrests often exceed the limits imposed on police power of
arrest by the relevant constitutional mandates. Moreover, the conditions that
are required to be fulfilled for arrests on suspicion to be legal and proper are
often not adhered to by the arresting officers. However, such a state of
practical affairs does not and cannot lead to the finding by the court that the
section itself is unconstitutional.
One needs to recall that, over the years, only a very few laws have actually
been declared unconstitutional by the Supreme Court. In fact, not entire laws but
only a few sections of some laws have actually been declared unconstitutional by
278 Special Issue: Bangladesh Journal of Law

judgements of the Supreme Court. 39 The most celebrated of these is the finding
that the part of the Eight Constitutional Amendment which provided for the
establishment of High Courts in various districts of the country, though it was
passed by the Parliament following all the formalities and requirements, were
struck down by the Supreme Court in Anwar Hossain Chowdhury vs Bangladesh. 40 A
number of other cases had challenged the constitutionality of a number of
constitutional amendments, but these have not been successful. 41
The expression “inconsistent” with the Constitution, following the
language of the Constitution itself 42, is used in judgements which declared
a law or a provision of law unconstitutional. However the BLAST
judgement, in evaluating the provisions of section 54, did not use the word
“inconsistent with provisions of the Constitution”, rather it took recourse
to the following expressions:
“The power given to the police officer under this section, in our view, to a
large extent is inconsistent with the provisions of Part III of the
Constitution.” 43
“.. the provision of these sections are to some extent inconsistent with the
provisions of the Constitution and requires some amendments.” 44
As for remand the Court held: “Thus, it is clear to us that the very
system of taking an accused on ‘remand’ for the purpose of interrogation
and extortion of information by application of force on such person is
totally against the spirit and explicit provisions of the Constitution. So the
practice is also inconsistent with the provisions of the Constitution.” 45

39
Insert examples of judgments declaring laws as unconstitutional.
40
1989 BLD (Spl) 1; popularly known as the Eight Amendment Judgement.
41
The most recently reported one is M. Saleemullah vs Bangladesh, 57 (2005) DLR
(HCD) …… which challenged the validity of the 13th Amendment --- Care Taker
Government Amendment –- of the Constitution. A few month ago, the part of the
latest constitutional amendment – the 14th Amendment – reserving 45 seats in the
parliament for women was also unsuccessfully challenged.
42
Article 7 of the Constitution provides: 7(2) ….. if any other law is inconsistent
with this Constitution that other law shall, to the extent of inconsistency, be void.”
Similarly, Article 26 provides: 26(2) “The State shall not make any law
inconsistent with any provisions of this Part, and any law so made shall, to the
extent of such inconsistency, be void.”
43
BLAST vs Bangladesh, 55 (2003) DLR (HCD) 363, at p. 368. Underline added for emphasis.
44
Ibid., at p. 373. Underline added for emphasis.
45
Ibid., at p. 371. Underline added for emphasis.
Arrest and Remand: Towards a Rights Paradigm 279

Clearly, such expressions leave scope for differing understanding of the

status of these (54 and 167) sections or parts thereof. A strict reading of
the Constitution would entail a definitive finding as to whether any
provision is inconsistent with the Constitution or not. Hence, the finding
that a provision is “to a large extent” or “to some extent” inconsistent may
not satisfy the constitutional test. Secondly, the Constitution provides for
inconsistency of a law or a part thereof, and not of any practice. Hence, it
remains unclear whether an inconsistent practice makes the law, which
gives rise to the practice, is also inconsistent and, hence, void.
This, clearly, is the weakest part of the judgement as, one the one hand,
it does not declare any part of Section 54 unconstitutional, but, on the
other, recommends amendments of Section 54. Similarly, actions in
implementing section 167 are found to be inconsistent with the
Constitution, but no part of section167 is declared unconstitutional.
Section 54 and 167 remain valid laws and, hence, the recommendations for
amendments of these and other sections clearly are only persuasive.
4.2. The Saifuzzaman Judgement
As already indicated Saifuzzaman vs State and others 46also dealt with the
issues of police power of arrest under section 54 and remand under section
167. This judgement took into account the earlier BLAST judgement and,
similar to that judgement, also offered guidelines for police for the exercise
of their power of arrest and for Magistrates in granting remands.
The fact of this case is somewhat different in that the 2 petitioners in
this case were leading political activists. Secondly, they were repeatedly
shown arrested in a series of cases to thwart court orders granting them
bails. Thirdly, upon arrest under section 54, they were sent to jail on the
plea of police that preventive detention orders were being issued and it was
necessary to detain them until such orders could be served upon them.
Ultimately, the Court held that arrests under section 54 and subsequent
police request for detention in jail custody until orders of preventive
detention could be served upon the arrestees under the Special Powers Act,
1974 was illegal. In all the cases filed against the petitioners, they were
initially arrested under section 54, police had taken (in some of the cases)
them on police remand and, hence, the elaborate holdings of the court on
the application, use and abuse by police of their powers under these two
sections of the Code of Criminal Procedure, 1898

46
Saifuzzaman vs State and Others, 56 (2004) DLR ((HCD)) 324
280 Special Issue: Bangladesh Journal of Law

In scrutinising the police power of arrest, the Saifuzzaman Court also

dwelt upon the meaning of “credible” information and “reasonable”
suspicion. Similar to the BLAST judgement, this Court also emphasised
that any information or suspicion can not, by itself, be sufficient to justify
deprivation of the right to liberty of a citizen. The Court elaborated:
The expression “credible information” used in the section includes any
information which, in the judgment of the officer, to whom it is given,
appears entitled to credit in the particular instance. The word “reasonable”
has reference to the mind of the person receiving the information. The
“reasonable suspicion” and “credible information” must relate to definite
averments, which must be considered by the police officer himself before
he arrests a person under the provision. What is a “reasonable suspicion”
must depend upon the circumstances of each particular case, but it should
be at least founded on some definite fact tending to throw suspicion on the
person arrested and not on a mere vague surmise.
The words “credible” and “reasonable” used in the first clause of
section 54 must have reference to the mind person receiving the
information which must afford sufficient materials for the exercise of an
independent judgment at the time of making the arrest. In other words, the
police officer upon receipt of such information must have definite and
bonafide belief that an offence has been committed of is about to be
committed, necessitating the arrest of the person concerned. A bare
assertion without anything more cannot form the material for the exercise
of an independent judgment and will not therefore amount to credible
information. 47
The Saifuzzaman Court also dwelt the on meaning of liberty and the
imporance of safeguarding it at all costs.
It is clear that this Court, similar to the BLAST court, also felt that
interpretation alone of the requirement of “credible” information and “reasonable”
suspicion alone may not suffice as liberty also depends on the understandings of
those who have the power to deprive a citizen of his liberty:
We would like to reiterate the views consistently held by this Court that
those who feel called upon to deprive other persons of liberty in the
discharge of what they conceive to be their duty must, strictly and
scrupulously, observe the forms and rules of law. 48

47
Ibid., at p.
48
Ibid., at p.
Arrest and Remand: Towards a Rights Paradigm 281

This Court also suggested amendments of the relevant sections, but

unlike the BLAST Court, it refrained from formulating its own amendments
of the relevant provisions of law, stating:
The old order has changed yielding place to new, and we must have new need
for the new hour. Our procedural law is more than a century old, this piece of
legislation has stood the test of time and it is felt that necessary amendments are
required to be introduced to this law to bring it in line with India and Malaysia. We
are told that amendments to sections 54 and 167 of the Code are under
implementation as per recommendation of the Law commission. Before such
change is made, the Legislature should consider whether a new section similar to
section 50 of the Indian Code might be inserted which will bring the law in
conformity with the provisions of Article 33(1) of the Constitution. This change in
the provisions of the Code is necessary to remove anomalies and ambiguities
brought to light by the extensive amendments of 1978. We cannot direct the
Government to make necessary amendments of the relevant provisions of the
Code without declaring the relevant provisions of the Code as unconstitutional.
The provisions of the Code are applicable in this country over a century and after
lapse of decades, it would be improper if we declare those provisions as
unconstitutional without having a comprehensive revision of the entire Code. 49
The Court clearly recognised that it could not direct the Legislature to amend
the relevant laws without declaring the existing laws unconstitutional. Hence, it did
not proceed with formulating specific amendments.
It is clear that these two judgements of the High Court Division, unlike
any previous judgements, reflect the anxiety of the judiciary regarding
continuous abuse of power by police under sections 54 and 167 of the
Code. Both the Court attempted to insert new requirements for
information to be credible and suspicion to be reasonable for justifying
arrest. Recognition of the police practice of torture on remand was also
implicit in both the judgements.
One can not legislate torture away by mere enactments of laws
prohibiting torture. Our Constitution had prohibited torture, as did a
number of prior legislations. Bangladesh’s ratification of a number of
international human rights covenants and instruments also indicate the
formal state policy of not taking recourse to torture. The reality of remand

49
Ibid., at p. ...
282 Special Issue: Bangladesh Journal of Law

in police custody, however, is completely different and remand is often

taken to be synonymous with torture. 50
The Safiuzzman Court, unlike the BLAST Court, did not offer specific
amendments for sections 54 or 167. Instead, the Court explained:
After the deletion of Chapter XVIII by Ordinance No. XLIX of 1978,
we are of the view that necessary amendments should be made to sections
167, 344 and chapter XX of the Code in order to remove inconsistency. In
India there is legislative change in this section 167 of the Code with the
object to eliminate the chronic malady of protracted investigation. A time
limit with a provision for extension under certain circumstances is fixed by
adding a proviso to sub-section (2). This proviso makes it obligatory to
produce the accused before the Magistrate at the time of making remand.
These changes are made with a view to affording protection to the accused
against unnecessary harassment at the hands of the investigation agency.
Regulation 263 of Police Regulations, chapter I speaks of case diary,
which is in the verbatim language of section 172 of the Code. It is said that
the police officer is bound by law to keep record of the proceedings in
connection with the investigation of each case, (a) the time at which the
information was reported to him, (b) the time at which he has closed his
investigation, (c) the place of places visited by him and (d) a statement of
the circumstances ascertained through his investigation. Nothing, which
does not fall under the above heads, need be entered. It has been
instructed that the diary shall mention every clue obtained and every step
taken by the investigation officer. As regards house searches and arrest,
particulars shall be noted in the diary. The diary shall contain full and
unabridged statements of persons examined by the police officer so as to
give the Magistrate of perusal of the said diary a satisfactory and complete
source of information which would enable him to decide whether or not
the accused should be detained in such custody as he thinks fit. This clearly
indicates the purpose of production of an accused before a Magistrate of
ensure that the arrest without warrant and the detention of the accused is
at any rate prima facie justified. 51
As we shall see below, both the BLAST and Saifuzzaman Courts detailed a
number of directions for the police as pre-conditions for the exercise of their

50
For a detailed study of torture see REDRESS, Torture in Bangladesh: Making
International Commitments a Reality and Providing Justice and Reparation to
Victims, London, 2004, available at www.redress.org
51
Saifuzzaman, ibid,. at p.
Arrest and Remand: Towards a Rights Paradigm 283

power of arrest and remand. These directives could easily become charters of
righs of accused in our criminal justice system. However, the courts’
pronouncements are yet to be translated into practice.
5. TOWARDS A MORE EFFECTIVE RIGHT TO LIBERTY
It is clear that the High Court Division in the BLAST and Saifuzzaman
judgements has ushered in a new dimension of liberty jurisprudence. The new
dimension, in detailing the requirements of “credible” and “reasonable” for
arrest under section 54 are certainly designed to rein in the police power of
arrest. Both the Courts offered detailed guidelines for arrest and remand.
As for arrest, the BLAST Court issued the following guidelines:
1) No police officer shall arrest a person under section 54 of the Code for
the purpose of detaining him under section 3 of the Special Powers
Act,1974
2) A police officer shall disclose his identity and, if demanded, shall show
his identity card to the person arrested and to the persons present at the
time of arrest.
3) He shall record the reasons for the arrest and other particulars as
mentioned in recommendation A(3)(b) in a separate register till a special
diary is prescribed.
4) If he finds, any marks of injury on the person arrested, he shall record the
reasons for such injury and shall take the person to the nearest hospital or
Government doctor for treatment and shall obtain a certificate form the
attending doctor.
5) He shall furnish the reasons for arrest to the person arrested within three
hours of brining him to the police station
6) If the person is not arrested from his residence or place of business, he
shall inform the nearest relation of the person over phone, if any, or
through a messenger within one our of bringing him to the police station.
7) He shall allow the person arrested to consult a lawyer of his choice if he
so desires or to meet any of his nearest relations. 52
Similarly, the Saifuzzaman Court also issued guidelines on arrest:
i. The police officer making the arrest of any person shall prepare a
memorandum of arrest immediately after the arrest and such officer shall
obtain the signature of the arrestee with the date and time of arrest in the
said memorandum.

52
BLAST , Ibid., pp. 380-81
284 Special Issue: Bangladesh Journal of Law

ii. The police officer who arrested the person must intimate to a nearest
relative of the arrestee and in the absence of the relative, to a friend to be
suggested by the arrestee, as soon as practicable but not later than 6(six)
hours of such arrest notifying the time and place of arrest and the place
of custody.
iii. An entry must be made in the diary as to the ground of arrest and name
of the person who informed the police to arrest the person or made the
complaint along with his address and shall also disclose the name and
particulars of the relative of the friend, as the case may be, to whom
information is given about the arrest and the particulars of the police
officer in whose custody the arrestee is staying.
iv. Copies of all the documents including the memorandum of arrest, a copy
of the information of complaint relating to the commission of cognizable
offence and a copy of the entries in the diary should be sent to the
Magistrate at the time of production of the arrestee for making the order
of the Magistrate under section 167 of the Code. 53
Both the Courts also issued guidelines for remand and we first quote
the guideliens of the BLAST judgement below:
8) If the Magistrate is satisfied on consideration of the reasons stated in the
forwarding letter as to whether the accusation or the information is well-
founded and that there are materials in the case diary for detaining the
person in custody, the Magistrate shall pass an order for further detention
in jail. Otherwise, he shall release the person forthwith.
9) If the Magistrate authorizes detention in police custody, he shall follow
the recommendations contained in recommendation B(2)(c)(d) and
B(3)(c)(d). ...
10) 12) The police officer of the police station who arrests a person under
section 54 or the Investigation Officer who takes a person in police
custody or the jailor of the jail, as the case may be, shall at once inform
the nearest Magistrate as recommended in recommendation B(3)(e) of
the death of any person who dies in custody. 54
As for the Saifuzzaman Court on remand, the following guidelines were issued:
v) If the arrested person is taken on police remand, he must be produced before
the Magistrate after the expiry of the period of such remand and in no case
he shall be sent to the judicial custody after the period of such remand
without producing him before the Magistrate.

53
Saifuzzaman, ibid., at pp. 342-43
54
BLAST , ibid., at p. 381.
Arrest and Remand: Towards a Rights Paradigm 285

vi) Registration of a case against the arrested person is sine qua non for
seeking the detention of the arrestee either to the police custody or in the
judicial custody under section 167(2) of the Code.
vii) If a person is produced before a Magistrate with a prayer for his detention
in any custody, without producing a copy of the entries in the diary as per
item No. (iv) above, the Magistrate shall release him in accordance with
section 169 of the Code on taking a bond from him. 55
The guidelines of both the cases are quoted in detail to indicate the
painstaking detail into which the court have gone to safeguard the rights of
arrested persons, both in course of arrest and during police remand.
The Saifuzzaman Court specifically directed all concered to implement
these guidelines:
The requirement Nos. (i), (ii), (iii), (iv), (v) and (vi) be forwarded to the Secretary,
Ministry of Home Affairs and it shall be his obligation to circulate and get the
same notified to every police station for compliance within 3 months from date.
The requirement Nos. (v), (vi), (vii), (viii), (ix),(x) and (xi) be forwarded to all
Chief Metropolitan Magistrates and District Magistrates and it shall be their
obligation to circulate the same to every Metropolitan Magistrate and the
Magistrate who are authorized to take cognizance for compliance within 3 (three)
months from date. The Registrar, Supreme Court of Bangladesh is directed to
circulate the requirement as per direction made above. It is hoped that these
requirements would curb the abusive power of the police and harassment of
citizen to be apprehended by the police. If the police officers and the Magistrates
fail to comply with above requirements, within the prescribed time as fixed
herein, they would be rendered liable to be punished for contempt of Court, if
any application is made by the aggrieved person in this Court. The police officers
and the Magistrates shall follow the requirements strictly so that no citizen is
harassed nor his fundamental right guaranteed in part III of the Constitution at
any event is curtailed. 56
Despite these very detailed guidelines and instructions to the concerned
officials of the Government, it is clear that these guidelines, as it were, have
not seen the light of the day.
5.1. Advocacy
In terms of time necessary for filtering down of interpretations of laws
offered by the High Court Division, both the BLAST and Saifuzzaman

55
Saifuzzaman, ibid., at p. 342.
56
Ibid., at p. 343.
286 Special Issue: Bangladesh Journal of Law

judgements are rather recent and it would, it seems, take a while for the import of
these judgements to filter through to all nooks and corners of the legal world.
These judgements, it needs to emphasised, directed major changes in the
way police acts. The police power of arrest and remand had never been
scrutinised before and neither had the constitutional safeguards regarding
arrest and detention of the Constitution made to bear upon these powers of
police. In such a long-standing practice of unfettered power, these two
judgements laid down very exacting details regarding what police can and must
do in effecting arrest and asking for remand. If police were to follow these,
they would have to drastically revise their methods and practices. Such a
change, needless to say, is not in the interest of the police but in the interest
citizens and it is for citizens to press for implementation of these directives.
It needs to be mentioned that many a major changes directed by
Courts have not come about smoothly or automatically. For example, the
Appellate Division had issued 12 directives for the separation of the
judiciary in 1999. The directives of this, now famous, the Masdar Hossain 57
judgement is being implemented only now, in 2007, after 8 years of
constant efforts by the bench. The leading lawyers of the case had kept on
going back to the court for direction upon the government for
implementation of the directives of the case and it is only from 1 July, 2007
that the Rules necessary for implementation of the separation of the
judiciary have been promulgated. Similarly, in Kudrat E Elahi vs Bangladesh 58
the Supreme Court had directed the Government to hold elections of local
government bodies within 6 months, but government has gone back to the
court every six months or so for the extension of time to hold these
elections and these elections are yet to be arranged.
In other words, inspite of the constitutional dictate of Article 112 that
law declared by the Supreme Court is binding on all concerned, directives
of the type enunciated in the BLAST and Saifuzzaman cases are not
automatically implemented for the reason that these entail major changes
in the way police functions and these changes are detrimental to the
exercise of unrestricted power of police which they would be reluctant to
implement. In the milieu, as mentioned earlier, of weak notions about the
importance of the right to liberty, there does not seem to be any natural
constituency to press for restriction on the police power of arrest and

57
Secretary, Ministry of Finance vs Masdar Hossain and others, 52 (2000) DLR
(AD) 104 = 20 (2000) BLD (AD) 84
58
Kudrat E Elahi vs Bangladesh 44 (1992) DLR (AD) 314
Arrest and Remand: Towards a Rights Paradigm 287

remand. As a result, the police and the executive have been able to
“ignore” the directives of the Court in these two cases.
No less importantly, the perceived increase in crimes and the impunity
of criminals have found public resonance and approval in the strong-arm
tactics of the government in recent years to deal with these alleged
notorious criminals in extra-legal manner. “Cross-fire” and “encounter”
have become accepted euphemisms for extra-judicial killings of alleged
notorious criminals by the police and other law enforcing agencies and
such killings are deemed to enjoy tacit public support. Remand of criminals
to police custody for torture, again, is largely accepted.
The ground reality of public acceptance of erosion and disregard of the
rights of the accused have gradually led to the strengthening of a virtual police-
state. Therefore, the bold pronouncement of the courts to safeguard the rights
of the accused during remand and citizens in arrest has, virually, gone unnoticed.
6. CONCLUSION
This paper has argued that the right of liberty, when litigated in the
constitutional (writ) jurisdiction of the court, has routinely resulted in
verdicts in favour of the detenue under the Special Powers Act, 1974. 59
However, except the rights of detenue under the Special Powers Act, 1974,
rights of others who are arrested and interrogated in police custody had not
attracted judicial scrutiny until the BLAST judgement. The interpretation of
police power of arrest and remand of the BLAST judgement was followed
in the Saifuzzaman case a year later.
Despite some conceptual unclarity of the BLAST judgement, the directives
to the police in effecting arrests of citizens are crystal clear. These directives,
though novel for our jurisdicition, are known to other jurisdictions, the
beginning of which can easily be traced to the famous Miranda judgement of the
American jurisdiction. The BLAST judgement also provided detail
recommendations for amendment of the relevant provisions of law. The
Saifuzzaman judgment repeated some of the directives for police of the BLAST
judgement and added a few more. The Saifuzzman judgement, however, did not
offer specific suggestions for amendment of the laws.
The directives of these judgements, it seems, have fallen on deaf ears.
Police have continuted to exercise their unfettered power of arrest. The

59
The trend has continued, as evidenced by recent reported judgements in Dr. Abida
Sultana Bhuiyan vs Bangladesh, 55 (2003) DLR (HCD) 430, Nazru; Islam vs
State, 55 (2003) DLR (HCD) 401, etc.
288 Special Issue: Bangladesh Journal of Law

BLAST judgement was widely reported and in the immediate post

judgement period police were a bit cautious and the number of arrests
under section 54 was somewhat reduced. But soon police took recourse to
arrests under the relevant provisions of the Metropolitan Police Acts of
various metropolitan cities to bypass the dictates of the BLAST and
Saifuzzaman judgement. The practice of taking arrestees on remand to
police custody has remained unchanged.
An important directive of both the judgements regarding access to legal
advice for arrestees and those taken in remand is not implemented and the
arrestees are routinely denied this right. Similarly, the right to be informed
of the charges, and the obligation upon police of informing the near and
dear ones are hardly ever adhered to. Upon arrest, the jail regime of not
allowing access to prisoners are strictly enforced and none (including
lawyers) are allowed to meet and talk to arrestees.
The directives of these two judgements are not likely to be implemented
by the executive organs of the state on their own volition. Experience suggest
that major changes in the way powers are exercised had required sustained
engagements on the part of the civil society and the legal community for
implementation. The directives of these two judgments are yet to attract
similar attention and advocacy measures by the relevant civil society
organisations. This is not to say that nothing has been done to disseminate the
directives of these judgment, but clearly a lot more need to be done.
The legal community has not pressed the rights enunciated by the
judgements during the relevant legal proceedings. Lack of engagements by
trial lawyers in favour of the directives is a major reason for non-utilisation
and non-implementation of the judgements. Also, these judgments are yet
to be cited in subsequent cases on misuse and abuse of police power and
against grant of remand my Magistrates.
To end, the BLAST and Saifuzzaman judgements have ushered in a
restricted regime for the exercise of police power of arrest under section 54
and for limiting remands of arrested persons to police custody for questioning
and investigation. However, this new threshold of right to person liberty can
only be meaningful if there is a sustained campaign amd advocacy to compel
the police and magistrates to follow the directives of these two judgements.
Lawyers can play an important role by demanding treatments of arrestees in
terms of these judgements and taking the issues of violations of these
judgements in higher courts to further affirm and re-affirm