Md. Zakir Hossain
A man named Shanu Hawlader, allegedly an accused of murder case, died in police custody at morning on 26 March, 2020, three days after he was arrested by Amtali Police Station, in Barguna. The victim’s family alleged that the deceased Shanu Hawlader was killed in police brutality for failing to bribe Amtali police officer-in-charge Abul Bashar and inspector Manoranjan Mistri with Tk 3 lakh. The hanging body of the man was found in Amtali Police Station in the room of Inspector investigation. The case has been filed on 01 April, 2020 when the complaint was lodged by an Advocate of Supreme Court through e-mail to SP Barguna. For such incident in the Corona Pandemic, the debate on the ‘custodial torture and death’ has been focused across the country.
Rights to life and liberty, freedom from torture or cruel, degrading treatment or punishment are guaranteed as fundamental rights in the Constitution of Bangladesh. Any form of torture or illegal punishment, infringing one’s rights to life and liberty signifies a gross violation of fundamental human rights. Article 3 of the Universal Human Rights Declaration (UDHR) provides that, ‘everyone has the right to life, liberty and security of person.’ Article 5 of UDHR provides that, ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’ Article 7 of the International Covenant on Civil and Political Rights (ICCPR) of 1966 also set out that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
In Articles 31, 32 & 35(5) of the Constitution of Bangladesh, the rights to life and liberty, and freedom from torture, or cruel, inhuman or degrading treatment or punishment are guarantee for Bangladeshi citizens. Thus, both under national and international legal instruments, this is recognized as a fundamental human right of the citizens which cannot be suspended on ground of emergency, national security or any other reasons. These rights are also known as peremptory norms of international law or jus cogens norms as non-derogable rights. These rights cannot be compromised (or reduced) and inalienable rights, which cannot be taken away.
On 10 December 1984, the UN General Assembly adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world. Bangladesh became a member state to CAT on 5th October 1998. Article 4 of CAT provides that “each state party to the Convention shall ensure all acts of torture are offences under its criminal law and shall ensure that the relevant penalties sufficiently reflect the gravity of the offences in question.”
The abuse of powers of arresting without warrant under section 54 and placing the accused in police custody under section 167 of CrPC has resulted in violations of fundamental rights to fair trial, freedom from torture or cruel, inhuman or degrading treatment. The High Court Division (HCD), in BLAST and others vs. Bangladesh and others case [55 DLR (2003) 363], opined these sections are to some extent inconsistent with the Constitution of Bangladesh and require amendments. In 2003, the HCD held in this Judgment in view of Article 35 of the Constitution, “any information which is obtained or extorted by taking an accused on remand and by applying torture, the same information cannot be considered as evidence and cannot be used against him.”
The judgment also made 15 key recommendations to amend the Criminal Code of Procedure 1898 so as to make it more consistent with the Constitution. The said 15 directives to safeguard against abuse of the powers of arrest and interrogation in custodial detention, including that authorities must take permission from a magistrate to conduct interrogation in remand and that it must take place in a room with glass walls inside the prison, with lawyers and relatives allowed to monitor nearby. Moreover, authorities must inform the person of the reason for arrest within three hours and ensure that a relative or friend of the detained person is informed within 12 hours of the arrest about the time, place of arrest and place of detention.
In releasing the full text of its verdict on the appeal on November 10, 2016, the Appellate Division of SC issued 19-point guidelines for police, magistrates and judges to stop arbitrary arrests on suspicion and torturing arrestees on remand. Indian Supreme Court observed in the case of D. K. Basu Vs. State of West Bengal [(1997) 1 SCC 434] that “custodial death is one of the worst crimes in a civilized society governed by the rule of law”.
A recent review of deaths in custody revealed a significant increase in the number of people dying in police custody over the last few years in the country. Since 2014 to March, 2018, a total of 285 people were reported to have died in custody, including 119 convicts and 166 under-trial prisoners, according to Ain o Salish Kendra. In a report of Odhikar, a human rights forum, informs that at least 60 persons died in custody in 2019. Between 2009 and 2019, the annual figure of victims of custodial deaths hovered within the 50 to 63 range. It registered a steep rise to 105 in 2011 and 81 in 2018.
However to address these human rights violations, the “Torture and Custodial Death (Prevention) Act, 2013” has been enacted which was also facilitated by Bangladesh’s obligation under CAT to enact a law criminalising all acts of torture. The Act provides a legal definition of ‘torture’ and ‘custodial death’ along with effective victim protection mechanisms. The Act 2013 in its section 2 (6) provided specific criteria of “torture” like extorting any information or confession, punishing or intimidating any suspected person or offender or other discrimination etc. According to section 2 (7) “Custodial Death” means death of any person in the custody of any government official. The Act also provides details about provisions for making a complaint, the investigation procedure and sentencing provisions.
Under section 4(1) (c) on receiving complains of torture the competent court will immediately record the complainant’s statement in writing and then the court will order an examination of the body by a registered doctor of the same sex of the complainant. The doctor will prepare a report within 24 hours under section 4(2) on the recognition of wounds and signs of torture as well as the approximate time of the alleged torture. On receipt of complaint and such report the court will file case accordingly. Regarding investigation, this Act in its section 5(5) provides that a police officer whose rank is not less than that of the person accused will be engaged by the Court to conduct the investigation. Here if any argument arises concerning the compromise of neutrality and if it would be impossible for the police to conduct a proper investigation then under section 5(2), upon satisfaction, the court can order judicial investigation. The Act has provisions of at least five years imprisonment and a Tk 25,000 fine while custodial death due to torture is punishable with life imprisonment and a fine of Tk 100,000.
The Act primarily entrusts the police for investigation but here the neutrality may be highly compromised where investigation is held by a police against another police. Well it provides for judicial investigation in this situation but it is not mandatory. The severity of the punishments provided for offences under this Act does not reflect those for similar offences under the Penal Code 1860. The punishments provided for by the Act are limited to imprisonment and compensation, other departmental proceedings such as ‘suspension and dismissal from his/her job’ are not included. Further, the Act set out the provisions to compensate to the victim/aggrieved persons, but it fails to prescribe the specific procedure for the compensation to be paid. Furthermore, the law does not provide for the death penalty for death. But when a gruesome custodial murder or crossfire deaths what would be the sentence.
The Constitution of Bangladesh and criminal law absolutely forbid in all circumstances, any actions amounting to torture. Section 9 (5) of the Women & Children Repression Prevention Act-2000 postulates the punishment of custodial rape and torture by law enforcement agency against any woman and child and the punishment for custodial negligence is up to ten years and fine. Section 29 of the Police Act 1861 and section 48 of the Dhaka Metropolitan Police Ordinance, 1976 also stated against torture. Article 35(4) of the Constitution of Bangladesh has stated that “no person accused of any offence shall be compelled to be a witness against himself.”
The Penal Code 1860 applicable in Bangladesh makes clear that physical and psychological ill-treatment of the accused by law enforcement officials is impermissible and punishable. Causing of “hurt” or “grievous hurt” by public servants to obtain confessions or to compel restoration of property carry sentences up to seven and ten years imprisonment respectively under section 330 and 311. Sections 162,163,172 and 173 of the Code of Criminal procedure, 1898; read with sections 24, 25 and 26 of the Evidence Act, 1872 provide rules of conduct and procedure to prevent torture of persons under interrogation. Section 26 of the Evidence Act also excludes confessions made by a person in Police custody unless made in the immediate presence of a magistrate. It is to be read with section 164 and 364 of the CrPC 1898.
To build a violence- free society, a public awareness campaign needs to be held and orientation on its provisions is needed for judges, lawyers, members of the law enforcement agencies and human rights activists. The enforcement of the Prevention of the Custodial Torture & Death Act 2013 is essential to control and make accountable of the concern law enforcement agency.
(The writer acknowledges with gratitude the different sources of information.)
The writer is a member of Bangladesh Judicial Service & is working as Senior Judicial Magistrate, Chief Judicial Magistrate Court, Feni.
