Criminal Laws and the Constitution of Bangladesh

Introduction:

Liberty is a comprehensive term. Its nature and quality are determined with reference to constitution under which it may be restricted in the interest of society or the state. Though the right to life and personal liberty its nature solely depend upon the constitution and laws country concerned.

 According to Dicey defined the word the right of personal liberty means in substance a person’s right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification.

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 as well as the first ten Amendments of the American Constitution of the same era 1791, though seeds of this freedom can also be found in earlier legal documents such as the Bill of Rights 1689 of England. In the 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 arrest is provided in international legal instruments, national constitutions have often inserted restrictions on right to liberty on grounds of national security and public order. In others words, state constitutions often contain proviso  to the right to personal liberty  to the effect  that certain types  of arrest and detention are legal and justified, even through  these  arrest or detentions derogate from the right to liberty.

            Before going to the above discussion at first I want to give the definition of the Constitution and Criminal Laws.

            A Constitution is a body of fundamental rules, written or unwritten, which determines the organization or structure of the government, distributes powers and determines the relations among the organs of the government. It also determines the scope and manner of the exercise of governmental functions, regulates the sphere of the rights and liberties of the people, and controls governmental organization and distribution of powers of a state; lastly, it determines the provisions for amendment of the constitution itself. In other words, the Constitution is the supreme law of the land, the fundamental law from which all public authorities derive their powers, all laws their validity and all subjects their rights.

            In the words of Cooley, in his ‘treatise on Constitutional limitation’, Constitution has been defined as ‘the fundamental law of a state, containing the principles upon which the Government is founded, regulating the division of sovereign powers, and directing to what person each of confined and the manner in which it is to be exercised. A Constitution is a bare statement as to the different organs of a state and its functioning within its sphere. The Constitution is different from Constitutional law. The Constitutional law of a country grows in the form of legislation, judicial decisions, conventions and practices.

            On the other hand, the word ‘Criminal’ is derived form Latin word ‘Crimin’(a judgment or accusation) and means “belonging to an accusation”, it is used as opposed to civil or ecclesiastical, political or military. The word ‘procedure’ means the mode or manner of moving on Lord Penzance in L.R. 4A.C. 525 says, “Procedure is but the machinery of law after all-the channel and means whereby law is administered and justice reached. Sir James Stephen says that the code is inadequately described by the name of ‘Criminal Procedure Code’, because it is a complete body of law on three distinct but related subjects; ‘the Constitution of Criminal Courts, the conduct of Criminal Proceedings and the prevention of crimes by interference beforehand’. The Code regulates all Proceedings of Criminal Courts in Bangladesh unless otherwise expressly provided.

            Criminal Justice, on the other hand, is concerned with the punishment of the wrong, which in criminal proceeding is called a crime. In a criminal proceeding the complainant claims no right but makes an allegation against the accused that he or she has committed a wrong or crime. Here the court does not require the accused to perform any duty but punishes him or her if it is satisfied that an offence has been committed by the accused.

            So in the above view, I will discusse what is the relation between the Constitutional law and the criminal laws in specific norms the safeguards as to arrest and detention and protection in respect of trial and punishment.

Arrest under the Constitution and the Code of Criminal Procedure:

Normative Provisions of Arrest under Article 32 and 33 of the Constitution of Bangladesh

Freedom from arbitrary arrest 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:

Article 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 main ground of art 32 is that the word used here as an exceptional language in accordance with law is corresponding provision in article 21 of the Indian Constitution. And it is very much similar to the American Doctrine of Procedural due process that is to say, a law under which a person may be deprived of life or liberty must to be enforceable provide that he is given notice of the offence with which he is charged and that he is given the opportunity to show cause against deprivation. But it has been rejected by the Indian Supreme Court and it holding that the meaning was unambiguous and must be literally interpreted.

As the Constitution of Bangladesh assumed that no deprivation of life or liberty is permissible unless it is done in accordance with a law. But no provision of the constitution can be treated as surplusage and we must find something more in the quality of the protection provided by art 32. A law providing for deprivation of life or personal liberty must be objectively reasonable and the court will inquire whether in the judgment 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 organized society necessitates the deprivation of life or personal liberty. Practically art 32 used the world personal liberty is not so vast for a non-citizen, because for keeping the security the state can impose any restriction over a non citizen but this reasonably. [9] The main them of Article 32 is that the state will not deprived any person of his life and personal liberty arbitrarily.

 Article-33: Safeguards as to arrest and detention

  • No person who is arrested shall be detained in custody without being informed, as soon as may not 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.
  • 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.
  • Nothing in clauses (1) and (2) shall apply to any  person
    • Who is an enemy alien ; or
    • Who is arrested or detained under any law providing for preventive detention.

The above 3 clauses are related to a right of a accused person. Clauses (1) and (2) lay down conditions with which laws providing for arrest and detention with the object of bringing a person to trail for a criminal offence must comply. Clause (3) expressly makes them inapplicable to enemy aliens.

            Article 33 prescribes the limits of state control of deprivation of person’s liberty.  It affords to all persons, citizens or non-citizens certain constitutional guarantees in regard to punishment and prevention of crime and contains safeguards which are regarded as most vital and fundamental.

            The provisions of Article 33 require examination in some right of accused person. Clause (1) says that after a person has been arrested, two conditions must be fulfilled (i) a person arrested must be informed as soon as possible of the grounds of arrest (ii) he must be allowed to consult and be defended by a lawyer of his choice. It is obvious that the arrest and detention of a person referred to in this clause must take place before his trial in a court of law. And the words ‘nor shall he’ occurring in this clause are not confined to a person who has been arrested but includes a person who is in danger of losing his personal liberty.

Clause (2) provided that (i) a person who is arrested must be produced before a magistrate within twenty-four hours of arrest, the time necessary for the journey from the place of arrest to the court being excluded (ii) he must not be detained for a period longer than twenty four hours plus the time of journey without the authority of the magistrate. These above said rights are not available to an enemy alien and to a person arrested or detained under a law providing for preventive detention.

Similar protection has been accorded to a person arrested either by a police officer or under the order of a magistrate under the criminal procedure code.[14] And the right of an accused person to be defended by a pleader and the right of a person arrested without warrant not to be detained more than twenty four hours before being produced before a magistrate.

The provisions of Article 33 are mandatory. The requirements of this article are aimed at affording an earliest opportunity to be arrested person to remove any mistake, misapprehension, misunderstanding in the minds of the arresting authority.]

 ‘Arrest’ under the Code of Criminal Procedure 1898:

An arrest is the act of depriving a person of his or her liberty usually in relation to the investigation and prevention of crime or harm to others and oneself as well. The term in Anglo-Norman in origin and is related to the French word ‘arret’ meaning ‘Stop’. Arrest means, the placing of a person in custody or under restraint, usually for the purpose of compelling obedience to the law. If the arrest occurs in the course of criminal proceeding the purpose of the restraint is to hold the person for answer to a criminal charge, or to prevent him from committing an offence.

            The Code of Criminal Procedure 1898 in some several provisions regulate the manner of effecting arrests, whether by a police officer or any private person. The right of a private person to make an arrest may be contrasted to the power of a police officer to arrest without warrant. Section 54 of the code, it is provided  that  a  police officer  may without warrant  arrest  any person against  whom a reasonable  suspicion exists of his having  been concerned in a cognizable offence.

            There is no difference between detention by the police and formal arrest. When a person is detained by the police, he is arrested. It is not necessary that in order to make the arrest legal he should further be handcuffed or part in the police or the judicial lack up.[17] In considering the applicability of clauses (1) and (2) of article 22 of the Indian Constitution, which corresponds to the first two clauses of article 33, the India Supreme Court observed that arrests might be classified into two categories, namely, arrests under warrants issued by a court and arrests otherwise than under such warrants. The language of clauses (1) and (2) indicated that the fundamental right conferred by those clauses gave protection against such arrests as were effected otherwise than under a warrant issued by a court and to such persons as were taken into custody on any allegation or accusation of any actual or suspected or apprehended commission by that person of any offence of a criminal or quasi-criminal nature or of any act prejudicial to the state or the public interest.[18]

            When a person is arrested under a warrant, the warrant has to be issued by a court or a magistrate. It must show the offence with which the accused is charged. On arrest the accused must be brought before that court without unnecessary delay and if after production before the magistrate he is to be detained in custody, then the same procedure as in cases of arrests without warrant has to be followed.

 Purposes and legal characteristics of Arrest:

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

            The purposes of an arrest are to bring the arrestee before a court or otherwise secure the administration of the law.  An arrest serves the function of notifying the community that an individual has been accused of a crime and also may admonish and deter the arrested individual from committing other crimes. Arrests can be made on both criminal charges and civil charges, although civil arrest is a drastic measure that is not looked upon with favor by the courts. The federal constitution imposes limits on both civil and criminal arrests. A constable who reasonably suspects a person of involvement in  an offence may arrest that person with a view to interrogating him in the more formal atmosphere of a police station. Arrest must be justified by some rule of positive law. A constable who cannot justify his action by reference to lawful authority is said not to act in the execution of his duty. In Rice v. Connolly[19]case was held that police may not restrain a person from going about his business unless they act under powers of stop and search or arrest.

            An arrest occurs when a police officer states in terms that a person is arrested, when he uses force to restrain the individual concerned or when by words or conduct he makes it clear that he will, if necessary uses force to prevent the individual from going where he wants to go. An arrest is contained to that time when the police officer may occur or performed these activities: (1) by the touching or putting hands on the arrestee (2) by any act that indicates an intention to take the arrestee into custody and that subjects the arrestee to the actual control and will of the person making the arrest or (3) by the consent of the person to be arrested. There is no arrest where there is no restraint and the restraint must be under real or pretended legal authority.

            The test used to determine whether an arrest took place in a particular case is objective, and it turns on whether a reasonable person under these circumstances would believe he or she was restrained or free to go. Finally we can say that an arrest may be made legally based on a warrant issued by a court after receiving a sworn statement of probable cause to believe there has been a crime committed by this person, for an apparent crime committed in the presence of the arresting officer.

 Procedure of an Arrest:

Section 46 to 53 provides procedure of arrest. The whole procedure may be described in the following steps.

i)                    In making an arrest the police officer or an individual can actually touch or confine the body of the person to be arrested.

ii)                  If such person resists the arrest or attempts to evade the arrest, such police officer or individual may use all means necessary to effect the arrest.

iii)                  By way of effecting the arrest the police officer or an individual cannot cause death of the person to be arrested.[22]

            However, such arresting or other person is not authorized to cause the death of person who is not accused of an offence punishable with death or with imprisonment for life. The person arrested will not be subjected to more restraint or force than is necessary to prevent his or her escape. In effecting the arrest, it is by no means necessary that the arresting officer will immediately proceed to hand cuff the accused person because hand- cuff are used as a means of restraint. When  any person or police officer having authority  to arrest, reasonably believe that the person  to be arrested has entered into or is within any place the person residing in or being in charge of such place will  allow the arresting  person or officer free ingress  thereto  and afford all reasonable facilities  for search there in. If such ingress cannot be obtained, it is lawful for the arresting person of officer to enter such place and search therein. In order to effect an entrance into such place if after proper notification of authority and purpose and demand of admittance, the arresting person or officer cannot obtain admittance it is lawful for him or her to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person. However, If any such place is in the actual occupancy of a pardanshin women the arresting  person or officer  will before entering such place,  give notice  to such women  that she is at liberty to withdraw and will afford her reasonable facility for withdrawing.

            While executing a warrant of arrest the police after securing the arrest the search was conducted upon the appellant which is permitted by the provision of this section 51 of the code of criminal procedure for which the submission that the search and the seizure have not been conducted in presence of two respectable inhabitants of the locality is not acceptable.

 General Power of arrest by police under Section 54:

Section 54 of the Code of Criminal Procedure lays down the general power of arrest by police officer. This power is general in the sense that a police officer may arrest a person without warrant or any kind of order from superior authority or court or magistrate. This section 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 this 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.[25] Section 54 of the of the code of criminal procedure 1898, provides that a police officer may arrest a person without an order from a magistrate and without a warrant if-

(i)        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.

(ii)       Any person having in his possession without lawful excuse any implement of house breaking.

(iii)     Any person who has been proclaimed as an offender either under this code or by order of the government.

(iv)     Any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing.

(v)      Any person who obstructs a police officer while in the execution of his duty or who has escaped or attempts to escape, from lawful custody.

(vi)     Any person reasonably suspected of being of deserter from the armed forces of Bangladesh.

(vii)  Any person who has been concerned in or against whom a reasonable complaint has been made or credible information has been received on a reasonable suspicion exist of his  having been concerned in any act committed at any place out of Bangladesh which if committed in Bangladesh, would have been punishable as an offence, and for  which he is under any law relating to extradition  or under the Fugitive Offenders Act 1881, or otherwise  liable to be apprehended or detained in custody in Bangladesh.

(viii)Any released convict committing a breach of any rule made under section 565, sub-section (3).

(ix)    Any person  for whose arrest a requisition  has been received from another  police officer, provided that the requisition  specified the person to be arrested and the offence or other cause for which the arrest is to be made and if appears there from that the person might lawfully be arrested without  a warrant by the officer who issued the requisition.[26]

Above discussing nine circumstances into the first set of these circumstances indicates that the last two condition like-

      Credible information has been received and 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 required that either credible information has been received on there is a reasonable suspicion 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 requirement of credible information or reasonable suspicion have not been elaborate or interpreted in any authoritative judgment. But it must be all least founded on some definite fact tending to throw suspicion or the person arrested, and not on a mere vague surmise on information. Reasonable suspicion means a bonafide belief on the part of the police officer that an offence has been committed or is about to be committed.[27] No less importantly, subsequent finding that the information was not credible on 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 acknowledge that an arrestee is often subjected to torture in police custody when he/she is brought back on remand under section 167.[28]

      It is also we say that the philosophy behind the powers of arrest without warrant is that prevention is the most effective approach to control crime. The object of section 54 of the Code of Criminal Procedure 1898 is to give widest powers to be police in cognizable cases subject to the limitation that the powers must be used reasonably and cautiously. The words may arrest signify that the powers of arrest is discretionary. Despite this there is always an allegation that the powers of arrest without warrant is frequently misused by the police and therefore arrest without warrant under section 54 of the Code of Criminal Procedure 1898, is a burning issue.  This is now hotly debated by intellectual quarters, lawyers and even the general public, in Bangladesh. Recently this issue has become an important subject of judicial interpretation.[29]

 Special Power of Arrest:

 According to section 54 of the Code of Criminal Procedure 1898, deals with general powers of arrest and section 55, 56, 64 and 65 deal with special powers of arrest. The special power under these sections cannot override the general powers of arrest in cases provided for in section 54. Thus a police officer while under a special power of arrest may use his general power of arrest under section 54 and this is no affected by the empowerment of his special power of arrest.

Instances of special power of Arrest:

  1.    Any officer in charge of a police station may arrest a vagabond, habitual offender without warrant under section 55. The fact that a person is a habitual offender is by iftself not an offense, but he may be arrested under this section and dealt with under the security sections.[30] But for that purpose the police must have some reliable evidence of the fact that a person is a habitual offender. No action under this section can be taken where allegations are vague in nature, no instances have been quoted. No witnesses from the village or area where applicants live have been produced. Only three constables from police are proposed to be produced and the whole reliance is proposed to be placed on one pending case.[31]
  2. A police officer may depute a subordinate to cause arrest without warrant and in such a case the subordinate officer can arrest without warrant under section 56.
  3.  A police officer may arrest a person who commits a non cognizable offence in presence of the police and refuses to give his name and address or the name and address given is believed to be false under section 57.
  4. A private person may arrest without warrant any person who is a proclaimed offender or who in his view commits non-bailable and cognizable offence. He or she without unnecessary delay will make over or cause to be made over the person so arrested to a police officer. In the absence of a police officer, the arrested person will be in custody to the nearest police station. If there is reason to believe that such person comes under the provisions of sec.54 of theCode of Criminal Procedure, the police officer will re-arrest him or her under section 57.
  5.  Any  Magistrate may at any time arrest or direct the arrest, in his presence, within the local limits of his  jurisdiction of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant under section 65.
  6. If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place in Bangladesh under section 66.
  7.  Any officer in charge of a police station may arrest without warrant any member of an unlawful assembly who being commanded to disperse shows determination not to disperse under section 128.
  8.  Any police officer may arrest without warrant a person who cannot otherwise be prevented from committing a cognizable offence under section 151.
  9.  Any police officer may arrest without warrant a person who fails to fulfill the conditions on which a sentence has been suspended or remitted by the government under section 401(3).

  Abuse of police power of arrest under section 54 of the Code of Criminal Procedure 1898

Of the existing laws, section 54 of the Criminal Procedure Code continues to remain one of the most abused provisions of the legal system. Both the methods of policeing in this country and the police power have been questioned over times.  The work of the police is often characterized by brutality. Abuse of power by the police under section 54 of the Code of Criminal Procedure and the Special Powers Act 1974 have been identified by different human rights watchdog agencies as the main sources of human rights violation in the country. This is because the provisions of both the laws allow the arrest of any person by the law enforcers without recourse to court order.  Legal loopholes provide the police with the excuse for arresting someone with impunity. The arrest is not everything.  The method of extracting information from the arrested persons by the police is barbarous and this is the reason behind so many custodial deaths. The most of the custodial deaths are pure reason killing by criminals in uniform are a fact of life in Bangladesh. Abuse of power under sections 54 and 167 by the police and magistrates have been elaborately discussed by the High Court Division of the Supreme Court in Bangladesh legal aid and services Trust (BLAST) v. Bangladesh.[33]

      In deciding the case the High Court Division observed  that section 54 of the Code of Criminal Procedure 1898, implies eight conditions under which a person may   be arrest without  warrant any among them the first condition contains a vague word concerned which gives unhindered powers  to a police  officer to arrest any person  simply stating that the person arrested by  him or her is concerned in  a cognizable offence, and all the eight  conditions contain some other words such as reasonable creditable which   are though judicially interpreted in several cases the  abusive exercise  of powers by the police officers could not be checked . The court also observed that a police officer can exercise the powers of arrest under this section if he or she has definite knowledge of the existence of some facts and such knowledge must be the basis of arrest without warrant.[34] In this case the High Court Division has also given 15 directives to the government to follow along with recommendations to implement by way of amending the Code of Criminal Procedure. Of these 15 directions first eight relates to the police power of arrest under section 54 of the Code of Criminal Procedure which are as follows:

  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 disclosed 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. Immediately after bringing the person arrested to the police station, the police officer shall record the reasons for the arrest including the knowledge which he has about the involvement of the person in a cognizable offence, particulars of the offence, circumstances under which arrest was made the source of information  and the  reasons for believing the information, description  of the places not  the date and time of arrest, name and address of the persons, if any present at the time of arrest  in a diary kept in the police station for that purpose.
  4. If at the time of arrest, the police officer finds any marks of injury on the person arrested, he shall record the reasons for such injury and shall take the person to be nearest hospital or government doctor for treatment and shall obtain a certification from the attending doctor about the injuries.
  5. He shall furnish the reasons for arrest to the person arrested within three hours of bringing him to the police station.
  6. If the person is not arrested form his residence or places of business, he shall inform the nearest relation of the person over phone, if any, or through a messenger within one hour of bringing him to the police station.
  7. He shall allow the person arrested to consult the lawyer of his choice if he so desires or to meet any of his nearest relations.
  8. When such person is produced before the nearest magistrate under section 61, the police  officer shall  state in his forwarding letter under section 167 (1)  if the code as to why the investigation could not be completed within 24 hours, why he considers that the accusation or the information  against  that person  is well founded. He shall also transmit copy of the relevant entries in the case diary BP from 38 to the same Magistrate.

      It is to be noted that a division bench of the High Court Division comprising Hamidul Haque and Salma  Masud Chowdhury JJ delivered the  above stated judgment on 7 April 2003 and a year later, on 7 August 2003 another  division bench comprising many of the issues interpreted by the said case. Judgment was also taken up in another judgment Saifuzzaman v. State[35] which added a few more directives for police and state. The primary concern of this later judgment, however, was the power of preventive detention under the Special Power Act, 1974. Usually, detainee is initially arrested under section 54 and then a detention order under the Special Powers Act, 1974 is served on the arrested and in this Saifuzzaman judgment Court discussed in detail the power of arrest under section 54 and the subsequent detention under the Special Powers Act, 1974 an not the power of arrest under section 54 per-se.

      In this case the court held that section 54 of the Code of Criminal Procedure gives a police officer wide powers  of arresting a person without warrant under  certain condition and of them, the first condition gives a police officer unlimited power to exercise his or her discretion. This power as the court added being an encroachment on the liberty of the citizens, an arrest purporting to be under section 54 of the code of criminal procedure would be illegal unless circumstances specified in the various clauses of the section exit.[36] The expressions reasonable suspicion implies that the suspicion must be based on the reasons which are based on the existence of some facts and therefore, as the emphasized when the police office arrests a person without warrant he or she must have some knowledge of some definite facts on the basis of which he or she has reasonable suspicion.

      One of the spectacular abuses of this section was witnessed in the police raid on a residential Jagannath Hall of students of Dhaka University. The police raid preceded protests by the students against a planned visit to the university area by the then Prime Minister. Apparently, to quell the  protest, the police raided the minority Hindus students  residential hall which  was  presumed to  be the stronghold  of opposition  political  parties. During the brutal raid, students were mercilessly beaten their furniture and goods destroyed and finally more than 100 students were rounded up and arrested under this section 54of the criminal procedure code. Although most of the students were later granted bail by the Magistrate’s Court, yet the fact that scores of students could be arrested from their residential halls in the university campus for reasonable suspicion of their having committed crimes or about  to commit crimes is a clear indication of abuse of this section. This incident was widely reported by the media. However, the over brutality of the police and clear abuse of the section was not raised in subsequent proceedings for bail. The next day, detention orders were issued against a number of students initially arrested under section 54. These detentions were also declared illegal by the High Court in subsequent habeas corpus proceedings.

      From the above views it contained that section 54 of the Code of Criminal Procedure 1898, the High Court Division found that the police can abuse the power abusively. This is because there is nothing in this section which provides that the person arrested be furnished with the grounds for his or her arrest though it is the basic human right that whenever a person is arrested he or she must know the reason for his or her arrest. The court observed that as section 54 of the Code of Criminal Procedure now stands, a police officer is not required to disclose the reasons for the arrest to the person whom he has arrested, but under article 33(1) of the Constitution of Bangladesh the person who is arrested must be informed ‘as soon as may be’ of the grounds for such arrest. This expression ‘as soon as may be’ does not mean that furnishing of grounds may be delayed for an indefinite period. According to the High Court Division, as soon as may be implies that the grounds will be furnished after the person arrested is brought to the police station after his or her arrest and entries are made in the diary about the arrest.  The court further observed that unfortunately, the provision Article 33(1) of the constitution is not followed by the police officer. It is strange that they are very much over jealous in exercising the powers given under section 54 of the Code of Criminal Procedure but they are reluctant to act in accordance with the provisions of the constitution itself. The Constitution is the Supreme Law of the country and will prevail over any other law. It is the duty of everyone in the country to adhere to the provisions of the constitutions. It is unfortunate that instead of adhering to the previsions of the constitution, the police officers are interested in exercising the powers given to them under the Code of Criminal Procedure without any hindrance.

 Rights of an arrested person:

According to Article 33 of the Constitution on of Bangladesh confers four fundamental or constitutional Rights on Safeguard upon a person arrested under ordinary law.

These rights are:

i)              He cannot be detained in custody without being informed as soon as may be, of the grounds of his arrest.

ii)            He must be given the right to consult and to be represented by a lawyer of his own choice.

iii)          He has  the right to be produced be the nearest magistrate within 24 hours of his arrest and

iv)          He can be detained in custody beyond the period of 24 hours without the authority of the magistrate.

The above four rights have been guaranteed for a detain person, but this four rights to any detain person cannot enjoy at large. This is for though the Bangladesh Constitutions has been ensured this right but the Code of Criminal Procedure does not observed it into to or this right is being infringed by the Code of Criminal Procedure. However, it is important to see if these four rights are guaranteed in the Code of Criminal Procedure which is a statutory law and must conform to the instructions of the Constitution of Bangladesh. Unfortunately the code of criminal procedure ensures only two of the fundamental rights. Section 60 provides that a police officer arresting a person must produce him before the magistrate having jurisdiction. Generally the police cannot arrest a person accused of a non cognizable offence without warrant from magistrate though under certain circumstances the police can arrest for non cognizable offence also this section provided that a police officer making an arrest without warrant shall without unnecessary delay and subject to the provisions of bail, take of send the person arrested before a magistrate having jurisdiction in the case. Unless a police officer considers that he cannot complete the investigation within a period of 24 hours it will incumbent upon him to produce the accused before magistrate.[38] And section 61 provides that a police officer must not detain an arrested person more than twenty four hours without the authority of a magistrate, with regard to the rest of the two fundamental rights the Code of Criminal Procedure is silent. It is to be noted that Indian Code of Criminal Procedure has been freshly adopted in 1973 incorporating all necessary Constitutional rights in it.

      Section 50 of the Indian Criminal Procedure Code, 1973, provides for rights of an arrested person to be informed of grounds of arrest and of right of bail. The Indian Criminal Procedure Code also provides for two important safeguards form illegal torture by police over an arrested person. Section 53 provides for examination of the accused by medical practitioner at the request of the police officer and section 54 provides for examination of the accused by medial practitioner at the request of the accused himself.   The Code of Criminal Procedure 1898 of Bangladesh is deficient in this regard and needs necessary amendments.

      The rights ensured for the arrest any arrested person can be divided into two classes. These are:

(i)   Right to communication on ground of arrest and production before magistrate

The reasons why a person being arrested should be told the grounds of his arrest have been clearly stated by lard Simonds in this case, Christie v. Leahisky,[40] observed that:

“Putting first things, I would say that it is the right of every citizen to be free form arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of the right of every citizen to be thus free form arrest that he should be entitled to resist unless that arrest is lawful. How can these rights be reconciled with the proposition that he may be arrested without knowing why he is arrested? Blind unquestioning obedience is the law of tyrants and of slaves.”

The main reason of arrest is declared by the article 33(1) requires that a person must, on his arrest, be told why he is arrested. A warrant of a court and an order of any authority must show on their face the reason for arrest where there is no such warrant order; the person making the arrest must inform the reason for his arrest. If it is possible to do this without acting contrary to the express provisions of the statute, it is not necessary to declare the statue void for repugnancy to article 33. This principle is also applicable to any law which does not provide for immediate production of the person arrested before the nearest magistrate.

      When a person is arrested by the police he must be sent to the police station and not elsewhere and the magistrate should not proceed to such place of confinement, instead of such person being brought to him for the purpose of remanding him to police custody. An under trial prisoner who is remanded to police custody can be detained  in a police lock-up which can be located only in a police  station or post notified under section 4(1) of the code of criminal procedure. The magistrates proceeding to the place of confinement, as in the present case, is both illegal and violative of the constitutional provisions relating to the production of the person arrested before a magistrate. To obtain an order of remand form a magistrate the actual production of the accused before him is necessary, but for subsequent orders of remand his production before the magistrate is not necessary.  In case of an arrest and detention for the purpose of deportation compliance with similar constitutional provisions has been held to be unnecessary by the Indian Supreme Court.

 (ii) Right to consult and be defended by lawyer

The person arrested has a right to consult a lawyer of his choice from the moment he is arrested and this right necessarily includes the right to effective interview with the lawyer out of the hearing of the police though the police may be within sight and this right exists whether the person is arrested under a general on a special law. He has also the right to be defended by a lawyer of his choice and this right is not lost when he is released on bail. Any provision of law denying this right will be inconsistent with the provisions of article 33 and will be void. The right to be defended by a lawyer must read to be a part of the law irrespective of whether the law gives or denies the right. The arrested person must be given a reasonable opportunity to engage a counsel and the counsel must be given a reasonable opportunity to defend him.[41]

Comparison of Arrest between the Constitutions of Bangladesh and the Code of Criminal Procedure 1898

Article 33 of the Constitution of Bangladesh provides that the fundamental rights of the citizen, which is safeguards as to arrest and detention. The constitutional provisions of art. 33 is mainly stated that, “No person who is arrested shall be detained in custody without being informed, as soon as may be, nor shall be denied the right to consult and defended by a legal practitioner of his choice”.

      Here, this article is guaranteed and protection to the individuals fundamental and human rights. This Article state that the arrested shall not be detained without being informed as soon as may be of the grounds of arrest. The main problematic words here are ‘as soon as may be’. The expression as soon as may be means that the grounds for arrest should be communicated as reasonably practicable in the circumstances of the case of arrest. Although ‘as soon as may provides a certain amount of flexibility which may be required, it is also open to abuse in the absence of any specific time limit or clear interpretation. The arrest also has to be promptly informed of any charges against the arrested person.

      If the Constitution has guaranteed to the right of an arrest person but this right is violated by the criminal process. According to the Code of Criminal Procedure stated that the power of an arrest in section 54. In section 54 of the Code of Criminal Procedure provides that any police-office may, without an order from a magistrate and without a warrant, arrest any person against whom a reasonable suspicion exists of his having been concerned in any cognizable offence. Therefore under section 54 there is reasonable ground for arresting a person without a warrant. Thus in this section, a person’s liberty may be curtailed by his arrest if reasonable suspicion exists as to his having been concerned in a cognizable offence.

            The Constitution shall also be guaranteed the right to liberty and security of life or personal liberty in article 32. But this right is violated by the section 54 of the police power of arrest without warrant of the Code of Criminal Procedure 1898.

      Article 32 and 33 of our constitution provides some procedural safeguards in respect of deprivation of life or personal liberty and arrest or detention. A penal statute by providing punishment prescribes deprivation of life or personal liberty and arrest or detention. This statute must protect to the accused person of the reasonableness and non-arbitrariness under article 33 and 32 in respect of the punishment.

      So, we can say that the Constitutional fundamental rights of the accused person are conflicted by the Code of Criminal Procedure in some situation, when the accused person is committed a crime. This Constitutional right of an accused person shall also be violated by the police power of remand in section 167. Remand is to take a major role for violating of the accused rights.

Detention under the Constitution and Special Powers Act

Preventive detention means detention of a person without trial and without conviction by a court, but merely on suspicion in the minds of the executive authority. In A.K. Gopalan v. State of Madras[42] it was held that there is no authoritative definition of preventive Detention. The word “Preventive” means that restrain whose object is to prevent probable or possible activity, which is apprehended from a would be detenu on ground of his past activities:

“Detention” means keeping back. Preventive detention means detention of a person only on suspicion in the mind of the executive authority without trial, without conviction by the court.[43] Preventive detention runs into the doctrines of fundamental rights and it is parallel to the penal laws.

 Definition and Nature of Preventive Detention

People are taken under detention whey the commit any crime or they are taken under a trial for their criminal activates. That means detention is the result of committing any crime by an individual of a nation. But preventive detention means dissimilar to it. In general law, no people can be arrested without knowing him the reason of arresting and there is a specific time of 24 hours to take him in front of a Magistrate. But in preventive detention a people can be arrested any time without telling him any reason and can be taken in custody for 6 months. So in the general sense, it can be said that preventive detention is an that is not imposed as the punishment for a crime, but in order to prevent a person from committing a crime, if that person is deemed likely to commit a crime. Preventive detention is a special form of imprisonment.

            According to American Heritage Dictionary, preventive detention is the ‘Pretrial imprisonment without the right to bail of a person accused of a felony and judged dangerous to society’.

            The word detention may be of two types, punitive detention and Preventive detention. Generally, preventive detention means detention of a person without trial and conviction by a court, but mearly on suspicion in the minds of the executive authority. Preventive detention is an abnormal measure whereby the executive is authorized to impose restraints upon the liberty of a man who may not have committed a crime but who, it is apprehended is about to commit acts that are prejudicial to public safety etc.

            According to Chief Justice Badrul Haider Chowdhury say’s that, preventive detention means detention the aim of which is to prevent a person from doing something which is likely to endanger the public peace or safety or causing public disorder.

            One of the obvious means of taking precautions against dangers such as are enumerated is to impose some restriction on the freedom of movement of person whom there may be any person to suspect of being disposed to help the emery. When a person is preventively detained, such detention is not punitive. In the case it is sated that, No offence is proved, nor any charge formulated, the justification of such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence.

 Necessity of Preventive Detention:

The necessity for preventive detention is arises in the sense that such detention of a person is required by the fact that the evidence in possession of the authority will not be adequate to make a charge or to require the conviction of a detenu by legal proof.

            Basically the Need for preventive detention is wide. It is an abnormal measure of curtailing personal liberty of a person. The Need for preventive detention is laying down that the interest and security of the State and Nation. National security and interest are more important than the personal liberty of citizen, for the enjoyment of personal liberty itself is dependent on the safe security of the state.

            Preventive detention in times of war or emergency is well known. In many newly independent states subversive movement, abuse of personal liberty and freedom of speech appear to imperil the fabric of society. Justifying the measure lord Atkinson in R v. Halliday said, however precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely national success in the war, or escape from national plunder or enslavement.

            During the first and the Second World War the British Government was given extensive power by parliament to pass order for preventive detention. In the same case Lord Finlay said that, any preventive measure even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the state.

Bad Sides of Preventive Detention:

It is true that most of the developing countries used the preventive detention as a weapon to dominate, crash the opposition and to perpetuate rule. After achieving our independence, there are no situations of war or internal aggression or internal disturbance which are threatening our security but this the Special Powers Act, 1974 are using still to suppress anti-government movement and sometimes democratic movement also.

            Firstly, in Bangladesh without trial six months detention can conferred to the detainee. This is a bad process because now here in the world such alone period is not found anywhere. In India, this time is three months and in Pakistan the initial period of detention is three months.

            Secondly, in democratic countries preventive detention is a method resorted to in emergencies like war. The western developed countries like USA and UK it is specifically mentioned that only in time of emergency, Preventive detention is applied for and also for specific purposes, but there is no specification in our constitution and can be restored to in times of both peach and emergency.

            Thirdly, We have not a fixed maximum period of detention not in our constitution or in the Special Powers Act 1974. This is also a negative aspect of preventive detention. In Pakistan the period of preventive detention is eight months in a year and in India maximum two years.

            Fourthly, in Bangladesh a large number of political workers and Leaders are detained without trial through the preventive detention under the Special Powers Act 1974 and known as a “Black Law”. But this picture of detention without trial is not found in western countries where this preventive detention also exists.

            Fifthly, the preventive detention under the Special Powers Act is keeping in line with the Maintenance of India Security Act 1974 and the East Pakistan Public Safety Act 1958. But in Bangladesh the provision relating to preventive detention made more draconian than those of twos. By 44th Amendment the process of preventive detention made something democratic in Indian constitution.

            Sixthly, police officer after arresting any person prays before magistrate court for remand and in maximum cases police gets remand and starting bodily, mentally torture which is a violence of International Human Rights Law.

            Seventhly, there is nothing entitled against whom a detention order has been made to appear by lawyer in any matter connected with the reference to the Advisory Board and its report excepting that part of the report in which opinion of the Advisory Board is specified shall be confidential.

            Eighthly, if any person is actually criminal that he or she would be arrested under general law and Magistrate can punish him or her but if it is happen then he or she must bring before Magistrate within 24 hours. But not to bring within 24 hours before Magistrate, a suspected is arrest under the Special Powers Act 1974. Because by this a person without bring before Magistrate can put in prison month after month.[50]

 Preventive Detention in Bangladesh and Constitutional Safeguards:

Bangladesh Constitution makers have decided that in the Bangladesh Constitution there will be no provision as to detention without trial or any provision in relation with emergence period. The than Awami League Government himself was deadly against to give place such types of undemocratic provision in the Constitution. But after publishing the Constitution provisions about emergence period and detention without trial have been included in the Constitution through the Second Amendment. By amending Article 33 of the Constitution,Special Powers Act was passed in February 1974 with the preventive detention powers law. In 1971 Special Powers Act has been made by following ‘Maintenance of Internal Security Act (MISA), in India as well as the East Pakistan Public Safety Ordinance in 1952. But the Special Powers Act has been made tougher than the above two act.

            Now see, what are the safeguards have been provided to the detainee in the preventive detention law. According to the Article 33 of the Constitution any person arrested or detained under the common law will have four Constitutional safeguards. This four constitutional rights or safeguards are:

1). He cannot be detained in custody without being informed, as soon as may be, of the grounds of his arrest.

2). He shall have the right to consult and to be represented by a lawyer of his own choice.

3). He has the right to be produced before the nearest magistrate within 24 hours of his arrest; and

4). He cannot be detained in custody beyond the period of 24 hours without the authority of the magistrate.[51]

            The second part of Article 33 further provides for three Constitutional safeguards for a detention under preventive detention law. These safeguards are following:

  1. Review by an Advisory Board.
  2. Right to communication of grounds of detention: and
  3. Right of representation against the order of detention.

 Review by Advisory Board:

The constitution of an Advisory Board for the purpose of reporting to the government its opinion whether a person should be detained for more than Six months may be said to have been introduced for the very reason that review by the Law Courts was excluded. This is no doubt, a special procedure but this shows that the person detained has not been left without any safeguard. The setting up of an Advisory Board to determine whether such detention is justified is considered as a sufficient safeguard against arbitrary detention under any law of preventive detention. Article 33 (4) provides that no law shall authorize detention for a period of more than six months and the period of six months can be extended only if an Advisory Board, before the expiry of six months, opinions that there is sufficient cause for detention.[52] If no such affirmative opinion is given by the Advisory Board, the detenu has to be released on the expiry of Six months. In a writ of habeas corpus the court is not required to wait for the opinion of the Advisory Board and should dispose of the petition if it is otherwise ready for hearing.

            The Advisory Board is to be constituted with three persons, two of whom must be person who are, have been, or are qualified to be appointed as judges of the Supreme Court and the other must be a senior officer in the Service of the Republic.

            The Advisory Board stands perhaps midway between the court and the executive. It has the power of going through the records of a case but it will not be bound to hear any arguments addressed by a counsel on behalf of a detained person. If it reports against detaining a person any further he will be at once set free. And no law can be passed for detention of a person exceeding six months unless the Board reports before the end of such a period that he may be detained for a longer period.

            If the order, of detention is only for two months there is no scope for the Advisory Board to determine the ‘Sufficiency of cause for his detention’ and so the argument that a detainee is not entitled to pay for a writ of habeas corpus unless his case is referred to the Advisory Board is not tenable clause (4) of Article 33 contemplates detention for a specific period.[53]

 Right to Communication of Grounds of Detention:

Article 33 (5) says that the detained person right to know immediately ‘the grounds on which the order has been made”. The reason for the expression as soon as may be for furnishing grounds and the earliest opportunity for making a representation indicates the extreme anxiety of the makers of the constitution to see that no person is detained contrary to the law enabling preventive detention or contrary to the safeguards provided by the constitution.

            Grounds mean the conclusions drawn by the authority from the facts or particulars. The service of the grounds of detention is mandatory. The reasons and grounds stated in the initial order of detention cannot be a substitute for the service of separate grounds of detention and non-service of the grounds renders the detention without lawful authority.[54] Where no grounds were specified as to why the suspicion had been entertained by the police inspector, the arrest was bad from the very inception.

            If the words of the section of the statute providing for preventive detention are reproduced without disclosing the grounds for which action was taken, clause (5) of Article 33 is not properly complied with. The detained person must have sufficient details which may make it possible for him to make a proper representation to the authority.

            Communication means imparting to the detenu sufficient knowledge of all the grounds on which the order of detention is based. In this case the grounds are several and are based on numerous speeches said to have been made by the appellant himself on different occasions and different date. Naturally, therefore, any oral translation or explanation given by the police officer serving those on the detenu would not amount to communicating the grounds.

Right to Representation against the orders of Detention:

Article 33 (5) again provides that the detaining authority must afford the detenu the earliest opportunity of making a representation against his detention order. It is important to mention here that the third right, Right to make an effective representation depends on the second right, Right to communication of grounds. Article 33(5) provides that the detaining authority may refuse to disclose facts which such authority considers to be against the public interest to disclose. Because grounds are reasons on conclusions drawn by the authorities from the facts or particulars on which the detention order is made.

            It all the relevant facts and particulars of the grounds, therefore are not supplied to the detenu it is not at all possible for him to make an effective representation and the right to make a representation becomes illusory. It is therefore for this provides of Article 33(5) that the second and third constitutional rights of a detenu have become quite meaningless. Because only communication of grounds without facts and particulars of the detention order does to enable the detenu to make a representation to give an example, suppose the communication is sent to a detenu immediately after he has been taken into custody, you are being detained under the Special Powers Act 1974. Because the government has confidential information that you are doing something in various meeting and otherwise which are prejudicial to public order.[55]

So it is clear that out of three Constitutional Safeguards two are ineffective and the detenu has only one right to enjoy, right to be produced in person before the Advisory Board and the question of that right comes after the expiration of six months. Finally, this right to make a representation under clause (5) of Article 33 is a valuable Constitutional right and not a mere formality.

Preventive Detention under the Special Powers Act 1974

The Special Power Act, 1974 has been randomly used to arbitrarily detain persons for lengthy periods. By establishing this law, the government has enacted a very severe law, in the Special Powers Act, 1974. This is the only piece of law at present in force in Bangladesh which allows the government to detain any person initially for one month, and thereafter may prolong it by six months with the approval of Advisory Board, and there after in the same manner for further period, which in fact could be prolonged indefinitely.

So the basic content of the Act lies in section 3, which enables the government to detain any person in custody under the disguise of preventive detention. The parliament on February 9, 1974 enacted the black law,Special powers Act, 197’ containing the provisions of preventive detention. Though this Act is not unique of its kind in the realm, specifically provided for provisions of preventive detention.[56] Section 3 of this Act is as follows:

Section-3: Power to make orders detaining or removing certain person

(1). The Government may, if Satisfied with respect to any person that with a view to preventing him from, doing any prejudicial act it is necessary so to do, make an order-

(a)    directing that such person be detained;

(b)    directing him to remove himself from Bangladesh in such manner, before such time and by such route as may be specified in the order;

Provided that no order of removal shall be made in respect of any citizen of Bangladesh.

(2) Any District Magistrate or Additional District Magistrate may, if satisfied with respect to any person that with a view to preventing him from doing any prejudicial act within the meaning of section 2(f), (iii), (iv), (v), (vi), (vii) or (viii) it is necessary so to do, make an order directing that such person be detained.

(3) When any order is made under sub-section (2), The District Magistrate or the Additional District Magistrate making the order shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than thirty days after the making thereof unless in the meantime it has been approved by the Government.

(4). If any person fails to remove himself from Bangladesh in accordance with the direction of and order made under sub-section (1) (b) Then, without prejudice to the provision, of Sub-Section (5), he may be so removed by any police officer or by any person authorized by the Government in this behalf.

(5). If any person contravenes any order made under sub-section (1) (b), he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

By this provision it would connoted that there is no overt expression about  the preventive detention measure, but the words to provide for special measures for the prevention of certain prejudicial activities, may be construed as covering the preventive detention measures, otherwise the whole substratum is found to be based on flimsy and unsound intentions.

The prejudicial acts as defined in section 2(f) of the Act have almost lost their base due to the lack of proper measures to justify the arrest and detention as well as for any system of punishment for them. There are no penal measures remained after amendments to the schedule that could cover the ‘prejudicial acts’ as defined in section 2(f), which just remained for preventive measure under the disguise of prevention detention as mentioned in section 3 of the Act. The Act says that any person can be arrested and detained by the executive authority if there is apprehension in the mind of the authorities that he may commit prejudicial Act’’ which means:

(i)                 To prejudice the Sovereignty or defense of Bangladesh;

(ii)               To prejudice the maintenance of friendly relations of Bangladesh with foreign states;

(iii)             To prejudice the security of Bangladesh or to endanger public safety or the maintenance of public order;

(iv)             To create or excite feelings of enmity or hatred between different communities, classes or sections of people;

(v)               To interfere with or encourage or incite interference with the administration of law the maintenance of law and order;

(vi)             To prejudice the maintenance of supplies and service essential to the community;

(vii)           To cause fear or alarm to the public or to any section of the public;

(viii)         To prejudice the economic or financial interest of the state.

So, it is clear that though the first Constitution of Bangladesh didn’t have the provision regarding the prevention detention, it has been made as law for some unlawful opportunities taken by the political parties by the 2nd amendment of constitution and Special Powers Act 1974.[57]

Other sections of the Special Powers Act 1974, which is related to the prevention detention, these sections are following bellow:

Section- 4: Execution of Detention orders

A detention order may be executed at any place in Bangladesh in the manner provided for the execution of warrants of arrest under the code.

            Section 4 of the Special Powers Act provides that the order of detention passed under section 3 of the Special Powers Act shall be executed as provided in section 80 of the Code of Criminal Procedure. If section 3 of the Special Powers Act, 1974 and section 80 of the Code of Criminal procedure are read together, it becomes abundantly clear that an order of detention passed under section 3 of the special powers Act, 1974 must be served upon the detenu.

Section-12: Action upon the Report of Advisory Board

(1). In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit:

Provided that the Advisory Board Shall, after affording the person concerned an opportunity for being heard in person, review such detention order, unless revoked earlier, once in every six months from the date of such detention order and the Government shall inform the person concerned of the result of such review.

            (2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith.[59]

            In the case, Board’s opinion regarding detention-opinion of the Advisory Board is given under section 12 and section 12 says that Government may confirm the detention order but if the Advisory Board gives the opinion that there is no case for detention then the Government shall revoke the detention.[60]

            In another case of the detenu not placed before the Advisory Board within 120 days from the date of detention Government failed to show that in accordance with provision of section 12(1) of the Act the Advisory Board reported that there was sufficient cause for detention of the detenu-Detention held illegal.[61]

            By the above view, it is to be said that since the Special Powers Act seems to be extremely prejudicial to civil rights, and since it empowers the Government with a wide range of powers for repression, the act has been under severe public criticism from its very inception. The opposition parties had always committed themselves to repeal it if they were voted into power. But in the last 33 years, the act has yet been removed.

            In reality, around one thousand persons are being detained at present by the joint forces like, armed forces, paramilitary forces and the police together under the Emergency Powers Ordinance 2007 in the Country. According to statistics by a local human rights group, more than 50 thousand people have been arbitrarily arrested in the month of January 2007 by the enforcement agents, causing 29 custodial deaths.


[1]               A. V. Dicey, An Introduction to the Study of the Law of the Constitution, 10th ed. (Dhaka:                Universal Law Publishing Co. Pvt. Ltd, 2003), p. 208.

[2]               Shahdeen Malik, “Arrest and Remand: Judicial Interpretation and Police Practice” Special Issue   Bangladesh Journal of Law, (Dhaka: Bangladesh Institution of Law and International Affairs,          November 2007), pp. 262-3.

[3]               Md. Altaf Hossain, Constitutional Law with Commentary and Case Law, 1st ed. (Dhaka: Jolly Law               Book Center, 2008), p. 13.

[4]               Justice Latifur Rahman, The Constitution of the People’s Republic of Bangladesh with Comments               & Case-law, 2nd ed. (Dhaka: Mullick Brothers, 2008), p. 8.

[5]               Md. Abdul Halim, Text Book on Criminal Procedure Code 1898, 2nd ed. (Dhaka: CCB     Foundation, 2008), p. 49.

[6]               Sarkar Ali Akkas, Law of Criminal Procedure, 2nd ed. (Dhaka: Ankur Prakashani, 2009), p. 1.

[7]               The Constitution of the People’s Republic of Bangladesh, 1971.

[8]               F. K. M. A. Munim, Rights of the Citizen under the Constitution and Law (Dhaka: Oxford              University Press, 1995), pp. 54 -5.

[9]               Mahmudul Islam, Constitutional Law of Bangladesh, 2nd ed. (Dhaka: Mullick Brothers, 2006), p.                 95.

[10]             The Constitution of the People’s Republic of Bangladesh, 1971.

[11]             Gopalan v. State of Madras, AIR 1950 SC 27.

[12]             Jit Bahadur v. the State, AIR 1953 All 753.

[13]             Mahmudul Islam, ibid., pp. 197-8.

[14]             Section 61 of the Code of Criminal Procedure 1898.

[15]             Section 340, ibid.

[16]             F. K. M. A. Munim, ibid., pp. 85-6.

[17]             Fazlur Rahaman v. the State, PLD 1960 Pesh 74.

[18]             F. K. M. A. Munim, ibid., p. 87.

[19]             (1996) 2 QB 414.

[20]             Md. Abdul Halim, ibid., p. 87.

[21]             [http://legal.dictionary.thefreedictionary.com/arrest, accessed on 9 February 2011].

[22]             Section 47 of the Code of Criminal Procedure 1898.

[23]             Ss. 47, 48, 49 and 50, ibid.

[24]             Md. Zahurul Haque, The Code of Criminal Procedure 1898, 2nd ed. (Dhaka: Shams Publication,   2009), p. 93.

[25]             Shahdeen Malik, ibid., p. 272.

[26]             Section 54 of the Code of Criminal Procedure 1898.

[27]             Alhaj Md. Yusuf Ali v. the State 22 BLD (HCD) 231.

[28]             Shahdeen Malik, ibid.,  pp. 272-3.

[29]             Sarkar Ali Akkas, ibid., p. 229.

[30]             PLD 1964 Dacca 618, 16 DLR 38, AIR 1918 Mad. 514 (DB).

[31]             1986 P.Cr.L.J.2565.

[32]             Md. Abdul Halim, ibid., pp. 92-3.

[33]             55(2003) DLR 363.

[34]             Sarkar Ali Akkas, ibid., p. 230.

[35]             56(2004) DLR 230.

[36]             Saifuzzamn v. State, 56 (2004) DLR 324.

[37]             Sarkar Ali Akkas, ibid., pp. 232-3.

[38]             Abdur Rahman v. State, 29 (1977) DLR 256.

[39]             Md. Abdul Halim, ibid., pp. 94-5.

[40]             (1947) AC 573: (1947) 1 AER 567.

[41]             Mahmudul Islam, ibid., pp. 199-200.

[42]             AIR 1950 SC 27.

[43]             [http://www.bdresearchpublications.com/admin/journalupload/08019/08019.pdf], accessed on 20  March 2011.

[44]             Quazi Reza-Ul-Hoque, Preventive Detention Legislation and Judicial Intervention in Bangladesh, 1st ed. (Dhaka: Bishwa Shahittya Bhavan, 1999), p. 1.

[45]             [http://resources.lawyersnjurists.com/research-papers/assignments/miscellineous/preventive-  detention-is-tt, accessed on 21 March 2011.

[46]             Md. Abdul Halim , ibid., p. 284.

[47]             Badrul Haider Chowdhury, The Long Echoes, 1st ed. (Dhaka: Shams Publication , 1990), p. 3.

[48]             Goplan v. State of Madras, AIR (1950) SC 27.

[49]             A.B.M. Mafizul Islam Patwary, Liberty of the People, (Dhaka: Institution of Human Rights and    Legal Affairs, 1987), p. 29.

[50]             [htt://www.bdresearchpublications.com/admin/journalupload/08019/08019.pdf, accessed on 20 March 2011].

[51]             Md. Abdul Halim, Constitution, Constitutional Law and Polities: Bangladesh Perspective (In       Bangali), 5th ed. (Dhaka: CCB Foundation, 2008), pp. 294 -5.

[52]             Abdul Aziz v. West Pakistan, PLD 1958 SC 499,513.

[53]             F.K.M.A. Munim, ibid., pp. 117-20.

[54]             Mahmudul Islam, ibid., p. 204.

[55]             Md. Abdul Halim, Constitution, Constitutional Law and Polities: Bangladesh Perspective, ibid., p. 293.

[56]             Quazi Rezaul Hoque, ibid., pp. 190-3.

[57]             [http://resource.lawyersnjurists.com/research-papers/assignments/miscellaneous/preventive-  detention-is-tt , accessed on 21 March 2011].

[58]             MA Hashem v. Government of Bangladesh 1 BLC 5.

[59]             Nirmal Chandra Paul, The Special Powers Act, 1974, 1st ed. (Dhaka: Shams Publications, 2008),   pp. 105-6.

[60]             Md. Anwar Hossain v. State, 29 DLR 15.

[61]             Md.Golam Hossain v. State, 54(1991) BLD 37.

Judicial remedies against preventive detention and recommendations

Though the Government generally used this preventive detention against the opposition but there are so many steps to get justice against preventive detention in Bangladesh. They are-

Writ of Habeas Corpus:

If any person illegally detained then any person in favor of him can file a writ of Habeas Corpus under article 102(b) (1) of our constitution. The detenu himself, or his father, or his wife, or his son, or his sister, or his relative, or even his friends can apply for this. Most of the cases the court found the weak grounds, vague & not any specific grounds. As a result the high court can relax the detenu for following grounds-

  • Detaining by Governments unlawful authority.
  • Failure to state the grounds within time.
  • Failure to give chance to be defend himself.
  • Lack of nexus with the reason of detention.
  • Not to produce the detenu before advisory board within specific     time.
  • Mixing good grounds with bad grounds.
  • Retrospective issuance of orders. and
  • Failure to submit essential documents before court or not in proper time.

For such grounds when high court is satisfied that the detenu has been detained arbitrarily then court can declare the detention illegal and order to release him immediately. In the time of emergency when writ of Habeas Corpus is withheld then a case filed under section 491 of Cr. Pc. to get directions or rule of the nature of a Haveas Corpus. Another interesting matter we want to highlight that “though it is stated that special power act there is no chance of filling a Habeas Corpus writ but people can because the Special Powers Act is a general law but article 44 & 102 gives the power to High Court Division to exercise Habeas Corpus writ which is a constitutional law as it is a constitutional law strong than general law”.

Suo Motu rule:

The Suo Motu rule is now not very new to us. It is exercised by High Court Divison’s judges if any illegal or inhuman matters happen and it comes to knowledge of the court through newspaper or report publishing.

Criminal Laws and the Constitution of Bangladesh (Part 2)

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