Introduction

The flaw of the law is very common in Bangladesh. In fact there is no flaw of any laws, but the way you use it. Here the proper word can be used as abusing laws. People misuse the law for their own benefit. But the consequence of abusing or misusing law is very dangerous. It is not only a common practice in Bangladesh but also in other developed countries. But the scenario we have here is much more threatening as well as immoral in our society. Actually what we do by misusing law, we do not care about the consequences. If we take a closer look to our society, we will find that there are many areas where the violations of law are very common. Misinterpretation of different sections is also available and which mainly leads to the flaw of law. By doing this the rate of corruption goes up. This law loop hole creates section violations, bribery, custodial death and others.

The topic talks about a vast area which simply cannot be discussed easily. There are many problems that we have in our society. Here I have narrowed down the topic and will discuss about Section 54, 167 and 61 of Code of Criminal Procedure 1898. All these sections talks about arrest without warrant and detention rules. In our country, these sections are misinterpreted randomly and as a result it violates sections and makes way for corruptions. Actually political and some muscle man of our society does these unlawful things in the name of law to eliminate their obstacles legally.

There is a case which deals with custodial death issues where police officers arrested a boy named Shamim Rubel, student of Independent University who was mercilessly beaten and later he died under police custody.

Section 54, 61, 167 of Code of Criminal Procedure 1898

My research work is based on mainly section 54 and other section 61 and 167 comes along with the research. Here I am going to discuss about the flaws or misuse of these laws which makes way to corruption. Above sections talks about the arrest without warrant and detention rules. Recently what we can see is our police officers arrests people by section 54. Which is sometimes harassment for the people like us. According to section 54, police can arrest people without any warrant if he or she is suspicious, committed any cognizable offense or try to create obstacle in any work.[1] In most of the cases this section is randomly violated or misused by political benefit or by persuading own benefit. In our country, police and some benefit seeking people try and commit this kind of misuse by applying section 54. According to a case report, 1585 people were arrested under section 54 of the Code of Criminal Procedure by the then 15 police stations of Dhaka city; of those arrested persons, only 189 were prosecuted for specific allegation of criminal activities were submitted against 88% of all those arrested by the police[2].

Here what happens is, police arrests persons under section 54, later they charge offense and take them to remand and they ask for money to withdraw the case. Now this is the major problem which we can see here because under section 54, police has the authority to arrest people without any warrant and take them under extended interrogation in other words remand under section 167.[3] To uphold my research on the law flaws, I am going to discuss and report on a case which took place in 2003, Judgment and order dated 7th April 2003 passed by the High Court Division in Writ Petition No. 3806 of 1998. Case represented by the Secretary Ministry of Law, Justice and Parliamentary Affairs versus Bangladesh Legal Aid and Services Trust (BLAST) represented by Dr. Shahdeen Malik and others. Appellate Division.

It is a Public Interest Litigation (PIL) petitioned by the Bangladesh Legal Aid and Services Trust (BLAST), where a student of Independent University Shamim Reza Alias Rubel was arrested under section 54 and was killed during interrogation under police custody. He was mercilessly beaten up and then police took him to Dhaka Medical College Hospital where he was declared dead. This news was published in almost all national daily newspapers and the members of the public, political parties, lawyers, teachers, students, human rights activists, NGOs were deeply shocked and protested against the system. After that Bangladesh Legal Aid and Services Trust (BLAST) filed up a case against it in High Court Division. BLAST also recommended some changes in order to maintain a harmony. Their recommendation of section is provided below

Code of Criminal Procedure (V of 1898)

Section 54

1. If a person is arrested on ‘reasonable suspicion’, the police officer must record the reasons on which his suspicion is based. If the police officer justifies the arrest only by saying that the person is suspected to be involved in a cognizable offence, such general statement cannot justify the arrest.

2. A police officer can exercise power if he has a definite knowledge of the existence of some offence and such knowledge shall be the basis of arrest without warrant. There can be knowledge of anything only if the thing exists.

3. If a person is arrested on the basis of suitable information, the reason of the information must be disclosed by the police officer and also the reason why he believed in such information.

4. The power given to the police officer under this section to a large extent is inconsistent with the provisions of Part III of the Constitution[4]. In view of this position such inconsistency is liable to be removed.

Code of Criminal Procedure (V of 1898)

Section 167

1. While producing a person arrested without warrant before the Magistrate, the police officer must state reasons why the investigation could not be completed within 24 hours and what are the grounds for believing that the information received against him is well-founded.

2. The order for detaining in police custody is passed by a Magistrate in exercise of the power given to him under sub-section (2) of this section. If the requirements of sub-section (1) are not fulfilled, the Magistrate cannot pass an order under sub-section (2) for detaining a person even in jail not to speak of detention in police custody.

3. Though the provisions empower the Magistrate to authorize the detention in police custody, no guideline has been in sub-sections (2) and (3) as to the circumstances under which detention in police custody may be authorized.[5]

After that the Government did not took any actions neither did the court for a long time. After a year or so, Secretary Ministry of Law, Justice and Parliamentary Affairs filed another case on behalf of the Government of Bangladesh for BLAST which was appealed in Appellate Division.[6] And the result went against the petitioners.

According to the Code of Criminal Procedures, section 54 states that, any police officer may arrest warrant if

1. 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.

2. Any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking.

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

4. 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.[7]

Now the problem is, if a police officer arrests a person under section 54, no one can stop them from arresting because is it backed by the law and it is fully legal. But in most of the cases, police officers arrests people under section 54 but they do not state any specific reason why they have arrested which also violets Part III Article 35 of Constitution of Bangladesh.[8] Here they take them to investigation and silently puts them into remand for nothing. Their investigation takes much time than usual. According to section 61 of Code of Criminal Procedure 1898, no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.[9]

To utilize and exercise their power, police officers go for long time investigation under section 167 of Code of Criminal Procedure 1898.[10] Where they beat up the arrested person mercilessly and in maximum cases those people dies under police custody. Sometimes our daily newspapers print the news but in maximum cases it remains under cover.

The fact is political government will make sure that the opposition cannot rise while they are in power, so what they do is they technically puts police in charge and arrests people under section 54. Now it is very legal and the police officers can claim that the person was creating obstacle or in suspicion of something. Now no one can talk about it because it is backed by the government law. Again in another hand, powerful or muscle man of the society plays this kind of dirty role to eliminate the obstacle easily. But what mostly happens is the corruption of police officers. These officers’ arrests people under section 54 and immediately take the arrested person into investigation, and then they violate section 61 along with section 167 of Code of Criminal Procedure and claims money for the victims’ freedom. This is how corruption occurs in our country. There are laws to support us but the law also has weak points to go against us.

In another hand, we have the right to do anything we want which obviously legal and also hold the right to know what we want stated in Part III Article 35, Constitution of Bangladesh.[11]

Conclusion

This was how Shamim Reza Alias Rubel became the victim of the police and of our law. The case, Judgment and order dated 7th April 2003 passed by the High Court Division in Writ Petition No.3806 of 1998. Case represented by the Secretary Ministry of Law, Justice and Parliamentary Affairs versus Bangladesh Legal Aid and Services Trust (BLAST) represented by Dr. Shahdeen Malik and others. Appellate Division about custodial death is another glowing evidence of how flaw of law can be a destructive weapon to the society.

These kinds of flaw have been a common practice in our society for a long time. People who seeks its own benefit commits unlawful incidents by the name of law and the technique they set is very legal in naked eye. If the judgment is not done is a perfect manner.

Bibliography

1. Code of Criminal Procedure 1898.

2. Constitution of Bangladesh.

3. Judgment and order dated 7th April 2003 passed by the High Court Division in Writ Petition No.3806 of 1998. Case represented by the Secretary Ministry of Law, Justice and Parliamentary Affairs –versus- Bangladesh Legal Aid and Services Trust (BLAST) represented by Dr. Shahdeen Malik and others. Appellate Division.

4. BLAST versus Bangladesh Case High Court Division.
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[1] Arrest without warrant under Section 54, Code of Criminal Procedure 1898.
[2] Judgment and order dated 7th April 2003 passed by the High Court Division in Writ Petition No.
3806 of 1998. Case represented by the Secretary Ministry of Law, Justice and Parliamentary Affairs –versus- Bangladesh Legal Aid and Services Trust (BLAST) represented by Dr. Shahdeen Malik and others. Appellate Division.
[3] Procedure when investigation cannot be completed in twenty-four hours under Section 167, Code of Criminal Procedure 1898.
[4] Article states of the basic human rights, Part III Article 35 Constitution of Bangladesh.
[5] According to the recommendation by BLAST.

[6] The case of Secretary Ministry of Law, Justice and Parliamentary Affairs versus Bangladesh Legal Aid Services and Trust, dated 7th April 2003.
[7] Under Section 54 of Code of Criminal Procedure 1898.
[8] Every people of the country have the right to know or hold the right of his or her own legal freedom.
[9] Person arrested not to be detained more than twenty four hours.
[10] Procedure when investigation cannot be completed in twenty-four hours, Code of Criminal Procedure 1898.

[11] Every people of this country hold their basic rights, Constitution of Bangladesh, Part III Article 35.