ROLE OF POLICE SYSTEM

The Role of Police in Criminal Justice System History of Bangladesh Police Ancient Period There is a long and very much old history of police. A study of history shows that police is as old as the civilization. In the city state of Rome police became a special institution by about the time of Augustus towards the Middle of the fist century B.C. In case of Bangladesh the history of policing is also very old.

Manushanghita, the hieroglyphics of Emperor Ashoka, and the stories of renowned travelers are the main sources of composing our history. These sources also give clues to compose the fragmented history of Bangladesh Police. In Orthoshastra by Koutilla, nine types of spies are mentioned. During that period policing was confined in the efforts of collecting intelligence in order to curb anti-governmental activities and to maintain law and order in the society. The duties of under cover spies were extended such a way that they used to conduct surveillance over the activities of ministers, civil and military officials. For this all means of temptations and instigations were used. Information about investigating techniques and investigating authorities may be found in Orthoshastra. The procedures of punishing the accused are also found in this book. Hence it maybe assumed that there was one kind of police under the local autonomous system in the rural and urban areas.

Medieval Period Details of policing activities during the middle age cannot be found as well. However, during the periods of the great sultans, an official holding the position of Muhtasib used to perform the duties of policing. This person happened to be the chief of police and the in charge of public works and the inspector of public ethics simultaneously. In urban areas, Kotwals were responsible for performing police duties. Information regarding police systems during the Mughal period can be found in the book Aain-E-Akbori. The policing system introduced by Shershah Shuri, was further organized during the period of Emperor Akber, the great. The Emperor organized his administrative structure introducing Fouzdari (the principal representative of the Emperor), Mir Adal and Kazi (the head of judicial department) and Kotwal (the chief police official of larger cities). This system was very effective in maintaining the law and order in cities. The Kotwal police system was implemented in Dhaka City. Many district sadar police stations are still called Kotwali police stations. In Mughal period Kotwal emerged as an institution. According to the historians the Kotwal was minor luminary under the Muhtasib.

A Fouzdar was appointed to every administrative unit of the government (district). There were some artillery and cavalry forces under the Fouzdar. Thanadars was appointed dividing the parganas into small localities. There was a disciplined police system during the Mughal period though there was no professional police force like that of the British period. In general, it may be opined that there was a remarkable development in the maintenance of law and order and criminal administration during the reign of the Muslim rulers.

British Period The establishment of a systematic police force in England was of slow growth and came into effect after its creation abroad. In the early stage of Industrial Revolution when England was facing grave crisis due to socioeconomic transformation the necessity of an effective organised police service was keenly felt Sir Robert Peel, the then Prime Minister introduced a bill in the British Parliament in 1829 which created an organised civil police in the nearby London Metro police. Initially there were some opposition to the existence of this uniform police but the success of the London police in controlling social disorder and crime captured imagination of not only the people of England but also of the whole Europe and America, New York city copied the London model with some modifications when it organised the first Municipal Police Force 1833.

In 1858 full control of the Indian Territory was taken over from the East India Company by the British government. The success of the London police organised under Peels Act of 1829 prompted the British government to reform the police system in the sub-continent on the line of the British constabularies. With this end in view a police commissioner was set up 1840 and on the recommendation of the commission of the Police Act (Act V of 1861) was passed by the British Parliament. Under this Act a police force was created in each province of British India and placed under the control of the provincial government. The administration of the police force of a province was vested upon an officer styled as the Inspector General of Police. The administration of the police in a district was placed under the Superintended of Police. The Act is still in force throughout the Sub-continent and has been regulating the function of police in Bangladesh as well as the other countries of the sub-continent.

Pakistan Period After partition of the Sub-continent in 1947 police force in Bangladesh was first named as East Bengal Police and then as East Pakistan Police and it continued to function as provincial police force in the same lines as during the British rule.

Role of Police in Liberation War The most glorious chapter of the history of Bangladesh Police came when Bengali-speaking police officers participated along with the citizens in Bangladesh Liberation War. During the liberation war a large number of police officers from all ranks including a Deputy Inspector General, some senior Superintendents of Police and many other gave their lives for the cause of liberation. Many police personnel embraced martyrdom on 25 March 1971 fighting with outdated .303 rifles against the Pakistani invaders. The resistance by the Bengali members of police at Rajarbag is basically the first chapter of armed struggles during the War of Independence. This armed resistance was a clear indication to all that they had no other alternative but to go for an armed struggle to achieve independence. The name and address of 1262 police officers of different ranks could be listed who sacrificed their lives for the independence of Bangladesh during the liberation war.

Again Mr. Mahbubuddin Ahmed, Bir Bikram, who was the Sub-Divisional Police Officer (SDPO) of Jhenaidah at that time, led the historic guard of honour given to the members of the

Mujibnagar Cabinet when the provisional Government of Bangladesh took oath on the auspicious day of April 17, 1971 during liberation war.

Bangladesh Period After the emergence of Bangladesh as an independent country on December 16, 1971 the police force was recognized and it assumed the role of a national police force. Bangladesh Police as like as other police forces over the world is primarily responsible for the preservation of peace and order, protection of life and property of the people and prevention and detection of crime. The traditional role of police in Bangladesh has undergone significant change after the liberation. The role of police is no longer confined to maintenance of law and order and prevention and detection of crime. To meet the need of an independent and developing country the police is now required playing a significant role in developing state and such kinds of activities by providing the basic security required for sustained economic growth of the country. Police also is contributing substantially in this field by keeping under control economic crimes which retread the process of the development. It is further playing a vital role in dealing with insurgency in some areas of the country which impedes development activities and threatens the security of the state.

Organization of Bangladesh Police Bangladesh Police is headed by the Inspector General of Police (IGP). Under the control of Police Headquarters, Bangladesh Police is divided into different branches.

Branches • •

Range Police Metropolitan Police

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Special Branch (SB)

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Criminal Investigation Department (CID)

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Railway Police (GRP)

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Highway Police

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Industrial Police

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Specialized Security and Protection Battalion (SSPBn)

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Armed Police Battalion (APBn)

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Rapid Action Battalion(RAB)

Range & District Police •

Outside the Dhaka capital region and other metropolitan cities, police is organised into Police Ranges, headed by a Deputy Inspector General of Police (DIG), who control

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several Police Districts. Now there are seven Police Ranges in seven administrative divisions and two Police Ranges for railways and highways.

The Police District is the fulcrum of police activity and each Police District is headed by a Superintendent of Police (SP).

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The Police District is made up of one or more Circles, and is under the command of an Assistant Superintendent of Police (ASP) often referred to as the Circle ASP.

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Under the Police Circles are the police stations, generally under the control of an Inspector of Police who is called Officer-in-Charge (OC). Under him several SubInspector of Police works. As per the various Bangladeshi laws, Sub-Inspector (and above) are the only officers who can file a charge sheet in the court.

Each Police Range maintains its own Range Reserve Force (RRF) and district police also maintains its own Special Armed Force (SAF) which is responsible for emergencies and crowd control issues. They are generally activated only on orders from the Superintendent of Police, and higher-level authorities. The armed constabulary do not usually come into contact with the general public unless they are assigned to VIP duty or to maintain order during fairs, festivals, athletic events, elections, and natural disasters. They may also be sent to quell outbreaks of student or labor unrest, organized crime, and communal riots; to maintain key guard posts; and to participate in anti-terrorist operations.

Names of the Police Ranges in seven administrative divisions are: Name of the Police Range 1 Dhaka Range 2 Chittagong Range 3 Khulna Range 4 Rajshahi Range 5 Sylhet Range 6 Barisal Range 7 Rangpur Range Name of the Metropolitan Police 1 2 3 4 5

Dhaka Metropolitan Police (DMP) Chittagong Metropolitan Police (CMP) Khulna Metropolitan Police (KMP) Rajshahi Metropolitan Police (RMP) Sylhet Metropolitan Police (SMP)

6 Barisal Metropolitan Police (BMP) Criminal Investigation Department (CID) •

The Criminal Investigation Department (CID) is a special unit of Bangladesh Police responsible for carrying out investigations into crimes grievous in nature, including terrorism, murders and organized crime. It also gives forensic support to law enforcing agencies. It is headquartered in Malibag, Dhaka, and maintains two training schools named the Detective Training School and the Forensic Training Institute.

Rapid Action Battalion (RAB) •

In 2004, elite force of Bangladesh Police Rapid Action Battalion was raised, consisting of the personnel of Bangladesh Police, Bangladesh Army, Bangladesh Navy, Bangladesh Air Force, Border Guard Bangladesh and Bangladesh Ansar. It works under the command of Inspector General of Police

Weapons The weapons used by Bangladesh police are: • •

9 mm Pistols L.M.G (Light Machine Gun)

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M.M.G ( Medium Machine Gun)

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.38 Smith and Wesson

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Shot gun (12 Bore)

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7.62 mm Chinese Rifle

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7.62 x 51 G3 Rifle

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AK 47

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Tear Shell (Gas Gun)

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7.62 Sub Machine Gun

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Gas Grenade

PREVENTIVE ACTION OF THE POLICE INTRODUCTION:Preventive jurisdiction, under the Code of Criminal Proceeding 1898, is classified under two broad heads. The first may be called magisterial action; and the second police action. The magisterial preventive jurisdiction is dealt with in chapters 8 and 10.it is quasi-judicial and quasi-

executive. cases falling under the second head are purely executive. they fall into three categories:(1) prevention of cognizable offence(section 149-151); (2) prevention of injury to public property(section 152); and (3) inspection of weights and measures(section 153).unlike the first head, there is no judicial inquiry at all; and from the very urgency of the cases the police have to act on their own initiative and of their own knowledge. the powers given are very wide indeed and their exercise is ordinarily summary 149. Police to prevent cognizable offences: Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent the commission of any cognizable offence.

APPLICATION:- This section applies for prevention of cognizable offence only. Interpose connotes active intervention and not merely a prohibition by word of mouth(25 CWN 63) COMMENT(section 149):- police-officers have been armed with extensive powers to prevent commission of cognizable offence. Offence for which they could arrest without a warrant. First of all section 149 enables a police-officer to prevent the commission of a cognizable offence(section 149).

150. Information of design to commit such offences: Every police officer receiving information of a design to commit any cognizable offence shall communicate such information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of any such offence.

COMMENT(section 150):- If the police-officer receives information of a design to commit such an offence, he can either pass on the information to his superior police-officer or to any other officer.

151. Arrest to prevent such offences: A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.

CASES REFERANCE:- 22 BLD(AD) 83- Khushida Begum and another Vs. Golam Mustafa and others-The provision in section 151 C.P.C and section 561A Cr.P.C do not empower or authorized the court to make an order affecting the other party in the proceeding without hearing him in disregard of the time old maxim audi alterem partem.

COMMENT(section 151):- Arrest under section 151 is possible only if the person concerned is believed to have a design to commit a cognizable offence. Where a detenu was unable to furnish security and the magistrate ordered his detention in judicial custody without holding enquiry and without applying his mind, the order of detention was held illegal.

152. Prevention of injury to public property: A police officer may of his own authority interpose to prevent any injury attempted to be committed in his view to any public property, movable or immovable, or the removal or injury of any public landmark or buoy or other mark used for navigation.

COMMENT (section 152):- The one essential requirement of this section is that the attempt must be committed ”in the view” of the police-officer. The emergency arising here is not so great as the one arising under section 149-151,thought it certainly is more pressing than the one referred to in section 153 153. Inspection of weights and measures: (1) Any officer in charge of a police station may, without a warrant, enter any place within the limits of such station for the purpose of inspecting or searching for any weights or measures or instruments for weighing, used or kept therein whenever he has reason to believe that there are in such place any weights, measures or instruments for weighing which are false.

(2) If he finds in such place any weights, measures or instruments for weighing which are raise, he may seize the same, and shall forthwith give information of such seizure to a Magistrate having jurisdiction.

COMMENT (section 153):- The officer who can act under this section is the officer in charge of a police –station, and the place searched should be within the limits of that station. All he can do is to seize false weights or measures if any are found and to report the seizure to the magistrate having jurisdiction.

CONCLUSION:Police have been given some duties and power both in the Cr.P.C and in the police Act 1861 to prevent crimes in general. Compared to the provision in the Cr.P.C the police Act gives wider powers for the prevention of offences in general. Chapter 8 of the Cr.P.C gives some special powers with regard to prevention of crimes. These powers are apart from the powers to arrest without warrant under section 154.

ARREST INTRODUCTION:Arrest is the beginning of imprisonment. Its purpose may be classified as: Preventive (in order to terminate a breach of peace). Punitive (to take a person before a magistrate to answer for an offence or to be bound over).and Protective (where mentally ill persons are arrested for their own protection).There is no necessary assumption that arrest will be followed by a charge. A constable who reasonable suspect 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.

HOW DOES AN ARREST OCCUR:The Code of Criminal proceding,1898 provide that an arrest occurs when a police officer states in terms that a person is arrested, when he used force to restrain the individual concerned, or when by words or conduct he makes it clear that he will, if necessary, used force to prevent the individual from going where he wants to go. Thus the police officer must say before arrest to the person to be arrested ”I am arresting you”.

WHO CAN MAKE ARREST:-

The Cr.P.C has given power to arrest to both general public and police officer. Thus arrest may be made by police officers and also in some circumstances by an individual.

Sec. 46.Arrest how made.- (1) In making an arrest the Police-officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

(2) If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such Police-officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with transportation for life.

CASE REFERANCE:-This section does not restrict the powers of the police to enter the place to be search without any demand. AIR 1914 Cal 456=15 Cri L Jour 385(DB) Sec. 47. Search of place entered by Person sought to be arrested.- If any person acting under a warrant of arrest, or any Police-officer having authority to arrest, has reason to 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 shall, on demand of such person acting as aforesaid or such Police-officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

COMMENT:- While making the arrest under warrant or in case of a warrantable case the police officer may ask free ingress to any residence or place where he has reason to believe that the person to 'be arrested is hiding or has entered into.

Sec. 48.Procedure where ingress not obtainable.- If ingress to such place cannot be obtained under section 47 it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a Police officer to enter such place and search therein, and in order to effect an entrance into such place, 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, if after notification of his authority and purpose and demand of admittance duly made, he cannot otherwise obtain admittance: Provided that, if any such place is an apartment in the actual occupancy of a woman (not being the person to be arrested) who, according to custom, does not appear in public such person or Police-officer shall, before entering such apartment, give notice to such woman that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it.

CASE REFERANCE:-A police officer entering into a building for purpose of arresting suspected persons will not be liable for trespass-clark vs Brojendra Kishore,36 Cal 433.

COMMENT:- ) If ingress to such place cannot be obtained under section 47 it shall be lawful for the police officer to break into the house or residence to effect the arrest .

If such a breaking into the house is to be done into a zanana, the police officer must give the women inside the zanana opportunity to withdraw themselves from it .

Sec. 49.Power to break open doors and windows for purposes of liberation.Any Police-Officer or other person authorized to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.

CASE REFERANCE:-A magistrate has no jurisdiction to authorized the police to break open a door for the purpose of delivering properties alleged to have been wrongfully locked up by a person not having any title to it. AIR 1923 All 473=25 Cri L Jour 218.

COMMENT:- The person arrested shall not be subjected to more restraint than is necessary to prevent his escape Sec. 50.No unnecessary restraint.- The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

Sec. 51.Search of arrested persons.- Wherever a person is arrested by a Police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail, and Whenever a person is arrested without warrant, or by private person under a warrant, and cannot legally be admitted to bail, or is unable to furnish bail.

The officer making the arrest or, when the arrest is made by a private person, the Police-officer to whom he makes over the person arrested, may search such person, and place in safe custody all articles, other than necessary wearing apparel, found upon him.

CASE REFERANCE:-Issue of notice to surety without first forfeiting his bond is irregular. sanwan vs state 17 DLR(WP)141.

Where the search is genuine technical objections should not be allowed to prevail. Jaganath vs Emp AIR 1942 oudh 221.

Sec. 52.Mode of searching women. - Whenever it is necessary to cause a woman to be searched, the search shall be made by another woman, with strict regard to decency.

ARREST WITHOUT WARRENT INTRODUCTION: Section 54 of the CrPC lays down the general power of arrest 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. In nine circumtance a police officer may, without an order from a magistrate and without a warrant, arrest a person: Sec. 54.When Police may arrest without warrant.- (1) Any Police-officer may, without an order from a Magistrate and without a warrant, arrest,first, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned ; secondly , 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; thirdly , any person who has been proclaimed as an offender either under this Code or by order of the Government; fourthly , 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; 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 custody; sixthly , any person reasonably suspected of being a deserter from the armed forces of Bangladesh; seventhly, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Bangladesh, which, if committed in Bangladesh, would have been punishable as an offence, and for which he is, under any law relating to extradition or under the Fugitive Offenders Act, 1881, or otherwise, liable to be apprehended or detained in custody in Bangladesh; eighthly , any released convict committing a breach of any rule made under section 565, subsection (3); ninthly, 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 it appears there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

Abuse of Police Power of Arrest (section 54) Both the methods of policing in this country and the police been questioned over times. The work of the police is often characterised by brutality. Abuse of power by the police under section 54 of the CrPC and the Special Powers Act 1974 have been identified by different human rights watchdog agencies as the main sources human rights violation in the country. This is because the provision of both the laws allow the arrest of any person by the law enforcers without recourse to court order. Legal loopholes provide the police without excuse for arresting someone with impunity. The arrest is not everything. The method of extracting information from the arrested person by the police is barbarous and this is the reason behind so many custodial deaths. The most of the custodial deaths are pure reson 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 BLAST v Bangladesh (55 DLR 363). In this cases HCD has given 15 directives to the Government to

follows along with recommendations to implement by way of amending the Cr.P.C. Of these 15 directions first 8 relates to the police power .of arrest under section 54" of the CrPC 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. f;, (2) A police officer shall disclose his identity and, if demanded, shall show his identity card to the person arrested and to the persons present at the time of arrest.

(3) Immediately after bringing the person arrested to the police station, die 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 place, note 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 die 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 the nearest hospital or Government doctor for treatment and shall obtain a certificate from the attending doctor about the injuries.

(5) He shall furnish die reasons for arrest to the person 'arrested within three hours of bringing him to die police station.

(6) If the person is not arrested from his residence .or place of business, he shall inform the nearest relation of the person over phone, if any, or through a messenger within one 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 die nearest Magistrate under section 61, die 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 form 38 to Magistrate Critical evaluation of General Power of arrest:Section54 gives a very wide and sweeping power to the H| ought to be rigorously construed (Sandino AIR 1934 Sind 197) under this section a police officer may arrest a person on resonable suspicion and there is a great danger of abusing it. What is resonable suspicion or complaint? There is no exact definition of this term.However, what is reasonable suspicion or complaint must depend on the circumstances of each particular case, but it must be at least found on some definite fact tending to throw suspicion on the person arrested, and not on a mere vague surmise or information. resonable suspicion means a bonafide belief on the part of the police-officer that an offence has been committed or is about to be committed (AIR 1943 Mad 218), Alhaj Md. YususfAli v The State, 22 BLD(HCD)231.

Instances of Special Power of Arrest by police officer:

(i) Any Officer in charge of a police station may arrest a vagabond, habitual offender without warrant under section 55. (ii) A police officer may depute a subordinate to cause arrest without warrant and in such a case the subordinate officer can arrest without warrant (sec. 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 (sec. 57) (4) A private person may arrest without warrant any person who is a proclaimed offender or who in his view commits a non-bailable and cognizable offence (sec. 59).

(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 (sec. 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 (sec.

66).

(7)An officer in Charge of a Police station may arrest •HI warrant any member of an unlawful assembly I icing commanded to disperse shows determination io disperse (sec. 128).

(8) Any police officer may arrest without warrant a person cannot otherwise be prevented from committing a in/able offence (sec. 151).

(9) Any police officer may arrest without warrant a person fails to fulfill the conditions on which a sentence has been suspended or remitted by the Government (sec.401(3) ) FIRST INFORMATION REPORT COMMENCEMENT OF A CRIMINAL CASE: 1NFORMATION AND INVESTIGATION Criminal Justice set in motion: The criminal justice system can be set in motion by any of the two ways: (1) By filing an FIR with regard to a cognizable offence; or (2) By filing a complaint with regard to non-cognizable offence.

First Information Report (FIR): The term ’'First Information Report' is not mentioned in the Cr.P.C but those words arc understood to mean information recorded under section 154 of the Code of criminal proceeding 1898. It means the information which reaches the officer -in charge of a police station first on point of time about the commission of a cognizable offence. First information regarding a noncognizable offence which is dealt with in section 155 0f the Cr.P.C. The word 'information' means something in the nature of a complaint or accusation, or at least information of a crime, given with the object of putting the police in motion in order to investigation, as distinguished from information obtained by the police when acting for investigating a crime.

HOW MAY GIVEN Generally the victim gives the first information report with regard to commission of a noncognizable offence. However, it may be given by those who have seen the commission of the

crime or who has knowledge of the crime. It may be given orally or in writing. Oral in be recorded in writing by the police officer. It must be signed by the officer in charge of a police station and the informant. Unsigned information cannot be treated as an FIR. A telephone message received by a police-station reporting the commission of a cognizable offence can be recorded as an FIR but the name and address of the informant must be taken by the recipient.

Again, the station writer himself can sign the report as the person giving the information because the information report may be merely hearsay and need not necessarily be given by a person who has firsthand knowledge of the crime.

Again, on the basis of hearsay or otherwise, police officer may go to the scene on suspicion of crime' and may records a detailed information of the commission qf the crime and this record made by the police officer becomes an FIR. FIR in Cognizable Offence: First, any individual may file an FIR (First Information Report) under section 154 about the commission of a cognizable offence to police station; second, police may come to know about the commission of a cognizable offence from any other source, e.g. on a phone call, from hearsay source or on their own (section 157); third, after taking cognizance of an offence, cognizable or non-cognizable, under section 190 a Magistrate may send the same to a police station for investigation and report (sections 155(3) and 156(3) (also sec Regulation 245 of the Police Regulation, Bengal, 1943); fourth, having accepted a complaint under section 200 a Magistrate may send the same under section 202 to a police station to take it as an FIR to start investigation for report. Having received information from any of the above sources the officer-in charge must record the same in ,i book to be kept at every police station and this written information will be treated as First Information Report1.

There are some cases in which no FIR is required and these cases arc referred to as non-FIR prosecutions. For instance, cases under the Motor Vehicles Act, 1988 municipal or railway byelaws, section 34 of the Police Act 1861, cases under sections 107, 109, 110, 144 and 145 of the CrPC. For initiation and investigation in these cases see Regulation No. 254 of the Police Regulations Bengal, 1943.

Purposes Served by an FIR: (1) The object of an FIR from the view point of the informant is to set the criminal justice

in motion (2) The object of an FIR from the view point of the Investigating authority is to obtain information about the alleged criminal activity. so as to be able to take suitable steps for tracing and bringing to book the guilty party (3) Another object is to obtain early information of alleged criminal activity, to record the circumstances before there is time for them to be forgotten or fabricated.

Importance of an FIR:

(i)

(ii) (iii) (iv)

FIR carries much importance with regard to the commission of a cognizable offence.

It is the original story of the occurrence given generally at the earliest opportunity without much time left for fabrication. If FIR is not recorded when given, there will give room for fabrication by both the informant and the police.

FIR is the basis of the case set up by the informant. It is the basis of police investigation also.

It makes available to the judicial officers the materials on which the investigation commenced.

FIR is a safeguard against fabrication or forgetfulness. It has always been considered as the highest importance by the courts in criminal justice system. It can be used to corroborate or impeach the testimony of the person lodging it under section 145, 157 and 158 of the Evidence Act,

Evidential Value of FIR: FIR is not in the nature of a formal 'charge. It is just an information first in point of time about the commission of a cognizable offence. So it cannot be used as substantive evidence meaning that no judgment can be passed on the sole basis of an FIR. Evidence Act specifically declares that any information and statement given to the police are not admissible in evidence. However, as it is signed by both the informant and the recipient and being the earliest record it bears the most reliable source for the alleged criminality. And it may be put in evidence to support or contradict the evidence of the person who gave the Information. It enable the court to see what the prosecution case was when it was started and to check up any subsequent fabrication.

Duty of police Officer with regard to an FIR: The officer-in- charge of a police station is statutorily bound to register a Case on the basis of an FIR with regard to a cognizable offence and then to proceed with investigation if he has reason to suspect the commission of an offence. This is the mandate of section l54(l)and he cannot embark upon an Enquiry as to whether the information laid by the informant is genuine and Reliable. if an 0fficer-in-chargeof a police station refuses to register a case on The basis of an FIR, the person aggrieved by such refusal has right to Complain to the superintendent of Police.

For violation of any statutory duty By any police officer compliant can be lodged under section 42 of the Police Act 1861.before any action can be filed in the court against a police officer Under section 42 of the Police Act a written notice must be served to the police officer and also to the District Superintendent or an Assistant superintendent of police. Penalty for violation of any of the statutory or Regulatory duty by any police officer is three month imprisonment in the maximum.

INVESTIGATION BY POLICE OFFICER IN CRIMINAL CASES Sec. 154. Information in cognizable cases.- Every information relating to the Commission of a cognizable offence if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the information; and every such informant, whether given in writing or reduced to writing or reduced to writing as aforesaid, shall be signed by the person

giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Government may prescribe in this behalf.

CASE REFERANCE:- 55 DLR63- Abul Hossain (Md) vs. state- There is nothing in the law to prevent a police officer from making a complaint when some facts come to his knowledge even if he cannot investigation.

45 DLR 142- Nazrul islam vs state-Where F.I.R dose not contain an important statement deposed to by the witnesses, it is clear that there has been subsequent embellishment of the prosecution case which makes it untrustworthy.

45 DLR 63- Bashir Ali vs state- an information even by way of confession made in police custody which relates to the fact discovered is admissible in evidence against the accused {Ref:9 DLR 11 (SC) }.

Sec. 155. Information in non-cognizable cases.- (1) When information is given to an officer in charge of a police-station of the commission within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the information to the Magistrate.

(2) No police-officer shall investigate a non-cognizable case without the order of a magistrate of the first or second class having power to try such case or send the same for trial.

(3) Any police-office receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a policestation may exercise in a cognizable case.

CASE REFERANCE:-21 DLR 99-The state vs sirajul islam- Investigation of an offence by police under section 120 of the railways Act without magistrates prior and trial on the basis of police report is illegal under section 155(1).

20 BLD 9(HC) 26- The state vs syed Habibur Rahman@ Rocket- The vital fact have not been mentioned in the first information report although the FIR was lodged after a lapse of 13 days without any explanation which belies the evidence of the PWs and hence the condemned prisoner is entitled to get benefit of doubt.

COMMENT:-This section applies where the information relates solely to a non-cognizable offence. under this section a police officer cannot investigate a non-cognizable case and cannot submit a report with reference to it .without the order of a competent magistrate Sec. 156. Investigation into cognizable cases.- (1) Any officer in charge of a police-station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.

(2) No proceeding of a police-officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned CASE REFERANCE:-27 DLR 342-The state vs Abul kashem-under section 156(3) magistrate may without taking cognizance of an offence send the case for investigation to police.

27 DLR 111-Khorshed Alam vs The State-The magistrate may direct further investigation on specified points under the power conferred upon him under section 156(3) of the code.

COMMENT:-This section the police have a stator right to investigation an alleged cognizable offence without requiring any authority from judicial offence.

Sec. 157. Procedure where cognizable offence suspected.- (1) If, from information received or otherwise, an officer in charge of a police-station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to Magistrate empowered to take cognizance of such offence upon a police-report, and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the Government may, by general or special order, prescribe in this behalf to proceed to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender: Provided as follows:(a) when any information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police-station need not proceed in person or depute a subordinate officer to make an investigation on the spot; (b) if it appears to the officer in charge of a police-station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.

(2) In each of the cases mentioned in clauses (a) and (b) of the proviso the sub-section (1), the officer in charge of the police-station shall state in his said report his reasons for not fully complying with the requirements of that sub-section, and in the case mentioned in clause (b), such officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the Government, the fact that he will not investigate the case or cause it to be investigated.

CASE REFERANCE:- 29 DLR 256(SC)-Abdul Rahman vs The State- section 157 of the code lay down the procedure to adopted in matter of investigation.

COMMENT:-The police has a statutory duty to investigation a cognizable case under section 156 and a competent police officer is entitle to carry the investigation to its conclusion in accordance with the provision of the code. The word “Report� has been defined in the code.

Sec. 158. Reports under section 157 how submitted.- (1) Every report sent to a Magistrate under section 157 shall, if the Government so directs, be submitted through such superior officer of police as the Government by general or special order, appoints in that behalf.

(2) Such superior officer may give such instructions to the officer in charge of the police-station as he thinks fit, and shall, after recording such instructions on such report, transmit the same without delay to the Magistrate.

Sec. 159. Power to hold investigation of preliminary inquiry.- Such Magistrate, on receiving such report, may direct an investigation or, if he thinks fit at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the case in manner provided in this Code.

Sec. 160. Police-officer’s power to require attendance of witnesses.- Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the circumstances of the case; and such person shall attend as so required.

Sec. 161. Examination of witnessed by police.- (1) Any police-officer making an investigation under this Chapter or any police-officer not below such rank as the Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer all questions relating to such case put to him by such officer, other-than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police-officer may reduce into writing any statement made to him in the course of an examination under this section, and if he does so he shall make a separate record of the statement of each such person whose statement he records.

Sec. 162. Statements to police not to be signed; use of such statements in evidence.- (1) No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police-diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, the Court shall on the request of the accused, refer to such writing and direct that the accused be furnished with a coy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner prescribed by section 145 of the Evidence Act, 1872. When any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination: Provided further that, if the Court is of opinion that any part of any such statement is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, it shall record such opinion (but not the reasons therefore) and shall exclude such part from the copy of the statement furnished to the accused.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32, clause (l), of the Evidence Act, 1872 or to affect the provisions of section 27 of that Act.

Sec. 163. No inducement to be offered.- (1) No police-officer or other person in authority shall offer or make, or cause to be offered or made any such inducement, threat or promise as is mentioned in the Evidence Act, 1872, section 24.

(2) But no police-officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any investigation under this Chapter any statement which he may be disposed to make of his own free will.

Sec. 164. Power to record statement and confessions.- (1) Any Metropolitan Magistrate, any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the Government may, if he is not a police officer, record any statement or confession made to him in the course of an investigation under this Chapter or at any time afterwards before the commencement of the inquiry or trial.

(2) Such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in section 364, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried.

(3) A Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make confession and that if he does so it may be used as evidence against him and no magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect :“I have explained to (name) that he is not bound to make a confession and that, if he does so any confession he may this confession was voluntarily made. I was taken in my presence and hearing, an was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

(Singed) A. B., Magistrate.�

Explanation.- It is not necessary that the Magistrate receiving and recording a confession or statement should be a Magistrate having jurisdiction in the case.

Sec. 165. Information.- (1) Whenever an officer in charge of a police-station or a police-officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in this opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station : Provided that no such officer shall search, or cause search to be made, for anything which is in the custody of a bank or banker as defined in the Bankers’ Books Evidence Act, 1891 (XVII of 1891), and relates, or might disclose any information which relates, to the bank account of any person except,-

(a) for the purpose of investigating an offence under sections 403, 406, 408 and 409 and sections 421 to 424 (both inclusive) of the Penal Code) with the prior permission in writing of a Sessions Judge; and (b) in other cases, with the prior permission in writing of the High Court Division.

(2) A Police-officer proceeding under sub-section (1) shall, if practicable, conduct the search in person.

(3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may after recording in writing his reasons for so doing require any officer subordinate to him to make the search, and he shall deliver to the subordinate officer an order in writing specifying the place to be searched and, so far as possible, the thing for which search is to be made; and such subordinate officer may thereupon search for such thing in such place.

(4) The provisions of this Code as to search warrants and the general provisions as to searches contained in section 102 and section 103 shall, so far as may be, apply to a search under this section.

(5) Copies of any record made under sub-section (1) or sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence and the owner or occupier of the place searched shall on application be furnished with a copy of the same by the Magistrate: Provided that he shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost.

Sec. 166. When officer in charge of police -station may require another to issue search warrant.- (1) An Officer in charge of a police-station or a police-officer not being below the rank of sub-inspector making an investigation may require an officer in charge of another police-station, whether in the same or a different district, to cause a search to be made in any place, in any case in which the former officer might cause such search to be made, within the limits of his own station.

(2) Such officer, on being so required, shall proceed according to the provisions of section 165, and shall forward the thing found, if any, to the officer at whose request the search was made.

(3) Whenever there is reason to believe that the delay occasioned by requiring an officer in charge of another police-station to cause a search to be made under sub-section (1) might result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful or an officer in charge of a police officer making an investigation under this Chapter to search, or cause to be searched, any place in the limits of another police-station, in accordance with the provisions of section 165, as if such place were within the limits of his own station. (4) Any officer conducting a search under sub-section (3) shall forthwith send notice of the search to the officer in charge of the police-station within the limits of which such place is situate, and shall also send with such notice a copy of the list (if any) prepared under section 103, and shall also send to the nearest Magistrate empowered to take cognizance of the offence copies of the records referred to in section 165, sub-sections (1) and (3).

(5) The owner or occupier of the place searched shall, on application, be furnished with a copy of any record sent to the Magistrate under sub-section (4): Provided that he shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost

Sec. 167. Procedure when investigation cannot be completed in twenty four hours.- (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 61, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police-station or the police officer making the investigation if he is not below the rank of subinspector shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has not jurisdiction to try the case or send it for trail, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the Government shall authorise detention in the custody of the police.

(3) A Magistrate authorizing under this section detention in the custody of the police shall record his record his reasons for so doing.

(4) If such order is given by a Magistrate other than the Chief Metropolitan Magistrate, District Magistrate or Sub-Divisional Magistrate, he shall forward a copy of his order, with his reasons for making it, to the Magistrate to whom is immediately subordinate.

(5) If the investigation is not concluded within one hundred and twenty days from the date of receipt of the information relating to the commission of the offence or the order of the Magistrate for such investigation,(a) the Magistrate empowered to take cognizance of such offence or making the order for investigation may, if the offence to which the investigation relates is not punishable with death, imprisonment for life or imprisonment exceeding ten years, release the accused on bail to the satisfaction of such Magistrate; and (b) the Court of Session may, if the offence to which the investigation relates is punishable with death, imprisonment for life or imprisonment exceeding ten years, release the accused on bail to the satisfaction of such Court: Provided that if an accused is not released on bail under this sub-section, the Magistrate or, as the case may be, the Court of Session shall record the reasons for it: Provided further that in cases in which sanction of appropriate authority is required to be obtained under the provisions of the relevant law for prosecution of the accused, the time taken for obtaining such sanction shall be excluded from the period specified in this sub-section.

Explanation.- The time taken for obtaining sanction shall commence from the day the case, with all necessary documents, is submitted for consideration of the appropriate authority and be deemed to end on the day of the receipt of the sanction order of the authority.

(8) The provisions of sub-section (5) shall not apply to the investigation of an offence under section 400 or section 401 of the Penal Code, REMAND.

Put in very simple terms, a remand is another flame for an i case. However, the criminal justice system knows the remand as having a particular meaning. When a case is adjourned, the court may have the power or duty to remand die accused in h or in jail, rather than simply adjourn the case to another day.It would be accurate to say that while all remands are adjournment, not all adjournments are remands. The difference between’remanding’ a defendant and simply 'adjourning' the case is that when the court remands a defendant, it is under a duty to decide whether the defendant should be released on bail or kept in police custody or in jail custody.

Thus remanding the defendant may be of three types: remand on bail, remand in police custody, and remand in prison custody or jail.

In England there is a system of disposing of a .criminal case where there is straight forward guilty by the accused However, in Bangladesh even a simplest criminal case would not be completed in year let alone a day. And this is mostly because of the corruption by the police in investigation and lack of knowledge and lack of proper guidelines for Magistrates in dispensation of criminal cases.

As

mention above, remanding means committing defendant into the custody or placing him on bail. The most objectionable remand in Bangladesh is remanding on police custody since police used unlawful torture on the defendant on the pretext of extracting information from the accused.

Duration of Remands At the stage of Investigation: Provisions are laid down in section 167 of the CrPC which are as follows: (i)

Not more than 15 days in a whole in police custody or jail custody.

(ii) When the investigation cannot be completed within 120 days from the date of receipt of the information relating to the commission of the offence or the order of the Magistrate for such investigation, the Magistrate empowered to take cognizance of such offence or making the order for investigation may, if the offence is not punishable with death, imprisonment for life or imprisonment exceeding ten years, release the accused on bail . (iii) When the investigation cannot be completed within 120 days from the date of receipt of the information relating to the commission of the offence or the order of the Magistrate for such investigation, the Court of Session may, if the offence is punishable with death, imprisonment for life or imprisonment exceeding ten years, release the accused on bail. (iv) If the accused is not released on bail under this section, the Magistrate or the Court of Session shall record the reason for it. (v) Thus there is no maximum period fixed by law for order of detention in police custody by the Magistrate. For how many terms not exceeding 15 days can the Magistrate authorise detention?

This is not mentioned. In Indian CrPC provisions have been made that the total period of detention in custody must not exceed 60 days and such detention must not be in police custody.

(6)it is to be noted that in England there is provision of remand in police custody for not more than three days in total.

(7)If the defendant is on bail, there is no statutory time limit for remand Remand of trial: after Cognizance or commencement Section 344 deals with the period of remand after cognizance of the offence has been taken or after commencement of the trial in the court.

(1)Any trial court other than Magistrate Court may remand or adjourn an inquiry or trial from time to time for such time as it considers reasonable and as such remand the accused to jail custody.

(2)Any Magistrate Court as a trial court or court of inquiry may remand an inquiry or trial but in such a case it can remand the accused in jail custody not more than 15 days at a time.

Nature of Remand under section 344 and difference with Section 167: (1)The remand and custody referred to in section 344 is different from that of referred to in section 167. The remand under section 167 is to police or judicial custody whereas remand under section 344 is to judicial custody only.

(2)The remand under section 167 is for the purpose of investigation only whereas the remand under section 344 is for the purpose of absence of witness or any other reasonable cause to trial or inquiry.

(3)The remand under section 167 is for investigation only whereas remand under section 344 is for under-trial prisoners.

Police Remand, used of force and Extorting Information from the Accuse Use of Force and Section 167 Section 167 of the Code implies two situations: (1) when an investigation can be completed within 24 hours; and (2) when investigation cannot be completed within 24 hours. The provision of section 167 also for believing that the accusation or information received against the person is well-founded. Second, implies that while producing a person arrested without warrant before the Magistrate, the police officer must state the reasons as to why the investigation could not be completed within 24 hours and what are the grounds the police officer also shall transmit to the Magistrate the copy of the entries in the case diary (B. P. Form No. 38) (B. P. Police Regulation No. 236). After examining information in the case diary and the reasons shown by the police officer, the Magistrate will decide whether the person shall be released at once or detained further. This is the mandatory law which the Magistrates have to follow. However, in absence of any proper guideline unfortunately the Magistrates have been accustomed to follow a 'parrot like' order on the forwarding letter of the police officer authorizing detention either in the police custody or in jail. And this non-application of proper judicial mind in view of sub-sections (1), (2) and (3) of section 167 of the Code by the Magistrates has ultimately resulted in so many custodial death and incidents of torture in police custody.

Application for Remand and the Abuse of Power A police officer makes a prayer for 'remand' stating that the accused is involved in a cognizable offence and for the purpose of interrogation 'remand' is necessary. In sub-section (2) of section

167 though it is not mentioned that 'remand' can be allowed for the purpose of interrogation, at present, the practice is that an accused is taken on 'remand' only for the purpose of interrogation or for extorting information from the accused through interrogation. There is no proper guide line as to when such prayer should be accepted and when rejected by the Magistrate and this legal lacuna gives both the police officer and Magistrates power to abuse the same. Police-officer being motivated or dictated by the executive organ or out of their personal conflict or aggrandizement seek unreasonable remand under section167 of the Code. And the Magistrates in absence of any proper guideline, either being dictated by the executive organ or otherwise have been accustomed to follow a 'parrot like' order on the IKT of the police officer authorising detention either in the police custody or in jail. The views expressed in favour of police remand is that it is a civil necessity that if some force is not used, no clue can be found out from hard-nut criminals. On the other side of the spectra there is a widely held view that to send the arrested person to the police remand prima facie upholds the idea that the accused person did not give the confession voluntarily. When the Entire state machinery acts against him, he cannot confess voluntarily and as such the provision for granting police remand several times (although not exceeding 15 days in the whole) totally destroys the e behind it. This is because a person coming before the Magistrate has no guarantee that he will not be sent again to the police remand unless he has already completed 15 days. It is therefore live on the Magistrate to give reasonsonstitution states that no person shall be lied to be a witness against himself. So the provisions of the Cr.P.C under section 167 are in direct contrast with the provisions of institution. This CrPC was passed by the British Government back in 1898 when there was no fundamental rights as we have now in our constitution. In view of the present provision in article 26 this on of police remand seems to b for granting a remand. again article 35(4) of the Ce void and this is largely the in of the High Court Division in the BLAST case which is id next. However, given that fact that there is provision of police remand in most democratic countries including the UK, we need to wait until the apex seat of the Supreme Court, i.e. the High Court Division's Decision on Police Remand Recently the High Court Division has ruled in the BLAST v Bangladesh 55 DLR 363 that this view is contrary to the express constitutional provisions in articles 27, 30, 31, 32, 33 and 35. The court also held that if the purpose of interrogation of an accused is to extort information, in view of the provisions of article 35(4), information which is extorted from him cannot be used against him. Clause (4) of Article 35 clearly provides that no person accused of an offence shall be compelled to be a witness against himself. Second, the court also held that Clause (4) of Article 35 is so clear that information obtained from the accused carries no evidentiary value against the accused person and cannot be used against him at the time of trial. Third, in view of Article 35 of the Constitution which provides that no person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment, the court held that even if the accused is taken in police custody, no law in the country gives any authority to the police to torture that person or to subject him to cruel, inhuman and degrading treatment. Fourth, the court suggested that interrogation may be made while the accused is in jail custody if interrogation is at all necessary but not in police custody and no torture or inhuman treatment is allowed by the Constitution.

Apart from the recommendations about interrogation into jail custody as mentioned above, the court has also given following recommendations regarding interrogation into police custody which are as follows: (1) If the investigating officer applies for remand of the accused into police custody for interrogation, he shall state in detail the grounds for taking the accused in custody and shall

produce the case diary for consideration of the Magistrate. If the Magistrate is satisfied that the accused be sent back to police custody for a period not exceeding three days, after recording reasons, he may authorise detention in police custody for that period.

(2) Before passing an order as above, the Magistrate shall ascertain whether the grounds for the arrest was furnished to the accused and the accused was given opportunity to consult lawyer of his choice. The Magistrate shall also hear the accused or his lawyer.

(3)If such order is passed as above, the accused, before he is taken in custody of the investigating officer, shall be examined by a doctor designated or by a Medical Board constituted for the purpose and the report shall be submitted to the Magistrate concerned.

(4) After taking the accused in custody, only the investigating officer shall be entitled to. interrogate the accused and after expiry of the period, the investigating officer shall produce him before the Magistrate. If the accused makes any allegation of any torture, the Magistrate shall at once send the accused to the same doctor or Medical Board for examination.

(5) If the Magistrate finds from the report of the doctor or Medical Board that the accused sustained injury during the period under police custody, he shall proceed under section 190(l)(c) of the CrPC against the investigating officer for committing offence under section 330 of the Penal Code without filing of any petition of complaint by the accused.

(6) When a person dies in police custody, or in jail, the investigating officer of the jailor shall at once inform the nearest Magistrate of such death.

Apart from the above recommendations the court has also given directions to the Government to follow with immediate effect. these are as follows: (1) No police officer shall arrest a person under section 54 of the CrPC for the purpose of detaining him under section 3 of the Special Powers Act, 1974.

(2) A police officer shall disclose his identity and if demanded, shall show his identity card to the person arrested and to the persons present at the time of arrest.

Recommendation for change in Burden of Proof in cases of torture on persons in Police Custody Recommendation for change in Burden of Proof in cases of torture on persons in Police Custody Apart from the recommendations made by the High court ion in the BLAST case the Law Commission recently made a report on the problem of torture in police custody which is here outlined for students. The reasons behind paucity of evidence in of torture and even death of a person while in police custody are obvious. In a criminal case, the burden of proving the guilt of the accused is invariably on the prosecution according to the scheme and various provisions of the Evidence Act, 1872. In cases of torture on a person while in police custody one can rarely expect to get eye witness to such incidents, excepting police personnels some whom selves happen to be the perpetrators of torture. Bound by a sense of brotherhood these eye-witnesses often prefer to remain silent in such a situation and even if they speak, they put their own gloss upon the facts often perverting the truth. It is an extremely peculiar situation in which a police personnel alone, and none else, can give evidence regarding the circumstances in which a person in police custody receives injuries. This results in paucity of evidence ! probable escape of the culprits.

In order to address the problem the Law Commission recommended that the proper course would be to give power to the court to draw a presumption (may presumption) where bodily injuries are caused to a person while in police custody. The exact

Recommendation is as follows: A new section being section 114A may be inserted after section 111 of the Evidence Act, 1872, as follows: "114A. (1) In a prosecution of any police personnel for an offence constituted by an act alleged to have caused bodily injury to a person, if there is evidence that the injury was caused during a period when that person was in the custody of police, the court may presume that the injury was caused by the police personnel having the custody of that person during that period.

(2) The Court, in deciding whether or not it should draw a presumption under sub-section (1),shall have regard to all the relevant circumstances, including in particular a) the period of custody; (b) any statement made by the victim as to how the injuries were received, being a statement admissible in evidence, (c) if the victim was examined such medical practitioner.

by

any medical practitioner,

the

evidence

of

(d) if the statement of the victim was recorded by any magistrate, the evidence of such magistrate.

2

The Law Commission's report has been given ate mata. However, this recommendation has been based on an Indian Supreme Court's decision in State ofU.P. i'. Ram Sugar Yadab, AIR 1985 SC 416 in which case one Erij Lai was tortured to death by several policemen for his inability to meet their demand for bribe and for lodging a complaint against them to their superior officer.

Sec.168. Report of investigation by subordinate police-officer.- When any subordinate Policeofficer has made any investigation under this Chapter, he shall report the result of such investigation to the Officer-in-Charge of the Police-station.

Sec.169. Release of accused when evidence deficient.- If, upon an investigation under this Chapter, it appears to the Officer-in-Charge of the police-station or to the Police-officer making the investigation that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear if and when so required, before a Magistrate empowered to taken cognizance of the offence on a police report and to try the accused or send him for trial.

Sec.170. Case to be sent to Magistrate when evidence is sufficient.- (1) If, upon an investigation under this Chapter, it appears to the Officer-in-charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police-report and to try the accused or send him for trial, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such

Magistrate on a day fixed and for hiattendance from day to day before such Magistrate until otherwise directed.

(2) When the officer in charge of a police-station forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the circumstances of the case as he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and procedure or give evidence (as the case may be) in the matter of the charge against the accused.

(3) If the Court of the Chief Metropolitan Magistrate, District Magistrate or Sub-divisional Magistrate is mentioned in the bond, such Court shall be held to include any Court to which such Magistrate may refer the case for inquiry or trial, provided reasonable notice or such reference is given to such complainant or persons.

(5) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it and shall then to the Magistrate the original with his report.

Sec. 171. Complainants and witness not to be required to accompany police - officer.(1) No complainant or witness on his way to the Court of the Magistrate shall be required to accompany as police-officer, or shall be subjected to unnecessary restraint or inconvenience, or required to give any security for his appearance other than his own bond: Provided that, if any complainant or witness refuses to attend or to execute a bond as directed in section 170, the officer in charge of the police-station may forward him in custody to the Magistrate, who may detain him in custody until he executes such bond, or until the hearing of the case is completed.

(2) Notwithstanding anything contained in sub-section (1), it shall be the responsibility of the police-officer to ensure that the complainant or the witness appears before the Court at the time of hearing of the case.

Sec. 172. Diary of proceedings in investigation.- (1) Every police-officer making an investigation under this Chapter shall day by day enter his proceeding in the investigation in a diary setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.

(2) Any Criminal Court may send for the police-diaries of a case under inquiry or trial in such Court and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.

Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court: but, if they are used by the police-officer who made them, to refresh his memory, or if the Court uses them for the purpose of contradicting such police-officer, the provisions of the Evidence Act, 1872, section 161 or section 145, as the case may be, shall apply.

Sec. 173. Report of police -officer.- (1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer in charge of the police-section shall-

(a) forward to a Magistrate empowered to take cognizance of the offence on a police-report a report, in the form prescribed by the Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and (b) communicate in such manner as may be prescribed by the Government, the action taken by him to the person, if any, by whom what information relating to the commission of the offence was first given. (2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police-station to make further investigation.

(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(3A) When such report is in respect of a case to which section 170 applies, the police-officer shall forward to the Magistrate along with the report(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements recorded under sub-section (3) of section 161 of all the persons whom the prosecution proposes to examine as its witness.

(3B) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (1) has been forwarded to the Magistrate and where, upon such investigation, the officer in charge of the police-station, obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-section (1) to (3A) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-session (1).

(4) A copy of any report forwarded under this section shall on application be furnished to the accused before the commencement of the inquiry or trial: Provided that the same shall be paid for unless the Magistrate for so ROLE OF POLICE IN CRIMINAL JUSTICE SYSTEM IN BANGLADESH;There are two kinds of offences in Bangladesh criminal law: non-cognizable and cognizable.

Cognizable offences, as enumerated in Section 4(f) of the Code of Criminal Procedure, 1898(Cr.P.C.), are those in which a police officer may arrest without a warrant and include crimes such as murder, robbery, theft, rape, rioting and assault. Non-cognizable offences, which include bribery and sedition, require a police officer to first obtain a warrant before making arrest. Section 54 of the Code of Criminal Procedure, 1898 (Cr.P.C.) enumerates nine grounds in which a police officer may arrest without a warrant. “1 As stated by many human rights activists and lawyers met by the FIDH/Odhikar delegation in Bangladesh, police very often abuse this power of unwarranted arrest under Section 54. Several of the nine circumstances enumerated in Section 54 of the Cr.P.C. are drafted with such nebulous wording that they facilitate this abuse of power. The Supreme Court itself has called for a revision of the code, especially Section 54(a), which allows unwarranted arrest upon “reasonable suspicion,” “reasonable complaint,” or “credible information” against “any person who has been concerned in any cognizable offence.”

This section is a virtual carte blanche for the police to abuse their power of arrest without a warrant due to the nebulous phrases “concerned in any cognizable offence” and “reasonable suspicion.” As in other common law countries, statutory “reasonable suspicion” wording has been interpreted by the High Court Division of the Bangladesh Supreme Court into an articul able standard, that the arresting officer had “actual knowledge of underlying facts that lead to the suspicion.”2 Unfortunately, however, this standard has not been enforced or applied by local courts or authorities, which has rendered the Supreme Court’s power of statutory interpretation impotent. The rules of the Cr.P.C. dealing with the investigation and arrest by police therefore facilitate the misuse of the power of arrest without a warrant. In Bangladesh, every criminal action commences with a First Information Report (FIR), lodged by the victim, relatives, or a witness. The FIR is a written or oral complaint to the investigating officer who must lodge the complaint in writing in the police records per Section 154 of the Cr.P.C. In a case of a cognizable offence, any officer of a police station may, without the order of a Magistrate, investigate the matter. According to Mr. Arafat Amin, Advocate to the Supreme Court of Bangladesh36, as well as several FIDH interlocutors, when a FIR is lodged in the police station, describing a cognizable offence, the common practice is that the police immediately seek out and arrest the persons named in the FIR, regardless of the suspects’ involvement in the crime. Following the arrest, the suspect must be produced in front of a magistrate within 24 hours, per section 61 of the Cr.P.C. Several human rights activists and lawyers have told the FIDH that naming a person in a FIR is often a way for people to strike back at their enemies or perpetuate neighbourly squabbles. This practice of false, vengeful reporting is particularly common in acid throwing cases and other cases falling under the laws protecting women and children, FIDH has been told. The nature of the FIR and their accompanying improper police practices allow citizens to “manipulate” the justice system and to involve it in private conflicts.

The newly elected President of the Supreme Court Bar Association, for example., stressed that “the investigation is not sufficient in criminal matters”, and that there are many cases with fabricated evidences. It also appears that the investigating officers are understaffed, and not properly trained in the field of criminal investigation. Several interlocutors of the mission also regretted the political influence within the police.

After the FIR has been submitted and an arrest is made, according to Article 33 (2) of the Constitution of the People’s Republic of Bangladesh, 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. Section 61 of the Cr.P.C. requires that the defendant is brought in front of a magistrate within 24 hours of incarceration in order to determine whether further detention is necessary. Under Section 167 of the Cr.P.C., however, magistrates can allow remand the case for a period not exceeding 15 days at the request of the officer.

This infamous remand process has widely been denounced as another vehicle for the abuse of police power. In order to ask for further detention in police custody, police must demonstrate that there are grounds for believing that the accusation or information upon which the arrest is based is well-founded. However, as stated inter alia by Prof. Shahdeen Malik, “it is common knowledge that Magistrates routinely allow this request for remand “3The remand period is critical because it opens the door to severe human rights violations. Ill-treatment, torture and

extra-judicial killings in custody are commonplace. Much of this torture and abuse takes place because police hope to extract bail money from the accused during the detention period. This issue was addressed in the BLAST (Bangladesh Legal Aid and Services Trust, one of the largest legal services NGOs in the country) judgement38 of 2003, in which the High Court Division of the Supreme Court of Bangladesh called for the strict adherence to Constitutional guarantees of due process and condemned the systematic police practices of torture and extortion.

“4 The Court in BLAST attempted to narrow the ambiguity of the terms “reasonable suspicion” and “concerned in any cognizable offence” as requirements for arrest. The Court required the officer to record his suspicion and personal knowledge of facts implicating the accused of criminal involvement. In order to curb excessive force, the police officer must also record the existence and reason for any marks of injury on the person arrested, and take the person to the nearest hospital or government doctor for treatment. In order to comport with due process, if the person is not arrested from his residence or place of business, the police officer shall inform the nearest relation of the person over phone or through a messenger within one hour of bringing him to the police station. The police officer must also allow the person arrested to consult a lawyer of his choice if he so desires or to meet any of his nearest relations. As for the remand process, the court in the BLAST case condemned the police practice of trying to “extort information or confession from the person arrested by physical or mental torture” as violating Article 35 of the Constitution’s right to life and right to be free from self incrimination. “5 Magistrates must also take all three subsections of Section 167 of the Cr.P.C. on remand into consideration when deciding if remand is proper, which include whether the investigation requires more than 24 hours, if there are grounds for believing that the accusation or complaint is well founded, and if the officer has submitted his “diary,” which must include the time and place of the occurrence and the articulated reasons for the arrest. While the BLAST judgement is a very positive step towards a more effective right to liberty and a police custody without ill-treatment, torture and death custody, it is not sufficient to reform the law enforcement agencies and foster a culture of respect for human rights amongst their members.

1 Shahdeen Malik, “Arrest and Remand: Judicial Interpretation and Police Practice“, Bangladesh Journal of Law, Special Issue, p. 277. 35. BLAST and others v. Bangladesh, 55 (2003) DLR (HCD) 363., accessible at www.blast.org.bd/index.php?option=com_content&vi ew=article&id=214&Itemid=105.

2 Criminal Responsibility for Torture: An Urgent Human Safeguard in Bangladesh, in Criminal Responsibility for Torture. A South Asian Perspective, Odhikar, Research Report 2004, p. 19 [11-25].

3 BANGLADESH: Criminal justice through the prism of capital punishment and the fight against terrorism 4. BLAST and others, 55 (2003) DLR (HCD) 363.

BANGLADESH: Criminal justice through the prism of capital punishment and the fight against terrorism Indeed, according to Odhikar figures, 68 persons have been tortured in 2009 by members oflaw enforcing agencies, and the BLAST decision itself cites the death of 38 people in custody.”6 The

case of Mr. Mahmudur Rahman, the Acting Editor of the daily Amar Desh, unfortunately illustrates the abuse of power by the police on remand. Mr. Rahman, with whom the FIDH mission met during its stay in Bangladesh, was arrested by the police on 2 June 2010, after the daily’s publisher filed a fraud case against him allegedly at the instigation of the National Security Intelligence (NSI). When he was produced before a court at the end of his remand, Mr. Mahmudur Rahman alleged he has been tortured in detention.”7 Subsequently, Mr. Rahman has been charged with sedition for allegedly meeting with people attempting to overthrow the government in 2006, which allows for indefinite remand. Writers and reporters, detained for sedition, report that mistreatment, malnutrition and torture are common.”8 He has also been charged under section 6 (1) of Anti Terrorism Act 2009. Every month, the Bangladeshi newspapers report cases of extra-judicial killings and custodial deaths in Dhaka. End of June 2010, three persons – Mizanur Rahman, Mujibur Rahman and Babul Kazi – died while in police custody. In the case of Mizanur Rahman, police allegedly shot and killed him upon failure to produce money that police had demanded from him.”9 It is clear, therefore, that torture and custodial deaths are facilitated not only by the provisions of the Cr.P.C. but also by the widespread corruption in the ranks of law enforcing agencies. After the three custodial deaths mentioned above, the High Court asked the Dhaka Metropolitan Police Commissioner to submit inquest reports on these cases and to turn in a report by the end of July on measures to prevent lock-up deaths. The High Court also asked the Government to explain, within two weeks, why it does not take punitive action against the police officers responsible for the custodial deaths. When this report was not submitted, the police commissioner Md Muniruzzaman was charged with contempt of court, but was subsequently cleared of the contempt charges after offering an “unqualified apology” and suspending the investigating officer suspected of the custodial deaths.”10 5. Art 35(4) of the Constitution of Bangladesh: “No person accused of any offence shall be compelled to be a witness against himself”.

6. Odhikar, Human Rights Report 2009, p. 17.

7. See “Mahumudur alleges torture in remand”, bdnews24.com, 12 June 2010, available at www.bdnews24.com/details.php?id =164100&cid=2.

8. “Detained editor Mahmudur Rahman now facing sedition charge”, IFEX, 10 June 2010, available at www.ifex.org/bangladesh/ 2010/06/10/rahman_sedition_charge.

9. See Odhikar Human Rights Monitoring Report, 1st August 2010, p. 2 and “Cops slammed for custodial deaths“, The Daily Star, 6 July 2010, available on www.thedailystar.net/newDesign/news-details.php?nid=145551 10 BANGLADESH: Criminal justice through the prism of capital punishment and the fight against terrorism CONCLUSION:

Bangladesh Police is criticized of having political influence in all levels. The major decisions are taken under political conditions. Corruption is widespread among the law enforcement; custody deaths and torture is prevalent. In recent years lot of journalists including the editor of the Daily Amar Desh newspaper Mahmudur Rahman, was taken to custody just for publishing an antigovernment headline. During Hartal they assault physically protesters and harass them. There have been widespread reports of traffic police, and ranks obtaining bribes. Most Policemen are less-trained, less-educated and also there is a lack of fund implemented for their payrolls; the salary for a police is not enough. Logistics support and other facilities are very poor. Although there negative attitude edges of the positive things, Bangladesh Police has got tremendous success in busting terrorist activities in the country.

REFERANCES BOOK 1 Law and Practice of criminal procedure by Zahirul huq 2 The code of criminal procedure theory and practice by ahamuduzzaman 3 Law of criminal procedure by Dr. Sarkar ali akkas 4 The code of criminal procedure with criminal rules and order by siddiqur rahman miah 5 The code of criminal procedure by abdur halim