By passing remand orders for any duration in excess of three days, many lower courts in the country have been continuously flouting a Supreme Court judgement and also the constitution, legal professionals said.
The very recent instance is that of Oishee and Sumi, being sent on five days’ remand in the case filed in connection with the alleged murder of SB Inspector Mahfuzur Rahman and his wife.
In 2003, the High Court Division of the Supreme Court, in a landmark judgement, directed the lower courts to not grant remand in excess of three days. The verdict was given in a news headliner case titled “Blast versus Bangladesh,” which was a public interested litigation filed the Bangladesh Legal Aid and Services Trust (Blast) regarding torture in the name of remand in police custody.
In the same year, the government appealed against the HC ruling with the Appellate Division.
Additional Attorney General MK Rahman told the Dhaka Tribune: “The government’s appeal following the Blast verdict is still pending with the Appellate Division. During a hearing on the appeal in August 2010, the apex court asked the government to let it know about the progress in implementing the HC ruling regarding remand.”
Following that, the government on August 23, 2010, issued a circular to remind all the sessions and district judges, the inspector general of police, chief judicial and metropolitan magistrates to implement the HC directions given in the Blast case.
Article 111 of the Constitution of Bangladesh binds all the lower courts to obey any direction given by either of the divisions of the SC.
A Dhaka court on August 11 this year, granted five days’ remand to Adilur Rahman Khan, secretary of rights body Odhikar. He was arrested as a suspect on the basis of a general diary under section 54 of the Code of Criminal Procedure. Section 54 empowers law enforcers to arrest someone without a warrant.
However, the HC annulled the order in line with the Blast case judgment as no case was filed against him when he was placed on remand.
The magistrate courts grant police remand under section 167 of the Code of Criminal Procedure 1898. But the word “remand” never appears in that provision.
The relevant section reads: “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, authorise the detention of the accused in such custody as such Magistrate thinks fit.”
Recently, the Law Commission, led by former chief justice ABM Khairul Haque, and the parliamentary standing committee on the law ministry expressed views that the British era CrPC required changes.
A magistrate told the Dhaka Tribune: “The police personnel are not trained to find out the real cause and culprits using scientific means. They seek remand so that they can persuade the accused to give a confessional statement before magistrate. In most cases, police inflict torture on the person in remand to get information about the alleged crimes. The court then gives judgment on the basis of the confessional statement.”
Referring to a recent research on police remand, Zahidul Islam Biswas, research adviser of Blast, told the Dhaka Tribune that police tortures the person in remand in the name of interrogation, flouting the remanded person’s constitutional rights.
Sara Hossain, honorary director of Blast, told the Dhaka Tribune that in most cases, the lower courts did not obey the HC direction. The same thing happened in case of Adilur, she added.
The HC bench of Justice Hamidul Haque and Justice Salma Masud Chowdhury delivered the historic judgment in the Blast case in 2003 that contained some directions on remand.
The judgement observed that remand impaired fundamental rights of citizens and such cases can be brought to the HC.
The judgement also referred to the article 35 of the Constitution of Bangladesh which read: “no person accused of any offence shall be compelled to be a witness against himself;” and, “no person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.”
The HC judgment said: if the magistrate considered the accusation made or the information given by the investigating officer as well-founded, he should pass an order for further detention in jail. Otherwise, he should release the person forthwith and take action against the police for acting contrary to law.
SC lawyer Abdul Halim told the Dhaka Tribune: “Lower judiciary is granting police remand continuously without considering merit and ignoring the Blast case ruling.”
He emphasised on developing a mechanism to ensure the abidance of an SC direction. “If the lower judiciary does not obey the SC’s judgments, the entire legal system is bound to collapse,” Halim said.
An additional district judge told the Dhaka Tribune: “The lower courts flagrantly violate the SC judgment granting inconsiderate remands. If this goes on, people will lose their confidence on the judiciary, especially the Supreme Court. That will eventually result in failure to establish rule of law and democracy.”
He also said, as a constitutional duty the HC should take steps against the magistrates who were violating its ruling. “If it does not do so, the image of the court will be tarnished.”
The judge also alleged that people, who were being taken on remand, often had to pay bribes to the police personnel for avoiding custodial torture.
Remand is a source of income for police. They often register false cases against innocent person just to fill up their pockets with the bribe, he added.
