Torture and Custodial Death (Prevention) Act, 2013 is a landmark as following its enActment, it is becoming possible to prevent the abuse of power by overzealous officials and employees of the administration -- at least to some extent. Although there is some weakness and crisis in the investigation of this law, many people are going to get the benefits of the law.
To further the ongoing struggle against torture and other cruel, inhuman, or degrading treatment or punishment throughout the world, the United Nations General Assembly adopted the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) on December 10, 1984. Bangladesh acceded to the Convention against Torture on October 5, 1998.
The Convention against Torture contains many detailed provisions from the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights on the prevention and punishment of torture and other cruel treatment. Moreover, Article 4 of the CAT states that each State party to the Convention must recognize all Acts of torture as crimes in their criminal laws and ensure adequate punishment according to the seriousness of the crimes concerned.
Citizens of Bangladesh are often alleged to be victims of such torture despite constitutional guarantees of freedom from cruel and degrading treatment or punishment. Allegations of such torture arise especially when the law enforcement agency arrests or detains a person and obtains a confessional statement from the arrested person during the custodial period.
It is a fundamental right of every person to be free from torture. Any form of torture or unlawful punishment that violates human life and personal liberty is a violation of fundamental human rights. Article 31, 32, and 35(5) of the Constitution of Bangladesh in conjunction with various international instruments guarantee the right to life and liberty and the right of citizens to be free from torture or cruel, inhuman, or degrading punishment or similar punishment.
However, cases of death in custody are not prosecuted, in most cases the victim's family does not even complain under threats and pressure. The law enforcement agency is reluctant to take such cases, as the law enforcement agency itself is entrusted with the power of conducting investigation. It is necessary and urgent to set up an independent commission of inquiry against the law enforcement agencies.
Section 2(6) of the Torture and Custodial Death (Prevention) Act, 2013 defines "torture" as such physical and mental torture as to cause suffering; (a) in obtaining information or confession from any person or other person; (b) to punish any suspect or criminal; (c) intimidate any person or through him to any other person; (d) incitement on the basis of discrimination, with the consent of any person or under his own power by a government official or under the authority of the government -- such Acts shall also be considered as torture.
The issue of custodial torture is very clear from the said definition. As per section 2(7) of the Act, death in custody' means the death of a person in the custody of a government officer or servant; In addition to this, illegal detention to cause death in custody shall also refer to the death of a person while in custody by a law enforcement agency. In any case, death during interrogation, whether witnessed or not, will also include death in custody.
Section 13(1) of the Act provides that it shall be an offense committed by a public officer or servant to torture another person. Also, according to section 13(2) of this Act, if any officer or employee initiates or aids and abets the commission of any crime such as torturing any person, or conspires in the commission, then he shall be deemed to have committed an offense under this Act. Again Section 13(3) mentions that the offender shall be personally liable for the offense committed under this Act.
Section 4 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure 1898, if any person complains before any court having jurisdiction under this Act that he has been subjected to torture, the said court will immediately record the statement of that person and order an immediate examination of his body by a registered medical prActitioner. If the complainant is female, the court will arrange for examination by a registered female doctor. The doctor shall prepare a report within 24 hours stating the injuries and marks of torture on the body of the complainant, and by stating the probable time of torture. The concerned doctor shall also submit a copy of the prepared report to the complainant or his nominee and to the court. Also, if the doctor advises that the person needs treatment, the court will order him/her to be admitted to the hospital.
Section 5 of the Act states that after recording the statement of the aggrieved person under sub-section 1(a) of section 4, the court shall forthwith send a copy of the statement to the concerned Superintendent of Police or, as the case may be, to any police officer, and will give instructions to file a case. The Superintendent of Police will investigate the incident and submit a report with or without charge after receiving the said order. Provided that, if the concerned aggrieved person apprehends that a proper investigation by the police is not possible, then the said person can apply to the court and if the court is satisfied with his application, the court can order judicial investigation.
At the time of filing the report, the Inquiry Officer, as the case may be, the Judicial Inquiry Officer shall inform the court about the filing of the report along with the date of filing the complaint. The aggrieved person may object to the said report in person or through an advocate in the court within 30 days. The court shall order a police officer of a rank not below the rank of the person or persons involved in the offense committed to investigate the case.
Section 11 of the Act provides that a complainant may file a petition in the Court of Sessions Judge for provision of security against any person accused under this Act. The state and the persons against whom security is sought may be made parties to the petition. On receiving the petition, the court shall issue seven days' notice to the respondent and pass an order on the petition within 14 days.
While disposing of a case for providing security to the complainant, the court may, if necessary, order remand for a minimum period of seven days against the accused and extend the same from time to time. The court may direct the investigating officers of the offense punishable under this Act to ensure compliance with the order of the court. The court may order appropriate measures on the application of the complainants and may, if necessary, take special security measures including transfer of the court and prohibition of entry of the defendant to certain areas.
According to Section 10 of the Act, all offenses under this Act are cognizable, non-compoundable, and non-bailable. Section 14 provides that any offense under this Act shall be tried only in the Court of Sessions Judge. The proceedings shall be completed within 180 days of the filing of the case and if for any reasonable reason it is not possible to complete the proceedings within 180 days, the court shall complete the proceedings within the next 30 days.
Section 19 states that if the complainant suffers due to the negligence or imprudence of a public official or any person Acting on his behalf, the accused person has to prove that it was due to the negligence or imprudence of him or the person Acting on his behalf. The prior permission of the government is not required to take cognizance of an offense under this Act against any public officer or employee.
The provisions of section 197 of the Code of Criminal Procedure shall not apply in taking cognizance of an offense under this Act; because the Torture and Custodial Death (Prevention) Act, 2013 is a special law and special law always prevails over the general law. Section 4 of the Act, 2013 states about the process of complaint of crime in court. It makes clear that notwithstanding anything contained in the Code of Criminal Procedure, 1898, if any person complains before any court under the jurisdiction of this Act who has been tortured, the Court shall forthwith record the complaint and take further Action.
Section 1 of the Judicial Officers Protection Act 1850 provides only civil immunity to judges, magistrates, justices of the peace, collectors, or any other person engaged in judicial work.
According to the provisions of Section 14 of the Mobile Court Act 2009, if a person is harmed as a result of any Act in good faith, no civil or criminal proceedings against the Executive Magistrate, District Magistrate or any other officer or employee involved in the operation of the Mobile Court shall be instituted. But in this Act, no allegation of torture or death in custody against anyone can be justified in good faith.
Although there is such immunity in the Mobile Court Act 2009, there is no provision of such immunity in this Act of 2013. As both the laws are special laws, the provisions of Torture and Death in Custody (Prevention) Act, 2013 will prevail according to the overriding effect of the law. Again, as per Section 13(3) of the Act, the offender shall be personally liable for the offense committed under this Act.
In 69 DLR(AD)63, it has been held that the magistrate can directly take cognizance of the offense committed. Here the Hon'ble Appellate Division clarified that if any information comes to the Magistrate that a person has been subjected to custodial torture or custodial death, which is an offense under Section 2 of the Torture and Custodial Death (Prevention) Act, the Magistrate shall refer the person to do a physical examination by a registered doctor. If after examination it appears that torture or custodial death has been caused to a person, the Magistrate shall suo moto take direct Action under section 190(c) by skipping the provisions of section 3 and 4. It is important to note that Hon'ble Appellate Division has used the word "shall" here. So, from the above discussion it is clear that the Act has strong provisions for redressal of aggrieved persons.
According to Section 15(1) of the Act, any public officer or servant found guilty of torturing any person shall be punished with rigorous imprisonment for a term not exceeding five years or with fine not exceeding Tk50,000 or with both and an additional penalty of Tk25,000 compensation to the person aggrieved. Furthermore, Section 15(2) of this Act states if any public officer or employee tortures another person and if the said person dies as a result of such torture, then the torturing public officer or employee shall be punished with rigorous imprisonment for life or with a fine of not less than Tk1 lakh or with both and an additional compensation of Tk2 lakh to the affected person/persons. Section 14 of the Act provides for provision of appeal. Convictions for offenses under this Act can be appealed to the High Court Division. The aggrieved person/persons may also approach the High Court for appeal.
Article 35(5) of the Constitution of the People's Republic of Bangladesh clearly states that no person shall be subjected to inhuman, cruel, or degrading punishment or treatment during the trial. Also, Hon'ble Supreme Court in Blast v Bangladesh case and Shafiuzzaman v State case clearly called torture in the name of remand as unconstitutional and issued various instructions to stop them.
Besides, Article 31 of Bangladesh Constitution upholds the notion of equal protection of law. The Torture and Death in Custody of Law Enforcement Agencies (Prevention) Bill, 2013, passed by the Ninth Parliament, criminalizes the torture of anyone while in the custody of the government and provides for punishment for those responsible. In 2003, the landmark High Court judgment on Sections 54 and 167 of the Criminal Procedure Code clearly stated that no one could be tortured while in the custody of the government. Although Section 330 of the Code of Criminal Procedure provides statutory protection against unlawful arrest and detention, yet the misuse of powers to arrest without warrant under Section 54 of the Criminal Procedure Code and to detain the accused in police custody under Section 167 of the Criminal Procedure Code results in the denial of access to justice and the violation of fundamental rights such as freedom from torture or cruel, inhuman, and degrading punishment.
The High Court Division of the Bangladesh Supreme Court in Blast and others v Bangladesh and others opined that these clauses are somewhat inconsistent with the Constitution and need to be amended. In the judgement of this case, the High Court Division gave seven points of recommendations to remove these discrepancies within six months and directed the government to amend the law. Moreover, the High Court also gave 15 points of directions to prevent abuse of power by members of the law enforcement agencies under these sections. However, the news of the death of Rezaul Karim alias Razor (30), a final year student of Barisal Law College while undergoing treatment three days after his arrest by the Detective Police (DB) in Barisal, has reminded us of the circle again. There are some protests, but unfortunately the role of Human Rights Commission is disheartening.
Law and Arbitration Center has calculated that in 2020, 11 people were killed in the custody of various law enforcement agencies, ie, after arrest. In addition, 5 people died due to torture by law enforcement forces and 8 people were shot dead before arrest. A total of 18 people died in the custody of law enforcement forces in 2019; 17 people in 2018. 260 people died in custody in four years from 2014 to 2017, 78 people died in one year in 2016. All these deaths are now just statistics. There is only one instance of trial in this law so far. After the law was passed in 2013, a man named Johnny died in police custody in 2014 in Pallabi area of Mirpur. His family filed a case under this law. On September 9, 2020 SI Zahidur Rahman of Pallabi police station Zahid, SI Rashidul Islam, and ASI Kamruzzaman Mintu were sentenced to life imprisonment and their two sources were sentenced to seven years of imprisonment.
Earlier, OC Nazim and SI Aziz complained of torture in police custody at Panchlaish police station in Chittagong. The leading human rights organization Bangladesh Human Rights Foundation (BHRF) is conducting a case on behalf of the victim Mostakim against unidentified seven/eight policemen including SI Aziz. Last but not least, those who are concerned about this Act, in particular police officers, must understand that this legislation does not undermine their position. Also, general people should remember that police personnel act as protectors of basic human rights by assuring the secured custody. Most crucially, the legal framework must be implemented effectually.
Advocate AM Zia Habib Ahasan is a distinguished member of the Bangladesh Supreme Court, specializing in family court and domestic violence.
