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Torture and Custodial violence

In criminal jurisprudence the wider interpretation of the term ‘custodial violence’ may include all kinds of physical and mental torture inflicted upon, or inhuman or degrading treatment given to, a person in police custody. It also includes death and torture in police lock¬ups. In the absence of a specific definition given to it in law, but considering the spirit of Article 35 of the Constitution of Bangladesh, custodial violence may be divided into two categories–

(a) torture and cruel punishment; and

(b) inhuman or degrading treatment.

Again, our law books lack definition of the term torture and cruel punishment.However, in Article 1 of the Convention against Torture and Other, Cruel, Inhuman or Degrading Treatment or Punishment 1984 to which Bangladesh is a signatory, torture has been broadly defined as act of a public official, or other person acting with the consent, Instigation or acquiescence of a public official by which severe gain or suffering, whether physical or mental is intentionally inflicted on a person for the purposes of obtaining information or confession or punishing him for an act he has committed or suspected of having committed.

On the other hand, inhuman and degrading treatment may be construed to include any act that affects a person’s fundamental rights to life and liberty i.e. right to food, sanitation, medical care, humane behavior, recreation, skill development etc.

Allegedly, in Bangladesh, people are subjected to torture as a substitute for police investigations other than a number reasons which include harassing and implicating innocent people through fabrication of cases, extortion and bribery, saving influential people and godfathers of criminal activities, extracting statements that would ensure real perpetrators to go scot-free, for maintaining law and order as well as seeking revenge and settling the score by the rich and powerful. Violence in police custody varies from calling names, slapping, kicking, beating, sexual harassment and rape to most heinous instances like death. Keeping people in lock-up like animals, providing inadequate or no food or drink, keeping men, women, children together are also inhuman practices existing in police custody.

Despite relevant safeguards available under, the Constitution, international conventions and procedural laws, the instances of torture in police custody have significantly increased in recent years. According to the survey report prepared by BLAST, nine out of 46 respondents confirmed that they were taken to remand.

Their count of torture in police custody included misbehavior, beating, slapping, and electric shock, beating on the feet, beating with the arrestee hung from the roof, indiscriminately kicking several arrestees together, and coercing to elicit information and extract confession. Some respondents however said that police behaved generously and one said he was not questioned at all, because the remand was unnecessary. None was found saying that his relative or lawyer were present during remand.

Supreme Court’s directives and guidelines relating to torture and custodial violence are described below:

1. The investigating officer to interrogate the accused for the purpose of investigation in a room in the jail specially made for that purpose with glass wall and grill in one side within the view but not hearing of a close relation or lawyer of the arrestee. In the application for taking the accused in police custody for interrogation, the investigating officer to state grounds for taking the accused to the custody.

The above directives are meant to ensure that police refrain from torturing an arrestee in the custody for eliciting information or extracting confession. If the interrogation chamber is transparent, any abuse to an arrestee will be detected by senior police officers as well as the relative and the lawyer of the arrestee, if present.

The Supreme Court has also directed the investigation officer to state grounds for taking the accused to the custody. If the grounds for remand stated are not satisfactory to the magistrate, the accused should be released forthwith instead of being sent to the custody.

2. Magistrate to proceed against the concerned police officer as per Section 190 (1) (c) of the Cr. P.C for committing offence under Section 220 of the Penal Code if the grounds for remand stated in the forwarding letter of the police is not satisfactory or if there are no materials in the case diary. With a view to minimizing and discouraging common practice of police to arrest people without warrant and seek remand, the Supreme Court in BLAST and others v. Bangladesh issued the above directive. The directive requires a magistrate to take cognizance of an offence committed by the concerned police officer as per Section 220 of the Penal Code if he does not maintain the ease diary properly and the reasoning for arrests as well as seeking remand of the suspect stated in his forwarding letter or arrest memo are not satisfactory to the magistrate.

Section 220 of the Penal Code enables the magistrate to invoke a sentence of imprisonment up to seven years or fine or both to a person who with the legal authority to send people for trial, for confinement or keeping persons in confinement does so in contrary to law and with the knowledge of such violation. In BLAST and others v. Bangladesh the Judges stressed on the maintenance by police proper case diary and provide adequate reasoning for arrest of a person without warrant or for seeking remand. Non-compliance of these requirements will be treated as committal of offence by the concerned police officer under Section 220 of the Penal Code.

3. To comply with recommendations B (2) (c) (d) and B (3) (b) (c) (d) should the magistrate authorize detention of an accused.

Recommendations B(2)(c) and (d) of the Supreme Court in BLAST and others v. Bangladesh require a magistrate to be satisfied with the reasons of arrest and remand stated in the case diary and forwarding letter of the police and to ensure that the accused was accorded an opportunity to consult a lawyer of his choice. The magistrate also needs to hear the accused before passing remand order, which shall not exceed three days.

Recommendations B (3) (b) (c) (d) are related to medical examination of the accused on remand as well as proceedings against torture in police custody. The directives require that before taking a person to remand, he shall be examined by a designated doctor or medical board constituted for the purpose.

In D.K. Basu v. State of West Bengal , Indian Supreme Court required that a trained doctor should examine the person on remand once every 48 hours.

The accused on remand is required to be produced before the relevant magistrate before the expiry of the remand period. If the accused alleged of any torture in police custody, the magistrate is directed to send the accused to the same doctor or medical board for further examination. If the medical examination confirms infliction of torture on the accused in police custody the magistrate has to take action against the investigation officer under 330 of the Penal Code. This Section deals with causing voluntary hurt to extort confession or compel restoration. Under this Section, the magistrate can sentence the concerned police officer up to 7 years of imprisonment or fine or both.

Instances of actions taken by magistrates under 330 of the Penal Code are extremely rare. Absence of specific guidelines is alleged to be responsible for such inaction by the magistrates. The implementation of the directives and guidelines in BLAST and others vs. Bangladesh and Saifuzzaman vs. State hopefully should be able to narrow the gap.

3. To inform the concerned magistrate of the death of a person in police custody and the magistrate to enquire into the matter.

Any kind of death in police custody is unexpected and unwarranted. Police are meant to protect people’s life, not to kill them. While death may happen naturally or following injury sustained before arrest, the most unacceptable death in police custody is one which results from torture.

In D. K. Basu v. State of West Bengal, the Indian Supreme Court observed that custodial death is one of the worst crimes in a civilized society governed by the rule of law in the same judgment the court held, if the functionaries of the government becomes law-breakers, it is bound to breed contempt for law and would encourage lawlessness… leading to anarchism.

In BLAST and others v Bangladesh, the Supreme Court considered the issue of granting compensation to a victim of torture in police custody and the nearest relatives of a person -who died in police custody. The Judges were of the opinion that, compensation may be given by this Court when it is found that confinement is not legal and death resulted due to failure of the State to protect the life. The Court however, did not award compensation in this case on the grounds that the subject matter of the case was pending before the competent Court.

Article 9 of the Covenant on Civil and Political Rights states that, anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. The right to compensation has not been expressly guaranteed under the Constitution of India. However, this right has evolved through a number of judicial pronouncements by the Supreme Court of India which has held that in the event of failure by the State to protect the most cherished and indefeasible right to life and personal liberty of its citizen, it shall be liable to award compensation to redress the wrong.

In D. K. Basu’s case the Supreme Court held that, monetary compensation for reprisal by the court finding the infringement of the indefeasible right to life of the citizen is the only effective remedy to apply balm to the wounds of the deceased victim who may have been the bread winner of the family.

In Nilabati Behera v. State of Orissa the Supreme Court held that “there is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life … the duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law.” In this case, the Supreme Court awarded compensation amounting Rs 150,000 in the form of damages to the mother of the deceased who died in police custody.

In Ajab Singh v. State of Uttar Pradesh the Court ordered the State of UP to pay a sum of Rs.500, 000 as compensation within three months to the parents of the deceased died in judicial custody.

The directive requires the concerned police officer to inform the magistrate immediately about the death of any person in custody. After receipt of such information the magistrate is required to proceed for a judicial inquiry into such death.

Posted from
Shoaib Rahman
LL.M. Advocate

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