Dhaka, Tue, Feb 2019
10 February 2019,Sunday, 20:54
The law of the land has ensured the safety, security and dignity of its every citizen, which the state is responsible to make it ensured. But this universal topic is not included in our national study curriculum. So, other than few lawyers and some law enforcing agency men, the common people hardly aware of those rules & regulations. As a result, on and often, they are harassed by them, who are supposed to provide the relief of such oppression
This is my little endeavor for those oppressed citizen of this country.
:: One ::
:: Provisions of Lodging Fictitious Case, Arrest, and Remand ::
A. For general people as Complainant: Any person [not Police] can lodge a case, if he has information regarding criminal offence, no matter whether he is an aggrieved person or not. [CrPC Sec- 154].
But if anybody filed any complaint with false information for the purpose of harming or harassing someone, then he would be charged with criminal charges. The punishment for which can be extended upto the life term imprisonment or to sentence to death [Penal Code Sec- 177, 182, 193-195, 211].
B. For police man as Complainant: In case of a Case filed by the police itself, it has been said that if any information related to any crime is received by police from rumors, fame or through telephone, then receiving police has to verify first about its happenings. After conducting preliminary verification, if it seems that the information received is supposed to be true, then and only then, Police should register a Case. [PRB Section-243 (d); DMP Rules: Chapter: Police Station, Sec-57(7)].
Without verifying the probable happening, if police lodge any case fictitiously, then that police man comes under the accusation of punishable criminal offence.
So, the arrest of any person leveling accusation by police for that case can never be considered as lawful and just.
It is rather counted as Wrongful Confinement.
In such situation, if an innocent person [victim] does not get shelter from any Govt or lawful agency from that police harassment, then the person himself [or either of his well wishers] can exercise his Right of Private Defence in order to save that victim from the unlawful doers.
And to exercise such self defence, no offence will be committed for any consequence of the illegal act doer(s) in the following cases:
According to the Law and the Legal Procedure of the country prevailing is that from registering a case in a Police Station to the final judgement by the trial court, the following steps take places:
Step-1: Registering case against the accused person.
Step-2: Arresting the accused.
Step-3: Taking the accused on Remand from Magistrate Court.
Step-4: Submitting Charge Sheet against the accused before Court.
Step-5: Trial Court’s Judgment for the accused person.
For fictitious or political motivated false case, in each and every stages of harassment, the separate offences are done by the police [and in some cases by Magistrate too], which is mentioned categorically in the Penal Code and other Laws of the land.
:: Two ::
:: Provision of House Search ::
A. Police can search the house of any citizen under these two circumstances:
(1) On the basis of warrant issued by court.
(2) As an investigating Officer to secure arrest of an accused, and/ or to recover the stolen property.
B. According to CrPC Sec-103, the provision of house search is as follows:
(1) The searching police officer shall call upon two or more respectable inhabitants of the locality. For this purpose a written requisition may be issued to the witnesses for attending that search process.
(2) The occupant of the house, or any person on his behalf, shall be permitted to attend during the search.
(3) The search shall be made in their presence, and a list of all things seized in the course of such search shall be prepared by such officer signed by such witnesses.
(4) A copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person at his request.
C. The directives of the Higher Courts in this regard is as follows:
(1) Sec-103 is the safe guard of the inhabitants, so that a searching police officer can not do any malice act.
(2) The respectable inhabitants mean and include the persons, who should be neutral and disinterested to either of the parties. And to whom the occupant of the house may trust upon.
(3) Any house search, followed by arrest or seizing item is to be treated as illegal or unlawful, if the procedure of Sec-103 is not properly observed.
D. Regarding house search, PRB-280; and DMP (Police Station) Rules-106 says:
(1) Searching officer should be very careful about the entry or exit of any item from the house.
The search must be made in presence of the occupant of the house, or any person on his behalf. If any suspicious or desired item is found, that has to be shown clearly to the witnesses present.
If no suspicious or desired item is found, even then a seizure list stating ‘nil’ has to be prepared, and the copy of such list has to be given to the house master after duly signed by the officer and the witnesses.
(2) If the investigating officer is convinced that the suspicious or desired item may be found in any house, only then he can search that house without warrant. Otherwise such search may be treated as illegal if it is conducted without warrant.
If any suspicious or desired item is found, then as per the directives of CrPC Sec-165, the seizure list of that item is to be sent to the Magistrate as soon as possible.
It is to be noted that on a plea, as the house of a habitual, ill-character or fugitive, will not be treated good enough to search that house without warrant.
(3) At the beginning of search, all the search conducting persons should bodily be searched in presence of the house master and the witnesses.
(4) The search to be conducted courteously, particularly the special attention is to be given to the ladies, if present in such house.
(5) The witnesses should neither belong to any party nor related with police, rather they should perfectly be neutral.
The local Public Representative or Headman may be invited to watch the search process, if possible.
But in no cases, any ‘secret source’ of police, habitual drinker, or any suspicious person can be called for as a witness.
(6) Whenever a house search become necessary in order to recover firearms, the police officer has to obtain Search Warrant from Magistrate court u/s-25 of Arms Act 1878.
A police officer, at his own, is not entitled to conduct any house search in order to recover any firearms.
The search officer should be very careful about his intention towards the occupant of the house. There should not even be a little doubt in the mind of the occupant that he may be harassed by the police officer through concoction.
These are all about the rules of house search.
Comment: So, if a police officer conducts any house search denying these laws & rules with malice intention, then he may be prosecuted under the various section of Penal Code. Whose term of conviction may be extended up to ten years rigorous imprisonment.
And side by side, if the victim of such circumstances does not get shelter of that oppression from any lawful or public authority, then he himself can exercise the Right of Private Defence against the oppressor under the purview of the Sec-104, Penal Code.
:: Three ::
:: Provisions regarding illegal Fire Arms, Explosive, and Drugs & Narcotics ::
Very often people claim that the innocent persons are harassed by the law enforcing agencies through concoction or introduction of illegal Fire arms, Explosive, or/and Drugs & Narcotics. Agencies put the following illegal items in the house or premises of the victim prior to their search. And then show in public through media that such and such items have been recovered from the possession of the inmates.
Law of the land says that whoever keeps any unauthorized fire arms, explosive, or drugs in his possession, no matter who is he, shall be punished with death sentence, or of imprisonment which may extend to life terms.
The most related sections of the Laws are as such follows:
1. The Arms Act 1878, Sec-14 & 19(f) says, the punishment, of illegal possessing of fire arms, may be extended up to seven years.
2. The Explosive Substance Act 1908, Sec-4 says, the punishment, of illegal possessing of explosive substance, may be extended from three to twenty years.
3. The Narcotics Control Act 1990, Sec-9 says, the punishment, of illegal possessing of Drugs and Narcotics [except Alcohol], may be extended to life term/death sentence.
Comment: So, it is very clear that when a police officer makes any concoction or introduction of such unlawful items holds the criminal liabilities of two types:
Firstly: Lodging a fictitious criminal case, and then making arrest, submitting false charge sheet to the court etc.
Secondly: An illegal possessors of fire arms, explosive, or/and drugs & narcotics.
:: Four ::
:: Responsibility and Power of an Officer-in-Charge and Superior Police Officer ::
A. According to the Sec-23 of Police Act 1861, the duty of every police-officer is to:
(1) Obey and execute all the lawful orders of the competent authority.
(2) Collect and communicate intelligence affecting the public peace, and to prevent the commission of offences.
(3) Detect crime and criminal, and then bring the offenders to justice.
(4) Apprehend all persons whom he is legally authorized to apprehend if sufficient ground for apprehension exists. [DMP Ord 1976, Sec-15].
B. Sec: 149-151 of CrPC say that every police officer, receiving information of a design to commit any cognizable offence, shall prevent that to the best of his ability.
In order to prevent any cognizable offence, if he feels that he shall not be able to prevent by his own effort, then he shall communicate such information to the police officer, who is senior to him, and/or to any other officer, whose duty it is to prevent such offence.
If it appears to him that the commission of that offence cannot be otherwise prevented, then he may arrest the person so designing without a warrant.
C. Lodging FIR [First Information Report]/Registering Case:
According to the Sec: 149-151 of CrPC, it states that when any information relating to cognizable offence is given to the Officer-in-Charge of a police station, then without any delay O-in-C shall lodge an FIR, and then shall take all necessary lawful step in order to detect the offence and the offender(s).
If the informant is present at police station, then he may be the complainant of the case registered. But if he declined to be a complainant for any reason, then he shall not be compelled to be the same. In such case either O-in-C himself, or any other officer present at police station shall be the complainant, and then shall take the further lawful steps.
But if it seems that the said information is mere a rumor, or hearsay, or received through telephone call, then it should not be registered as a case instantly. In that case, the received information shall be written in a general dairy, and then the preliminary verification should have been made about its genuine ness.
If it seems to be true, and the informant is found not available, or is declined to be the complainant, then either O-in-C himself, or any other officer present at police station shall be the complainant. [PRB-243; DMP Rules-57(7)]
D. Arrest during investigation: During investigation of any case, if the Investigating Officer [IO] finds reasonable information regarding the involvement of any person, then he can arrest that person.
And within 24 hours of that arrest, the accused person has to be forwarded to the Magistrate for further instruction [PRB-342].
It is to be mentioned that before securing arrest of anybody the IO should be very careful. “Complainant has mentioned the name in his complaint” can not be the only plea to arrest anybody. [PRB-317 & DMP rules-143].
Random arrest without verification is an offence u/s-342 Penal Code.
Sec-169 CrPC says that if IO get confused about the involvement of any FIR named accused or any suspect, then he may arrest that person. But if he does not have any dependable further information to forward that arrested person to the Magistrate, then he himself should grant his bail from Police Station.
E. Fictitious cases lodged by Police: Sec-193 CrPC says that whoever intentionally fabricates false evidence for the purpose of being used in any stage of a judicial proceeding shall be punished with imprisonment for a term which may extend to seven years.
After lodging that FIR, if police submits false charge sheet against that innocent person to the court for trial, then that police officer commits an offence, whose imprisonment may extend up to life terms.
And finally if that person is convicted by the court on the basis of those false evidences, then the fabricating police officer gets equally liable to that punishment which court gives to the innocent accused.
F. Definition of Offence in respect of law: According to law, ‘Offence’ means any act or omission punishable by law. [CrPC Sec- 4(o)].
So, when any responsible govt. officer [Police], on whom the responsibility of preventing and detecting crimes lie with, omits discharging his duty with malice intention, it amounts to criminal offence.
G. Officer-in-Charge of a Police Station: According to CrPC Sec-4(p), a senior most officer, above the rank of constable, holding the charge of a police station is known as Officer-in-Charge of a Police Station.
An Officer-in-Charge of a Police Station is responsible for maintaining law & order, and preventing and detecting the crime within his jurisdiction (area of responsibility). [PRB-201 & 205; DMP rules-4 & 7].
And officers senior to the Officer-in-Charge of a Police Station, is known as Superior Police Officer.
A superior officer can exercise all the lawful powers of Officer-in-Charge of a Police Station u/s-551 CrPC within his jurisdiction. All the superior officers are responsible to supervise the activities of his junior officer.
So any willful or malice omission in this regard also amounting to an offence.
:: Five ::
:: Right of Private Defence ::
The law of the land has ensured the safety and security of its every citizen by his own, which is known as Right of Private Defence, under these circumstances:
A. Sec-100 of Penal Code says: Subject to the provision of Sec-99, the right of private defense of anybody extends up to any cause harming to the attackers, if that attack is of the following types:
Firstly.-Such an assault as may reasonably cause the apprehension that ‘death or grievous hurt’ will otherwise be the consequence of such assault.
Secondly.-An assault with the intention of kidnapping or abducting.
Thirdly.-An assault with the intention of committing rape or of gratifying unnatural lust.
Forthly.-An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the lawful public authorities for his release.
B. The said Sec-99 says:
(1) There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.
(2) There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities
(3) The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
Explanation- A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such unless he knows, or has reason to believe, that the person doing the act is such public servant.
C. The interpretation of “good faith” is as such:
(1) Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention. [Penal Code Sec-52].
(2) Only that act is said to have been done on good faith, which is done with utmost sincerity and honesty. [General Clauses Act 1897, Sec-3(22); AIR 1955 Cal 353].
(3) In interpretation of Sec-38 & 84, Evidence Act 1872; the High Court Division passed a verdict that the act of a public servant defying or willfully ignoring the prescribed laws and rules of the land is not said to be done on “good faith”.[AIR 1969 121].
:: Six ::
:: A Historical verdict of Supreme Court Appellate Division regarding Arrest ::
On 24 July 1998, a meritorious student of Independent University, Dhaka, Mr Shamim Reza Rubel was caught by DB Police. When his relatives inquired about his ‘arrest’ to the local police station, and then DB, both the offices declined his arrest.
While he was, in fact, in DB Police custody, he was severely tortured. As a result, when he succumbed to his injury, his dead body was kept in hiding in the safety tank of DB office at Mintoo Road, Dhaka.
This heart-wounding incidence sounded much in the civil society. So the then govt. had to take the lawful action against all the 13 police officers liable for that killing.
After trial for five years, in the year 2003, most of the guilt officers were sentenced to the life term imprisonment. And during the verdict of appeal, the High Court Division passed some of its observation, which has been upheld by the full bench of Supreme Court headed by the then CJ Mr Surendra Kumar Sinha in 2016. The then Justice [present CJ] Mr Syed Mahmood Hossain was one of the members of that division.
This historical verdict containing 15 points is popularly known as 55 DLR (2003) 363.
Those points are:
1) No police officer shall arrest a person under Sec-54 of CrPC for the purpose of detaining him under Special Power 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.
3) He shall record the reasons for the arrest and other particulars in separate for the arrest and other particulars in a separate register till a special diary is prescribed.
4) If he 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.
5) He shall furnish the reason for arrest to the person arrested within three hours of bringing him in the police station.
6) If the person is not arrested from his residence or place of business, he shall inform the arrested relation of the person over phone, if any, or through a messenger within one hour of bringing him in the police station.
7) He shall allow the person arrested to consult a lawyer of his choice if he so desires or to meet any of his nearest relation.
8) When such person is produced before the nearest Magistrate under section 61, the police officer shall state in his forwarding letter under section 167(1) of CrPC as to why the investigation could not be completed within twenty four hours, and 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 to the same Magistrate.
9) If the Magistrate is satisfied on consideration of the reasons stated in the forwarding letter as to whether the accusation or the information is well funded and that there are materials in the case diary for detaining the person in custody, the Magistrate shall pass an order for further detention in jail. Otherwise, he shall release the person forthwith.
10) If the Magistrate releases a person on the ground that the accusation or the information against the person produced before him is not well-founded and there are no materials in the case diary against that person, he shall proceed under section 190(1)(c) of the Code against that police officer who arrested the person without warrant for committing offence under section 220 of the Penal Code [punishment: imprisonment up to seven years].
11) If the Magistrate passes an order for further detention in jail, the Investigating officer shall interrogate the accused if necessary for the purpose of investigation in a room in the jail till the room [made by glass wall] is constructed.
12) In the application for taking the accused in police custody for interrogation, the investigating officer shall state the reasons. And the tenure of remand granted shall not be exceeding three days.
13) If the Magistrate authorizes detention in police custody he shall, before passing that order, 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.
The accused, before he is taken to 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.
After taking the accused into 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.
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(1)(c) of the Code against the Investigating Officer for committing offence under section 330 of the Penal Code [punishment: imprisonment up to seven years].
14) The police officer of the police station, who arrests a person under section 54, or the Investigating officer who takes a person in police custody, shall at once inform the nearest Magistrate of the death of any person who dies in custody.
15) A Magistrate shall inquire into the death of a person in police custody immediately after receiving information of such death.
Besides those directives, PRB-263(4) further directs IO as to how he shall make justification for arrest of a suspect. It says that all secret information, regarding the accusation of a suspect, must have been written in his case diary in details except the secret information received from any public representative.
For secret information received from public representative should be placed before Magistrate in a separate sheet of papers by IO.
Comment: Since the following directives of the highest court of full bench carry no less than a law passed by the parliament, rather to some extend more than something. So every concerned is obliged to obey its each and every directives properly.
And any deviation, if it is made maliciously, that amounting to an offence.
So if the victim under any circumstances apprehends that he will not be able to have recourse from any lawful public authorities. He may then exercise his right of private defence in order to save himself from any unlawful arrest, known as ‘wrongful confinement’.
Conclusion: A. The most important and massive recent applied law of the land is “The International Crime (Tribunal) Act 1973.”
In its Section-3(2)(a) it defines the “Crimes against Humanity”, where it is said:
Namely, murder, extermination, enslavement, deportation, imprisonment, abduction, confinement, torture, rape or other inhumane acts committed against any civilian population or persecutions on political, racial, ethnic or religious grounds, whether or not in violation of the domestic law of the country where perpetrated.
The punishment of any offence under this law is either life term imprisonment or death sentence.
Sec-7 of Evidence Act 1872 says: The reason and/or consequence, i.e. cause or effect, of any act/omission to be taken into consideration during the investigation and trial of any offence.
[Note: All the laws mentioned in this brief are available in the site http://bdlaws.minlaw.gov.bd/]
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