September 23, 2020

Many acts which are non-criminal elsewhere are counted as crimes in Bangladesh. ‘Crime’ is defined in a quite unusual way in this country.  For example, even right to hold political rallies or right to hold protest is also considered a crime in Bangladesh today. Even the universally established human rights have been criminalized in the country. So, Bangladesh cannot follow the standard criminal investigation procedure, as practised across the world. The country has set up its own standard in this matter.

The objective of the investigations, in Bangladesh, is to obtain a confessional statement. It is often not aimed to find the truth. In other words, in such investigations most often confessions are extracted from the accused using force.

 

CID [Crime Investigation Department]

There is a joke about custodial charter in police investigations: A pet dog of a VIP got lost, and, three police officers from America, England and Bangladesh were asked to find out the lost dog. While the American and British police officers failed in their job to trace the lost dog, the Bangladeshi police returned to the VIP with a goat. The VIP said: ‘I lost a dog. Why have you brought this goat?’ Instantly, the Bangladeshi police officer said: ‘Sir, if you just give us some time and allow us to take it to our remand, this very goat will confess that it’s a dog and has long been with you as your pet.’

No matter how ludicrous it may sound, such things are happening in reality in Bangladesh now. One Joj Mia, a docile young man, was arrested as the main accused following the 21 Ausust, 2004, grenade attack on a political rally of Awami League. Despite being completely innocent, Mia confessed that he was guilty in that crime. We can reach this conclusion that something has gone terribly wrong within the institution we know as the police force in Bangladesh.

(Joj Mia)

In Bangladesh, what we commonly know as ‘remand’ is, in fact, a detention where an accused is exposed to various types of torture. After presenting an accused in the court, the police never say that that they want to hold the accused ‘on remand’. They say, they want to take the accused under a ‘legal custody’. And the court usually grants that appeal of legal custody. Now the question is why is the accused taken in a ‘legal custody’ when he/she is supposed to be in jail, or, to be in ‘jail custody’?

If the police think that they have not gathered sufficient primary information from the accused while presenting him/her in the court, following his/her arrest, they can seek before the court to take the accused under their own custody or ‘police remand’. Then, the court, considering the legalities involved, can take a decision on the appeal from the police. But, in the name of ‘legal custody’ the police aim to seek opportunity to extract confessions from the accused. This way, in ‘legal custody’ an accused routinely faces wide range of physical and mental torture as police extract confessions. Although it is termed ‘legal custody’, an accused here faces worst sort of abuses and often, to escape such torture and humiliation, he/she ends up “confessing” to a crime which he/she actually did not commit.

Crime investigation is an intellectual work. But, having kept most of its men engaged in their repressive wing, the police in Bangladesh can employ a negligible fraction of the force to do any intellectual work, in the interest of the investigations.

So, often, to finish their work quickly, the police end up compromising with the quality of the investigation.

(Sagar and Runi)

The murder case of the journalists Sagar and Runi has not been solved as yet even four years after the crime was committed. Soon after the crime took place, Sahara Khatun, who was the home minister then, announced that the perpetrators would be arrested “within 48 hours”. I wonder how an official, as highly placed as the home minister, can assure the country that police would resolve a murder case within a stipulated time-frame. So, police had to concoct a story like that of the Joj Mia in the 2004 case of the grenade attack. The next home minister announced in a grandiose press-conference that the mystery of the journalists’ killings had been resolved. Later that announcement to came out as a hoax.

The laws under which the Bangladesh police conduct their investigations are THE EVIDENCE ACT, 1872 September, 1872 THE CODE OF CRIMINAL PROCEDURE, 1898, Police Regulations, Bengal 1943, and they are centuries old colonial laws. CID of police states, as their identity, ‘Criminal Investigation Department (CID) is one of the ancient and specialized units of Bangladesh Police. During the British regime in 1902-1903, a commission was formed by Lord Curzon for making recommendations to reshape the organizational and functional structure of police. According to the recommendations the colonial police was further organized.’ It shows that they proudly prefer to stick to their colonial legacy. The Colonial police consider all the people of colony as an enemy to the colonial master. And, therefore, the police, as a colonial successor, cannot consider the people as the rightful citizens of Bangladesh, and they are not even interested to think about their bare minimum humanitarian rights.

According to several newspaper reports, the accused ones are subjected to 14 types of tortures. Noteworthy among them are, are joint torture, bat wash, water therapy, naked torture, fasting torture, bottle therapy, egg therapy, disco dance therapy, stitching torture, jhalmuri torture, pulling torture and wind therapy. Beating the body-joints of the accused is known as joint torture. It’s carried out in a fashion to break the bones and smash the muscles without leaving any ‘evidence’ on the surface- not bruising the skin. In water therapy, they would tie up the hands and legs leaving the accused to dangle from the ceiling when his mouth is gagged. Then he is beaten as water is poured on his face that makes his breathing difficult. The accused have no other choice but to ‘confess’ even the crime he has not committed. Truths and lies swap their places during this ‘legal custody’.

In ‘bat wash’, the accused is hung with their hands tied to poles or tables to their either sides and get beaten until they faint. Pushing hot or cold eggs through the anus of the accused is also in practice and it’s called ‘egg therapy’ which causes bleeding and inflation of the anus. And the torture- pushing of eggs after eggs into the anus, continues until the accused confesses. The ‘disco therapy’ is a simple electric shock. Inserting needles under the nails of the accused is known as ‘stitching therapy’. The result: painfully swollen finger tips. Applying dried chilli on the eyes, mouth and nose is called ‘jhalmuri torture’. In ‘wind therapy,’ they make the accused hung from a spinning ceiling fan, while being tortured.

According to the clause 61 of the Code Criminal Procedure on Arrest and Remand, an arrested person cannot be detained for more than 24 hours. As per clause 167 of the Code, without special order of the magistrate, the time required for reaching magistrate’s court from the place of arrest is considered outside of this 24 hours limit.

Procedure to be followed in case of failure in completing an investigation within 24 hours:

(1) The Officer-in-Charge or the Investigating Officer, if he/she is not below the position of a sub-inspector, will send the accused, with a copy of written information in a relevant diary regarding the charges, to the nearest Judicial Magistrate, whenever a person is arrested and kept in custody and it is perceived that the investigation would not be completed within 24 hours as stipulated in Clause/Article 61, and there is reasons to believe that charges against the accused is based on a strong ground.

(2) As per this Article/Clause, the Magistrate, to whom the accused is sent to, regardless of his/her power of judging the case, can authorise as per his/her consideration thereof, to keep the accused in custody in different time. However, the length of such detention cannot exceed 15 days.

In case the magistrate is not authorised to make a judgment on such a case or if he/she thinks that detention of the accused is no more necessary, he/she can send the case to a higher and competent authority. And, there is a condition that a third class magistrate or a second class magistrate, who is not specially authorised by the government in this regard, cannot authorise the police to keep the accused in custody.

Supreme Court of Bangladesh

In the year 2003, the Supreme Court issued four guidelines regarding code of conduct for the police in interrogating the accused while under ‘remand’:

(a) Interrogation must be conducted in a glass-walled room.

(b) Health check must be carried out before and after the interrogation of an accused.

(c) Duration of one remand cannot exceed three days.

(d) Interrogation must be conducted in front of the relatives and/or the lawyer of the accused until a glass-walled room is not built.

As the Department of Justice of the State, the Supreme Court of Bangladesh has indeed taken some positive steps to upgrade the justice delivery system. One of them is its ability to understand that granting remand actually means allowing the police to torture the accused for a period in the name of ‘legal custody.’ The decision given by the High Court in the year 2003, in response to a writ appeal by BLAST, a legal aid providing NGO, proves two points. One is that, the system of ‘legal custody’ is unconstitutional, anti-human rights and torturous in nature. The High Court Division passed these instructions and recommendations, in the case known as ‘BLAST vs Bangladesh,’ in order to protect the citizens from such abuses.

The High Court Division has observed that, what happens in the name of ‘legal custody’ in Bangladesh, is in fact torture as a way of extorting confessions. As a result, in that decision the Court has delineated clearly and in detail: the issues to be considered by the Court before sending the accused under such ‘custody,’ and the issues to be considered by the police, the issues that the Court must oblige the police to assure to protect the accused during custody. And, the Government has appealed against this decision of the Court. This appeal is still pending for the last six years with the Appellate Division. The decision is not being finalised or resolved due to the inactivity of the Appellate Division and the government not being keen to settle the case.

Therefore, the police are not following the instructions of the Supreme Court regarding laws relating to remand in any case including the political ones.

In our country, extracting forced confessions during remand by torturing political leaders and workers was rarely heard of in the past. Even during the era of British colonial rule and during the oppressive Pakistani regime, subjecting under-trial or remand prisoners to third degree was not practised. In our time, during the ‘one-eleven’ regime, making arbitrary arrests has become a routine practice. In this country, anyone who is arrested is most likely to be subjected to the worst form of custodial torture, forced to make confessions under section 164, become a witness against himself and above all, will have to bear the humiliation of his ‘confessions’ getting aired on TV channels. When this new tradition of ‘arrests and custodial torture’ was being created, quite a few political parties supported this One-Eleven government and gave legitimacy to their violation of human rights.

According to the constitution of Bangladesh, all forms of physical and mental torture on its citizens are prohibited. Only on this ground, custodial torture, in the name of ‘legal custody,’ merits to be declared prohibited. The repressive organs in the country have been increasingly high-handed primarily because of the fascist practices which have spread their tentacles in Bangladeshi politics dangerously. The Appellate Division, through its inactivity, and the Government, by its reluctance, have given immunity to, and emboldened the repressive organs who do are now unwilling to stop violating human rights. Besides, professional incompetence and colonial legacy is encouraging them to practice custodial torture even more.

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