Magistrates violate SC guidelines on remand: HC

The High Court in a written order on a bail prayer has observed that magistrates are not following the directives and guidelines of the Appellate Division of the Bangladesh Supreme Court while they are putting an accused person on remand.

The Appellate Division gave 10 directives and guidelines for members of the law enforcing agencies and nine other directives and guidelines to judicial magistrates in its detailed judgement released on November 10, 2016.

It is contrary to criminal justice and fair investigation that magistrates are not functioning as usual and they are not following the directions or guidelines of the apex court and the prevailing law on remand, an online bench of Justice Mustafa Zaman Islam and Justice KM Zahid Sarwar made the observations in the full text of its order released this week.

The bench further observed, ‘Pursuant to that, unnecessary remand is wasting tax payers’ money as well as judicial time.’

The court came up with the observations in the written order that earlier on September 22 granted bail to model Mariam Akther Mou for one year in a case filed by the Detective Branch on August 1 under the Narcotics Control Act.

The Detective Branch arrested Mariam at her home at Babar Road in Mohammadpur in the capital and recovered 750 Yaba tablets and 12 bottles of liquor from her house.

‘Taking into gravity and nature of the offence, we do not think that there is any need for remand [for Mariam] in three phases for 9 days,’ the court observed.

Earlier on September 1, the High Court observed that the Supreme Court guidelines for judicial magistrates were being ignored while granting prayers of the law enforcement agencies to put arrested individuals on remand.

The observations came as Ain O Salish Kendra prayed for a suo motu rule against the lower court orders that remanded film actress Shamsunnahar Smrity, popularly known by her stage name Pori Moni, in police custody for seven days in three phases.

Two magistrates in separate written statements apologised to the High Court and attorney general AM Amin Uddin requested the HC to pardon them being young officers.

‘Although it is the Chief Justice’s affairs, I will look into it why magistrates are not following the guidelines,’ law minister Anisul Huq told New Age on Wednesday.

The minister said that as no stay was granted by the Appellate Division on its judgement, its guidelines were mandatory for all.

According to the Appellate Division guidelines and directives, no law enforcing officer will arrest any person on mere suspicion under Section 54 of the Code of Criminal Procedures for the purpose of detention under the Special Powers Act 1974.

Recording of a first information report is a must for arresting a person and detaining him or her in custody or in jail.

The guidelines made it mandatory for the law enforcers to record in their diaries the reason for and the place and time of the arrest and the details about the complainant and informant.

The law enforcers must disclose their identities and show identity cards to the person arrested and to the people present at the time of arrest.

If a law enforcing officer finds any mark of injury on the person arrested, he or she must record the reasons for the injury, get the person treated in the nearest hospital and obtain a certificate from the attending doctor.

The arrested person must be produced before the nearest magistrate within 24 hours.

The investigation officer will also transmit copy of the relevant entries in the case diary to the magistrate and give the arrested person opportunity to appoint a lawyer.

The magistrate will free the arrested person if he or she is produced without a copy of the entries in the diary relating to the case.

The magistrate may remand the person in custody for a term not exceeding 15 days at a time if the investigation officer could produce all documents, the guidelines said.

On February 13, 2020 a six-judge Appellate Division bench chaired by chief justice Syed Mahmud Hossain expressed annoyance about continuation of arrest of people without warrant and disappearance of arrested persons flouting the 19 guidelines on arrest, detention and interrogation.

The Appellate Division formulated the guidelines modifying 15 directives issued by a High Court bench in 2003. 

The Appellate Division wanted to know from the then attorney general Mahbubey Alam whether the court directives and guidelines were ‘eyewash’ and whether it would cancel its verdicts as there had been no implementation of the guidelines since 2003.

The hearing was adjourned to March 16, 2020 but since then, the matter has not appeared in the cause list.

The Appellate Division made the observations while hearing a government petition seeking review of some of the guidelines.

The government sought review of a guideline in which the police and other law enforcing agencies are asked to inform a judicial magistrate immediately after arresting an individual with his or her signature, date and time of the arrest in the case documents.

The government also prayed for reviewing another guideline in which the law enforcers are asked to note the name and address of the informant and the complainant of a case.

The government also sought review of a third guideline in which the law enforcers are asked to inform a relative of an arrested individual within 12 hours.

The government also prayed for reviewing the directive in which magistrates are asked to take action on suo motu under the Torture and Custodial Death (Prohibition) Act 2009 if any law enforcing officer arrests an individual and he or she is subjected to torture or later dies in custody.

On April 7, 2003, the High Court issued the 15 directives while disposing of a writ petition seeking repeal of Section 54 and 167 of the code.

The High Court delivered the verdict in a writ petition filed in 1998 after a series of custodial deaths, particularly the custodial deaths of Independent University student Shamim Reza Rubel, 18-year-old Chattogram girl Shima Chowhury, and Arun Chakraborti of Lalbagh, in the capital, which led to an unprecedented public outcry.

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