Ending arbitrary arrests and detentions

One of the most systematic and widespread practices of abuse of power by the former Awami League government involved the arbitrary arrest, detention and imprisonment of political opponents, even when there was no evidence that they were involved in the commission of the alleged crime. Those arrested might eventually have got bail, but it would often take many months before a court granted this.

Over the last 15 years of Awami League rule, thousands of political opponents were caught up in this repressive dragnet made possible by the actions of the police and the judiciary.

Though under the current Interim Government, the level of abuse is far less, cases continue to be reported (mostly in relation to the hundreds of killings that took place between 16 July and 5 August) of people being arrested and detained without any evidence or even reasonable suspicion of involvement in the alleged crime.

Of course, many of those currently facing arrests and detention may well have been involved in the crimes of violence that occurred, and arrests in those cases would certainly be justified. But there appears to be grounds of concern that a significant number of people are baselessly being implicated and if these kinds of arrests continue the process of ensuring justice for the victims of the July killings will be jeopardised.

This article looks at how defects in the law and its application contribute to this practice and what steps the government and the judiciary could consider now to help resolve the problem, and to refocus on pursuing arrests of those responsible for the killings.

Let’s first take the issue of the arrest by the police.

A key reason why the police arrest so many people without justification is that section 154 (in combination with section 4) of the Criminal Procedural Code 1898 provides legal basis for this to happen. The Code was drafted in British colonial times and these two provisions have remained unchanged for over 120 years.

Under section 154, any member of the public (or indeed a police officer) can go to any police station in Bangladesh and provide it with “information” of a “cognisable” crime along with names of people whom that person claims to be involved in committing that crime. “Cognisable” offences tend to be the more serious offences and are identifiable in a schedule to the CrPC. They include the offence of murder.

The police then must document the “information” received, in a First Information Report (FIR), known colloquially as a “police case”. A police officer’s duty is to write down what the informant says.

However, there is no requirement that informants should produce any evidence that the crime took place or that the people they have named were involved in that crime. There is equally no requirement on the part of the police to check the accuracy of the ‘information’ or ask for supporting evidence, at the time of recording the FIR.

Once an FIR is duly recorded by the police, and since the relevant offence is “cognisable”, section 4(1)(f) of the CrPC gives the police the power to arrest any person named in the FIR, without any further scrutiny. This means that the police can arrest anyone named in the FIR, whether or not there is evidence establishing a reasonable suspicion of their involvement in the crimes.

Section 154, as it stands is in effect an arrester’s charter. It provides no protection of any kind to those accused by someone of a cognisable offence, where the accusation is baseless. Although the police are not bound to arrest an FIR named person, they can and do exercise these powers.

This section is particularly open to abuse when dozens or hundreds of peoples’ names are listed on an FIR, in so called ‘wholesale FIRs’ as the police can arrest any one of those people at any time without undertaking any inquiry.

Credit should be given to the Interim Government for taking steps to mitigate the abuses resulting from unchecked application of Section 154.

On 10 September, the police headquarters sent out instructions asking police “not to arrest government officers and employees without valid evidence” and in the case of July-August 2024 killing, “if preliminary evidence of involvement in of any officer/person is not found after investigation, action should be taken to withdraw their names.”

This directive shows good intentions and an understanding of the problem. Nonetheless, it does not solve the problem in its entirety.

Firstly, even after the directive was sent out, there have been reports that police have continued to arrest people based on ‘wholesale FIRs’ in scenarios where it is not credible that they have any reasonable suspicion or any evidence of their involvement in the commission of the crimes concerned. And in practice, whatever directive comes from police headquarters, unless it is strictly complied with and monitored, once a person’s name is on an FIR, however unconnected they may be to the offence, they will fear arrest and their life and movement will be constrained.

The problem is with the law itself. It should be changed so that the police should only be able to arrest a person if they have “reasonable grounds to suspect” that person was involved in the crime and before doing so, should set those reasons out clearly in writing and have them signed by the Officer in Charge of the station.

So let’s take these people, against whom (we are assuming) the allegations are baseless. They are now in police detention and under section 167 of the CrPC, the police have the right to detain them for 24 hours.

One would hope and expect that during this 24-hour period the police would make relevant enquiries and identify whether there is any evidence to support this person’s arrest and further detention, and if there is none, then to release that person.

Indeed section 167 of the CrPC does provide the opportunity for the police to do just this as it states that the police should only proceed to seek further detention where “there are grounds for believing the accusation or information is well founded.”

This, however, rarely happens.

Interestingly, according to an Appellate Division guideline from 2017 (upheld on review in 2023): “The law enforcing officer shall allow the person arrested to consult a lawyer of his choice if he so desires.”

This provision is almost never implemented at the time of arrest. If it was followed, and the accused had better legal representation at the outset, it would be much more difficult for the police to simply seek further detention in bogus cases.

The government could therefore consider publishing a directive to all police officers to implement the Supreme Court guideline and allow anyone accused to have access to a lawyer during their period of detention.

Under section 167 of the CrPC, an arrested person must be brought to a magistrate’s court within 24 hours of their arrest where the magistrate can either: (a) send that person back into police custody (known as remand) which can be for as long as 15 days; (b) send that person to prison, or (c) allow them to be released on bail.

However, it is rare to see magistrates not complying with a police request seeking remand, even when there no evidence put forward by the police of a person’s involvement in a crime.

This is because of another provision of law, section 344 of the CrPC. This section allows a magistrate to accept a request for a person to be sent into police custody simply if there is “sufficient evidence … to raise a suspicion that the accused may have committed an offence” and it appears likely that further evidence may be obtained by a remand.

Though this does not appear to be a very high threshold of proof, the same Appellate Division guideline has said that magistrates should only agree to remand a person back into police custody if, after looking at the police forwarding letter and the case diary, they consider that the accusation or the information against the person “is well founded”.

This guideline, if strictly followed, should potentially be an important safeguard to stop the further detention of a person against whom there is no evidence. However, it appears to be rarely applied in practice.

To stop “automatic” remand orders, this legal provision should be amended so that the magistrate would only order remand of a person into police custody when the police can satisfy the magistrate that there are “reasonable grounds to believe that person was involved in the crime” or similar language, and they should be required to set out their reasons in writing for doing so.

And in the meantime, the Chief Justice, along with the Supreme Court “Monitoring Committee  for Subordinate Courts” could consider using their powers under Chapter 1A of the Supreme Court guidelines to provide directions to magistrates to comply with the current Appellate Division guidance.

When an accused person has finished their time in police remand, they are brought back to court and an application for bail can be made on their behalf. Yet, even when the police have provided no or very limited substantive evidence that the person has committed a crime it remains common for magistrates to refuse bail at this point.

This is not so much about inadequacy of the law, but a failure to apply it.

Section 497(1) of the CrPC states that the only reason why bail should not be given to a person is if “there appear reasonable grounds for believing that he has been guilty of an offence punishable with death.”

The test - “reasonable grounds for believing that s/he has been guilty of an offence” - is a relatively high threshold, and you would therefore expect that the magistrate would require substantial evidence of a person’s involvement in a crime to justify sending that person into prison. Case law suggests that the magistrate can take into account the likelihood, if the accused is given bail, of them absconding or tampering with the evidence.

However, according to many lawyers, bail orders are routinely denied by the magistrate courts, often without any reference to the evidence test, and in many cases they simply assume that the accused will abscond or tamper with the evidence, without any clear rationale.

Again, the Chief Justice could consider providing directions to magistrates to apply section 497(1) in a fair and independent manner so that bail is given when it is appropriate, and he could set up a monitoring process in this regard.

Another measure that could help is to ensure that there is scope for anyone facing arrest in relation to vexatious cases, to seek “anticipatory” bail.

At present, the High Court has indicated that it would only consider giving anticipatory bail to lawyers in relation to cases concerning the July killings – and so far the court has only given it to lawyers. Since there are so many reports of people, most who are not lawyers, being listed on these ’wholesale’  FIRs, perhaps the courts, or the Chief Justice, could make clear that anticipatory bail is available to people from different walks of life. Any other approach could seem discriminatory.

Of course, it will take much more than reform of the procedures and guidelines outlined above to make the systemic changes in Bangladesh required to stop the harassment of the innocent, whilst ensuring the arrest, prosecution and punishment of the guilty. Removing political influence over the police and ensuring that magistrates can act independently without executive control are obviously key here. But until these more significant changes occur, the government should look at the legal changes required to a 120-year-old law and implement and enforce the Supreme Court guidelines and the Supreme Court itself could examine the scope for providing guidance both to magistrates and High Court judges in dealing with arrests and detentions.

* David Bergman is a journalist who has written on Bangladesh for many years. He can be followed on Twitter @TheDavidBergman.