Bangladesh University of

Professionals

Department of Law
Term Paper
On
Arrest without Warrant in Bangladesh: Legal Protection

Submitted to
Respectable,
Md Abu Bakar Siddique
Lecturer
Department of Law

Submitted by
Md Abu Bakar
Roll no. 18421002
Batch:03

Submission date: 17.04.2018

Table of content:

1. Abstract

2. Introduction

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3. Arrest under the constitution and the code of criminal procedure

4. Article-33: safeguards as to arrest and detention

5. ‘Arrest’ under the code of criminal procedure 1898

6. Purposes and legal characteristics of arrest

7. Procedure of an arrest

8. General power of arrest by police under section 54

9. Special power of arrest

10. Abuse of police power of arrest under section 54 of the code of criminal procedure 1898

11. Rights of an arrested person

12. Definition and nature of preventive detention

13.  Necessity of preventive detention

14. Bad sides of preventive detention

15.  Preventive detention in Bangladesh and constitutional safeguards

16.  Preventive detention under the special powers act 1974

18. Writ of habeas corpus

19. Suo motu rule

20. Case reference

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ABSTRACT:

Every person has some rights to enjoy in his life. He has the right to move freely and to do
anything that is legal according to his community or country. Though following all the rules and
regulations if he gets arrested, and if that can happen without even giving any information to
him before then the rights that he gets according to his constitution those violates and for that he
has to seek help to get the proper rights that he deserves. If such crime occurs against him, then
he will get the facilities that the Constitution has provided.

INTRODUCTION:

Liberty is a comprehensive term. Its nature and quality are determined with reference to
constitution under which it may be restricted in the interest of society or the state. Though the
right to life and personal liberty its nature solely depend upon the constitution and laws country
concerned.

 According to Dicey defined the word the right of personal liberty means in substance a person’s
right not to be subjected to imprisonment, arrest or other physical coercion in any manner that
does not admit of legal justification.

ARREST UNDER THE CONSTITUTION AND THE CODE OF CRIMINAL

Normative Provisions of Arrest under Article 32 and 33 of the Constitution of Bangladesh

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Freedom from arbitrary arrest is usually grounded in constitutional provisions. Article 32 of
the Constitution of the People’s Republic of Bangladesh encapsulates this freedom in the
following words:

Article 32: Protection of Right to life and personal liberty: No person shall be deprived of life or
personal liberty saves in accordance with law.

The main ground of art 32 is that the word used here as an exceptional language in accordance
with law is corresponding provision in article 21 of the Indian Constitution. And it is very much
similar to the American Doctrine of Procedural due process that is to say, a law under which a
person may be deprived of life or liberty must to be enforceable provide that he is given notice of
the offence with which he is charged and that he is given the opportunity to show cause against
deprivation.

 ARTICLE-33: SAFEGUARDS AS TO ARREST AND DETENTION

 No person who is arrested shall be detained in custody without being informed, as soon
as may not be of the grounds for such arrest, nor shall he be denied the right to consult
and be defended by a legal practitioner of his choice.

 Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty four hours of such arrest, excluding the time
necessary for the journey from the place of arrest to the court of the magistrate and no
such person shall be detained in custody beyond the said period without the authority of a
magistrate.

 Nothing in clauses (1) and (2) shall apply to any  person

o Who is arrested or detained under any law providing for preventive detention.

 ‘ARREST’ UNDER THE CODE OF CRIMINAL PROCEDURE 1898:

         The Code of Criminal Procedure 1898 in some several provisions regulate the manner of
effecting arrests, whether by a police officer or any private person. The right of a private person

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to make an arrest may be contrasted to the power of a police officer to arrest without warrant.
Section 54 of the code, it is provided  that  a  police officer  may without warrant  arrest  any
person against  whom a reasonable  suspicion exists of his having  been concerned in a
cognizable offence.

            When a person is arrested under a warrant, the warrant has to be issued by a court or a
magistrate. It must show the offence with which the accused is charged. On arrest the accused
must be brought before that court without unnecessary delay and if after production before the
magistrate he is to be detained in custody, then the same procedure as in cases of arrests without
warrant has to be followed.

 PURPOSES AND LEGAL CHARACTERISTICS OF ARREST:

A seizure or forcible restraint an exercise of the power to deprive a person of his or her liberty.
The taking or keeping of a person in custody by a legal authority especially in response to a
criminal charge.

An arrest is contained to that time when the police officer may occur or performed these
activities:

(1) by the touching or putting hands on the arrestee

(2) by any act that indicates an intention to take the arrestee into custody and that subjects the
arrestee to the actual control and will of the person making the arrest or

(3) by the consent of the person to be arrested. There is no arrest where there is no restraint and
the restraint must be under real or pretended legal authority.

PROCEDURE OF AN ARREST:

Section 46 to 53 provides procedure of arrest. The whole procedure may be described in the
following steps.

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 i)  In making an arrest the police officer or an individual can actually touch or confine the
body of the person to be arrested.

ii) If such person resists the arrest or attempts to evade the arrest, such police officer or
individual may use all means necessary to affect the arrest.

iii) By way of affecting the arrest the police officer or an individual cannot cause death of
the person to be arrested.

 GENERAL POWER OF ARREST BY POLICE UNDER SECTION 54:

Section 54 of the Code of Criminal Procedure lays down the general power of arrest by police
officer. This power is general in the sense that a police officer may arrest a person without
warrant or any kind of order from superior authority or court or magistrate. This section
enumerates nine circumstances in which a police officer may arrest a person without a warrant.
(i)       Any person who has been concerned in any cognizable offence or against whom a
reasonable complaint has been made or credible information has been received or a reasonable
suspicion exists of his having been so concerned.

(ii)      Any person having in his possession without lawful excuse any implement of house
breaking.

(iii)     Any person who has been proclaimed as an offender either under this code or by order of
the government.

(iv)   Any person in whose possession anything is found which may reasonably be suspected to
be stolen property and who may reasonably be suspected of having committed an offence with
reference to such thing.

(v)      Any person who obstructs a police officer while in the execution of his duty or who has
escaped or attempts to escape, from lawful custody.

(vi)    Any person reasonably suspected of being of deserter from the armed forces of
Bangladesh.

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(vii)  Any person who has been concerned in or against whom a reasonable complaint has been
made or credible information has been received on a reasonable suspicion exist of his  having
been concerned in any act committed at any place out of Bangladesh which if committed in
Bangladesh, would have been punishable as an offence, and for  which he is under any law
relating to extradition  or under the Fugitive Offenders Act 1881, or otherwise  liable to be
apprehended or detained in custody in Bangladesh.

(viii)Any released convict committing a breach of any rule made under section 565, sub-section
(3).

(ix)    Any person for whose arrest a requisition has been received from another police officer,
provided that the requisition specified the person to be arrested and the offence or other cause for
which the arrest is to be made and if appears there from that the person might lawfully be
arrested without  a warrant by the officer who issued the requisition.

Above discussing nine circumstances into the first set of these circumstances indicates that the
last two condition like-

SPECIAL POWER OF ARREST:

 According to section 54 of the Code of Criminal Procedure 1898, deals with general powers of
arrest and section 55, 56, 64 and 65 deal with special powers of arrest. The special power under
these sections cannot override the general powers of arrest in cases provided for in section 54.
Thus a police officer while under a special power of arrest may use his general power of arrest
under section 54 and this is no affected by the empowerment of his special power of arrest.

 ABUSE OF POLICE POWER OF ARREST UNDER SECTION 54 OF THE CODE OF

Of the existing laws, section 54 of the Criminal Procedure Code continues to remain one of the
most abused provisions of the legal system. Both the methods of policing in this country and the
police power have been questioned over times.  The work of the police is often characterized by
brutality. Abuse of power by the police under section 54 of the Code of Criminal Procedure and

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the Special Powers Act 1974 have been identified by different human rights watchdog agencies
as the main sources of human rights violation in the country.

This is because the provisions of both the laws allow the arrest of any person by the law
enforcers without recourse to court order.  Legal loopholes provide the police with the excuse for
arresting someone with impunity. The arrest is not everything.  The method of extracting
information from the arrested persons by the police is barbarous and this is the reason behind so
many custodial deaths. Of these directions relates to the police power of arrest under section 54
of the Code of Criminal Procedure which is as follows:

1. No police officer shall arrest a person under section 54 of the Code for the purpose of
detaining him under section 3 of the Special Powers Act, 1974.
2. A police officer shall disclosed 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. Immediately after bringing the person arrested to the police station, the police officer
shall record the reasons for the arrest including the knowledge which he has about the
involvement of the person in a cognizable offence, particulars of the offence,
circumstances under which arrest was made the source of information  and the  reasons
for believing the information, description  of the places not  the date and time of arrest,
name and address of the persons, if any present at the time of arrest  in a diary kept in the
police station for that purpose.
4. If at the time of arrest, the police officer finds any marks of injury on the person arrested,
he shall record the reasons for such injury and shall take the person to be nearest hospital
or government doctor for treatment and shall obtain a certification from the attending
doctor about the injuries.
5. He shall furnish the reasons for arrest to the person arrested within three hours of
bringing him to the police station.

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RIGHTS OF AN ARRESTED PERSON:

According to Article 33 of the Constitution on of Bangladesh confers four fundamental or

These rights are:

i) He cannot be detained in custody without being informed as soon as may be, of the
grounds of his arrest.

ii) He must be given the right to consult and to be represented by a lawyer of his own
choice.

iii) He has the right to be produced be the nearest magistrate within 24 hours of his arrest
and

iv) He can be detained in custody beyond the period of 24 hours without the authority of
the magistrate.

The rights ensured for the arrest any arrested person can be divided into two classes. These are:

(i)   Right to communication on ground of arrest and production before magistrate

The reasons why a person being arrested should be told the grounds of his arrest have been
clearly stated by lard Simonds in this case, Christie v. Leahisky, observed that:

The main reason of arrest is declared by the article 33(1) requires that a person must, on his
arrest, be told why he is arrested. A warrant of a court and an order of any authority must show

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on their face the reason for arrest where there is no such warrant order; the person making the
arrest must inform the reason for his arrest.

 (ii) Right to consult and be defended by lawyer

The person arrested has a right to consult a lawyer of his choice from the moment he is arrested
and this right necessarily includes the right to effective interview with the lawyer out of the
hearing of the police though the police may be within sight and this right exists whether the
person is arrested under a general on a special law. He has also the right to be defended by a
lawyer of his choice and this right is not lost when he is released on bail.

DEFINITION AND NATURE OF PREVENTIVE DETENTION

People are taken under detention whey the commit any crime or they are taken under a trial for
their criminal activates. That means detention is the result of committing any crime by an
individual of a nation. But preventive detention means dissimilar to it. In general law, no people
can be arrested without knowing him the reason of arresting and there is a specific time of 24
hours to take him in front of a Magistrate.

 NECESSITY OF PREVENTIVE DETENTION:

The necessity for preventive detention is arises in the sense that such detention of a person is
required by the fact that the evidence in possession of the authority will not be adequate to make
a charge or to require the conviction of a detent by legal proof.

BAD SIDES OF PREVENTIVE DETENTION:

            Firstly, in Bangladesh without trial six months detention can conferred to the detainee.
This is a bad process because now here in the world such alone period is not found anywhere. In
India, this time is three months and in Pakistan the initial period of detention is three months.

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            Secondly, in democratic countries preventive detention is a method resorted to in
emergencies like war. The western developed countries like USA and UK it is specifically
mentioned that only in time of emergency, Preventive detention is applied for and also for
specific purposes, but there is no specification in our constitution and can be restored to in times
of both peach and emergency.

            Thirdly, We have not a fixed maximum period of detention not in our constitution or in
the Special Powers Act 1974. This is also a negative aspect of preventive detention. In Pakistan
the period of preventive detention is eight months in a year and in India maximum two years.

            Fourthly, in Bangladesh a large number of political workers and Leaders are detained
without trial through the preventive detention under the Special Powers Act 1974 and known as a
“Black Law”. But this picture of detention without trial is not found in western countries where
this preventive detention also exists.

 PREVENTIVE DETENTION IN BANGLADESH AND CONSTITUTIONAL

Bangladesh Constitution makers have decided that in the Bangladesh Constitution there will be
no provision as to detention without trial or any provision in relation with emergence period. The
than Awami League Government himself was deadly against to give place such types of
undemocratic provision in the Constitution. But after publishing the Constitution provisions
about emergence period and detention without trial have been included in the Constitution
through the Second Amendment. By amending Article 33 of the Constitution, Special Powers
Act was passed in February 1974 with the preventive detention powers law. In 1971 Special
Powers Act has been made by following ‘Maintenance of Internal Security Act (MISA), in India
as well as the East Pakistan Public Safety Ordinance in 1952. But the Special Powers Act has
been made tougher than the above two act.

            Now see, what are the safeguards have been provided to the detainee in the preventive
detention law. According to the Article 33 of the Constitution any person arrested or detained
under the common law will have four Constitutional safeguards. This four constitutional rights or
safeguards are:

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1). He cannot be detained in custody without being informed, as soon as may be, of the grounds
of his arrest.

2). He shall have the right to consult and to be represented by a lawyer of his own choice.

3). He has the right to be produced before the nearest magistrate within 24 hours of his arrest;
and

4). He cannot be detained in custody beyond the period of 24 hours without the authority of the
magistrate.

           The second part of Article 33 further provides for three Constitutional safeguards for a
detention under preventive detention law. These safeguards are following:

1. Review by an Advisory Board.

  PREVENTIVE DETENTION UNDER THE SPECIAL POWERS ACT 1974

The basic content of the Act lies in section 3, which enables the government to detain any person
in custody under the disguise of preventive detention. The parliament on February 9, 1974
enacted the black law, Special powers Act, 197’ containing the provisions of preventive
detention. Though this Act is not unique of its kind in the realm, specifically provided for
provisions of preventive detention. Section 3 of this Act is as follows:

Section-3: Power to make orders detaining or removing certain person

(1). The Government may, if Satisfied with respect to any person that with a view to preventing
him from, doing any prejudicial act it is necessary so to do, make an order-

(a)    Directing that such person be detained;

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(b)    Directing him to remove himself from Bangladesh in such manner, before such time and by
such route as may be specified in the order.

JUDICIAL REMEDIES AGAINST PREVENTIVE DETENTION AND

Though the Government generally used this preventive detention against the opposition but there
are so many steps to get justice against preventive detention in Bangladesh. They are-

WRIT OF HABEAS CORPUS:

If any person illegally detained then any person in favor of him can file a writ of Habeas Corpus
under article 102(b) (1) of our constitution. The detent himself, or his father, or his wife, or his
son, or his sister, or his relative, or even his friends can apply for this.

Most of the cases the court found the weak grounds, vague & not any specific grounds. As a
result the high court can relax the detent for following grounds-

 Detaining by Governments unlawful authority.

 Failure to state the grounds within time.

 Failure to give chance to be defend himself.

 Lack of nexus with the reason of detention.

 Not to produce the detenu before advisory board within specific     time.

 Mixing good grounds with bad grounds.

 Retrospective issuance of orders. and

 Failure to submit essential documents before court or not in proper time.

SUO MOTU RULE:

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The Suo Motu rule is now not very new to us. It is exercised by High Court Divison’s judges if
any illegal or inhuman matters happen and it comes to knowledge of the court through
newspaper or report publishing.

CASE REFERENCE:

[*]               A. V. Dicey, An Introduction to the Study of the Law of the Constitution, 10th ed.
(Dhaka:                Universal Law Publishing Co. Pvt. Ltd, 2003), p. 208.

[*]               Shahdeen Malik, “Arrest and Remand: Judicial Interpretation and Police
Practice” Special Issue   Bangladesh Journal of Law, (Dhaka: Bangladesh Institution of Law and
International Affairs,          November 2007), pp. 262-3.

[*]               Md. Altaf Hossain, Constitutional Law with Commentary and Case Law, 1st ed.
(Dhaka: Jolly Law               Book Center, 2008), p. 13.

[*]               Justice Latifur Rahman, The Constitution of the People’s Republic of Bangladesh
with Comments                  & Case-law, 2nd ed. (Dhaka: Mullick Brothers, 2008), p. 8.

[*]               Md. Abdul Halim, Text Book on Criminal Procedure Code 1898, 2nded. (Dhaka:
CCB     Foundation, 2008), p. 49.

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