May 19, 2013 | 06:23 AM (BD Time)
19 May, 2013 Sunday
Abusive exercise of powers under Section 54 by police
(From previous issue)
The learned Attorney General Mr. A.F. Hasan Ariff and Additional Attorney General Mr. Abdur Razaque Khan appeared on behalf of the respondents. With reference to the recommendations in paragraph 21 of the writ petition, they have submitted that it will not be possible to implement some of the suggestions because of some practical difficulties. In this connection they referred to the difficulties mentioned in the affidavit-inopposition.
However, both of them are of the opinion that some restrictions may be there to check the abuse of the power given under the two sections.
We have considered the submissions of the learned Advocates, perused the writ petition including the Annexures. Let us first consider whether the power given to the police to arrest a person without warrant is exercised abusively and whether there is scope of exercising the power in such manner under the provisions of the section itself. For proper appreciation, section 54 of the Code is reproduced below.
54- (1) Any Police-Officer may, without an order from a Magistrate and without a warrant arrest-first, 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;
secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house breaking; thirdly, any person who has been proclaimed as an offender either under this Code or by order of the Government;
fourthly, 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;
fifthly, 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;
sixthly, any person reasonably suspected or being a deserter from the armed forces of Bangladesh;
seventhly, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists 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:
eighthly, any released convict committing a breach of any rulemade under Section 565, sub-section (3);
ninthly, 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 it appears there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
From the above section, we find that under eight conditions a person may be arrested by a police-officer without warrant but from the first condition we find that this condition actually includes four conditions under which a police officer may arrest without warrant and these four conditions are couched in such words that there is scope of abusive and colorable exercise of power. Following are the four conditions which are included in the first condition. The police officer may arrest -
(a) any person who has been concerned in any cognizable offence;
(b) against whom a reasonable complaint has been made;
(c) a credible information has been received; and
(d) against whom a reasonable suspicion exists of his having been so
concerned in any cognizable offence.
We may say that the word 'concerned' used in first condition is a vague word which gives unhindered power to a police officer to arrest any person stating that the person arrested by him is concerned in a cognizable offence.
So, to safeguard the life and liberty of the citizen and to limit the power of the police, in our view, the word concerned is to be substituted by any other appropriate word or words. It is true that the other words sued in the first condition such as reasonable credible have been interpreted in many cases both by the Indian Courts and our Courts. But in spite of specific interpretation given to these words, the abusive exercise of power by the police officers could not be cheeked. So, we are of the view that only interpretation of words is not sufficient. The provision itself shall be amended in such a manner that the safeguard will be found in the provision itself. Similar words like reasonable, credible etc. have been used in other seven conditions.
So, we are of the view that there should be some restrictions so that the police officers will be bound to exercise the power within some limits and the police officers will not be able to justify the arrest without warrant by saying "I thought that the person was concerned in any cognizable offence". Thinking is different from guess work. A thinking must have some reasons behind it but guess work is not backed by any reasons. A police officer can exercise the power if he has definite knowledge of the existence of some facts and such knowledge shall be the basis of arrest without warrant. There can be knowledge of a thing only if the thing exists.
If a person is arrested on the basis of credible information, nature of the information, source of information must be disclosed by the police officer and also the reason why he believed the information. 'Credible' means believable. Belief does not mean make belief. An ordinary layman may believe any information without any scrutiny but a police office
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