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Abusive exercise of powers under Section 54 by police

In the supreme court of Bangladesh
High Court Division
(Special Original Jurisdiction)
Writ Petition No. 3806 of 1998
In the matter of:
An application under Article 102 of the Constitution
of the People's Republic of Bangladesh.
-And-
In the matter of:
Bangladesh Legal Aid and Services Trust (BLAST)
and others
................. Petitioner
-Vs-
Bangladesh and others
............... Respondents.
Dr. Kamal Hossain with
Mr. M. Amirul Islam.
Mr. Md. Idrisur Rahman
Mr. M. A. Mannan Khan
Mr. Tanzibul Alam
Mr. Abu Obaidur Rahman and
Mr. Kowsar Ahmed ............. For the Petitioner
Mr. A. F. Hassan Ariff, Attorney General with
Mr. Abdur Razaque Khan, Additional Attorney
General
Mr. Zaman Akhter, A.A.G and
Ms. Kumrunnesa…………….For the Respondents
Heard on 24th, 30th March & 2nd April, 2003
Judgement on 7th April 2003.
Present:
Mr. Justice Md. Hamidul Haque
And
Ms. Justice Salma Masud Chowdhury
Md. Hamidul Haque, J:
This Rule was issued calling upon the respondents to show cause as to why they shall not be directed to refrain from an abusive exercise of powers under Section 54 of the Code of Criminal Procedure or to seek unreasonable remand under Section 167 of the Code of Criminal Procedure and to strictly exercise powers of arrest and investigation within the limits established by the law and in view of the safeguards contained in Articles 27, 31, 32, 33 and 35 of the constitution.
This writ petition has been filed by the petitioners including Bangladesh Legal Aid and Services Trust (BLAST), Ain-O-Salish Kendra, Sammilita Samajik Andolon and some other individuals. The subject matter involves a burning question of the day which is now hotly debated by the intellectual quarters, lawyers and even the general public. It has been alleged in this writ petition that the police, by abusing the power given under Section 54 of the Code of Criminal Procedure, has been curtailing the liberty of the citizens and that by misuse and abuse of the power of taking an accused into police custody as given in Section 167, has been violating the fundamental rights guaranteed under different Articles of the Constitution. In this writ petition, several instances of such abusive exercise of power and violation of fundamental rights have been narrated.
We are conscious that the question raised in this Rule is a very important question touching liberty and fundamental rights of the citizens of the country. The above two provisions of the Code of Criminal Procedure are in force from the time of coming into force of the Code itself in the year 1898. The question of abusive exercise of power under these two sections were also debated in the past. This Code of Criminal Procedure is being followed in Pakistan, India and Bangladesh. In India Section 54 was amended and substituted and the present Section 41 of the Code of Criminal Procedure of India corresponds to Section 54 of the Code of Criminal Procedure now in force in this country. Even after amendment of the section in India, the debate on the question was not stopped. This question also came
up for consideration before the Law Commission of India and the Law Commission of Bangladesh and some serious deliberations were made by the Law Commission of both the countries. So, we think that it is a great responsibility to examine such an important question. We also think that full proof remedies may not be found but we shall try to find out some solutions.
The writ petitioners in prayer A(ii) prayed for issuing a direction upon the respondents to comply with the guidelines as set out in paragraph 21 of the petition. The guidelines as set out in that paragraph, are based on the guidelines as given by the Supreme Court of India in the Cases of D.K. Basu vs. State of West Bengal reported in (1997) 1 Supreme Court cases, page 416 and the guidelines which were suggested by an one man Inquiry Commission constituted with Mr. Justice Habibur Rahman Khan to inquire into the death of a student named Rubel who was arrested by police under Section 54 and who died in the police custody due to the alleged torture by the police.
Dr. Kamal Hossain along with Mr. Md. Idrisur Rahman and Mr. Tanzibul Alam addressed the Court on behalf of the petitioners and Mr. M.  Amirul Islam was also allowed to address the Court on the question raised in this writ petition because of the special importance of the question. However,  at the time of hearing, Dr. Kamal Hossain has conceded that the suggestions and recommendations as mentioned in paragraph 21 are not exhaustive and he has submitted that there is scope of making some other clear and specific recommendations to safeguard the life and liberty of the citizen and to put some restrictions over the power given to the police and Magistrate under the above two sections. Dr. Kamal Hossain thereafter has taken us through the writ petition and has submitted that the police officers, in abusive exercise of the power are acting against the specific provisions of the Constitution under which the liberty and fundamental rights of the citizens are guaranteed. He also pointed out that due to the abuse of the power given to the Magistrate under Section 167 of the Code for allowing a person to be taken into police custody, hundreds of incidents of custodial death and cases of torture and inhuman treatment took place during last several years. He has further submitted that there must be some safeguards in the law itself so that neither the police can abuse the power given to it by the law nor the Magistrate can exercise such power without applying judicial mind. So, he has made a prayer to this court to suggest proper measures and safeguards so that the powers as given under Sections 5