May 23, 2013 | 12:35 AM (BD Time)
23 May, 2013 Thursday
Abusive exercise of police powers under Section 54
(From previous issue)
So, any information which may be obtained or extorted by taking an accused on remand and by applying physical torture or torture through any other means, the same information cannot be considered as evidence and cannot be used against him. Clause (4) of Article 35 is so clear that the information obtained from the accused carries no evidentiary value against the accused person and cannot be used against him at the time of trial. Under section 163 of the Code, a police officer is barred from offering any inducement or from making any threat or promise to any accused while recording his statement under section 161 of the Code. So, we do not understand how a police officer or a Magistrate allowing remand can act in violation of the Constitution and provisions of other laws including this Code and can legalise the practice of remand.
Through judicial pronouncements, it is also establishment that any statement made by any accused before a police officer in course of his interrogation cannot be used against any other accused.
In view of the provisions of section 27 of the Evidence Act, if any information is received from the accused while he is in custody of a police officer so much of such information, whether it amounts to confession or not as it relates distinctly to the fact discovered by such confession or information may be proved by the police against that person.
So, any statement of an accused made to a police officer relating to discovery of any fact or alamat may be used against him at the time of trial.
If the purpose of interrogation is so limited as we have found in the above, we do not understand why there will be any necessity of taking the accused in the custody of the police. Such interrogation may be made while the accused is in jail custody if interrogation is necessary.
Next, the use of force to extort information can never be justified. Use of force is totally prohibited by the constitution. In this Connection, we may refer to Clause (5) of Article 35 of the Constitution which provides that no person shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment. This clause is preceded by clause (4) where it is provided that no person accused of any offence shall be compelled to be a witness against himself. Due to the use of the word "compelled" in Clause (4), we may presume that the framers of the constitution were apprehensive of use of force upon an accused and as such in Clause (5) of Article 35 it has been clearly provided that no person shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment.
So, we find that even if the accused is taken in police custody for the purpose of interrogation for extortion of information from him, neither any law of the country nor the constitution gives any authority to the police to torture that person or to subject him to cruel, inhuman and degrading treatment. Thus, it is clear to us that the very system of taking an accused on remand for the purpose of interrogation and extortion of information by application of force on such person is totally against the sprit [sic] and explicit provisions of the Constitution. So, the practice is also inconsistent with the provisions of the Constitution.
Now, we like to discuss what safeguards may be suggested for ensuring the liberty of the citisen and enforcement of the fundamental rights as guaranteed under the Constitution. In Section 54 of the Code we have found from the language used, the police an exercise the power abusively.
There is nothing in this section which provides that the accused be furnished with the grounds for his arrest. It is the basic human right that whenever a person is arrested he must know the reasons for his arrest. As the Section 54 now stands, a police officer is not required to disclose the reasons for the arrest to the person whom he has arrested. Clause (1) of the Article 33 provides that the person who is arrested shall be informed of the grounds for such arrest. It is true that no time that limit has been mentioned in this Article but the expression as soon as may be is used.
This expression as soon as may be does not mean that furnishing of grounds may be delayed for an indefinite period. According to us, as soon as may be implies that the grounds shall be furnished after the person is brought to the police station after his arrest and entries are made in the diary about his arrest.
Unfortunately, this provision of the constitution is not followed by the police officers. It is strange that they are very much over jealous in exercising the powers given under Section 54 but they are reluctant to act in accordance with the provisions of the Constitution itself. Constitution is the Supreme law of the country and shall prevail over any other law. It is the duty of every one in the country to adhere to the provisions of the Constitution. It is unfortunate that instead of adhering to the provisions of the constitution, the police officers are interested in exercising the powers given to them under the Code without any hindrance.
The Constitution not only provides that the person arrested shall be informed of the grounds for his arrest, the Constitution also provides that the person arrested shall not be denied the right to consult and to defend himself by a legal practitioner of his choice. We are of the view that immediately after furnishing the grounds for arrest to the person, the police shall be bound to provide the facility to the person to consult his lawyer if he desires.
So, here, again we like to mention that the persons arrested by the police under Section 54 are not allowed to enjoy this constitutional right. Not only this right is denied, even the police refuses to inform the ne
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