Bangladesh
perspective
Police-custody,
custodial interrogation and right to silence
M.Moazzam
Husain
The
phrase " police custody" does not send an unmixed feel-good
message anywhere in the world. It has its pain and pleasure accompaniments.
But one thing is found more or less ensured in the advanced societies
that some kind of balance is struck between the action of police and
purpose of law. And the key players in the field i.e., the police, prosecution,
Bar and the Bench act in a way that excesses in action of particular
policemen cannot go unaccounted for and thus social balance is virtually
maintained. Police with their nature of job cannot possibly avoid the
blemish of excesses altogether. But in advanced countries they have
to pay heavily on accountability count. In the USA, in particular, we
find occasional outcry against police excesses. And police are found
to face liability lawsuits and in many cases have to pay huge amount
of damages for brutality, using deadly force, assault, illegal arrest,
harassment, restraint and so on. In 1981 more than $325 million claims
were filed against US police officers in one state alone. This gives
an idea of the frequency and size of claims annually sought in liability
lawsuits against law enforcement officers and agencies in the whole
country.
In
our country police-custody ordinarily means something menacing and ominously
obscure. The family inmates of a young boy picked up by police can no
longer foresee what was going to happen to the fate of the arrestee.
How much harassment and humiliation were lotted to him and how much
damage might be done on his person. The causes of such mistrust suffered
by our law enforcement agencies are so rooted into our socio- economic
and political realities that as a dependant variable policing cannot
be effectively brought back on track unless the police forces are built
up in keeping with the changing needs of the time and more importantly,
appropriate atmosphere is created so that they can police a modern state
to their full potentials.
I must not say
that the popular concern is not being shared by the successive Governments,
superior courts, the law makers, and all others immediately concerned
including the police department itself. Various steps are being taken
for promotion of the professional performance of the police.
Supreme
Court on police abuses
In this area of concern our Supreme Court has come down heavily to safeguard
the life and liberty of citizens and has taken an activist approach
towards bringing the police back to compliance of law. With that end
in view Supreme Court has also provided a number of directives to be
followed by police in matters of arrest and detention of suspects and
humanising their treatment with the persons in their custody.
In
BLAST v.Bangladesh (55 DLR 363) a Division Bench of the High
Court Division has, besides making recommendations for amendment of
existing law, issued fifteen directions to be henceforward followed
by the police amongst them disclosure of identity of the arresting officer
at the time of arrest, recording reasons for arrest, communicating the
news of the arrest, if not arrested from home, to persons immediately
related to him; getting the arrestee examined by a Govt. Doctor if injury
is found on his person; allowing him the right to presence of a lawyer
during interrogation, if any; and making interrogation, if necessary,
in a place within the view of any relative or lawyer of the arrestee
are the most crucial.
In
a subsequent case (Saifuzzman v. State 56 DLR 324) another
Division Bench of our High Court Division has taken serious notice of
the flagrant violation of the fundamental rights of our citizens in
the hands of the police and failure of the Magistrates in acting in
accordance with law.
While delivering
the judgement of the court SK Sinha J, observed- "There are complaints
about violation of human rights because of indiscriminate arrest of
innocent persons by law enforcing agencies in exercise of power under
section 54 of the Code and put them in preventive detention on their
prayer by the authority and sometimes they are remanded to custody of
the police under order of the Magistrate under section 167 of the Code
and they are subjected to third degree methods with a view to extracting
confession. This is what is termed by the Supreme Court of India as
'state terrorism' which is no answer to combat terrorism".
His Lordship issued
eleven guidelines in more precise terms in the judgement to be followed
by the police and the magistrates in matters of arrest, detention and
remand of suspects and hoped that the requirements would curb the abusive
power of the police and harassment of citizens in their custody.
Custodial
accountability of police
Accountability, if ensured, serves to act as a major deterrent to the
propensity of violation of law. Since police custody is the foremost
precondition to accountability custody needs be proved to hold police
liable for excesses.
Police custody is nowhere defined in the Code of Criminal Procedure,
shortly, "the Code". Nor the other oft-quoted phraseologies,
namely 'judicial custody', 'safe custody' and 'jail custody' are found
to be defined anywhere.
The meaning of the word 'custody' is given in Black's Law Dictionary:
"The care and control of thing or person...Also detainer of a man's
person by virtue of lawful process or authority..." In absence
of any precise statutory definition or description the phraseologies
virtually remained vague and often used interchangeably.
In the Code custody
of an accused or a witness means custody of the court in its ultimate
sense. The transitional custody of a person may be with the police.
But the ultimate authority to decide the fate of the suspect rests with
the court. In any view, custody of police stands out as crucial in determining
their liability.
Law does not contemplate
every restraint imposed by police as police custody. Police custody
is primarily relatable to formal domain of police upon the corpus of
anyone effected by arrest, remanded by court or by surrender voluntary
or involuntary.
For the purpose of custodial accountability of the police 'depriving
any person of his right to movement and action in a significant way'
is also construed as police custody. "The ultimate determinant
of whether or not a person is in custody", as said by the Supreme
Court of America in California V. Bakeler (33CrL4108), "is
whether the suspect has been subjected to formal arrest or to equivalent
restraint on his freedom of movement".
The test of police
custody is whether or not any person is deprived of his right to movement
significantly either by arrest, remand by court or otherwise.
In that view of
the matter, questioning in police car or at the police station, not
allowing to leave the presence of police or asking the driver to get
out of the car taking him into the nearby police box for interrogation
may be considered as police custody.
A
superior court in America said: " policeman's unarticulated plan
has no bearing on the question whether a suspect was in custody at a
particular time; the only relevant inquiry is how a reasonable man in
the suspect's position would have understood his position"(Berkemer
v. McCarty, 35 CrL 3192 , 1984).
Question may arise
whether a person arrested by police and subsequently found dead in the
hospital can be called a custodial death? There is no reason not to
call it a custodial death for which the police must be called to account
if not otherwise proved.
Since it is a question
of fact "police custody", if not admitted, remains to be proved
for an action against police. But I have doubt if every single death
caused in police-custody constitutes a custodial death or every person
once taken in custody may be said to be in police custody. Police custody,
as I understand it, has to do with effective control of the police over
the arrestee or over person whose right to movement is significantly
curtailed.
An arrestee, for
example, may suddenly turn violent, snatch away arms from a policeman
and try to escape on gunpoint. This is a moment police loses custody
of the arrestee. Any situation that substantially shakes or loosens
dominion of the police upon the arrestee is bound to make the custody
controversial but that turns out as a subject to be strictly proved
by the police so as to avoid their responsibility.
Custodial
interrogation
Interrogation is a device through which police endeavour to pump the
suspect for disclosure of facts having bearing on the accusations. If
it is effected in custody of the interrogating agency it is called custodial
interrogation. In a landmark decision (Miranda V. Arizona 348
US 436) the American Supreme Court held - "By custodial interrogation
we mean questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of
action in any significant way".
A roadside questioning
of a motorist detained pursuant to routine traffic stop was not construed
to be custodial interrogation by the American Supreme Court.
This means that
the detention must be to the deprivation of the right to movement of
the suspect in a significant way. It is also held in the Miranda Case
that the suspect must be given four warnings before he is put to interrogation,
namely, a) You have a right to remain silent b) Anything you say can
be used against you in a court of law c) You have a right to the presence
of an attorney and d) If you cannot afford an attorney, one will be
appointed for you prior to questioning.
Unless the warning
are given evidence collected through interrogation is not admitted in
court. In other advanced democratic countries similar rules are followed
so as to ensure rights of citizens and every other individual taken
into custody.
Right
to silence
Right to silence of a person accused of offence emanated from the common
law jurisprudence that 'every accused shall be presumed to be innocent
unless found guilty by a competent court'. Article 35(4) of our Constitution
says- " No person accused of any offence shall be compelled to
be a witness against himself".
Section 26 of the
Evidence Act says-" No confession made by any person whilst he
is in the custody of police-officer unless it be made in the immediate
presence of a Magistrate shall be proved as against such person".
Sections 342 and 343 of the Code of Criminal Procedure (the Code) protect
the accused against making false statement or against refusal to answer,
forbid administering oath upon him and prohibit influence of any kind
to be exerted for disclosure of facts save as provided in sections 337
and 338 of the Code (tendering pardon to accomplice on condition of
his masking disclosure of facts etc.).
Section 163 of the
Code prohibits police officer or other person in authority from offering
or making any inducement, threat or promise for making disclosure of
facts having reference to the charge against him. For the witness the
exception is he is bound to speak the truth on oath even if the statement
tends to incriminate him.
But
the protection provided in law (S. 132 Evidence Act) is that he shall
not be liable to arrest or prosecution for such answer or the same shall
not be proved against him in any criminal proceeding, except in a proceeding
for lying on oath.
A
bare reading of the laws set forth above suggests that any person accused
of an offence is protected against making any disclosure of facts having
bearing on the accusation and against cruel or degrading treatment thereby
provided with right to silence.
Concluding
remarks
The loopholes of the existing laws were not as much responsible for
custodial violence as the declining trend of values everywhere in our
lives. Law must be changed with the changing needs of time. And the
Supreme Court in its anxiety has supplied the necessary legal back up
to fill in the lacuna.
Now our law providing
safeguards against police excesses and violation of fundamental human
rights stands at par with the international standard. With the impressive
body of law seeking to put the law enforcing agencies on checks and
balances we must hope that some positive changes will be noticed in
the arena of custodial violence.
Unfortunately law
cannot go of its own. It finds expressions through diverse agencies
and institutions backed by political will. Unless we mean to enforce
law, I am afraid, only law cannot fulfil our dream.
The
author is an Advocate, Supreme Court.
