Human Rights Advocacy
The plight of family members of the outlaws..
Md. Zahidul Islam
If you see into the newspapers recent days you will certainly find out some pieces of news stating police have arrested some family members of some outlaws or extremists. In fact, it has become a regular phenomenon after the increase of outrageous activities of different terrorist groups. The bloody actions of these groups have pushed the nation to a state of unprecedented panic and anxiety. Consequently, the whole nation, except a few fanatic diehards, now want these extremists to be given exemplary punishment. The authority also seems desperate than ever before to nab those terrorists and everyday they are arresting some accused and suspicious members of those groups. But with a great concern it is being noticed that some innocent family members of those extremists are also being arrested and harassed. Hence, the write-up highlights the issue, observes the laws relating to police power to arrest the family members of an accused, its abuses, if any, and prevention.
'Arrest' simply means the taking or detaining of a person in custody by authority of law. The purpose of arrest, in criminal proceedings, is to hold the person for answering to a criminal charge or to prevent him from committing an offence. By arrest the arrestee is deprived of his personal liberty, which is probably the most valuable human right after the right to life. This is why arrest should be made with proper caution, taking into consideration all prevailing circumstances and obviously in accordance with law.
What usually happens in most of the cases is that after arresting the family members of the accused police show that the same has been made under section 54 of CrPC. The section vests the police with vast power to arrest any person without order of Magistrate or without any warrant, if there is a reasonable suspicion about his involvement in a crime. As the expression 'reasonable suspicion' is not defined in the Code, police could arrest anyone on this suspicion, implicating him in a crime, and thus could harass innocent people. But after the historic judgement in Bangladesh Legal Aid & Services Trust and others Vs Bangladesh 55 DLR 363 the way of abusing the terms 'reasonable suspicion' has been blocked forever. The judgement clearly lays down that if a person is arrested, '… the police officer shall record the reasons for the arrest including the knowledge which he has about the involvement of the person in a cognisable offence, particulars of the offence, circumstances under which arrest was made, the source of information and the reasons for believing the information…'
This judgement not only closes the ways for vague and ungrounded 'suspicion' but also puts guidelines to deal with such reasonably suspected and arrested person. Accordingly, now not only that the arrested person has to be produced before magistrate within 24 hours but also that: (a) the arrested person has to be informed of the reasons for his arrest; (b) the police will have to inform a friend or relative of the person arrested, unless he is arrested from his home or workplace; and (c) the arrested person must be allowed to consult a lawyer, if he so chooses.
But, regrettably, it has become commonplace that police go to accused person's residence to apprehend him, they find him absent and become very angry, then without any reasonable ground they begin suspecting the family members that they know the whereabouts of the accused, and following this baseless suspicion they pressurise all the family members to 
provide information about it; in this way when they fail to extract any information from them, they arrest them claiming that it has been made under section 54 of the CrPC. Such type of arrest is in any sense absolutely illegal.
Another widespread abuse of section 54 was that police arrested a person on suspicion and then detained him under the Special Powers Act, 1974. The abovementioned judgement clearly addresses the issue as ' A person is detained under preventive detention law not for his involvement in any offence but for the purpose of preventing him from doing any prejudicial act. So there is no doubt in our mind that a police officer cannot arrest a person under section 54 of the Code with a view to detain him under section 3 of the Special Powers Act, 1974. Such arrest is neither lawful nor permissible under section 54.' So if any person is to be detained under the Special Powers Act, a detention order under the provisions of that Act must be made at first.
There is another provision for arrest without warrant by police under Rule 316 of the PRB. But this provision too does not provide sufficient opportunity to arrest and take into custody the family members of the accused without reasonable grounds or complaints. Rather, Rule 317 counsels police to avoid unnecessary arrest; it also advises the police to be cautious during investigation and not to arrest anyone relying upon their own justification.
Of course, there are some other scopes of arrest of family members of an accused under the Penal Code for the offence of harbouring of the accused offender. According to section 52A of the Code the word 'harbour' includes acts of providing a person with shelter, food, drink, money, cloths, arms, ammunition, or means of conveyance, or assisting a person in any way to evade apprehension. However, a family member of an accused cannot be arrested for the offence of harbouring the accused just because he or she is a member of the accused person's family. Moreover, section 212 of the Penal Code provides an exception that if a husband commits an offence, the wife is allowed to harbour him and vice versa. Neither can be prosecuted for the offence of harbouring offender. Therefore, before apprehension of any family member, there must be present a legal ground or any convincing accusation or reliable proof of such offence in the hands of the police.
Rationally, we may be hating a member of a family who has joined a militant group, but we cannot be rude to the other members of his family who don't have control over that misguided member. There is no scope for being emotional here. We must think logically. When a poor family sends its son to a madrasha or other educational institution, it does not want to see him as a terrorist, but the circumstances make him terrorist where the family does not play any role. Again when such a son studies in a residential madrasha, school or college his family looses almost all control over him. So in such cases the family cannot be held responsible. Rather, we should understand the fact that it is the failure of the state authority to oversee what type of activities are being conducted in these institutions; that it is the failure of our administration and intelligence agency who could not detect the linkage of these institutions to militant groups. For this failure of the state, the innocent family members of an outlaw cannot be made liable. But the irony is that we are to see the police arrest and take into custody the elderly father or younger unmarried sister or brother or children or wife of the accused or any other person.
Undoubtedly, such type of arrest is not only illegal but also a gross violation of fundamental rights under the Constitution. Article 31 of the Constitution declares that …… no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. Again article 32 clearly expresses that no person shall be deprived of life or personal liberty save in accordance with law. Authority cannot deny these rights as no proclamation of emergency has been issued so far.
Once more, if you see the matter beyond the purview of the Constitution, the arrest of family members of an accused without just cause is similar to the false imprisonment or wrongful confinement, which is a criminal offence punishable under penal law. Sections 340 to 348 of the Penal Code relate to such offences. In Paothing Tangkhul V State of Nagaland, 1993 CrLJ 2514, a detention without lawful authority was held to be wrongful confinement. In the case of Shamlal, 4 Bom LR, 79, too, where a police constable detained some persons as suspects, it was held that offence of wrongful confinement was committed by the police. Again, in Dhamru 1978, CrLJ 864 (Orissa), we see, a police officer arrested and detained a person in the thana lock-up despite production of a bail order from the court; it was held that the officer was clearly guilty of offence of wrongful confinement.
Now come safeguards against such arbitrary arrest or imprisonment. The most famous safeguard against arbitrary imprisonment is the writ of habeas corpus. It is addressed to one who detains or imprisons another, and commands him to 'have the body' of the person before the court directing on a certain day, together with the cause of his detention. If the court decides that the cause shown does not justify the detention or arrest, it orders his release. A citizen can invoke the writ of habeas corpus under article 44 & 102 of the Constitution. A very important as well as interesting matter is that an application for habeas corpus can be made by any person irrespective of his being aggrieved or not. However, this is not the people friendly way of getting remedy; poor citizens cannot afford invocation of the writ. Moreover, it is not easily accessible to the citizens countrywide as only the Supreme Court exercises the jurisdiction.
Next comes 'Suo motu rule' meaning 'rule upon own initiative'. In this regard no petition is filed; the court upon its own initiative proceeds against the person or authority illegally treating a citizen. The basis of such initiative may be a piece of news or information, no matter how it reaches the court. The High Court Division has power to issue suo motu rule under section 491 of the CrPC, and it has a good record of using this power. Through issuance more of the same the honourable Supreme Court can dispirit the abuse of laws relating to arrest and detention.
Finally, it must be reminded that social obligations include not only uniting against terror to bring peace in the society but also ensuring that no member of the society is deprived of his rights. In fact, only the citizens who are aware of these rights and obligations can prevent the lawlessness in the society. Here is a reminder that an application for habeas corpus can be made by any person, who need not be a 'person aggrieved'. We can hope that the conscious and high-spirited citizen will avail this noble action and must inform the High Court Division about any illegal arrest or detention so that it can take initiative. We cannot in any way avoid our moral and social responsibility to ensure that no one suffers for the wrong of others.
The author is a legal researcher and a human rights activist.
