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COMILLA UNIVERSITY
DEPARTMENT OF LAW
Assignment on Law of Crime –2
Course Code: LAW- 322
Topic: Torture, Rape and Death in police custody: An analysis on
the role of judiciary In Bangladesh.

Submitted to:
Md. Ali Morsad Kazem
Lecturer, Dept. Of Law

Comilla University. Submitted by

Al Mamun
ID:11719017
Session –2016-17
Dept. Of Law
Comilla University
Date of submission
13-12-2020

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Table of contents
Serial no. Table of contents Page no.

1 Definition of torture in various aspects 03

2 Definition of rape in various aspects 04

3 Definition of custodial death in various aspects 05

4 Landmark judgements in custodial death 05-07

5 Remedies against custodial torture 07-08

6 Recent cases of torture, rape and death in police custody 09-13

7 Role of judiciary in prevention of torture, rape and death in 14-17

police custody

8 Observation, suggestion and solution 17-18

9 Conclusion 18-19

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Definition of Torture in various aspects

Torture (from Latin tortus: to twist, to torment) is the act of deliberately inflicting severe
physical or psychological suffering on someone by another as a punishment or in order to fulfill
some desire of the torturer or force some action from the victim. Torture, by definition, is a
knowing and intentional act; deeds which unknowingly or negligently inflict suffering or pain,
without a specific intent to do so, are not typically considered torture.1

•Rome Statute of the International Criminal Court

The Rome Statute is the treaty that set up the International Criminal Court (ICC). The treaty was
adopted at a diplomatic conference in Rome on 17 July 1998 and went into effect on 1 July 2002.
The Rome Statute provides the simplest definition of torture regarding the prosecution of war
criminals by the International Criminal Court. Paragraph 1 under Article 7(e) of the Rome
Statute provides that:
"Torture" means the intentional infliction of severe pain or suffering, whether physical or mental,
upon a person in the custody or under the control of the accused; except that torture shall not
include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;2

•Amnesty International
Since 1973, Amnesty International has adopted the simplest, broadest definition of torture. It
reads:
Torture is the systematic and deliberate infliction of acute pain by one person on another, or on a
third person, in order to accomplish the purpose of the former against the will of the latter.3

•European Court of Human Right

The UN Convention Against Torture and Rome Statute and the definitions of torture include
terms such as "severe pain or suffering". The international European Court of Human Rights
(ECHR) has ruled on the difference between what is inhuman and degrading treatment and what
is pain and suffering severe enough to be torture.
In Ireland v. United Kingdom (1979–1980) the ECHR ruled that the five techniques developed
by the United Kingdom (wall-standing, hooding, subjection to noise, deprivation of sleep, and
deprivation of food and drink), as used against fourteen detainees in Northern Ireland by the
United Kingdom were "inhuman and degrading" and breached the European Convention on
Human Rights, but did not amount to "torture. [4 In 2014, after new information was uncovered
that showed the decision to use the five techniques in Northern Ireland in 1971–1972 had been
taken by British ministers,5The Irish Government asked the ECHR to review its judgement. In
2018, by six votes to one, the Court declined.

1 "9 Insane Torture Techniques". 19 October 2009.

2 ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, INTERNATIONAL CRIMINAL COURT, 17 July 1998.
3 Amnesty International, (1973) Torture in the Eighties. USA Edition. Amnesty International Publication.
4Ireland v. United Kingdom (1979–1980) 2 EHRR 25 at para 167.
5 "British ministers sanctioned torture of NI internees". The Irish Times. 21 March 2013. Retrieved 30 May 2019.
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In Aksoy v. Turkey (1997) the Court found Turkey guilty of torture in 1996 in the case of a
detainee who was suspended by his arms while his hands were tied behind his back.6
The Court's ruling that the five techniques did not amount to torture was later cited by the United
States and Israel to justify their own interrogation methods,7 which included the five techniques.
The Court has ruled that every form of torture is strictly prohibited in all circumstances:
Article 3 of the Convention enshrines one of the most fundamental values of democratic
societies. Even in the most difficult of circumstances, such as the fight against terrorism or
crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or
punishment.
Article 3 makes no provision for exceptions and no derogation from it is permissible under
Article 15 &2 even in the event of a public emergency threatening the life of the nation.
Definition of Rape in various aspects
Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual
penetration carried out against a person without that person's consent. The act may be carried out
by physical force, coercion, abuse of authority, or against a person who is incapable of giving
valid consent, such as one who is unconscious, incapacitated, has an intellectual disability or is
below the legal age of consent.8The term rape is sometimes used interchangeably with the term
sexual assault.
According to section 375 A man is said to commit "rape" who except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling under any of the five
following descriptions:
Firstly. Against her will.
Secondly. Without her consent.
Thirdly. With her consent, when her consent has been obtained by putting her in fear of death, or
of hurt.
Fourthly. With her consent, when the man knows that he is not her husband, and that her consent
is given because she believes that he is another man to whom she is or believes herself to be
lawfully married.
Fifthly. With or without her consent, when she is under fourteen years of age.
Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence
of rape.

6 Aksoy v. Turkey (1997) 23 EHRR 553. The process was referred to by the Court as "Palestinian hanging" but more commonly
known as Strappado.
7 HYPERLINK "http://www.caj.org.uk/contents/1264" \h "The Hooded Men – joint press release from CAJ and the Pat
Finucane Centre"Archived 22 March 2016 at the Wayback Machine.
8 "Sexual violence chapter 6" (PDF). World Health Organization. 2002. Retrieved 5 December 2015.
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Exception. Sexual intercourse by a man with his own wife, the wife not being under thirteen
years of age, is not rape.
Definition of Custodial death in various aspects
Custodial death is one of the worst crimes in a civilized society governed by Rule of Law. Does
a citizen shed off his fundamental right to life, moment a policeman arrests him? Can the right to
life of a citizen be put in abeyance on his arrest? The answer, indeed, has to be an emphatic
"No". In India where rule of law is inherent in each and every action and right to life and liberty
is prized fundamental right adorning highest place amongst all important fundamental rights,
instances of torture and using third degree methods upon suspects during illegal detention and
police remand casts a slur on the very system of administration.
Custodial torture is universally held as one of the cruelest forms of human rights abuse. The
Constitution of BD, the Supreme Court, the National Human Rights Commission (NHRC) and
the United Nations forbid it. But the police across the country defy these institutions. Therefore,
there is a need to strike a balance between the individual human rights and societal interests in
combating crime by using a realistic approach (Joginder Kumar v. State of Uttar Pradesh, (1994)
4 SCC 260)
LANDMARK JUDGEMENTS ON CUSTODIAL DEATH: -
 Joginder Kumar v. State Of U.P and Others 1994 AIR 1349: 1994 SCC (4) 260: -
The rights are inherent in Articles 21 and 22(1) of the Constitution and require to be recognised
and scrupulously protected. For effective enforcement of these fundamental rights, Hon’ble
Court issued the following guidelines:
The police officer shall inform the arrested person when he is brought to the police station of this
right. An entry shall be required to be made in the diary as to who was informed of the arrest.
These protections from power must be held to flow from Articles 21 and 22(1) and enforced
strictly. It was further directed that, it shall be the duty of the Magistrate, before whom the
arrested person is produced, to satisfy himself that these requirements have been complied with.
 J. Prabhavathiamma v/s The State of Kerala & Others WP(C). NO. 24258 OF 2007
(K) AND CRL. R.P.2902 OF 2007
The two serving police personnel were awarded the death sentence by a CBI court, after hearing
the case for over a decade, in Thiruvananthapuram, over the death of a scrap metal shop worker,
who the court believes was murdered in custody.
While sentencing the two, Judge J Nazar had said: “This is a brutal and dastardly murder by
accused (number) one and two… The acts of the accused persons would definitely adversely
affect the very institution of the police department… If the faith of the people in the institution is
lost, that will affect the public order and law and order, and it is a dangerous situation9.

9 J. Prabhavathiamma v/s The State of Kerala & Others WP(C). NO. 24258 OF 2007 (K)
AND CRL. R.P.2902 OF 2007

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 Munshi Singh Gautam v State of Madhya Pradesh, Appeal (Crl.) 919 of 1999: -
Summarizes their grief concern about this problem of torture in Indian prisons by police. The
supreme court stated that:
“The dehumanizing torture, assault and death in custody which have assumed alarming
proportions raise serious questions about the credibility of the rule of law and administration of
the criminal justice system… the concern which was shown in Raghbir Singh case more than
two decades back seems to have fallen on deaf ears and the situation does not seem to be
showing any noticeable change. The anguish expressed in the cases of Bhagwan Singh v State of
Punjab, Pratul Kumar Sinha v State of Bihar, Kewal Pati v State of UP, Inder Singh v. State of
Punjab, State of MP v Shyamsunder Trivedi and the by now celebrated decision in the landmark
case of D K Basu vs. State of West Bengal seems ‘not even to have caused any softening of
attitude in the inhuman approach in dealing with persons in custody’.”
 Yashwant And Others v. State of Maharashtra (2018) 4MLJ (Crl)10(SC): -
The Supreme Court on September 4 upheld the conviction of nine Maharashtra cops in
connection with a 1993 custodial death case and extended their jail terms from three to seven
years each. Reportedly, a bench of Justices NV Ramana and MM Shantanagoudar upheld the
order and said that incidents which involve the police tend to erode people’s confidence in the
criminal justice system. While enhancing the prison term of the cops, the apex court said, “With
great power comes greater responsibility,”. The police personnel were found guilty under Section
330 of the Indian Penal Code which involves voluntarily causing hurt to extort confession or to
compel restoration of property10.
 Yashwant And Others v. State of Maharashtra (2018) 4MLJ (Crl)10(SC): -
Guidelines issued:
The Court issued a list of 11 guidelines in addition to the Constitutional and Statutory Safeguards
to be followed in all cases of arrest and detention. The guidelines are as follows: –
 Details of all personnel handling the interrogations of the arrested person must be
recorded in a register. a memorandum of arrest at the time of the arrest should be
prepare. It must also be signed by the detainee and must contain the time and date of the
arrest. Police must notify a detainee’s time, place of detention, and place of custody.
Police of the affected area telegraphically within the period of 8 to 12 hours after the
arrest. An entry must be made in the Case Diary at the place of detention.
The “Inspection Memo” must be signed by both the detainee and the arresting police officer and
a copy must be provided to the detainee. The detainee must undergo a medical examination by a
trained physician every 48 hours while in custody.
Copies of all documents, including the arrest memo, must be sent to the Magistrate for
registration.

10 Yashwant And Others v. State of Maharashtra (2018) 4MLJ (Crl)10(SC)

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Information about the arrest and the place of custody of the arrested, within 12 hours after the
arrest and in the Police Control Room Board, must be displayed on a visible notice board11.
REMEDIES AGAINST CUSTODIAL TORTURE: -

The two approaches are legal regime and judicial precedents.

•CONSTITUTIONAL SAFEGUARDS

It has been held in a catena of judgements that just because a person is in police custody or
detained or under arrest, does not deprive of him of his basic fundamental rights and its violation
empowers the person to move the Supreme Court under Article 102 of the Constitution of
Bangladesh.
Article 102 of the Constitution of BD:
Article 31 primarily gives a person the rights against conviction of offences. These include the
principle of non-retroactivity of penal laws (Nullum crimen sine lege) ‘No crime, no
punishment without a previous penal law", Article 22 of the Rome Statute of the International
Criminal Court i.e. ex-post facto laws thereby making it a violation of the persons fundamental
rights if attempts are made to convict him and torture him as per some statute. Article 35 also
protects against double jeopardy (Nemo Debet Pro Eadem Causa Bis Vexari) No one ought to
be twice troubled or harassed [if it appears to the court that it is] for one and the same cause
This Article most importantly protects a person from self-incrimination. The police subject a
person to brutal and continuous torture to make him confess to a crime even if he has not
committed the same.
Article 35 of the Constitution of BD:
This article has been understood in the Indian judiciary to protect the right to be free from
torture. This view is held because the right to life is more than a simple right to live an
animalistic existence. The expression "life or personal liberty" in Article 35 includes a guarantee
against torture and assault even by the State and its functionaries to a person who is taken in
custody and no sovereign immunity can be pleaded against the liability of the State arising due to
such criminal use of force over the captive person. (D.K.Basu v. State of W.B, (1997) 1 SCC
416)
Article 33 of the Constitution of BD:
Article 35 provides four basic fundamental rights with respect to conviction. These include being
informed of the grounds of arrest, to be defended by a legal practitioner of his choice, preventive
detention laws and production before the nearest Magistrate within 24 hours of arrest of the
person. Thus, these provisions are designed to ensure that a person is not subjected to any ill-
treatment that is devoid of statutory backing or surpasses prescribed excesses.12
11 Yashwant And Others v. State of Maharashtra (2018) 4MLJ (Crl)10(SC)

12 the constitution of Bangladesh article 31,33,35,44,102.

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•Other Statutory Safeguards:

•Evidence Act, 1872:

A confession to police officer cannot be proved as against a person accused of any offence (Sec.
25 Evidence Act) and confession caused by threats from a person in authority in order to avoid
any evil of a temporal nature would be irrelevant in criminal proceedings as, inter-alia,
provided in Sec. 24. Thus, even though custodial torture is not expressly prohibited by law in
BD., the evidence collected by illegal means, including torture is not accepted in courts.
Code of Criminal Procedure, 1973:
Sec. 46 and 49 of the Code protect those under custody from torture who are not accused of an
offence punishable with death or imprisonment for life and also during escape. Sec. 50-56 are in
consonance with Article 22. Sec. 54 of the Code is a provision that to a significant extent
corresponds to any infliction of custodial torture and violence. According to it, when an
allegation of ill-treatment is made by a person in custody, the Magistrate is then and there
required to examine his body and shall place on record the result of his examination and
reasons therefore It gives them the right to bring to the Court’s notice any torture or assault they
may have been subjected to and have themselves examined by a medical practitioner on their
own request A compensatory mechanism has also been used by courts. When the Magistrate
does not follow procedure with respect to entertaining complaint of custodial torture, it calls for
interference by the High Court under Sec. 482 of the Code.
Another significant provision with respect to custodial torture leading to deaths is Sec. 176 of the
Code where a compulsory magisterial inquiry is to take place on death of an accused caused in
police custody. Sections 167 and 309 of the Code have the object of bringing the accused
persons before the court and so safeguard their rights and interests as the detention is under their
authorization.
• Police Act:

Sections 7 and 29 of the Act provide for dismissal, penalty or suspension of police officers who
are negligent in the discharge of their duties or unfit to perform the same. This can be seen in
the light of the police officers violating various constitutional and statutory safeguards along
with guidelines given
•Penal Code, 1860:

After the controversial (Mathura Rape case (1979) 2 SCC 143), an amendment was brought
about in Sec. 376 of the PC. Sec. 376(1)(b) penalises custodial rape committed by police
officers. This was a welcome change made to the section in question as it finally condemns the
acts of police officers who take advantage of their authority.
Sections 330, 331, 342 and 348 of the PC have ostensibly been designed to deter a police officer,

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who is empowered to arrest a person and to interrogate him during investigation of an offence
from resorting to third degree methods causing ‘torture’.

Recent cases of torture, rape and death in police custody:

A man named Shanu Hawlader, allegedly an accused of murder case, died in police custody at
morning on 26 March, 2020, three days after he was arrested by Amtali Police Station, in
Barguna. The victim’s family alleged that the deceased Shanu Hawlader was killed in police
brutality for failing to bribe Amtali police officer-in-charge Abul Bashar and inspector
Manoranjan Mistri with Tk 3 lakh. The hanging body of the man was found in Amtali Police
Station in the room of Inspector investigation. The case has been filed on 01 April, 2020 when
the complaint was lodged by an Advocate of Supreme Court through e-mail to SP Barguna. For
such incident in the Corona Pandemic, the debate on the ‘custodial torture and death’ has been
focused across the country.

Rights to life and liberty, freedom from torture or cruel, degrading treatment or punishment are
guaranteed as fundamental rights in the Constitution of Bangladesh. Any form of torture or
illegal punishment, infringing one’s rights to life and liberty signifies a gross violation of
fundamental human rights. Article 3 of the Universal Human Rights Declaration (UDHR)
provides that, ‘everyone has the right to life, liberty and security of person.’ Article 5 of UDHR
provides that, ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.’ Article 7 of the International Covenant on Civil and Political Rights (ICCPR) of
1966 also set out that “no one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.”

In Articles 31, 32 & 35(5) of the Constitution of Bangladesh, the rights to life and liberty, and
freedom from torture, or cruel, inhuman or degrading treatment or punishment are guarantee for
Bangladeshi citizens. Thus, both under national and international legal instruments, this is
recognized as a fundamental human right of the citizens which cannot be suspended on ground
of emergency, national security or any other reasons. These rights are also known as peremptory
norms of international law or jus cogens norms as non-derogable rights. These rights cannot be
compromised (or reduced) and inalienable rights, which cannot be taken away.13

13 the constitution of BD
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On 10 December 1984, the UN General Assembly adopted the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) to make more effective the
struggle against torture and other cruel, inhuman or degrading treatment or punishment
throughout the world. Bangladesh became a member state to CAT on 5th October 1998. Article
4 of CAT provides that “each state party to the Convention shall ensure all acts of torture are
offences under its criminal law and shall ensure that the relevant penalties sufficiently reflect the
gravity of the offences in question.”

The abuse of powers of arresting without warrant under section 54 and placing the accused in
police custody under section 167 of CrPC has resulted in violations of fundamental rights to fair
trial, freedom from torture or cruel, inhuman or degrading treatment. The High Court Division
(HCD), in BLAST and others vs. Bangladesh and others case [55 DLR (2003) 363 14], opined
these sections are to some extent inconsistent with the Constitution of Bangladesh and require
amendments. In 2003, the HCD held in this Judgment in view of Article 35 of the Constitution,
“any information which is obtained or extorted by taking an accused on remand and by applying
torture, the same information cannot be considered as evidence and cannot be used against him.”

The judgment also made 15 key recommendations to amend the Criminal Code of Procedure
1898 so as to make it more consistent with the Constitution. The said 15 directives to safeguard
against abuse of the powers of arrest and interrogation in custodial detention, including that
authorities must take permission from a magistrate to conduct interrogation in remand and that it
must take place in a room with glass walls inside the prison, with lawyers and relatives allowed
to monitor nearby. Moreover, authorities must inform the person of the reason for arrest within
three hours and ensure that a relative or friend of the detained person is informed within 12 hours
of the arrest about the time, place of arrest and place of detention.

In releasing the full text of its verdict on the appeal on November 10, 2016, the Appellate
Division of SC issued 19-point guidelines for police, magistrates and judges to stop arbitrary
arrests on suspicion and torturing arrestees on remand. Indian Supreme Court observed in the
case of D. K. Basu Vs. State of West Bengal [(1997) 1 SCC 434 15] that “custodial death is one of
the worst crimes in a civilized society governed by the rule of law.

14 BLAST and others vs. Bangladesh and others case [55 DLR (2003) 363
15D. K. Basu Vs. State of West Bengal [(1997) 1 SCC 434
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A recent review of deaths in custody revealed a significant increase in the number of people
dying in police custody over the last few years in the country. Since 2014 to March, 2018, a total
of 285 people were reported to have died in custody, including 119 convicts and 166 under-trial
prisoners, according to Ain o Salish Kendra. In a report of Odhikar, a human rights forum,
informs that at least 60 persons died in custody in 2019. Between 2009 and 2019, the annual
figure of victims of custodial deaths hovered within the 50 to 63 range. It registered a steep rise
to 105 in 2011 and 81 in 2018.

However, to address these human rights violations, the “Torture and Custodial Death
(Prevention) Act, 2013” has been enacted which was also facilitated by Bangladesh’s obligation
under CAT to enact a law criminalizing all acts of torture. The Act provides a legal definition of
‘torture’ and ‘custodial death’ along with effective victim protection mechanisms. The Act 2013
in its section 2 (6) provided specific criteria of “torture” like extorting any information or
confession, punishing or intimidating any suspected person or offender or other discrimination
etc. According to section 2 (7) “Custodial Death” means death of any person in the custody of
any government official. The Act also provides details about provisions for making a complaint,
the investigation procedure and sentencing provisions.16

Under section 4(1) (c) on receiving complains of torture the competent court will immediately
record the complainant’s statement in writing and then the court will order an examination of the
body by a registered doctor of the same sex of the complainant. The doctor will prepare a report
within 24 hours under section 4(2) on the recognition of wounds and signs of torture as well as
the approximate time of the alleged torture. On receipt of complaint and such report the court
will file case accordingly. Regarding investigation, this Act in its section 5(5) provides that a
police officer whose rank is not less than that of the person accused will be engaged by the Court
to conduct the investigation. Here if any argument arises concerning the compromise of
neutrality and if it would be impossible for the police to conduct a proper investigation then
under section 5(2), upon satisfaction, the court can order judicial investigation. The Act has
provisions of at least five years imprisonment and a Tk 25,000 fine while custodial death due to
torture is punishable with life imprisonment and a fine of Tk 100,000.

The Act primarily entrusts the police for investigation but here the neutrality may be highly
compromised where investigation is held by a police against another police. Well it provides for
16 Torture and Custodial Death (Prevention) Act, 2013
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judicial investigation in this situation but it is not mandatory. The severity of the punishments
provided for offences under this Act does not reflect those for similar offences under the Penal
Code 1860. The punishments provided for by the Act are limited to imprisonment and
compensation, other departmental proceedings such as ‘suspension and dismissal from his/her
job’ are not included. Further, the Act set out the provisions to compensate to the
victim/aggrieved persons, but it fails to prescribe the specific procedure for the compensation to
be paid. Furthermore, the law does not provide for the death penalty for death. But when a
gruesome custodial murder or crossfire deaths what would be the sentence.

The Constitution of Bangladesh and criminal law absolutely forbid in all circumstances, any
actions amounting to torture. Section 9 (5) of the Women & Children Repression Prevention
Act-2000 postulates the punishment of custodial rape and torture by law enforcement agency
against any woman and child and the punishment for custodial negligence is up to ten years and
fine. Section 29 of the Police Act 1861 and section 48 of the Dhaka Metropolitan Police
Ordinance, 1976 also stated against torture. Article 35(4) of the Constitution of Bangladesh has
stated that “no person accused of any offence shall be compelled to be a witness against
himself.”17

The Penal Code 1860 applicable in Bangladesh makes clear that physical and psychological ill-
treatment of the accused by law enforcement officials is impermissible and punishable. Causing
of “hurt” or “grievous hurt” by public servants to obtain confessions or to compel restoration of
property carry sentences up to seven- and ten-years imprisonment respectively under section 330
and 311. Sections 162,163,172 and 173 of the Code of Criminal procedure, 1898; read with
sections 24, 25 and 26 of the Evidence Act, 1872 provide rules of conduct and procedure to
prevent torture of persons under interrogation. Section 26 of the Evidence Act also excludes
confessions made by a person in Police custody unless made in the immediate presence of a
magistrate. It is to be read with section 164 and 364 of the CrPC 1898.

To build a violence- free society, a public awareness campaign needs to be held and orientation
on its provisions is needed for judges, lawyers, members of the law enforcement agencies and
human rights activists. The enforcement of the Prevention of the Custodial Torture & Death Act
2013 is essential to control and make accountable of the concern law enforcement agency.

17 the Women & Children Repression Prevention Act-2000

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Mohammad is one of thousands of street children in Bangladesh who have come to the capital
Dhaka to earn a living far from their home villages. Mohammad lives on his own, without a
relative or guardian. He earns his living by doing odd jobs, mostly working as a porter in the
Azimpur New Market. At night he sleeps on the pavement or on the floor in corridors, verandas
or roofs of buildings in Azimpur area of Dhaka. His home village is Kalarhat near Purba Dhala,
district Netrakona in North Bangladesh. On 28 July 1993, Mohammad was woken up around
midnight; he had been sleeping on the veranda of a big residential building. Two police
constables on patrol asked him to follow them. In a nearby open field one of the constables
ordered him to strip and then sexually assaulted him. Mohammad reported: "I shouted loudly
when the dark constable forcibly pushed his penis in my rectum. After half an hour, I was
brought to Azimapur police sub-station outpost where the nice-looking constable began to
sexually assault me a second time and I fainted when the constable passed his penis completely
into my rectum and afterwards, I became senseless." He said that he regained consciousness in
the morning and was released. His rectum was bleeding and his abdomen hurt. Mohammad was
at no time given any reason for his detention, nor was he questioned.
Amnesty International believes that some children have been sentenced to death and executed in
Bangladesh. Mohammad Selim, who was sentenced to death by a martial law court and executed
in 1986, was only 17-years old at the time of committing the alleged offence, but Bangladesh
authorities claimed that he was older. International human rights instruments forbid the
sentencing to death of persons under the age of 18. For example Article 6(5) of the International
Covenant on Civil and Political Rights (ICCPR) states that: "Sentence of death shall not be
imposed for crimes committed by persons below eighteen years of age."
Bangladesh in August 1990 ratified the Women & Children Repression Prevention Act-2000 but
several of the provisions of the Convention are not strictly adhered to. The relevant articles are
listed below. Article 37: "State parties shall ensure that: (a) No child shall be subjected to torture
or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor
life imprisonment without possibility of release shall be imposed for offences committed by
persons below eighteen years of age; (b) No child shall be deprived of his or her liberty
unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity
with the law and shall be used only as a measure of last resort and for the shortest appropriate
period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for
the inherent dignity of the human person, and in a manner which takes into account the needs of
persons of his or her age. In particular, every child deprived of liberty shall be separated from
adults unless it is considered in the child's best interest not to do so and shall have the right to
maintain contact with his or her family through correspondence and visits, save in exceptional
circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access
to legal and other appropriate assistance, as well as the right to challenge the legality of the
deprivation of his or her liberty before a court or other competent, independent and impartial
authority, and to a prompt decision on any such action. 18" Article 39: "State parties shall take all
appropriate measures to promote physical and psychological recovery and social integration of a
child victim of: any form of neglect, exploitation or abuse; torture or any other form of cruel,

18 the Women & Children Repression Prevention Act-2000

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inhuman or degrading treatment or punishment; or armed conflict. Such recovery and

reintegration shall take place in an environment which fosters the health, selfrespect and dignity
of the child." Article 40 lays down specific legal rights of child defendants and obligations of
state parties to the Convention to safeguard the rights of child defendants. Also relevant in this
connection are the UN Rules for the Protection of Juveniles Deprived of Their Liberty; Articles 1
and 2 clearly state that detention of juveniles should only be a last resort, used only in
exceptional cases and for the minimum period necessary.
Role of judiciary in prevention of torture, rape and death in police custody:

Recently the Apex Court, the National Human Rights Commission, and the media expressed
views on custodial deaths. The High Court Division (HCD) in its judgment of 12 July 2001 told
us about police excesses and misuses of power, resulting in alarming increase in unlawful arrest,
detention, and custodial rape, torture, and death (New Nation 13/7/2001). In Rubel custodial
murder case on 17 June 2002, the HCD reiterated these abuses and called upon the legislators to
take into consideration the procedure for interrogation in police custody (Star 18/6/2002). Police
custody has become synonymous with violent tortures, degrading treatments and inhuman
punishment, causing custodial deaths and irreparable bodily injuries. There appears to be an
unholy nexus between the law enforcing agencies and the incumbent government in turning a
blind eye to this culture of impunity for gross violations of human rights. This perennial problem
received only peripheral response from successive governments.
The international human rights instruments of which Bangladesh is a party unequivocally outlaw
all kinds of torture, cruel, inhuman or degrading treatment or punishment. Our Constitution
guarantees complement this prohibition, which is not barely ornamental and declaratory, but
entails precise enforceable legal obligations. Remedial and reform measures pertaining to the law
and procedures of police custody are long overdue. To this end, this piece pursues a triangular
reformist approach to promote lawful maintenance of order and protect the human rights of
persons in custody. These measures reinforce the application of the rule of law and due process
in dealing with police custody cases.
Preventive measures: Transparency in dealing with the person in custody is an important
procedural aspect of the fair application of law. A minimum threshold of objectivity and
openness in law enforcement may be adopted in the following ways:
1. The proper identification of the police officer/s involved in dealing with the detainees is
paramount. Such police officers should bear accurate, visible, and clear identification (name tags
and designations). Their particulars must be recorded in a register. Sometimes the perpetrators
wear masks making it difficult to identify whether they are hired or regular forces. Dr Mohiuddin
Alamgir testified before the court that he was brutally tortured by three masked men (Star
6/4/2002).
2. The police must be required to notify immediately the relatives of the arrestee about the time,
place of arrest and venue of custody. There are instances where the relatives of detainees had to
resort to writ petitions to know the whereabouts of the detainees.

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3. The requirement that an arrestee must be presented before a competent magistrate within 24
hours must be enforced. Such a magistrate must release the arrestee should the arresting police
fail to file a case within the specified time. There are instances where the arrestee died (Jamal
case, Star 30/4/2002) or was taken to doctor (Nipu Rani case, Janakantha 12/6/2002) after arrest
but before producing to the court required by the Constitution Article 33 of and the Code of
Criminal Procedure sec.61.
4. The lawyer/s of the arrestee's choice must be allowed to meet him/her and stay during
interrogations. If unaffordable, legal aid may be made available, or a human right organization
representative of the arrestee's choice could be allowed to be present during interrogations.
5. If the arrestee is unwilling to make any confession before the magistrate, the magistrate shall
send such person to judicial, not police, custody. Any confession by the arrestee recorded in
police custody will bear no evidentiary value, as confessions may have been extracted by
employing 'third-degree' methods. Involuntary confessions made under coercion is inadmissible
under CrPC ss 163-16419, the Constitution Article 35(4), and the Women & Children Repression
Prevention Act-2000
Punitive measures: Punitive measures are remedial and impose strict liability on the law
enforcing agencies for the abuse of power. Custodial violence is a punishable offence with
imprisonment under sec.29 of the 1861 Police Act and s53 of the 1976 Dhaka Metropolitan
Police Ordinance. There are past and present instances where the police have been punished for
custodial deaths. The law enforcing personnel responsible for torture during custody must be
brought to justice routinely pursuant to the Penal Code 1860. The commanding officers can take
actions against their subordinates for torture under sec.33(b) of the Police Regulations. Being
their immediate controlling authority, the commanding officers should also bear legal
responsibility for the crimes committed by their subordinates, which will render them more
vigilant about acts of their subordinates.
External eyewitnesses for custodial violence cannot be expected. A police officer is unlikely to
testify that an arrestee was tortured to death by his/her colleague(s). The police can also easily
manipulate records. In the Rubel case, a police officer was sentenced by the Court on charge for
causing the disappearance of evidence of offence and giving false information to save his fellow
offenders (Star 18/6/2002). Reliance on post-mortem reports in determining the cause of death
must be made with utmost caution. The honesty and impartiality of government nominated
pathological surgeons are often doubted for cover up. Bahauddin Nasim and Mohiuddin Alamgir
were tortured in police custody, but the government chosen medical board reported that they had
only minor injuries. The credibility of the reports was widely challenged by the press and
Amnesty International, urging the government to form independent and impartial medical body
(Star 2&6 April 2002). The best option is to embrace the principle of presumed guilt/fault. It
should be a conclusive proof that any death in custody is caused by torture and the police officer,
who has the custody, must be held liable for the death. An act of death by torture is presumed
unless otherwise is proved and the onus of proof should be on the accused police officer(s), who
is in a better position to defend him/herself than the victim or his/her relatives. There are

19 code of criminal procedure,1898 section 163,164

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commendable judicial and legislative precedents for such a liability regime. In Shaikh Baharrul
Islam v State (43 DLR 336) 20, the Bangladesh Supreme Court held that it was not possible to
prove the cause of death of a person in the police station, because only those who beat him had
special knowledge how he was beaten to death. The Law Commission of India in its 113th
Report recommended that a new section be inserted in the law of evidence that the court may
presume that the injury was caused by the police officer having the custody of that person during
that period, which the Indian Supreme Court endorsed in Shyamsunder Trivedi case (4 SCC
262).
Curative remedies: Curative remedies offer compensation to the victims and/or their relatives for
custodial deaths or injuries. It imposes vicarious liability on the State. The maxim salus pouli
suprema lex (the safety of the people is the supreme law) lies at the heart of this liability regime.
Custodial crimes include not only the infliction of body pain but also the mental agony which an
arrestee undergoes within police lock-up. Sufferings of the defendants are of paramount
significance in cases, where the victim was the sole breadwinner for the whole family. The
victims and their families are entitled to compensation, the amount of which will be determined
on a case by case basis by the court. Many apex courts through their judicial activism have
awarded compensation for the established violation of personal right to life or liberty. In Md
Shahanewaz v Bangladesh (18 BLD 337)21, the HCD ordered the delinquent police officer to pay
Taka 20,000 to the victim as compensation for false arrest. Granting compensation as a remedy
to the victims of custodial deaths or injuries is common in the decisions of the Indian Supreme
Court, the Irish court, the New Zealand Court of Appeal, and the Privy Council.
Judicial inquiry: Incidents of custodial violence must be investigated by a senior judge. The
police department undertaking such investigation appears patronizing, as it invariably records
custodial deaths as unnatural deaths and finds no fault with the police. Investigating alleged
police crime by the police is contradictory to the principle of natural justice, as no one can act as
a judge of his/her own cause. An objective and impartial result of judicial inquiry is mirrored in
the verdict on the Rubel custodial murder case (June 2002) in which 13 police officers were
sentenced for life, which happened on the recommendations of a judicial committee headed by a
judge of the Supreme Court.
Role of the Supreme Court: The paramount duty of any judiciary is to protect the legal rights of
every citizen. The Indian Supreme Court in State of M P v Shyamsunder Trivedi (4 SCC 273-74)
held that the death in police custody is one of the worst kind of crimes and suggested that the
judiciary must adopt a realistic rather than a narrow technical approach in dealing with custodial
crimes so that the guilty should not escape and the victim has the satisfaction that the majesty of
law has prevailed. It would be a double jeopardy for poor citizens if financial constraints inhibit
them from receiving redress. In such circumstances, the Court can play a pro-active role by
taking actions suo motu to dispense justice. In Re Death of Sawinder Singh Grover (4 SCC
4500), the Indian Supreme Court took suo motu notice (from the media) of the custodial death of
Sawinder Singh Grover and directed the authority to compensate the widow. The Indian

20 Shaikh Baharrul Islam v State (43 DLR 336),

21 Md Shahanewaz v Bangladesh (18 BLD 337)
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Supreme Court decision on custodial violence in the Basu case (1997 AIR 615 22) was an
outcome of a letter from a legal aid organisation addressed to the Chief Justice of India drawing
his attention to deaths in police custody. The letter was considered as a writ petition. Stories of
custodial violence are frequently and readily available in the media. Human rights NGOs can
take the initiative by referring those stories to the attention of the Chief Justice, who can trigger
the jurisdiction of the HCD to play its crucial constitutional role of judicial activism against
custodial violence.
Human rights campaigns: Good governance presupposes respect for human rights. Nationally,
the Human Rights Commission should take a stand against all custodial violence. The citizens
need to be made aware of their rights. Human rights organisations can form pressure/lobby
groups to launch a public consciousness-raising campaign about the constitutionally guaranteed
rights through easily available and accessible publicity means and educational programs. This
would help remind the general public and the law enforcing agencies about the due treatment
during police custody. Readily available free legal aids may be the only option to protect the
powerless and voiceless poor victims of custodial brutality. Internationally, there are individual
complaint procedures. Pressures may be brought to bear on the government to ratify these
procedures to enable the victims of police custody to invoke international remedies as a last
resort.
Custodial violence has become a pervasive feature of law enforcement, in which nobody is
seemingly accountable to anybody for anything pertaining to custodial deaths or injuries.
Reforms to create mechanisms for transparency and accountability of actions of the law
enforcing agencies is in order and indeed imperative to protect potential victims of custodial
violence. The suggested reforms merely underscore the need for a judicial mind to ensure a just
and lawful maintenance of order. Law cannot be enforced by breaching the law. Members of the
law enforcing agencies are not above the law. Police custody and interrogations should be
derived from and exercised by the limits of the law. It would be rewarding for those victims who
despair in police custody, should the government become self-reflective in bringing its law
enforcing functionaries within the bounds of law. Bangladesh cannot have a dignified existence
unless the barbarous acts of custodial violence are subject to the law and their perpetrators are
brought to justice.
Observations, suggestions and solutions:
1. Ratification of the ‘UN convention against torture’. No official law has been passed by
the legislation on Anti – torture or police reforms concerning custodial deaths despite the
frequency of such acts for so long as well as several suggestions and concerns shown by
the NHRC and the Apex court. The sustained apathy of the legislature can be interpreted
as a quite observance to such practices, thus making it harder for any likelihood of
ratification happening in the future either.

22 Basu case (1997 AIR 615

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2. The various suggestions made by the Apex court in judgements like Basu case (1997 AIR
615 23must be enforced and any default by reluctance or ignorance of any police station
or public authority should be strictly penalized. Some mainly include:
 All police officers should wear their name tags clearly indicating their name and
designation.
 Police must enter the complete details of police officers conducting investigation in a
register.
 The arrested person has the right that his/her relative/friend is informed about the arrest.
 The police must contact and inform the relative/friend of the time and place of arrest, and
the exact location where the arrested person is detained.
1. Implementation of section 114B mentioned in the law commission report 1985 which
raises the notion of holding the officers accountable or with criminal culpability if anyone
is found tortured or dead in their custody.
2. Though torture is completely normalized in custody for extracting confessions, legally,
suspects have the right to withhold any self-incriminatory information or evidence that
can be used against them. This is under the presumption of innocent until proven guilty.
In BD. Article 35 dictates:
3. No person accused of any offence shall be compelled to be a witness against himself. The
privilege against self-incrimination is a fundamental canon of criminal law jurisprudence.
The characteristics of these provisions are,
4. That the accused is presumed to be innocent,
5. That it is for the prosecution to establish his guilt,
6. That the accused need not make any statement against himself.
Nandini Satpathey v. P.L Dani also holds that these rights extend to witness and accused alike,
and that they must be formally accused in the present and not the future. This applies to every
stage in which furnishing of such information and collection takes place. However,
implementation of this law has been lackluster in the justice system, as it is subject to constant
violations by police and law enforcement authorities. This is owed to the police’s impunity and
apathy towards both the judicial system and moral obligations towards rights of the detainees or
criminals, and necessary changes must be implemented.
7. Public awareness of protections such as Article 31 of the constitution which providing
free legal aid to the poor or disadvantaged sections of society so the provision of justice
can be extended to all citizen despite economic or educational hindrances.
Proper implementation of the D.K Basu judgement as well as greater public awareness of certain
rights and provision of citizens and detainees will compel the police to pursue other far more
23 Basu case (1997 AIR 615
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productive methods than third degree methods. Similarly, another recommendation can be the
presence of a lawyer during the interrogation by the police with the interest of protecting the
accused’s rights.
8. Immediate amendment and reform of the “Police act of 1861” which contains several
provisions that enable violation of rights by the hands of police officers. This act born in
the era of pre independence was made only to hold the lives of our countrymen on a
leash, it contains several loopholes wherein the police get away with lesser consequences
compared to the gravity of the crimes they have enabled over and over.
Conclusion:
Bangladesh should ratify the UN Convention Against Torture: It will mandate a systematic
review of colonial rules, methods, practices and arrangements for the custody and treatment of
persons subjected to any form of arrest, detention or imprisonment.
It will also mean that exclusive mechanisms of redress and compensation will be set up for the
victim besides institutions such as the Board of Visitors.
Police Reforms: Guidelines should also be formulated on educating and training officials
involved in the cases involving deprivation of liberty because torture cannot be effectively
prevented till the senior police wisely anticipate the gravity of such issues and clear reorientation
is devised from present practices.
Access to Prison: Unrestricted and regular access to independent and qualified persons to places
of detention for inspection should also be allowed.
CCTV cameras should be installed in police stations including in the interrogation rooms.
Surprise inspections by Non-Official Visitors (NOVs) should also be made mandatory which
would act as a preventive measure against custodial torture which has also been suggested by
Supreme Court in its landmark judgment in the DK Basu Case in 2015.
Police are the safeguards in society which keep its morals and foundations intact and functioning
as we go towards progress and development. They are an indisputable necessity to maintain
order in society, but when such outfits of justice themselves cannot keep themselves away from
violating the public’s fundamental rights, the authority given to promote such justice is annulled.
The very idea of custody is protection or guardianship even when applying it to arrests and
incarcerations. The law is a continuous and omnipresent process and system which is permanent,
yet always changes according to the needs and progress of society. As such, law enforcement
authorities should be held accountable to their crimes and further training and sensitization must
be provided on the basis of science and sound morals so to promote legal principles amongst our
officers and the public.

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