Provisions relating to Arrest and

Remand

Presented By

Dr. Md Abdur Rahim Mia

Professor
Department of Law
Rajshahi University

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 Outlines of this Chapter
1. Arrest/ How Arrest of a Person is made
2. Rules of Arrest/ Procedure of a Search of a Place
entered by Person sought to be arrested (S/ 47 – 53)
3. Power of Police in case of Arrest without Warrant (s/54)
– Power of Private Person, Magistrate in case of Arrest
– Procedure of Arrest of and MP of Govt. Service Holder (s/172-176)
– Arrest beyond the jurisdiction of Police (s/58, 66, 67)

4. Duration of Detention after Arrest

5. Remand and Related Provisions
5. Shown Arrest (s/351)
6. Legal Rights of an Arrested Person
7. Guidelines for Arrest under BLAST and others vs.
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Bangladesh Case
 1. Arrest
Arrest means-
“a seizure or forcible restraint; an exercise of the power to
deprive a person of his or her liberty; the taking or keeping
of a person in custody by legal authority, especially, in
response to a criminal charge.” [Legal Dictionary by Farlex]
@ Arrest means apprehension of a person by legal authority so as
to cause deprivation of his liberty. After arrest, a person's
liberty is in control of the arrester.
@ Arrest is an important tool for bringing an accused before the
court as well as to prevent a crime or prevent a person
suspected of doing crime from running away from the law.
@ Cr P C contemplates two types of arrests - an arrest that is
made for the execution of a warrant issued by a magistrate and
an arrest that is made without any warrant but in accordance
with some legal provision that permits arrest.
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 1.1 How Arrest of a Person is made
Section 46 describes the way in which an arrest is actually made.
(1) In making an arrest the police officer or other person shall actually
touch or confine the body of the person to be arrested, unless there be
a submission to the custody by word or action.
(2) If such person forcibly resists the endeavour to arrest him, or
attempts to evade the arrest, such police officer or other person may
use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person
who is not accused of an offence punishable with death or with
imprisonment for life.
Further, as per Section 50, an arrested person must not be subjected to more
restraint than is necessary to prevent him from escaping. Due to concerns of violation
of the rights of women, a new provision was inserted in Section 46(4) that forbids the arrest
of women after sunset and before sunrise, except in exceptional circumstances, in which case
the arrest can be done by a woman police officer after making a written report and obtaining
a prior permission from the concerned Judicial Magistrate of First class. 4
 2. Rules of Arrest/ Procedure of a Search of a Place entered by
Person sought to be arrested (S/ 47 – 53)
1. S/47. If any person acting under a warrant of arrest, or any police-
officer having authority to arrest, has reason to believe that
the person to be arrested has entered into, or is within, any
place, the person residing in, or being in charge of, such
place shall, on demand of such person acting as aforesaid or
such police-officer, allow him free ingress thereto, and
afford all reasonable facilities for a search therein.
2. S/48. In order to effect an entrance into such place, to break
open any outer or inner door or window of any house or
place, whether that of the person to be arrested or of any
other person, if after notification of his authority and
purpose, and demand of admittance duly made, he cannot
otherwise obtain admittance: 5
 Continued--------
• Provided that, if any such place is an apartment in the actual
occupancy of a woman (not being the person to be arrested) who,
according to custom, does not appear in public such person or police-
officer shall, before entering such apartment, give notice to such
woman that she is at liberty to withdraw and shall afford her every
reasonable facility for withdrawing, and may then break open the
apartment and enter it.
• S/49. Any police-officer or other person authorized to make
an arrest may break open any outer or inner door or window
of any house or place in order to liberate himself or any
other person who, having lawfully entered for the purpose
of making an arrest, is detained therein.
• S/50. The person arrested shall not be subjected to more
restraint than is necessary to prevent his escape. 6
 Continued-----

• S/51 . the officer or private person making the arrest shall

search such person, and place in safe custody all articles,
other than necessary wearing-apparel, found upon him.
• S/52. Whenever it is necessary to cause a woman to be
searched, the search shall be made by another woman, with
strict regard to decency.
• S/53. The officer or other person making any arrest under
this Code may take from the person arrested any offensive
weapons which he has about his person, and shall deliver all
weapons so taken to the Court or officer before which or
whom the officer or person making the arrest is required by
this Code to produce the person arrested.
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 3. Power of Police in case of Arrest without Warrant
(s/54)
• S/54.(1) Any police-officer may, without an order from a Magistrate and
without a warrant, arrest-
firstly , any person who has been concerned in any cognizable offence or
against whom a reasonable complaint has been made or credible
information has been received;
secondly , any person having in his possession without lawful excuse, the
burden of proving which excuse shall lie on such person, any implement
of house breaking;
thirdly , any person who has been proclaimed as an offender either under
this Code or by order of the Government;
fourthly, any person in whose possession anything is found which may reasonably be
suspected to be stolen property and who may reasonably be suspected of having
committed an offence with reference to such thing;
fifthly, any person who obstructs a police-officer while in the execution
of his duty, or who has escaped, or attempts to escape, from lawful
custody;
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 Continued----
• sixthly, any person reasonably suspected of being a deserter from the
armed forces of Bangladesh;
seventhly , any person who has been concerned in, or against whom a
reasonable complaint has been made or credible information has been
received or a reasonable suspicion exists of his having been concerned
in, any act committed at any place out of Bangladesh, which, if
committed in Bangladesh, would have been punishable as an offence;
eighthly , any person for whose arrest a requisition has been received
from another police-officer, provided that the requisition specifies the
person to be arrested and the offence or other cause for which the
arrest is to be made and it appears there that the person might lawfully
be arrested without a warrant by the officer who issued the requisition.
• S/ 55.(1) any person within the limits of such station who has no ostensible means of
subsistence, or who cannot give a satisfactory account of himself; or (c) any person
who is by repute an habitual robber, house-breaker or thief, or an habitual receiver
of stolen property knowing it to be stolen, or who by repute habitually commits
extortion or in order to the committing of extortion habitually puts or attempts to put
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persons in fear of injury.
 Continued--
• S/57.(1) When any person who in the presence of a police-officer has
committed or has been accused of committing a non-cognizable offence refuses,
on demand of such officer, to give his name and residence or gives a name or
residence which such officer has reason to believe to be false, he may be
arrested by such officer in order that his name or residence may be ascertained.
• S/151. A police-officer knowing of a design to commit any cognizable offence
may arrest, without orders from a Magistrate and without a warrant, the person
so designing, if it appears to such officer that the commission of the offence
cannot be otherwise prevented.
• S/401.(3) If any condition on which a sentence has been suspended or remitted
is, in the opinion of the Govt. not fulfilled, the Government may cancel the
suspension or remission, and thereupon the person in whose favour the sentence
has been suspended or remitted may, if at large, be arrested by any police-
officer without warrant and remanded to undergo the unexpired portion of the
sentence.

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 3.1 Power of Private Person, Magistrate in case of Arrest
Power of Private Person in case of Arrest
S/59.(1) Any private person may arrest any person who in
his view commits a non-bailable and cognizable offence,
or any proclaimed offender, and without unnecessary
delay, shall make over any person so arrested to a police-
officer, or, in the absence of a police-officer, take such
person or cause him to be taken in custody to the nearest
police-station.
(2) If there is reason to believe that such person comes
under the provisions of section 54, a police-officer shall
re-arrest him.
(3) If there is no sufficient reason to believe that he has
committed any offence, he shall be at once released. 11
 Continued---------

Power of Magistrate in case of Arrest

S/64. When any offence is committed in the presence of a

Magistrate whether Executive or Judicial] within the
local limits of his jurisdiction, he may himself arrest or
order any person to arrest the offender, and may
thereupon, subject to the provisions herein contained as
to bail commit the offender to custody.

S/65. Any Magistrate whether Executive or Judicial] may

at any time arrest or direct the arrest, in his presence,
within the local limits of his jurisdiction, of any person
for whose arrest he is competent at the time and in the
circumstances to issue a warrant.
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 3.2 Procedure of Arrest of and MP of Govt. Service Holder
(s/172-176)
Functional Rule of National Parliament of Peoples Republic of Bangladesh:
Section 172: Judge, Magistrate or Executive Authority must
inform the Speaker the reasons of arrest or punishment
through appropriate form
Section 173: In case of bail, information must be sent to Speaker
Section 174: No MP can be arrest without the permission of
Speaker within the boundary of parliament
Section 175: No Warrant (whether criminal or civil) can be
issued without the permission of Speaker within the
boundary of parliament
Section 176: Speaker must inform the parliament about the
this news
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 3.3 Arrest beyond the jurisdiction of Police (s/58, 66, 67)
• S/58. A police-officer may, for the purpose of arresting
without warrant any person whom he is authorized to
arrest under this Chapter, pursue such person into any
place in Bangladesh.
• S/66. If a person in lawful custody escapes or is rescued,
the person from whose custody he escaped or was rescued
may immediately pursue and arrest him in any place in
Bangladesh.
• S/67. The provisions of sections 47, 48 and 49 shall apply
to arrests under section 66, although the person making
any such arrest is not acting under a warrant and is not a
police-officer having authority to arrest.
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 4. Duration of Detention after Arrest
Article 33(2), the Constitution of Bangladesh
S/61. No police-officer shall detain in custody a person arrested without warrant
for a longer period than under all the circumstances of the case is reasonable,
and such period shall not, in the absence of a special order of a M under s/167,
exceed 24 hours exclusive of the time necessary for the journey from the place
of arrest to the MC.
S/167.(1) If it appears that the investigation cannot be completed within the
period of 24 hours fixed by section 61, and there are grounds for believing that
the accusation or information is well-founded, and the IO making the
investigation if he is not below the rank of SI shall forthwith transmit to the
nearest JM a copy of the entries in the diary hereinafter prescribed relating to
the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate (1st Class) to whom an accused person is forwarded under
this section may authorize the detention of the accused in such custody as such
Magistrate thinks fit, for a term not exceeding 15 in the whole.

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 Continued-----

• (3) A Magistrate authorizing under this section

detention in the custody of the police shall record
his reasons for so doing.
• (4) If such order is given by a M other than CMM or
the CJM, he shall forward a copy of his order, with
his reasons for making it to the CMM or to CJM to
whom he is subordinate.
(4A) If such order is given by a CMM or CJM, he shall
forward a copy of his order, with reasons for making
it to the Sessions Judge to whom he is subordinate.

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 Remand/ Rules for Application for Remand
• No Explanation in CrPC
• A remand is an action taken by an appellate court in which it sends
back a case to the trial court or lower appellate court for further
action. A case is said to be "remanded" when the superior court
returns or sends back the case to the lower court. Also, a court may
be said to retry the case "on remand.“ (Law Dictionary)
• The remand or detention of a suspect is the process of keeping a
person who has been arrested in custody. Remand of Detained
person means to send back the arrested person to police custody to
further interrogation.
• Sec/ 167 (2) 0f CrPC: 15 Days
• State Vs Wazir Khan 20 DLR 264 WP: IO must write the grounds of
Remand to his CD and without observing this CD-----, remand order
can be declared illegal.
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 Continued---

• PRB, Rule 324

• Forwarding Letter:
Latest investigation report + Arrested Accused+ summary of FIR+ name and
address of the arrested accused
• If IO thinks--------
• Days for Demand must be mentioned
• Signature of IO and OC
• Reasons of demand must be fixed by IO and OC
• M can accept this prayer or can fix a date for hearing
• Section 167:
• Important matters for granting remand

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• Thus there is no maximum period fixed by law for order of detention
in police custody by the Magistrate. For how many terms not
exceeding 15 days can the Magistrate authorise detention? This is
not mentioned. In Indian CrPC provisions have been made that the
total period of detention in custody must not exceed 60 days and
such detention must not be in police custody. It is to be noted that in
England there is provision of remand in police custody for not more
than 3 days in total. If the defendant is on bail, there is no statutory
time limit for remand.
• There is no proper guideline as to when such prayer should be accepted and when rejected
by the Magistrate and this legal lacuna gives both the police officer and Magistrates power
to abuse the same. Police officers being motivated or dictated by the executive organ or out
of their personal conflict or aggrandisement seek unreasonable remand under section 167 of
the Code. And the Magistrates in absence of any proper guideline, either being dictated by
the executive organ or otherwise have been accustomed to follow a 'parrot like' order on the
forwarding letter of the police officer authorising detention either in the police custody or in
jail.
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• The views expressed in favour of police remand is that it is a civil necessity that if
some force is not used, no clue can be found out from hard-nut criminals. On the
other side of the spectra there is a widely held view that to send the arrested
person to police remand prima facie upholds the idea that the accused person did
not give the confession voluntarily. When the entire state machinery acts against
him, he cannot confess voluntarily and as such the provision for granting police
remand several times (although not exceeding 15 days in the whole) totally
destroys the purpose behind it. This is because a person coming before the
Magistrate has no guarantee that he will not be sent again to police remand unless
he has already completed 15 days. It is therefore imperative on the Magistrate to
give reasons for granting a remand.
• Again, article 35(4) of the Constitution states that no person shall be compelled to
be a witness against himself. So the provisions of the CrPC under section 167 are in
direct contrast with the provisions of the Constitution. This CrPC was passed by the
British government back in 1898 when there was no fundamental rights as we
have now in our Constitution. In view of the present provision in article 26 this
provision of police remand seems to be void and this is largely the decision of the
High Court Division in the BLAST v State.
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 5. Shown Arrest (s/351)
• S/351.(1) Any person attending a Criminal Court, although
not under arrest or upon a summons, may be detained by
such Court for the purpose of inquiry into or trial of any
offence of which such Court can take cognizance and
which, from the evidence, may appear to have been
committed, and may be proceeded against as though he had
been arrested or summoned.

(2) When the detention takes place after a trial has been
begun the proceedings in respect of such person shall be
commenced afresh, and the witnesses re-heard.

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 6. Legal Rights of an Arrested Person
• Cr P C gives wide powers to the police for arresting a
person. Such powers without appropriate safeguards will be
harmful for the society.
The Constitution of Bangladesh
• Article 33(1): No person shall be arrested without being
informed and every arrested person shall have the right to
consult and to be defended by a legal practitioner of his
choice.
• Article 33(2): Every person who is arrested and detained in
custody shall be produced before the nearest Magistrate
within a period of 24 hours of such arrest.
• Article 35: Protection in respect of Trial and Punishment
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 Continued-------

• Cr.PC
• S/60. A police-officer making an arrest without warrant
shall, without unnecessary delay and subject to the
provisions herein contained as to bail, take or send the
person arrested before a Magistrate having jurisdiction in
the case, or before the officer in charge of a police-station.
• Section 61 and 167
• Legal Aid Services Act 2000 (LASA).
• Bangladesh Legal Aid and Services Trust vs. Bangladesh
(55 DLR (HCD) 2003 363)

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 7. Guidelines for Arrest under BLAST and others vs.
Bangladesh Case 55 DLR (2003) 363
• Facts: BLAST, Ain o Salish Kendra, Shonmilito Shamajik Andolon and several
individuals filed a writ petition in the High Court challenging the abuse of police
powers to arrest without warrant under Section 54 of the CrPC and the abuse of
powers regarding taking the accused into remand (police custody) under Section
167 of the CrPC. The petitioners referred to recent incidents of gross abuse of
power, including allegations of custodial death, torture and inhuman treatment,
especially the killing of a young student, Rubel, in remand after arrest under Section
54 of the CrPC.
• Argument: The petitioners argued that law enforcing agencies routinely abuse the
powers granted under Sections 54 and 167 of the CrPC, and further that these
provisions suffer from vagueness and allow for arbitrary exercise of power. The
petitioners argued that the Court should enunciate safeguards to prevent or curtail
police abuse of powers and arbitrary actions by Magistrates, which constitute
violations of citizens’ fundamental rights to life and liberty, to equal protection of
law, to be treated in accordance with law and to be free from cruel, inhuman and
degrading treatment and punishment as guaranteed under articles 32, 27, 31, 33 and
35 of the Constitution.
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• Order: The High Court initially issued a Rule Nisi, and upon full hearing delivered
judgment on 07.04.2003, observing that Sections 54 and 167 of the CrPC are not fully
consistent with constitutionally guaranteed freedoms and safeguards. The Court laid
down a comprehensive set of recommendations regarding necessary amendments to
both sections of the CrPC, along with the Police Act, The Penal Code and the Evidence
Act, and directed that these should be acted upon within six months.
• It also laid down a set of fifteen guidelines with regard to exercise of powers of arrest and
remand:
– No Police officer shall arrest anyone under S/54 for the purpose of detention under S/3 of the Special
Powers Act, 1974
– A police officer shall disclose his/her identity and show his/her ID Card on demand to the person arrested
or those present at the time of arrest
– A record of reasons of arrest and other particulars shall be maintained in a separate register till a special
diary is prescribed
– The concerned officer shall record reasons for marks of injury, if any, on the person arrested and take
him/her to nearest hospital or government doctor
– The person arrested shall be furnished with reasons of arrest within three hours of bringing him/her to the
Police Station
– If the person is not arrested from his/her residence or place of business, the relatives should be informed
over the phone or through messenger within one hour of bringing him/her to Police Station
– The person concerned must be allowed to consult a lawyer of choice or meet nearest relations
• 25
 Continued------
– While producing the detained person before the Magistrate under Section 61 of the
CrPC, the police officer must forward reasons in a forwarding letter under Section 167
(1) of the CrPC as to why the investigation could not be completed within 24 hours and
why s/he considers the accusation and information to be well founded
– On perusal of the forwarding letter, if the Magistrate satisfies him/herself that the accusation and
information are well founded and materials in the case diary are sufficient for detaining the person in
custody, the Magistrate shall pass an order of detention and if not, release him/her forthwith
– Where a person is released on the aforesaid grounds, the Magistrate shall proceed under 190(1)(c) of
the CrPC against the Officer concerned under Section 220 of the Penal Code.
– Where the Magistrate orders detention of the person, the Officer shall interrogate the accused in a
room in a jail until a room with glass wall or grille on one side within sight of lawyer or relations is
constructed
– In any application for taking accused in custody for interrogation, reasons should be
mentioned as recommended
– The Magistrate while authorizing detention in police custody shall follow the
recommendations laid down in the judgment
– The police officer arresting under Section 54, or the IO taking a person to custody or the
jailor must inform the nearest Magistrate about the death of any person in custody in
compliance with these recommendations
– The Magistrate shall inquire into the death of any person in police custody or jail as per
the recommendations.
• Status: The Government has preferred an appeal (Civil Appeal No. 53/2004), which is now pending26
before the Appellate Division. However, no stay was granted and the Guidelines are in force.
Thanks for your attention.
Any questions ?

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