Md. Saifuzzaman v State (2003)

Md. Saifuzzaman vs State and others

Citation : 56 DLR (2004) 324

Jurisdiction : Bangladesh

Appellant : Md. Saifuzzaman
Respondent : State and others

Background :

This was not a standard appeal from a lower trial court but a set of two Rules (writ-type proceedings for production of detained persons) arising from the same set of facts, disposed of together by a single judgment. The background procedural chain was as follows:

The detenus were arrested on 25 February 2002 under section 54 of the Code of Criminal Procedure and forwarded to the Chief Metropolitan Magistrate, Dhaka. They were subsequently communicated with orders of preventive detention on 27 February 2002, which they challenged in Criminal Miscellaneous Case Nos. 2400 and 2405 of 2002. The High Court Division declared those detention orders illegal and directed release by judgment dated 23 March 2002. Before release could be effected, police repeatedly had the detenus “shown arrested” in a succession of unrelated pending cases (Ramna, Dhanmondi, Demra, Mohammadpur, and Tejgaon Police Station cases), obtaining fresh remand orders from the Chief Metropolitan Magistrate each time, with intervening bail orders from Sessions Judges in some instances. The detenus then moved the High Court Division again, obtaining the two Rules (Criminal Miscellaneous Case Nos. 9145 and 9146 of 2002) that are the subject of this judgment, calling upon the opposite parties to show cause why they should not be produced and dealt with in accordance with law.

Facts :

The detenus of this case, Liakat Sikder, a student of Dhaka University and President of Bangladesh Chhatra League, and Md. Rafiqul Islam Kotwal, a student of Dhaka University and Vice President of Bangladesh Chhatra League, both were active in student politics and had participated in movements for political freedom. They were arrested outside Sudha Sadan, Dhanmondi, on 25 February 2002 under section 54 of the Code of Criminal Procedure, in connection with a General Diary (GD) entry. The GD entry underlying the original arrest was formally dropped by the Chief Metropolitan Magistrate on 30 March 2002, meaning it ceased to exist as a basis for custody from that date.

Despite this, and despite an earlier High Court order declaring their detention illegal, the detenus were kept in continuous custody by being “shown arrested” in one pre-existing case after another, Dhanmondi PS Case No. 71, Ramna PS Case No. 26(2)/02, Ramna PS Case No. 57, Demra PS Case No. 76, Mohammadpur PS Case No. 38, and Tejgaon PS Case No. 98, spanning from March to August 2002. In each instance, the police simply made a prayer before the Chief Metropolitan Magistrate to show the detenus arrested in the case; the Magistrate allowed the prayer and remanded them to custody, and the detenus were later separately released on bail in each case by Sessions Judges, only to be immediately shown arrested in the next case. Critically, at no point were the detenus physically produced in court when these successive remand orders were made, and no supporting case-diary materials establishing their complicity were placed before the Magistrate.

The State filed no counter-affidavit disputing any of the facts alleged by the detenus, and the Additional Attorney-General did not dispute the facts stated in the petitions. The detenus then filed the present Habeas Corpus Rules before the Court.

Issues :
1. Whether the provisions of the Code of Criminal Procedure authorise a Magistrate to make orders of custody in different cases merely on the asking of police officers, in the absence of the detenus.
2. Whether a police officer has the power to apprehend a person under section 54 of the Code for the collateral purpose of putting him in preventive detention or successively implicating him in other cases, rather than for the purposes section 54 actually authorises.
3. Whether registration of a case is a mandatory precondition for a Magistrate to authorise detention under section 167 of the Code.
4. Whether Article 33 of the Constitution requires that an arrested person be produced before, and informed by, the Magistrate before any further custody order can validly be made.

Arguments :

Petitioners Arguments:
Mrs. Tania Amir, appearing for the detenus, argued:
1. In the absence of any ground for believing that the detenus had been concerned in any cognisable offence, the use of section 54 of the Code as an instrument for putting them in detention, and for repeatedly showing them arrested in different cases, was unauthorised and without jurisdiction.
2. The orders of the Magistrate remanding the detenus to judicial custody on the mere prayer of police claiming complicity in various cases, without satisfying himself as to prima facie materials from the case diary entries were contrary to section 167 of the Code. The remand orders were made mechanically, without any application of judicial mind, and should therefore be quashed in the interests of justice.
3. She relied on ‘Bangladesh Legal Aid and Services Trust (BLAST) and others vs. Bangladesh and others (55 DLR 363)’ in support of the proposition that a person cannot be put into preventive detention merely by invoking section 54 arrest powers, since section 54 empowers only a police officer to arrest, whereas an order of detention can only be made by the Government, a District Magistrate, or an Additional District Magistrate upon being satisfied that the person has indulged in “prejudicial activities” within the meaning of section 2(f) of the Special Powers Act, 1974.

Mr. M. Amirul Islam, also appearing for the detenus, argued:
1. He stressed the police excesses committed against the detenus and the violation of their fundamental rights, submitting that no action detrimental to a person’s life, liberty, body, or reputation may be taken except in accordance with law. The detenus were denied the protection of law because they were never informed, at any point, of the cause of their arrest by the police.
2. The police used section 54 of the Code and section 3 of the Special Powers Act merely as instruments to harass the detenus; once those devices failed to serve their purpose, the detenus were shown arrested in a series of unrelated cases one after another, without being informed of the accusations against them and even the Magistrate himself did not know on what allegations he was authorising custody. If such a process were permitted, there would be no end to the harassment of detenus, who could be kept perpetually incarcerated through successive, unrelated cases. These actions of the law-enforcing agencies were not only deprecatory but contrary to Articles 27, 31, 32, and 33 of the Constitution.
3. Referring to the order sheets of the various cases, he submitted that at no point were the detenus produced in court when remand prayers were made, they were completely denied their right to consult and be defended by a legal practitioner of their choice.
4. He characterised the police’s repeated remand applications as devices employed with malafide intent to frustrate the Court’s earlier order directing the detenus’ release, describing the practice as subjecting individual liberty to a “never-ending game of snakes and ladders” that satisfies neither procedural nor substantive rule of law, nor the standard of “due process.”
5. He contended that the Chief Metropolitan Magistrate’s orders allowing the successive prayers were not merely mechanical but a colourable exercise of power, liable to be quashed.

Respondents Arguments:
The learned Additional Attorney-General, appearing for the State, argued:
1. A police officer has an inalienable right to apprehend a person under section 54 of the Code if that person has been concerned in any cognisable offence.
2. If a detenu’s complicity in a case is detected during the course of investigation, the investigating officer has the power to implicate him in that case, which, it was submitted, had properly been done here, since the detenus’ complicity had been revealed through the investigating officers’ inquiries, and they were accordingly shown arrested in accordance with law.
3. The learned Magistrate, having been satisfied that the detenus had complicity in those cases, properly allowed the prayers in exercise of his powers under section 167 of the Code, and such orders could not be said to be illegal or unlawful. Section 167 of the Code enjoins a Magistrate to make orders on the basis of prayers made by investigating officers, and in support of this contention, he relied on ‘Aftabur Rahman @ Jongi vs. State (45 DLR 593)’.

Decisions :

The Court made the Rules absolute. It held that the successive remand orders passed by the Chief Metropolitan Magistrate were arbitrary, mala fide, and without jurisdiction, and were accordingly set aside. A Magistrate cannot lawfully authorise detention of a person under section 167 of the Code without a case first being registered against that person, registration of a case is a sine qua non for such detention. An arrested person must be produced before the Magistrate before any order remanding him to custody (police or judicial) can be made; mechanical orders passed in the accused’s absence, without production of case-diary entries, do not satisfy section 167 or Article 33 of the Constitution. Police cannot use section 54 as an instrument for collateral purposes such as manufacturing grounds for preventive detention or perpetuating custody by repeatedly implicating a person in unrelated pending cases once the original basis for arrest (here, the GD entry) had ceased to exist. The Court specifically quashed the six remand orders, each of which had been used to keep the detenus in continuous custody. The detenus, Liakat Sikder and Md. Rafiqul Islam Kotwal, both were released from their bail bonds. 

Beyond disposing of the immediate case, the Court, acting under sections 54, 60, 61 and 167 of the Code of Criminal Procedure and Article 33 of the Constitution, issued the following binding guidelines to be followed in all cases of arrest:

1. Police must prepare an arrest memorandum immediately, signed by the arrestee with date and time.
2. A relative or friend (suggested by the arrestee) must be notified of the arrest, location, and custody within 6 hours.
3. The diary must record grounds of arrest, the informant/complainant’s details, relative/friend notified, and the custody officer’s particulars.
4. The arrest memorandum, complaint copy, and diary entries must be sent to the Magistrate when producing the arrestee under section 167.
5. After police remand expires, the arrestee must be produced before the Magistrate before any further custody order.
6. A case must be formally registered before seeking police or judicial custody under section 167(2).
7. If diary entries are not produced before the Magistrate, the arrestee must be released on bond under section 169.
8. A Magistrate cannot order that a person already in custody be “shown arrested” in a new case unless produced with relevant diary entries.
9. If investigation exceeds 15 days, the competent Magistrate may extend remand under section 344, up to 15 days at a time.
10. A Magistrate must not order judicial custody if the forwarding report reveals the arrest was meant for “preventive detention.”
11. The Magistrate must verify compliance with all the above before passing any order under section 167.

Court’s Reasoning :

1. The Court framed the core issue as whether the Code authorises Magistrates to grant custody orders merely on police request, without production of the accused, and whether section 54 can be used for collateral purposes like preventive detention. It invoked the Indian Supreme Court’s characterisation of such abuse as “state terrorism” with no answer to combating actual terrorism.
2. The Court held section 54 arrest powers, while wide, require genuine “credible information” or “reasonable suspicion” founded on definite facts, not “vague surmise.”
3. Sections 60 and 61 require production before a Magistrate within 24 hours, failing which release under section 169 follows. The Court set out Article 33(1)-(2) in full, holding it embodies universal safeguards for personal liberty, subject also to Article 32. It noted Article 33 is in pari materia with Article 22 of the Indian Constitution, quoting Dr. B.R. Ambedkar’s Constituent Assembly speech on why these protections were entrenched constitutionally rather than left to ordinary statute.
4. The Court referenced the Malaysian Criminal Procedure Code (ss. 23, 24, 27, 15, 19, 25, 28), noting Bangladesh’s Code lacks equivalents to India’s ss. 50, 53, 54 (informing arrestees of bail rights, medical examination).
5. The Court held section 167(2) permits up to 15 days’ custody during investigation, while section 344 permits further remand but only to jail custody, requiring “sufficient evidence” per its Explanation.
6. Between ‘Mokbul Hossain vs. Government of Bangladesh (54 DLR 118), (permitting detention after s.54 arrest)’ and the later ‘BLAST vs. Bangladesh (55 DLR 363), (by the same judge, holding such arrest “neither lawful nor permissible”), the Court expressly adopted BLAST, including its interpretation of “as soon as may be” in Article 33(1) and its finding that s.54 is “inconsistent”.
7. The word “forwarded” in s.167(2) was held to require the accused’s presence at remand. The Court relied on ‘Aftabur Rahman @ Jongi vs. State (45 DLR 593)’ against Magistrates appearing “subservient to the police”) the facts, the detenus were never produced across six successive remands.
8. The Court declined to strike down ss.54, 167, or 344 as unconstitutional, preferring legislative reform. It grounded this restraint in ‘Narmada Bachao Andolan vs. Union of India (AIR 2000 SC 3751)’ on the constitutional separation of powers and the limits of judicial review.
9. The Court identified executive dependence of Magistrates as the root problem, invoking the ‘Secretary, Ministry of Finance vs. Masdar Hossain (52 DLR (AD) 82)‘ and its direction for an independent Judicial Services Commission under Article 115, urging immediate implementation.

Relevant Laws :

1. The Constitution of the People’s Republic of Bangladesh
   • Article : 21, 22, 27, 31, 32, 33, 33(1), 33(2), 115
2. The Code of Criminal Procedure (CrPC), 1898 (Bangladesh)
   • Section : 4(1), 54, 60, 61, 154, 156, 157, 167, 167(1), 167(2), 168, 169, 170, 172, 173, 190(b), 340, 344, 439
3. The Special Powers Act, 1974

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Author :
1. Farah Arifin

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