An overview of the legal provisions on Arrest without warrant

An overview of the legal provisions on Arrest without warrant


Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law is used to review the decisions of government agencies. Legal systems elaborate rights and responsibilities in a variety of ways. A general distinction can be made between civil law jurisdictions, which codify their laws, and common law systems, where judge-made law is not consolidated. Constitutional and administrative law governs the affairs of the state. Constitutional law concerns both the relationships between the executive, legislature and judiciary and the human rights or civil liberties of individuals against the state. (Law)

Law enforcement in Bangladesh:

1. Airport Armed Police

2. Bangladesh Ansar

3. Bangladesh Coast Guard

4. Bangladesh Police

5. Bangladesh Police Academy

6. Bangladeshi intelligence community

7. Criminal Investigation Department (Bangladesh)

8. Detective Training School

9. Dhaka Metropolitan Police

10. Police Staff College, Bangladesh

11. Police Training Centre

12. Rapid Action Battalion

13. Special Branch (Bangladesh)

14. Special Branch Training School

15. Special Women Police Contingent

16. SWAT (Bangladesh)

17. Village Defense Party (Category: Law Enforcement in Bangladesh).

Bangladesh Legal Aid and Services Trust vs. Bangladesh

In Bangladesh Legal Aid and Services Trust vs. Bangladesh (55 DLR (HCD) 2003 363), the High Court Division of the Supreme Court of Bangladesh provided elaborate guidelines in the form of fifteen directives on arrest without warrant, detention, remand and treatment of suspects to be followed by law enforcement agencies and magistrates. Subsequently, in Saifuzzaman vs. State and others (56 DLR (HCD) 2004 324) the Court issued guidelines to be followed by the government, magistrates and police in respect of arbitrary arrest, detention, investigation and treatment of suspects. Bangladesh Legal Aid and Services Trust (BLAST) filed their writ petition in 1998, while the latter petition came before the Court in 2002.

In the BLAST case, the Court directed that the legislature consider amending sections 54, 167, 176 and 202 of the Code of Criminal Procedure dealing with the powers and functions of police and magistrates. The proposed amendments of these sections explicitly ensure accountability on the part of the police and magistrates while dealing with issues relating to arrest of a person in suspicion of any offence, detention in custody, investigation manner, persons empowered to investigate, duties of magistrates in case of detention and custodial deaths. It further observed that the existing provisions of sections 54 and 167 of the Code (which provide police with powers to arrest without warrant, and magistrates to place persons on police remand, respectively) are inconsistent with the constitutionally guaranteed rights to equality before law and equal protection of law, to be treated in accordance with law to life and personal liberty, to protection against arbitrary arrest and detention, and to ensures fair trial in criminal prosecution (Arts 27, 31, 32 33 and 35 respectively)

The BLAST Guidelines provide that in order to prevent torture, or cruel or inhuman punishment or treatment, a police officer shall not arrest any person under section 54 of the Code for the purpose of detaining him under Special Powers Act, 1974, and the magistrate shall not make any such order of detention. Lacking the necessary knowledge, magistrates often grant detention of arrestees in such cases. Clearly, arrest under Special Powers Act is preventive in nature. A person is arrested under this Act not for his involvement in any offence; rather to prevent him from getting engaged with any prejudicial activity. The Court ruling requires every arresting officer to disclose his/her identity to the arrestee/detainee, and to inform their relatives about the arrest. The Guidelines also require the officer to record all information relating to the arrest of the person in an arrest memo. In a particularly important measure, designed to prevent torture, a police officer is required to record any marks of injury on an arrestee, and to take him to the nearest hospital for treatment. The police officer shall furnish reasons for arrest within three hours of bringing the person to the police station and allow the arrested person to consult a lawyer of his choice. A police officer shall incorporate reasons as to why investigation could not be completed within 24 hours of arrest of a person under section 54 of Cr. P. C (if this occurs), and why he considers that the information regarding the allegations well founded along with transmitting a copy of the case diary. The magistrate must be satisfied with the reasons stated in the forwarding letter of the police officer before making any order for detention in jail. Otherwise he shall release the person. For interrogation purpose the accused shall be kept inside a room in the jail as prescribed by the Court within the view but not hearing of a close relatives or lawyer of the arrestee, rather than in police custody per se. In the application for taking the accused on remand in police custody for interrogation, the investigating officer shall state grounds for taking the accused to the custody.

These Guidelines, though not systematically observed, have played an essential role in safeguarding vulnerable persons from the threat of violence in custody by being cited in lower courts and, in the course of writ petitions to the High Court, to prevent persons being taken on remand or being maltreated while on remand.

But a more systematic approach is necessary. To incorporate the guidelines made by the judiciary, certain initiatives need to be taken. It is critical that the government as well as the police change their mindset by avoiding the use of unlawful methods of interrogation on an accused and only bring them to justice under the due process of the law. To make the law effective, law enforcement personnel have to be given proper training consistent with fundamental rights. The government must be more vigilant to prevent and to punish instances of arbitrary arrests, remand and custodial violence. The government must also ensure police effectiveness and accountability, both of which go hand in hand.

The BLAST judgment highlighted the need to ensure effective policing alongside safeguards for arrestees and detainees. Reformation of the existing police code is a prerequisite for its effective function. Monitoring cells could be established in different police stations to identify if there is any abuse of power by the police under sections 54 and 167 of the Code; unless benefits like salary, ration and other social incentives are provided, the police cannot work fairly and without influence. In order to ensure accountability and improve the service of the police, the Government had earlier initiated a ‘Draft of Police Ordinance, 2007’ to reform the century and a half old existing Police Act of 1861. However, no such initiative was taken for the implementation of this draft Ordinance so far (Khan & Ataul-Al-Osman, 2010).

Rule of Law in the Constitution of Bangladesh

The rule of law is a basic feature of the constitution of Bangladesh. It can be seen from the preamble that fundamental human rights and freedom, equality and justice, political, economic and social have been mentioned after rule of law. Part II of the Constitution states about the fundamental principles of state policy and in Art. 8(2) it is stated that “The principles set out in this part shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws,’ Art. 19 states that the State shall endeavor to ensure equality of opportunity to all citizens. Art. 22 state that “The State shall ensure the separation of judiciary from the executive organs of the State.”

As there is difference of opinion as to the actual meaning of ‘rule of law’, the framers of the Constitution, after mentioning ‘rule of law’ in the preamble, took care to mention the other concepts touching on the qualitative aspects of law, thereby showing their adherence to the concept of rule of law as propounded by the latter viewers. To attain this fundamental aim of the State, the Constitution has made substantive provisions for the establishment of a policy where every functionary of the State must justify his action with reference to law. ‘Law’ does not mean anything that Parliament may pass. Article 27 and 31 of the Constitution of Bangladesh has taken care of the qualitative aspects of law. Art. 27 forbid discrimination in law or in State action. Article 7 and 26 impose limitation of the legislative that no law which is inconsistent with any provision of the Constitution can be passed. Article 26 declares that all existing law inconsistent with the provisions of fundamental rights of the citizens, to the extent of such inconsistency, shall become void.

Fundamental rights have been guaranteed in the Constitution. Which rights are the fundamental rights have been defined in Part III of the Constitution. Art. 27 guarantees equality before law, 28 guarantees that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth, Art. 29 guarantees equality of opportunity in respect of employment or office in the service of the Republic. Art. 31 guarantees right to protection of law, Art. 32 guarantees protection of life and personal liberty, Art. 33 guarantee safeguards as to arrest and detention of the citizens, Art. 34 prohibit forced labor and Art.35 guarantees protection in respect of trial and punishment.

Subject to any reasonable restrictions imposed by law in the public interest, public health, public order or security of the State etc. right to freedom of movement, assembly, association, thought and conscience and of speech, freedom of profession or occupation, religion; rights to property; protection of home and correspondence have been guaranteed in Arts. 36 to 43 of the Constitution.

Under the Constitution, the High Court Division has power under Art. 102(1) to pass necessary orders to enforce fundamental rights and under Art. 44(1) the right to move the High Court Division under Art. 102(1) is itself a fundamental right. Thus it is not discretionary power of the High Court Division to grant relief under Art. 102(1). Once it finds that a fundamental right has been violated, it is under Constitutional obligation to grant the necessary relief.

The guardianship of the constitution has given to the Supreme Court. The Supreme Court has given the power of judicial review. In accordance with Articles 7, 26 and 102(2) of the Constitution the Supreme Court exercises the power of the judicial review whereby it can examine the extent and legality of the actions of both the Executive and Legislative and can declare any of their actions void if they do anything beyond their constitutional limit. In the recent past the hobble High Court Division declared the fifth and seventh amendment of the Constitution illegal and unconstitutional as those amendments were made against the basic structure of the Constitution.

The independence of judiciary is affirmed and declared by Art. 94(4) and 116A of the Constitution. Art. 94(4) declares that subject to the provisions of the Constitution the Chief Justice and other Judges of the Supreme Court shall be independent in the exercise of their judicial functions and on the other hand Art. 116A declares that all magistrates shall be independent in the exercise of their judicial functions. The Appellate Division in the Masder Hossains case observed: “The independence of judiciary as affirmed and declared by Art. 94(4) and 116A, is one of the basic pillars of the Constitution.

In the present context democracy is the precondition of rule of law. Right to be governed by a representative body answerable to the people have been ensured under Arts. 7(1), 11, 55, 56,57 and 65(2) of the Constitution. The provisions of the Constitution as discussed above are effective for ensuring the rule of law in Bangladesh (Badalnd.).

Conceptualizing Rule of Law

The ‘rule of law’ is often credited as a fundamental aspect of the British Constitution. Constitutionalist AV Dicey is reportedly the first scholar to have significantly elaborated the conception. The Dicey an concept of the rule of law involves the following three elements:

i. The rights of individuals are determined by legal rules and not by the arbitrary behavior of authorities: this is what is described as the absence of arbitrariness.

ii. No punishment is legal unless a court decides that there is a breach of law by the condemned/offender.

iii. Everyone, regardless of one’s position in society, is subject to the same ordinary (as opposed to special) laws of the country concerned

The concept of rule of law has indeed gone a long way since it was first categorically expounded by Dicey. In its classical exposition, the critical feature of the rule of law remains that individual liberties depend on it, i.e., equal legal treatment of all. In the modern sense not too distinct from its classical expression, the rule of law means supremacy/rule of ‘the law’ and not ‘rule by law’, law being the ‘qualitative law’ informed of higher norms, ethics and morality, and not any law. This legal supremacy can be attained through ensuring a complete responsibility of those in charge of powers on behalf of those governed. It is in this sense that many emphasize the procedural aspect of the rule of law in that what is called in US constitutional law the ‘due process of law’ prevails in very state actions.

We, however, often relate the concept of rule of law to some substantial principles such as liberal democracy, guarantee of fundamental human rights, existence of an independent and impartial judiciary to effectively protect the liberties of the pubic, openness as opposed to secrecy in the affairs of the governance, removal of past discriminations, insurance of human equality and dignity, and so on. To put it briefly, practical aspect of rule of law is to ensure a ‘just society’ or a ‘just government’ where everyone will get her/his due.

These elements of the rule of law got their expression in the Declaration of Delhi 1959 adopted by leading jurists from around the globe, where the following were reemphasized:

a) the people’s right to responsible government, and the legislature’s obligation to conform to minimum standards of law;

b) Judicial control executive actions and delegated legislations;

c) a fair and public trial, meaning criminal justice for the accused and the victims;

d) Independence of the judiciary and the legal profession.

The Declaration defined the rule of law in the following terms:

“The rule of law implies that the functions of the government in a free society should be so exercised as to create conditions in which the dignity of man as an individual is upheld. This dignity requires not only the recognition of certain civil or political rights but also creation of certain political, social, economical, educational and cultural conditions which are essential to the full development of his personality”. (quoted from IP Massey).

Context: Bangladesh

The existence or absence of rule of law in Bangladesh in the above-explained sense is a contested issue. Despite the fact that the framers of Constitution of Bangladesh premised this basic document on the high ideal of the rule of law and that independent Bangladesh had been a result of the denial by the West Pakistani colonizers of the rule of law and human dignity to Bangles, the present Bangladeshi society cannot claim to be enjoying the benefits of rule of law. This statement may be further explained by reference to many legal provisions and instructions as well as political practices. Before that, it would be wise to briefly reflect on the constitutional provisions that seek to establish the rule of law in Bangladesh.

The preamble to the constitution makes it clear that it shall be a fundamental aim of the state to establish ‘rule of law’ and social, economic and political justice. The preamble to the Constitution also pledges for the protection of fundamental rights and human dignity and the attainment of democracy, which are indeed inseparable limbs of the rule of law. And, the Constitution’s article 7, the supremacy clause, proclaims that all powers of the state belong to the people and that can be exercised by the representatives only on behalf of the people. Article 7 further says that the Constitution is the supreme law of the land and any other law inconsistent therewith would stand void. These assertions, no doubt, are the embodiment of the substantive contents of the rule of law.

Provisions and Practices Anti-thesis to the Rule of Law

Unfortunately, the Constitution itself contains a number of provisions that defy the basic tenets of the rule of law. For example, the preventive detention exceptions in the Constitution (art. 33) and the Special Powers Act, 1974 that allow for executive detention of any person without any formal charge being brought and without any judicial order is a clear negation of the rule of law. In the same vein, the Emergency Provisions in the Constitution, which give ample and almost unchecked power to the President to promulgate emergency and to suspend enforcement of fundamental rights during such an emergency does not go hand in hand with the ideal of rule of law. Even in our neighboring countries, emergency provisions are not so draconian. It is however promising that the Supreme Court (HCD) has recently held that there are limits as to the

President’s satisfaction as to when or at all he needs to promulgate an Ordinance. This is a clear step forward towards the objectives of the rule of law (Khan, n.d.).

At the level state practices, the criminal justice system can be blamed for sustaining many ill-thought practices that are indeed an onslaught on the higher norm of rule of law. In addition to excessive delays in bringing justice to the victims of crimes, the practice of custodial deaths or violence (in whatever name such as ‘encounter’ or ‘crossfire’ they are expresses) is a glaring example of twisting the law or violating the rule of law. More alarming is the continuing culture of impunity being accorded to those who flout the law and abuses their legal powers. Thus, there is the need for a major overhauling of the criminal justice system including the police department and the prosecution wing of the government.

The continuing existence of corruption, irregularities in public contracts, and keeping of official secrecies, that ultimately deny people’s right to know and to have open/honest governance, are anti-thesis to a rule of law-based society. Undoubtedly, if we want to transcend to the rule of law, these issues are to be taken care of.


Rule of law is meaningless unless there be an unhindered access to justice. The present costly and prolonged/dilatory justice-delivery system does not match with the goals of ‘rule of law’. It is well known that each court in the country is extremely overburdened and the people need to wait for years and spend almost the last penny to get justice. In order for the ‘rule of law’ to prevail, there is no better way than to make reasonably prompt and affordable justice possible for the litigants. Closely linked with this is the recruitment of quality lower court judges and a selection scheme, based on merit, knowledge and integrity, for the top court judges. What we need to do in order to achieve and entrench the rule of in our society is emphasize on:

1. qualitative lawmaking,

2. repealing of arbitrary laws,

3. institutions building,

4. enhancing legal aid,

5. educating the public,

6. improving legal education,

7. further consolidation of judicial independence and the integrity of the Bar,

8. expedition of the justice delivery process,

9. free access to information,

10. more effective political participation,

11. political stability, and

12. Improvisation of means of executive and administrative accountability.