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Detention without trial

AMM SHAWKAT ALI
***It is said that the High Court used to publish prior to 1971, an annual report on administration of criminal justice. This used to be a public document with relevant information, among others, on long pending cases. This monitoring information document should not only be revived but strengthened to deal with cases of prisoners without trial. Finally, the relevant provision of rule-making authority of the High Court that requires previous sanction of the government should be deleted from the statute book in the changed context of independence of the judiciary.***
NORMALLY, detention without trial would mean detention of persons without any specific criminal charge. This arises in a situation where the executive organ, the District Magistrate, based on police report, applies the provision of Special Powers Act (SPA). The provisions of the Act are said to have been much abused primarily on political grounds. Now, we have the cases of under trial prisoners languishing in jails without trial. These cases are different from SPA in that such provisions have to face trial on one or more sections of the penal code. In the language of the jail code, they are known as under trial prisoners (UTPs).
In a landmark judgment in a public interest writ, the High Court on July 3, 2004, asked the attorney general and the principal secretary to the prime minister's office (PMO) to initiate steps on the merits of each case to free the UTPs on bail. The public interest writ was filed by Bangladesh Legal Aid and Services Trust (BLAST) following a news item in the Daily Star relating to Dhaka Central Jail. Following initial directions from the High Court, the government submitted a report on the status of UTPs. The report revealed that as many as 7,409 UTPs were behind bars for a period ranging from about a year to over 11 years. The UTPs also included children and women. The court found the case of prisoners without trial to be violative of constitutional rights. Indeed, such violations
would not have occurred if the subordinate judiciary applied its mind.
The shocking facts of the report submitted by the government lead one to believe that the subordinate judiciary at the level of the sessions court and below has collapsed or is in a near state of collapse. On the positive side, (a) the verdict given by the High Court appears to establish and enhance the image and authority of the High Court in the public eye, and (b) the prisoners without trial will hopefully be out of
detention. In the past also, the High Court had played a proactive role in a number of cases. For instance, a few months back, it intervened in the case of a three-year old child accused of and brought before a magistrate for trial.
Such interventions by the High Court are highly welcome, but the High Court cannot be expected to do so as a matter of routine. This raises the issue of whether or not there is any inbuilt mechanism to deal with UTPs.
From the trends of the nature of cases that have appeared in newspapers, it is possible to categorise them in a number of areas. The case of Iman Ali, the three-year old child reflects the inability or unwillingness of both the magistracy and the police to provide protection against criminal trial for children under the age of seven. Our penal law prohibits prosecution of children of this age. The relevant provision clearly states that nothing is an offence, which is done by a child under seven years of age. Another
provision also lays down that nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature and consequences of his/her conduct on that occasion.
This provision qualifies the exemption of children under twelve with the condition that they would be exempted if they have not attained sufficient maturity of understanding to judge the nature and consequences of
their conduct at the time of commission of the offence.
The case of first offenders
There are also beneficial provisions in the procedural criminal law in respect of first offenders. It enables the court, under certain circumstances, to release a convicted person on probation of good conduct. It applies only to first offenders. The idea is not to force a first offender to prison for an offence which is not of serious nature. The object is to avoid the risk of turning him into a regular criminal.
The cases of juvenile offenders
It was reported that there are 1,223 children in criminal jails. The High Court directed immediate transfer of such offenders from jails to correction centers and withdrawal of cases against under-12 prisoners. This directive of the High Court, highly welcome as it is, also signifies that things are not well in the subordinate
judiciary.
There is specific provision for trial and confinement of juvenile offenders. The trial court has the authority to direct that juvenile offenders under the age of fifteen years be confined in reformatories and not in jail. Such reformatories or correctional homes do exist in Bangladesh and these are operated and managed by the department of social welfare. The system is in place but appears to have become dysfunctional.
Managing UTPs
One of the means used to be freely resorted to by the subdivision magistrates (SDMs) of yesteryears was regular inspection of jails within their respective jurisdictions. During visits and inspections to jails, the UTPs would line up holding their individual cards. These cards used to contain rudimentary information such as date of first confinement, sections of law, etc. All cases of UTPs shown arrested under 54 CrPC, specially those whose period of stay is longer, would be released on bail or discharged. This practice probably has gone into disuse thereby leading to an increase of UTPs in jails. In those days, the High Court was not required to intervene. It is said the cabinet committee on jail reforms had, among others, asked the District Magistrates to conduct regular inspections of jails. Apparently, the directive so given is yet to yield desired results.
In other cases, when the police is taking an inordinately long time to
submit charge sheet, except for cases of grave and serious nature triable by the court of sessions, the magistrates would issue order of discharge for lack of evidence. It all depends on the quality of the magistrates and their courage of conviction. There would also be cases that some UTPs have stayed in jails without trial for a period longer than the sentenced of imprisonment if convicted. In such cases also the magistrates would apply their judicial mind and set the accused free.
It would be justice tempered with mercy and not blind justice.
Bail in non-bailable offence
The High Court's directive to free UTPs on bail would not have been necessary, had the subordinate courts exercised the authority vested in them in matters relating to grant of bail in non-bailable cases. The relevant provision of law empowers a court to release on bail any accused except in cases of where there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or transportation for life. Even in such cases, the court may direct any person under the age of sixteen years or any woman or any sick or infirm person accused of such offence be released on bail.
Withdrawal of cases
One of the High Court directives also includes releasing child offenders on bail if the cases cannot be withdrawn. Indeed, even sessions triable cases can
be withdrawn with the consent of the court. The law authorises any public prosecutor (PP) to withdraw cases. The detailed procedures for consultation and the cases that are to be withdrawn are more elaborately laid down in the police regulations. Indeed this is also evidence of the near collapse situation of the administration of criminal justice. The system of withdrawal on the merits of each case does not move on its own motion. Many people believe that only political wire pulling can lead to withdrawal of cases.
High Court's rules and orders The issue of withdrawal of cases being influenced by politics rather than on the merits of each case bring in the question of High Court's rule making authority granted to it by the procedural criminal law. The law empowers the High Court to make rules, with the previous sanction of the government, among others, for regulating its own practice and proceedings including those of all criminal courts subordinate to it. Our High Court must have such rules and orders. The ordinary citizens do not know what these are. There is need to make it transparent. There is also need to revisit the existing rules to include cases of prisoners without trial as part of the drive to regulate the practice and proceedings of subordinate criminal courts. It is said that the High Court used to publish prior to 1971, an annual report on administration of criminal justice. This used to be a public document with relevant information, among others, on long pending cases. This monitoring information document should not only be revived but strengthened to deal with cases of prisoners without trial. Finally, the relevant provision of rule-making authority of the High Court that requires previous sanction of the government should be deleted from the statute book in the changed context of independence of the judiciary.
AMM Shawkat Ali, PhD, is a former Secretary, Ministry ofAgriculture.