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Large-scale arrests are not helpful

Muhammad Nurul Huda
***Straight line
The remedy largely lies in an attitudinal change in the police whereby our police culture will get relief from several scourges, including false implication of innocent persons in criminal cases. That would be some achievement as substantial remedy would follow from the change in the attitude of the political establishment, the real wielders of power. The colonial mindset has to change.***
IN view of the large-scale arrests made by Bangladesh Police in recent times, it would be worthwhile to recollect that various constitutional rights in the nature of human rights of individual suspects come under the direct handling of police in all stages of crime investigation — from arrest to imprisonment. In a country like Bangladesh, where stricter penal laws have to be enacted to curb the terrorist menace and other criminal mischief -- to be enforced by the police not trained to a necessary level -- there is always likelihood of abuse of powers by the police in negation of the individual's rights.
A realistic approach, therefore, should be made to reconcile the individual rights, liberties and privileges, and individual duties, obligations and responsibilities towards the collective interest It has to be remembered that no arrest can be made merely because it is lawful for a police officer to make an arrest. Existence of power to arrest is one thing and justification for it is quite another. ■■■■■■■■■■■■
According to the expert view, a police officer must be able to justify arrest, apart from his power to do so. Arrest and detention of a person in police lockup can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person.
In the fitness of tilings it would be prudent for a police officer, in the interest of protection of constitutional rights of a citizen and perhaps in his own interest, not to make an arrest without reasonable satisfaction reached after some investigation as to the genuineness and bona-fides of a complaint, and a reasonable belief as to the person's complicity. Denying a person of his liberty is a serious matter.
The Third Report of the National Police Commission of India mentioned that, except in heinous offences, an arrest must be avoided if a police officer issues a notice to the person to turn up at the police station. The Supreme Court of India issued following requirements for effective enforcement of fundamental rights:
• An arrested person being held in
custody is entitled, if he so requests, to have one friend, relative or other person who is known to him or likely to take an interest in his welfare, informed about his arrest and where he is being detained.
• The police officer shall inform the arrested person of this right when he is brought to the police station.
• An entry shall be required to be made in Diary as to who was informed of the arrest.
The sheer number of arrestees, including men and women, of humble background, as appeared in newspapers, sufficiently demonstrates an abnormal enforcement tactic on the part of the regulatory outfit and an ill-thought policy of the establishment.
The credibility of such arrests is open to question, as no abnormal incident took place before or during the arrests to justify the grounds of so-called preventive arrest under the law. While it is a fact that police may interpose to prevent the commission of cognisable offences and make arrests, the ground reality does not point to such contingency. One would, therefore, be not incorrect to ■■■■■■■■■■■■■■■■■■■■■■■■■■
understand that such arrests mostly, if not all, were made on subjective grounds and perhaps on considerations not exactly legal.
A large number of people apprehended have been shown arrested in connection with criminal cases lodged much earlier at different police stations. This will definitely raise grave suspicion about the genuineness of the arrests and the alleged high-handedness of the law enforcers. Past experience with regard to such arrests is that mostly an overwhelming majority of such arrestees are released soon without any specific charges being framed against them.
The disconcerting part is that neither does the lower judiciary take a serious view of such indiscriminate and mindless action of the police and issue orders for corrective action, nor are the suffering members of the public in a position to take recourse to civil and criminal remedies for the apparent wrongful confinement and loss of liberty.
The above scenario, undoubtedly, does not augur well for a civilised democratic polity. The pernicious culture has become an anathema to democracy because ■■■■■■■■■■■■■■■■■■■■■
in such an environment tolerance, compassion, sympathy, respect for a different view, all essential tenets of a lawful society, take leave of us. Let us not forget that our people mostly are of excitable temper and. thus, if our leaders do not adopt a moderating posture in matters affecting public good then our less-than-stable democratic polity stands to suffer grievously.
A democratic polity may, therefore, reasonably ask why our law-enforcement organisation is plunging headlong into a legally indefensible course, and with such disconcerting gusto? Are our police doing things they ought not to do, or refraining from doing things they ought to do7
By resorting to practicing such lawless law enforcement, which obviously is a contradiction in terms, the police inevitably further tarnish their own image. Paradoxically, such lawless police officers are in high demand in our perilously polarised polity. Believers in the rule of law and followers of strict legal methods are considered to be "cows" and "sis-sies.
The establishment is, unfortunately, mostly concerned with the
so-called order rather than the observance of law. Therefore, the remedy largely lies in an attitudinal change in the police whereby our police culture will get relief from several scourges, including false implication of innocent persons in criminal cases. That would be some achievement as substantia) remedy would follow from the change in the attitude of the political establishment, the real wielders of power. The colonial mindset has to change.
Preventive action of police
What is required under Section 151 of the Criminal Procedure Code is that the police officer concerned must know that the person to be arrested is planning to commit a cognisable offence. An "apprehension" that he may commit an offence is not sufficient under the provision. Apprehension is not the same thing as knowledge. The former is mere feeling. The latter is definite conclusion. If an arrest is ' made under this section without an emergency being there, the arrest will fall under the category of being illegal.
One may reasonably suspect that the above legal provisions, procedural directions and precautions as envisaged in the code have not been applied while making the staggering number of arrests within a few days as reported in the newspapers.
Remedies to rash action
In a democratic set-up, the members of the police must be made to realise that they are not above the law but subject to it like all other citizens, and all their actions have
to be supported on grounds of legality when challenged before a court of law. The question is, how do we do that?
One way of ensuring that would be to question police indiscretions and excesses, specially the major ones, in Courts. As has been mentioned hereinbefore, the legal authority and responsibility to arrest on suspicion is personal, so each individual officer must be made to account for rash and indiscriminate arrest, if it is so proved.
To be more specific, a wrongful arrest of a grave type should make the arresting officer liable to a charge of wrongful confinement under the penal law of the country. Therefore, if the authority arranges to commence criminal proceedings for wrongful arrest, wrongdoers in the enforcement outfit would get the message and, hopefully, rash and illegal actions will be on the decrease. Ali segments of the judiciary have to assert themselves.
Our apex court has already given a number of procedural and administrative guidelines in respect of arrest under Section 54 of the criminal procedure code. This has to be followed up in right earnest by issuing strictures and, where appropriate, by arranging to institute criminal proceedings against delinquent officers. One or two criminal convictions of wayward police officers would have a salutary effect. The fear of authority needs to be instilled.
For their part, the senior officers should be able to prove that law observance by the police is the best form of lawenforcement in a demo-
cratic country. They should be ready to carry out the behest of the lawatany cost.
The concept of legal aid to the poor in criminal cases should be materialised on a war footing. This step will reduce the possibility of wrongful confinement and false incrimination in offences. NGO activism should be encouraged to keep a close watch on police indiscretions, specially the arrest on suspicion. Simultaneously, investigative journalism should expose gross misuse of arresting power.
Claims for damages caused by wrongful arrest should be instituted by activating the law in this regard. There should be no bar in fixing the civil liability caused by wrongful arrest. That would be a damper to highhandedness.
Last but not the least, the government must stop using the police for extra-legal purposes as that would mean compromising impartial and efficient service to the citizens. We have to realise that the right to live is not merely confined to physical existence but includes, within its ambit, the right to live with dignity. Espousing liberal values with a medieval mindset is an exercise in futility.
Muhammad Nurul Huda is a columnist for The Daily Star