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The remand issue and beyond

MUHAMMAD NURUL HUDA
IN the wake of the arrest and remand of some prominent leaders of the major opposition party, a leading Bengali daily, editorially, takes a very critical view of the matter by branding our criminal justice system as generally remand-oriented. It also finds such remand a retrograde antihuman rights measure. The editorial bemoans that successive political governments have misused the provision of remand only to harass political opponents and in doing so, they have blatantly ignored the salutary directives of the apex Court to ensure judicious application of the remand provision. It wonders if the granting of remand has not been contempt of the Court.
Legally speaking, Section 167 of the 'Code of Criminal Procedure' states that "whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 61, and there are grounds for believing that the accusation or information is well-founded, the officer-in-charge of the police-station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest magistrate 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."
"The magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such magistrate thinks fit, for a term not exceeding fifteen days in the whole."
It needs to be clearly understood that the intention of the legislature, in meeting the requirements of justice, is to bring the accused to the competent magistrate with as little delay as possible. The law does not authorise a police office to keep an accused person in his custody for an indefinite period. The law evidently views with disfavour the continued detention in police custody beyond the initially permissible 24 hours; therefore, sending an accused to police remand can be allowed only in special cases and for reasons to be stated in writing, and not as a matter of course.
The magistrate has to decide, though prima facie, on the material contained in the diary relating to the case, whether or not the detention in prison of an accused person is necessary, and in coming to a conclusion, he has to exercise his judicial mind. Only when the magistrate could and did apply that mind that it can be said that the order made for the additional detention in police custody is a valid order.
Real-life experience shows that the power to grant remand has not been applied as discreetly as desired in the law. The police as investigator have resorted to prayer for remand on far too many occasions than would be desirable and not enough judicial application of mind has been there in the process. A complaint is often made to the effect that remand is sought to apply to third degree methods with a view to obtaining judicial confession.
In view of the doubts and uncertainties, if the investigating agency stands accused of being dictated by the
wishes of successive establishments, as has been commented upon, then we need to find out why this has happened. In the same vein, one needs to know why some very high-profile politically sensitive accused did not have the benefit of obtaining bail in any one of the multiple cases lodged against them at a particular point of time but subsequently got it in all the cases with the ushering in of another political regime.
It is not for this writer to ascertain the varying judicial wisdom but the concerned members of public have reasons to get upset when they see the same accused being sought after by the powers that be. Does not such a scenario send disconcerting and conflicting signals to the investigating agency whose operatives have learnt to live with the reality? Cynics might say that consistency is the hobgoblin of little minds and as such our investigative agencies must be able to appreciate the dynamics (!) of emerging political reality.
The pernicious culture of playing to the tune of unscrupulous political masters or pandering to their unholy wishes by the investigating agencies and other sensitive state agencies has not occurred all on a sudden. Spells of unconstitutional rule, particularly during 1982-90, have substantially damaged the ethos of our public sendee including the investigating agencies.
While leadership deficits account for some malfeasance, the real damage has been done by an insensitive and myopic dictatorial establishment that was hell-bent to ruin all regulatory and corrective institutions. The unwholesome effect of such institution-bashing is now being felt by a concerned citizenry.
In a perilously polarised polity where criminals enjoy political patronage, criminal activities are accorded respectability for so-called political compulsions and a loathsome all-pervasive distrust between different social and political groups prevails. The predicament of police investigators who have the double jeopardy of being less-than-credible in the eyes of the law of the land and the members of public, can only be appreciated by a reasoned observer.
In Bangladesh, we have attached disproportionate importance to the so-called maintenance of public order at the expense of overlooking crime prevention and scientific investigation. Thus, we see more personnel for political intelligence collection, security of VIPs including the foreign diplomats, riot police establishment and the so-called elite units. Capital investments for public order situation have been accorded priority over similar expenditures for improving scientific skills of the investigator. The armoured car has been more important than the forensic laboratory.
In a scenario as above, the professionals and the politicians have to share the blame, but perhaps the politicians are to blame more. This is so because enforcement leadership had to satisfy the political boss's requirement. To the political leadership the political opposition is the graver threat and as such greater resources have to be deployed to counter that scourge. The political executive is the authority and he has the last say.
We will definitely put ourselves and our future generations in peril by our inability to let a truly professional investigating agency grow in accordance with the dictates of law. The need for the investigators now is to cultivate a scientific frame of mind and to move from evidence to the accused, and not the other way round, with a view to minimising the abuse and misuse of remand
The writer is a columnist of The Daily Star..