Arrest Under the Code of Criminal Procedure, 1898: A Critique

Amar Shonar Bangla (or literally translated as my Golden Bengal) the first verse of the national anthem is the expected reflection of Bangladesh especially given the fact that the country was born of nine long months of vicious struggle against occupation, lawlessness and prejudice. The glory contemplated in the national anthem is envisaged through lawfulness, democracy whereby rule of law along with fundamental human rights and freedom is institutionalized. However, glory has somehow become synonymous with ignominy in respect of various law enforcing agencies in Bangladesh. The golden Bengal now accommodates officials that degrade the law and human life in general, exhibits disregard to the constitutional mandates and somehow are always entitled to authority. De integro above, this study efforts to elucidate how such glory maybe restored, provide voice to the voiceless, bestow knowledge upon the knowledge less on how arrest and detention are perceived by the Constitution in tadem various rights guaranteed by the Constitution and other statutes and the lawful dos and the don ’ ts of arrest and detention and the scope of misuse of statutory arresting jurisdiction.


INTRODUCTION:
The billion-dollar question 'Who will Police the Police' tendered by Justice Krishna Iyer of the Supreme Court of India (Prem Chand Paniwala vs Union of India, 1981) is inquisitively captivating and fundamentally badgering especially in a developing democracy like Bangladesh. Supremacy has been ordained to the Constitution since its promulgation. It is none other but the Constitution in its supremacy that is incapacitated, victimized in its failure to answer the aforesaid question, particularly when unlawful arrests, detention, extrajudicial killings, custodial deaths, viciousness, etc. occurs (Sinha, 2020). Within the realm of common-law, arrest is the executioner's procedure to secure attendance of an accused to answer charges (Li, 2021). Thereby the jurisdiction to arrest is invested principally in the law enforcement agencies specifi-cally the police (Akbas, 2019). The jurisdiction aforementioned allows limited discretionary power to the arresting officer (Li, 2021) by the use of the word 'reasonable suspicion' (Criminal Procedure, 1898). Engel et al. (2019) in their book entitled Power to Arrest mentions of the plausible stimulus that regulates the discretion of an arresting police officer as proposed originally by Shermanviz -5) Regard for the law such as grievousness of the felony, potency of available evidence, etc.
Furthermore, arrest by a citizen or arrest by private security or person under compelling circumstances is legitimate (Akbas, 2019). However, the compelling circumstance is constrained to maintaining public peace or to avert imminent disorder (Li, 2021). The substance of arrest is material in the criminal jurisprudence due to its effect of curtailing the fundamental right of freedom of movement and invasion of privacy (Engel et al., 2017). In Whitehouse v Gormley, 2019 it was observed that the statutory ambit of power to arrest is 'relatively undeveloped,' nonetheless such claim must additionally bear reverence to evidence of malice for the legality of arrest to be assessed on an equivalent basis (Reid, 2019). The elongated estrangement between statutory principles and prudence relating to arrest is fairly conspicuous and overwhelming (Rana et al., 2021).
Unfortunately, such is the status quo generally in any country like Bangladesh i.e., under the tag of a 'developing State' wherein corruption (Hossain, 2019) in the form of political influence, exploitation of the unwarranted police power for quid pro quo persists , which casually impedes justices via false implications, unlawful detention (Hossain, 2019) or false arrest, coerced confession, misrepresentation of evidence and unfortunate custodial death due to continuously transpiring brutality. All of the aforementioned grievances are begotten of incompliance to statutory principles and improper investigation (Rana, 2021). Fundamentally, any law that deprives any person of personal liberty within its local jurisdiction must not be arbitrary or must be reasonable and unbiased (Islam, 2012, pp. 275-276)

Defining Arrest
Lebertas in Legibus i.e., liberty in/under the law or in other words liberty may be curbed only under the law, a globally recognized apothegm that is enshrined constitutionally in Bangladesh, which must never be meddled with under the pretense of public safety, public law and order, public interest, etc (Afzal Hossain vs Ministry of Home, 2002)). Though the term arrest has not been statutorily defined within legislative Bangladesh, however, it is the act of taking an apprehended into custody (Ajaib Singh vs Punjab, 1952) on the basis of actus rea (Akbas, 2019), inflicted by a lawful authority in response to secure admission for criminal charges, to administer justice (Black, 2009, 124-125), to compel obedience to the order of a Court of Justice or to prevent the commission of a crime (Mukherjee and Singh, 1982, pp.175-176). In United States vs Smith, the term arrest was categorically defined as the act of seizing, taking or detaining the arrestee by 1) Touching or putting hands or using force to apprehend the arrestee 2) Show of any indicative act of apprehension 3) Willful surrender or apprehensio de consensu This very definition has been adopted in Bailentine's Law Dictionary. Moreover, arrest maybe defined as the de jure deprivation of liberty of the arrestee without prejudice (BLAST vs Bangladesh, 2003). The deprivation is deemed complete when the arrestee comprehends/acknowledges and submits to the authority of the arrestor (Desai, 1996, p.206) or when movement is actually retrained and not when mere intention to arrest is rendered via oral declaration (HM Lal vs Emperor, 1930). However, restraint must be proportionate i.e., essentially required to prevent escape (Mullick, 1996, p.58). Hence, arrest is the moderation of the freedom of an individual (Ahmad, 2020). Enroute investigation, a police officer is authorized to execute arrest under the authority of warrant or without a warrant (Mullick, 1996) for non-cognizable and cognizable offences respectively vide Schedule II Column 3 Code of Criminal Procedure, 1898. Characteristically, the term arrest is exhaustive as any apprehension by a lawful authority either civil or criminal falls under its wingspan. Nevertheless, it must always be understood under the elucidation of the fundamental rights (Mukerjee and Singh, 1982, pp. 175-176) as protection of life, privacy, liberty against unlawful arrest and detention is unquestionably a constitutional concern (KK Lal Khushalani vs Maharashtra, 1981). Along, with the fundamental rights, an arrestee is also entitled to bail on being arrested (Dhanji Ram vs Union of India, 1960) and every arrestee must de jure be facilitated to invoke various fundamental and statutory rights (BLAST vs Bangladesh, 2003).

Aims & Scope
The New York Times has alleged that unlawful detentions and disappearances are customary in Bangladesh and additionally reported approximately 15,000 arrests in June, 2016 alone (Board, 2016). Amnesty International has called the Digital Security Act as 'draconian' as it excessively empowers authorities. Under the Statute at least 433 individuals were unlawfully detained, tortured as of July, 2021 for criticizing powerful people on social media (Amnesty, 2021) which is the practice of freedom of speech. Unfortunately, every such criticism is adopted as either sedition, or defamation or criminal conspiracy (Penal Code, 1860) or any other offence under any special criminal statute, but never the democratic practice of dialogue (Constitution, 1972). Bangladesh being in the spotlight of such allegations and given the current democratic process, this research undertakes to elaborate a) How the Constitution justifies arrest and curtailing the freedom of movement and the purpose behind inflicting arrest on individuals b) The provisions of various categories of arrest and detention available within the statutory am-bit of the Code of Criminal Procedure, 1898 c) The fundamental and statutory rights available to the arrestee d) Exploitation of the jurisdiction to arrest by the empowered authority(ies)

METHOLODOGY:
The course of this study is empirical whereby the approach of qualitative data analysis was adopted to extract its results. Qualitative study deploys in-depth scrutiny en route revealing the relevant interconnection and interdependency between concepts  Section 54 and Section 51 of the Criminal Procedure Code (1898). It has been provided therein that police on reasonable suspicion may lawfully arrest or curtail movement of any person suspected and conduct search on such person. Moreover, the concept of reasonable suspicion has been found to be vague and incompliant the constitution in BLAST vs Bangladesh (2003).

Purpose of Arrest & Detention
Arrest is a constituent factor of investigation that is intended to procure several fundamental purposes ( i.e., in this context to deter the arrestee from performing any prejudicial or (Afzal Hossain vs Ministry of Home, 2002) to ensure public safety 5) To uphold and confirm that justice is served to the accused/arrestee 6) To ascertain that the victim is compensated or remedied accordingly An individual may only be denied the fundamental rights of freedom of movement and personal liberty in discharge of justice or in interest of justice by the execution of a statute.

Types of Arrest & Detention
The concept of Arrest being the act of forsaking freedom of movement and personal liberty at the expense of committing or omitting to commit any statutorily punishable or statutorily directed act respectively has been meticulously covered and elaborately defined in Section 1.1 of this study. Fig.1 depicts the types of arrest and detention available within the purview of the statute mentioned herein below.

Figure 1: Types of arrest and detention
In this Section the various forms of arrest and detention encompassed in Chapter V of the Code of Criminal Procedure in reference to Schedule II Column 3, Article 33 of the Constitution & Section 3 of the Special Powers Act shall be expounded.

Arrest with Warrant
Schedule II-Column 3 of the Code of Criminal Procedure, 1898 demarcates how an arrest is to be executed i.e., either with a warrant or without a warrant. Whereby arrest for an offence cannot be affected without a valid warrant form a competent magistrate is recognized as non-cognizable offences (Black, 2009, pp. 124-125). Along with arrest, neither investigation nor search without being authorized is manifestable (Siddique Ahmed vs. State, 1985). It is the rebuttable presumption of law that arrest made under the authority of a warrant does not vitiate the fundamental rights as the arrestee is sufficiently informed the grounds of arrest (Chaturvedi, 1998, p.721) and the allegations or the case causing issuance of the warrant (Gaibindingpao Kabui vs Manipur, 1963). Essentially, the act of arresting demand seizure or detention with the intention of arresting the person warranted by a competent authority and not via mere words or gestures (Miah, 2010, p.47). Section 75 to Section 86 provides regulations relating to arrest by executing a warrant whereby the executing officer can execute such warrant anywhere in Bangladesh (Criminal Procedure, 1898) and employ 'all means necessary' to prevent the apprehended from bolting for e.g., utilize restraining equipment like handcuffs, chain, chord or use reasonably justifiable force (Miah, 2010).

Arrest without Warrant
In Abdur Rahman vs State, (1977) the Apex Court held that in a case involving an offence of cognizable nature, the accused can be apprehended without a warrant. Section 54 lays down the directives of exerting arrest without a warrant whereby nine grounds are permitted. Nonetheless, the very first ground causes adrenaline rush due to its uncertainty, ambiguity (Criminal Procedure, 1898) and vagueness as there exists immense possibility of misuse of authority by a police officer (Bangladesh vs BLAST, 2017) since it allows unregulated power to arrest anyone and everyone without a warrant (Al Faruque, 2013). It must never be disregarded that the promulgation of the provision and the Code generally was adopted during the colonial era and given the present scenario, this provision and Part III of the Constitution cannot coexist (Bangladesh vs BLAST, 2017). Furthermore, the jurisdiction to arrest without a warrant under the provisions of section 54 is unreasonably vast as a police officer may elect to exercise arrest on receiving credible information or on having reasonable suspicion of engagement in any cognizable offence (Kalandiar Kabir vs Bangladesh, 2002).
The test lies to expand the concept of 'credible information.' According to BLAST vs Bangladesh (2003), the credibility of information is the definite/ certain knowledge of subsistence of facts whereby the officer executing such arrest must be in a position to disclose the nature and source of information and also simultaneously vindicate the grounds of belief. An unfurnished assertion without any material grounds does not constitute credible information (Saifuzzaman vs State, 2004). As a matter of fact, the prudence stands on the contrary, i.e., the consideration of such arrest must relate to specific averments subject to the distinct circumstances of each case (Mia, 2020). The power to arrest conferred by the Code should never be arbitrarily employed at the whim and desire of a police officer. The arresting officer as a mandatory prerequisite must investigate or verify the credibility of the information in reference to the grievousness of the offence (Bangladesh vs BLAST, 2017). The reasonable doubt contemplated within the provision must be established from genuine, real and unimaginary facts intelligible by any normal thinking man (State vs Montaz Ali, 2005). It is binding on the arresting officer to record the justifiable reasons causing the suspicion which resulted in the arrest and such reason being mere suspicion of involvement in a cognizable offence is bound to be rejected (BLAST vs Bangladesh, 2003). Yet again we are at the junction where it is sufficiently proved that the scope of power to arrest is relatively undeveloped (Reid, 2019 Associating 'dangerousness' to particular individuals and branding such individuals by characteristic 'criminal persona' are radical approach to exert unlawful authority based on character responsibility which surfaces as key points in the history of common law criminal justice (Li, 2021).

Citizen's Arrest (Arrest by Private Persons)
The Apex Court in the case of Iqbal Hasan Mahmood Tuku vs Anti-Corruption Commission (2018) held that arrest by private persons is lawful provided the offence commissioned is one of cognizable nature and furthermore empowered private persons with the authority to execute arrest without a warrant under the provisions of Section 54 of Criminal Procedure Code and present the arrestee to the nearest police station. Such jurisdiction is attributed to every private person in Bangladesh in effort to prevent imminent disorder or breach of public peace (Li, 2021) by the common law practice which has gained statutory status over time (Nemeth, 2017). The four-walls of citizen's arrest are strictly confined to cognizable offences beyond which any arrest made is unlawful (Spencer, 1992 [124][125]. In re liberty of a citizen the Courts pride in construing such very strictly (Bangladesh vs. Dr. Dhiman Chowdhury, 1995) evident from the judgement of R vs Self (1992) wherein Self was prosecuted for theft of chocolate and resistance to lawful arrest by a citizen. It is well settled that theft is an arrestable offence however the plea of bonafide forgetfulness to make the payment of the alleged item was accepted by the jury however convicted Self on the charges of assault which was later quashed by the Court of Appeal and the Court held that the arrestable offence thereto being dismissed, private arrest seizes its force therefore the assault committed by Self was to break free and reclaim freedom. To summarize, a citizen has the power to arrest without warrant like a police officer on two occasions viz 1) Any cognizable or arrestable offence has been committed in their presence (physical presence is sine qua non making the arrestor an ocular witness) or 2) On reasonable suspicion of an individual having committed or is committing or is about to commit a cognizable/arrestable crime (Akbas, 2019).
Citizen's arrest that is beyond the scope of the aforementioned is unlawful  , 1989) and also has the right to consultation and representation by a legal practitioner of preferences without undue prejudice (BLAST vs Bangladesh, 2003). In Samirannesa vs. Bangladesh (1994), prejudice was so distinct that it reflected through the order of detention which was extended 35 days prior to its expiry. Speaking of prejudice, it must also be remembered that the grounds of detention communicated to the detenu must materially represent the initial order of detention (Chunnu Chowdhury vs District Magistrate Rangpur, 1989). The Miranda Rights, a familiar phrase among the legal community across the globe which evolved from the infamous Miranda vs Arizona, (1966), a case involving custodial interrogations wherein the confession obtained were conflictive of the Fifth Constitutional Amendment. In the very litigation, it was affirmed that due process was followed and that the fifth was waived by the apprehended voluntarily. The Supreme Court instructted the enforcing agencies and its officials to assess the knowledge of the arrestee based on age, education, intelligence, prior contact with authorities to ascertain that Miranda Rights were waived in all awareness of the consequences of such waiver done voluntarily, uncoerced (Morejon, 2021). In Golam Mohammad Khan vs Government of Bangladesh (2002), the Honorable High Court clarified that detenus are not fugitives of law and should be humanely treated and allowed frequent opportunities to meet with their family. An order of detention in its capacity as an executive order is time constricted to a period of six (6) consecutive months (Constitution, 1972) and not further unless an Advisory Body is constituted within 120 days since the initial order of detention (Special Powers Act, 1974). Prolonged detention is permissible only on approval or recommendation by the Advisory Body. Article 33 (4) and Section 10 collectively exhibits the significance of the Advisory Board in its jurisdiction to curtail liberty for extended intervals (Zilanuddin vs State, 2003). Failure to constitute the advisory body within the period provided in the statute invokes incompliance and thereby the detenu is liable to be released without further ado (

Right to Bail
Bail has been held to be a fundamental right (Begum Khaleda Zia vs State, 2020) which must not be repudiated irrationally merely to punish an arrestee (Rafi vs State, 2020). The term principally expounds to 'release on condition' whereby an arrestee is emancipated from custody and delivered to the sureties on condition that the sureties undertake to produce the bailed in Court on demand (  Bail must not be refused when prima facie case of the prosecution appears to be ludicrous (Kawsar Alam Khan vs State, 2000). In Ibrahim vs State (2020), the Judges/Magistrates of the subordinate Courts were instructed not to revoke bail granted by the Division without proven misuse of such privilege. In case of an ad-interim bail granted under a pending rule under section 498 CrPC or appeal against any special law provided the accused confirms appearance, the accused must not be detained on the ground that the bail extension was not submitted under such circumstances the Courts below must await the result or its discharge.

Exploitation of Power
Caution! The discussion hereinafter raises great concern and ultimate disappointment and is a classic example of when the protector becomes the predator and yet may not be astonishing to a Bangladeshi reader. Statistically according to Stevenson pretrial detention incubates 13 percent (13%) guilty pleas which resultantly increase incarceration length by 42 percent (42%) in the United States (Stevenson, 2017) where rule of law is strictly adhered to. One cannot fathom envisioning such statistics in the context of a country like Bangladesh. It is appalling that the police in Bangladesh constantly sabotage the very protective jurisdiction to feast on the citizens. There have been instances where allegations of misconduct, defiance of law, contempt against instructions of the Court, accepting bribe to manipulate evidence or to play a partisan role, unlawfully arresting and detaining people, invading the fundamental rights of a citizen has surfaced (Adil, 2020). Exploitation of the statutory jurisdiction or misuse of power is well established and the scope of such is arguably endless (Al-Mamun, 2019). However, operative within two broad grounds of jurisdiction firstly, the aspect of discretion relating to arrest, detention, investigation, etc. and secondly the 24-hour detention rule. The police are empowered to discretionary impose arrest under Section 54 of the Criminal Procedure on the broad grounds of reasonable suspicion or on receiving credible information. People associated with money or known to have money are the indiscriminate victims whereby arrest is inflicted unreasonably for ransom and the consequences of agreement or disagreement reaps accordingly (Hossain, 2019). Multiple instances of forced disappearances, extrajudicial killings by police or other forces have been evident which usually is overshadowed under the cover of denial of involvement by the authorities (Adil, 2020 command preparation to sweep such unlawfulness like he did in 1971? Throughout the course of this study, it has been consistently proven citizens are frequently stripped of their rights at the instance of prejudice and incompetency and such can be attributed to factors like non-accountability, little to no liability, etc. Which can be turned around by seeking accountability, through educating the mass on fundamental rights, by proper implementation of law and stare decisis, by employing referendum on repeal of statutes that permit unreasonable violation of rights, by allowing unprejudiced freedom of speech and dialogue, etc. to reinstate the status of protector of the various law enforcing agencies and uphold the conspicuously displayed locution' service is the religion of police 'to its true sense.

Recommendations
Menefee, (2018) insists that statutes that administer special interests enhance the divergence between perceived neutrality and its bigoted reality more frequently than anticipated. Additionally, a decision to arrest or detain made discretionarily by actors of criminal justice distorts the aura of criminal justice (Abdul Mannan vs Bangladesh, 2002) further on every occasion of colorable exercise of authority. Based on the established trend of this study it is fair to conclude that the observations by Menefee are extensively applicable to Bangladesh. This carefree misapplication of statutory power has to stop and it has to stop now. In such context, it has been contemplated by the Superior Courts in Bangladesh to allow the unlawfully detained or arrested to be compensated personally by the person issuing such order (Abdul Mannan vs Bangladesh, 2002). State must be liable to fix the damages incurred on the wrongfully arrested, wrongfully detained, wrongfully incarcerated persons (Rahman, 2020). It has already been mentioned that pretrial detention engenders approximately 13 percent (13%) more plea of guilt (Stevenson, 2017) which as of inevitable consequence effects employability status of such individuals as defendants released pretrial are more likely to find employment than defendants detained pretrial (Dobbie et al., 2018). Evidently the adversity on employment effects income and daily livelihood. In re compensation contemplated herein, along with monetary compensations, the authorities must aid in restoring emp-loyability of any person who has been wronged by officers of the State. The concept of justice is depicted by the scale and blindfold globally and criminal statutes attempt to serve justice by compensating the victim and remedying the predator. Applying the same context, authorities that act ultra vires the permitted jurisdiction must be prosecuted without proof of malice (Reid, 2019). Unfortunately, legal awareness or legal knowledge among citizens in Bangladesh is very primitive. The Government must on their part under-take initiatives to change it and the citizens on their part must take it upon themselves to educate them-selves on the fundamental rights and other laws of the land. A reminder to its readers, the presumption of ignorantia juris non excusat i.e. the plea of ignorance or unawareness of law is not acceptable.