Pre-Trial Petitions (Bail petitions, Ramand, Charge hearing and charge framing, Moving a

discharge petition)

Prepared by Showkat Hossain

Remand
• Constitution of Bangladesh- Article 33 (2) (2) Every person who is
arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty four hours of such arrest, excluding
the time necessary for the journey from the place of arrest to the Court
of the magistrate, and no such person shall be detained in custody
beyond the said period without the authority of a magistrate.
• Section61, CRPC- No police-officer shall detain in custody a person
arrested without warrant for a longer period than under all the
circumstances of the case is reasonable, and such period shall not, in
the absence of a special order of a Magistrate under section 167,
exceed twenty-four hours exclusive of the time necessary for the
journey from the place of arrest to the Magistrate's Court.
Section 167
• Procedure when investigation cannot be completed in twenty-four hours
• 167.(1) 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 Judicial 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.
• (2) 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 authorize the detention of the accused in such custody as such
Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has not jurisdiction to try the case
or [send] it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a
Magistrate having such jurisdiction:
• Provided that no Magistrate of the third class, and no Magistrate of the second class not specially empowered in
this behalf by the Government shall authorize detention in the custody of the police.
• (3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so
doing.
[(4) If such order is given by a Magistrate other than the Chief Metropolitan Magistrate or the Chief Judicial Magistrate,
he shall forward a copy of his order, with his reasons for making it to the Chief Metropolitan Magistrate or to the Chief
Judicial Magistrate to whom he is subordinate.]
• Constitution, Article 35(4) No person accused of any offence
shall be compelled to be a witness against himself.
• So, what is the purpose of remand?
The practice / Abuse
• রিমান্ডে নেয়া আসামিদের ১৪ ধরনের নির্যাতন করা হয়। সেগুলোর মধ্যে গিটা
নির্যাতন, বাদুড় ধোলাই, ওয়াটার থেরাপি, উলঙ্গ করে নির্যাতন, সারাদিন না খাইয়ে
নির্যাতন, টানা নির্যাতন, বাতাস নির্যাতন, বোতল থেরাপি, ডিম থেরাপি, ডিস্কো
ডেন্স নির্যাতন, সেলাই নির্যাতন, ঝালমুড়ি নির্যাতন উল্লেখযোগ্য। আসামিদের হাত-
পায়ের প্রতিটি জয়েন্টে লাঠিপেটা করার নামই হলো গিটা নির্যাতন। এ নির্যাতনের
ফলে হাড়-মাংস থেঁতলে যায়। কিন্তু বাইরে থেকে কিছুই বোঝা যায় না। চিত করে ফ্লোরে
ফেলে দুই হাত, দুই পা বেঁধে মুখে গামছা বা কাপড় ঢুকিয়ে পানি ঢেলে মারধর করাকে
বলা হয় ওয়াটার থেরাপি। নাকে-মুখে পানি দিতে থাকলে নিঃশ্বাস বন্ধ হওয়ার উপক্রম
হয়। পরে আসামিরা সত্যকে মিথ্যা এবং মিথ্যাকে সত্য বলে তথ্য দিতে থাকে। দু’টি
উঁচু টেবিলের মাঝখানে দুই হাত বেঁধে ঝুলিয়ে পেটানোকে বলা হয় বাদুড় ধোলাই। এ
রকমের নির্যাতন করলে যেকোনো আসামি জ্ঞান হারিয়ে ফেলে। গরম বা প্রচন্ড ঠান্ডা
ডিম আসামিদের মলদ্বারে ঢুকিয়ে নির্যাতন করাকে বলা হয় ডিম থেরাপি। পরে বাধ্য
হয়ে স্বীকারোক্তি দেয়। হাত-পায়ে অবিরাম ইলেকট্রিক শক দেয়াকে বলা হয় ডিস্কো
ডেন্স থেরাপি। হাত-পায়ের নখে মোটা সুই ঢুকানোকে বলা হয় সেলাই নির্যাতন। সুই
ঢোকানোর পর হাত-পায়ের নখগুলো ফুলে যায়। চোখ-মুখও নাকে শুকনো মরিচ লাগানোকে বলা
হয় ঝালমুড়ি নির্যাতন। সিলিং ফ্যানে ঝুলিয়ে নির্যাতন করাকে বলা হয় বাতাস
নির্যাতন। (সূত্র: দৈনিক যুগান্তর)
• Bangladesh and others vs. BLAST and others [‘Section
54
Guidelines Case’, or ‘Rubel Killing Case’ or ‘Guidelines
on Arrest
and Remand Case’]
Civil Review Petition No. 41 of 2017 (Arising out Civil
Appeal No 53 of 2004)
Appellate Division of the Supreme Court of Bangladesh
Facts:
• BLAST, Ain o Salish Kendra, Shonmilito Shamajik Andolon and several individuals filed a
writ petition in the High Court challenging the abuse of police powers to arrest without
warrant under Section 54 of the Code of Criminal Procedure (CrCP) and the abuse of
powers regarding taking the accused into remand (police custody) under Section 167 of
the CrPC. The petitioners referred to recent incidents of gross abuse of power, including
allegations of custodial death, torture and inhuman treatment, especially the killing of
a young student, Rubel, in remand after arrest under Section 54 of the CrPC. The
matter was disposed with directions by the High Court Division. Later the Govt filed
civil appeal no 53/04 which was also disposed of with directions in the year of 2017.
Order
• The Appellate Division of the Supreme Court on 24 May 2016, dismissed Government’s
appeal and upholds guidelines ensuring that police powers to arrest without warrant
and magistrate’s power on remand are inconsistent with constitutional safeguards on
arrest and the prohibition on torture. The Appellate Division of the Supreme Court of
Bangladesh issued 10 point guidelines to the law enforcement agencies and 9 point
guidelines to the Magistrates, Judges and Tribunals having power to take cognizance of
an offence.
These guidelines are as follows:

• Guidelines for the Law Enforcement Agencies

(i) A member law enforcement officer making the arrest of any person shall prepare a memorandum of
arrest immediately after the arrest and such officer shall obtain the signature of the arrestee with the date
and time of arrest in the said memorandum.
(ii) A member law enforcement officer who arrests a person must intimate to a nearest relative of the
arrestee and in the absence of his relative, to a friend to be suggested by the arrestee, as soon as
practicable but not later than 12(twelve) hours of such arrest notifying the time and place of arrest and
the place in custody.
(iii) An entry must be made in the diary as to the ground of arrest and name of the person who informed
the law enforcing officer to arrest the person or made the complaint along with his address and shall also
disclose the names and particulars of the relative or the friend, as the case may be, to whom information
is given about the arrest and the particulars of the law enforcing officer in whose custody the arrestee is
staying.
(iv) Registration of a case against the arrested person is sine-qua-non for seeking the detention of the
arrestee either to the law enforcing officer’s custody or in the judicial custody under section 167(2) of the
Code.
(v) No law enforcing officer shall arrest a person under section 54 of the Code for the purpose of detaining
him under section 3 of the Special Powers Act, 1974.
Continued
(vi) A law enforcing officer shall disclose his identity and if demanded, shall show his
identity card to the person arrested and to the persons present at the time of arrest.
(vii) If the law enforcing officer find, any marks of injury on the person arrested, he shall
record the reasons for such injury and shall take the person to the nearest hospital for
treatment and shall obtain a certificate from the attending doctor.
(viii) If the person is not arrested from his residence or place of business, the law
enforcing officer shall inform the nearest relation of the person in writing within 12
(twelve) hours of bringing the arrestee in the police station.
(ix) The law enforcing officer shall allow the person arrested to consult a lawyer of his
choice if he so desires or to meet any of his nearest relation.
(x) When any person is produced before the nearest Magistrate under section
61 of the Code, the law enforcing officer shall state in his forwarding letter under section
167(1) of the Code as to why the investigation cannot be completed within twenty four
hours, why he considers that the accusation or the information against that person is well
founded. He shall also transmit copy of the relevant entries in the case diary B.P. Form 38
to the Magistrate.
Guidelines to the Magistrates, Judges and Tribunals having power to take cognizance of
an offence:

• (a)If a person is produced by the law enforcing agency with a prayer for his detention in
any custody, without producing a copy of the entries in the diary as per section 167(2)
of the Code, the Magistrate or the Court, Tribunal, as the case may be, shall release
him in accordance with section 169 of the Code on taking a bond from him.
• (b)If a law enforcing officer seeks an arrested person to be shown arrested in a
particular case, who is already in custody, such Magistrate or Judge or Tribunal shall not
allow such prayer unless the accused/arrestee is produced before him with a copy of
the entries in the diary relating to such case and if that the prayer for shown arrested is
not well founded and baseless, he shall reject the prayer.
• (c) On the fulfilment of the above conditions, if the investigation of the case cannot be
concluded within 15 days of the detention of the arrested person as required under
section 167(2) and if the case is exclusively triable by a court of Sessions or Tribunal,
the Magistrate may send such accused person on remand under section 344 of the
Code for a term not exceeding 15 days at a time.
• (d)If the Magistrate is satisfied on consideration of the reasons stated in the forwarding
letter and the case diary that the accusation or the information is well founded and that
there are materials in the case diary for detaining the person in custody, the Magistrate
shall pass an order for further detention in such custody as he deems fit and proper,
until legislative measure is taken as mentioned above.
• (e)The Magistrate shall not make an order of detention of a person in the judicial
custody if the police forwarding report disclose that the arrest has been made for the
purpose of putting the arrestee in the preventive detention.
• (f) It shall be the duty of the Magistrate/Tribunal, before whom the accused person is
produced, to satisfy that these requirements have been complied with before making
any order relating to such accused person under section 167 of the Code.
• (g)If the Magistrate has reason to believe that any member of law enforcing agency or any officer who has
legal authority to commit a person in confinement has acted contrary to law the Magistrate shall proceed
against such officer under section 220 of the Penal Code.
• (h)Whenever a law enforcing officer takes an accused person in his custody on remand, it is his
responsibility to produce such accused person in court upon expiry of the period of remand and if it is
found from the police report or otherwise that the arrested person is dead, the Magistrate shall direct for
the examination of the victim by a medical board, and in the event of burial of the victim, he shall direct
exhumation of the dead body for fresh medical examination by a medical board, and if the report of the
board reveals that the death is homicidal in nature, he shall take cognizance of the offence punishable
under section 15 of Hefajate Mrittu(Nibaran) Ain, 2013 against such officer and
• the officer in-charge of the respective police station or commanding officer of
• such officer in whose custody the death of the accused person took place.
(i) If there are materials or information to a Magistrate that a person has been subjected to ‘Nirjatan’ or
died in custody within the meaning of section 2 of the Nirjatan and Hefajate Mrittu (Nibaran) Ain, 2013,
shall refer the victim to the nearest doctor in case of ‘Nirjatan’ and to a medical board in case of death for
ascertaining the injury or the cause of death, as the case may be, and if the medical evidence reveals that
the person detained has been tortured or died due to torture, the Magistrate shall take cognizance of the
offence suo-moto under section190(1)(c) of the Code without awaiting the filing of a case under
• sections 4 and 5 and proceed in accordance with law.
• Status: The Government has preferred a review petition (Civil Reviewl No. 41 of 2017),
which is now pending before the Appellate Division. However, no stay was granted and
the Guidelines are in force.
• Laws Cited: Constitution, Articles 27, 31, 32, 33 and 35; The Code of Criminal
Procedure, 1898
• Reported: 69 DLR (AD) (2017) 63
Practice
• Police tend to not follow the judgment of the Appellate Division
• Magistrate tend to be either ignorant of the judgment or not
following the directions
• When there is a petition for remand and bail, magistrate tend to
disallow the bail petition.
• When the case is of serious nature, magistrates tend to allow remand
• Magistrates tend to overlook the allegations of torture in the police
custody
Examples
• Kidnap case where the victim is already recovered
• Murder case where the name of the acused and motive has been clearly
mentioned
• Narcotics case where the possession is clear and obvious // pori moni case,
chittagong case, jatrabari lawyer case
• Digital Security Act
• Cases where the police themselves are plaintiff
• Cases that are clear and shut
• Show that the allegations are not well-founded
• Show that the entries and diaries are not maintained properly.