& Indian Perspective
interrogation & the role of judiciary
Hafizur Rahman Karzon
constitutes a part, though not important, of existing criminal justice
system. Evidencing law and Criminal Procedure Code do not cast much
weight on any statement coming out of an accused person while interrogated
by the police. Nevertheless police personals are applying third degree
method to extract statement which may help the investigation. Allegations
are frequent that they torture accused under custody to elicit confessional
statement, though it is made to a magistrate and that judicial officer
has to maintain some civility when recording confessional statement
of any individual.
A plain reading of sections 61 and 167 of the CR.P.C. reveals that the
police investigation of the offence in the case of a person arrested
without warrant should be completed in the first instance within 24
hours under section 61 or if not then within 15 days under section 167.
Any police officer making an investigation may examine orally any person
supposed to be acquainted with the facts and circumstances of the case.
Section 161 (2) provides what civilities should be followed by police
officer when making oral examination. A person during oral examination
shall be bound to answer all questions relating to the case put to him
by the concerned police officer, other than questions the answers to
which would have a tendency to expose him/her to a criminal charge or
to a penalty or forfeiture. Any statement made to a police officer cannot
be used for any purpose of any inquiry or trial in respect of any offence
under investigation. This statement may be used to contradict such witness.
[ Section 162 of the Cr.P.C.]
Evidence Act provides some safeguards as to the time when a person is
interrogated by police. While interrogating a suspect the questioning
the questioning must not be coercive or too intimidating. The police
should not extract admission or confession by third degree method. [
Section 25 of the Evidence Act.] Statement made to police officer by
the accused is not admissible in evidence except that part of the statement
which leads to discovery of incriminating material. The caution as to
the admissibility of confession made to a police officer is intended
to protect the accused person against third degree method by the police
The evidencing law is very clear in that a confession made to a police
officer is not admissible, but it can be used in evidence of the thing
recovered as a result of the confession made to a police officer by
the accused. [ Section 27 of the Evidence Act.] Thus if a weapon used
in a number of cases is recovered by the police as a result of confession
made by an accused person, the recovery is a relevant piece of evidence.
[ State of U. P. V Deoman Upadhyaya AIR 1960 SC 1125.] The provisions
of the Evidence Act clearly maligned the police and do not keep trust
on them. Article 35 (4) of Bangladesh Constitution provides that no
person accused of any offence shall be compelled to be a witness against
himself. At the same time no person shall be subjected to torture or
to cruel, inhumane, or degrading punishment or treatment. [ Article
35 (5) of the Bangladesh Constitution. ]
If we read together
the provisions of the Constitution and the Evidence Act, the message
is very clear. There is no mandate under the scheme of the Constitution
and Evidence Act that a person can be threatened, tortured or any way
manipulated for the purpose of extracting any kind of statement which
has incriminating impact on the arrested or accused person.
In spite of the
provisions of the Constitution and Evidence Act, Police is applying
third degree method.
torture has become so endemic that every year many people died of or
severely injured of police torture. Because of various reasons third
degree method is in practice. In the first place hardened criminals
have some training to survive tough treatment so, police cannot extract
information from them without the aid of third degree method.
arrests some persons and threatens to torture or torture them because
of eliciting money. This type of allegation has been frequently leveled
against police. Thirdly, commoners have some typical ethos as to how
criminals should be treated by the police.
A large section
of police heavily consider that police cannot be effective if they do
not take resort to tough treatment against hardened criminals.
justice system of the Indian sub-continent is based on the Anglo-Saxon
accusatorial system under which the focus of the judiciary is not on
truth, but on evidence.
In a Gory murder
case a man killed another man with an axe by splitting his head in the
middle. The investigating police officer did not find the original axe
with which the man was killed and he took another axe and put it within
the split head of the deceased and collected some of the deadman's blood
The murderer was
arrested some days later and the axe was shown as "recovered "
from him on his confession and this axe (not the original one) was considered
a very important piece of evidence.
of the Supreme Court of India
In the context of wide custodial violence India has developed constitutional
tort. In Nilabati Behra V State of Orissa (AIR 1993 SC 1960) the court
ordered that the government of Orissa to give Rs. 1,50,000 as compensation
to deceased's mother. In this case one Suman Behra (22) died when he
was under the custody of police in the District of Sundergarh in Orissa.
After the death Nilabati Behra, mother of Suman Behra, sent a letter
addressing the Supreme Court of India. The Supreme Court treated the
letter as a writ petition under article 32 of the Indian Constitution
and Nilabati Behra claimed compensation because of the death of her
son. In favor of the police the state government argued that the deceased
tried to escape from the custody and run over by a train when chased
by the police. Contending the incident not a case of custodial death
the state government also claimed the sovereign immunity of a state.
The Supreme Court outright rejected the contention and held that in
case of constitutional remedy, defense of sovereign immunity is not
available. Supreme Court emphatically said that evidence on record had
no indication that the death was accidental and ordered the government
of Orissa to give compensation to Nilabati Behra.
A nine-year old
child was died of torture while under custody of Anand Prabhat Police
station in Delhi. On behalf of the deceased's mother SAHELI, a women
Civil Rights Organisation, filed a writ petition under article 32 of
the Indian Constitution for recovery of compensation. The Court ordered
to give Rs. 75,000 to the deceased mother as compensation. [SAHELI V
Commissioner of Police, (1990) 1SCC 422]
In India Supreme
Court has taken a pioneering role in protecting the rights of citizens.
In Nandini Satpati V P.L. Dhani (AIR 1978 SC 1075) the Supreme Court
observed that, if police applied any mode of pressure which is subtle
or crude, mental or physical, direct or indirect, that is not a matter
to be considered, but if it is sufficiently substantial in obtaining
information from the accused, it becomes a case of custodial torture.
Supreme Court clearly declared that custodial torture is violative of
right against self-incrimination and an arrested person cannot be bound
to answer self-incriminatory questions.
In Niranjan Singh
V. Prabhakar Rajaram (AIR 1980SC 785) the Supreme Court emphatically
observed that, "The police instead of being protector of law, have
become engineer of terror and panic putting people into fear."
The Supreme Court again expressed its concern in Kishore Singh V. State
of Rajastan (AIR 1981 SC 625) and observed that, "Nothing is more
cowardly and unconscionable than a person in police custody being beaten
up and nothing inflicts deeper wound on our constitutional culture than
a state official running berserk regardless of human rights."
Court of Bangladesh on Police Abuses
The Supreme Court of Banglades has issued a number of directives to
the police as to arrest and detention of suspects and provide civilised
treatment to the people under police custody. In Blast V Bangladesh
[55 DLR 363] a Division Bench of the High Court Division recommended
to amend the existing law. The Bench issued fifteen directives henceforth
to be followed by the police. Among them most important are-- disclosure
of identity of the arresting officer at the time of arrest; recording
reasons for arrest, if not arrested from home; getting the arrestee;
examined by a government Doctor if injury is found on his person; allowing
him to be interrogated in the presence of a lawyer appointed by him.
In Saifuzzaman V
State [56 DLR 324] another Division Bench of the High Court Division
took notice of the severe violation of the fundamental rights of the
citizens by police and failure of the Magistrate in acting in accordance
with law. SK Sinha J. observed that, "There are complaints about
violation of human rights because of indiscriminate arrest of innocent
persons by law enforcing agencies in exercise of power under section
54 of the Code and put them in preventive detention on their prayer
by the authority and sometimes they are remanded to custody of the police
under order of the Magistrate under section 167 of the Code and they
are subjected to third degree methods with a view to extract confession.
This is what is termed by the Supreme Court of India as 'state terrorism'
which is no answer to combat terrorism."
The Division Bench
issued eleven guidelines to the police and magistrates as to arrest,
detention and remand of suspects. The Court hoped that the fulfillment
of the requirements will eliminate the abusive power of the police and
harassment of citizens in their custody.
Investigation of criminal cases and interrogation of accused and witnesses
by police are inevitable and important part of criminal justice system.
Without this mechanism police cannot detect criminal cases and cannot
bring wrongdoers before a court of law. They must have the authority
to investigate and interrogate, but at the same time constitutional
requirements should be fulfilled. Legal, constitutional and state dispensation
should be arranged in a way not to let any innocent person to be harassed
or tortured by law enforcing staffs.
is a Lecturer, Department of Law, Dhaka University.