DHLR: Section 54 of The Code of Criminal Procedure, 1898 (CrPC 1898), as amended, tightens the scope of arrest without warrant by distinguishing between offences punishable with imprisonment for a term up to seven years and those punishable with more than seven years. In the former case, police may arrest without a warrant only if certain statutory conditions are met — such as if it is required for preventing further offences, ensuring proper investigation, preventing the tampering with evidence, stopping inducement or threats to witnesses, or securing the accused’s presence before the court — and the reasons are to be recorded in writing. In the latter, police may arrest without a warrant upon receiving credible information and having reason to believe that the person committed the offence, without the need to satisfy any of those conditions. What is your view on this overall change?
Professor Dr Muhammad Mahbubur Rahman: Basically, the approach adopted in the 2009 amendment to the Indian Code of Criminal Procedure 1973 (CrPC 1973) has largely been replicated. The amended section 41 of CrPC 1973 (corresponding to section 54 of CrPC 1898) introduced similarly stringent conditions to arrest without warrant in offences punishable with less than seven years of imprisonment.
This reform is praiseworthy since the definition of a cognisable offence is very wide. As such, the number of offences in which police may arrest without a warrant is too high. There had been a long demand to reduce the number of cognisable offences. This categorisation is theoretically well-grounded and worked pretty well in India. In practice, it remains to be seen.
DHLR: In BLAST (2003), police officers were required to inform the near relatives of an arrestee within one hour of arrest. This period was extended to six hours by Md Saifuzzaman v State (2003) (HCD) and ultimately to twelve hours by BLAST (2016). The legislature has since codified this twelve-hour standard, both for notifying relatives and for enabling the arrestee to consult counsel under section 46A. What are your thoughts on fixing this time limit, particularly twelve hours?
Professor Dr Muhammad Mahbubur Rahman: The blind adoption of the twelve-hour standard from BLAST (2016) seems largely mechanical. BLAST (2016) was delivered when there existed no statutory guideline on the time limit within which near relatives of the arrestee are to be informed. The legislature still had the authority to curtail the period.
In my opinion, given the present communication technology, twelve-hour is too long a period to adopt. The period should have been made shorter. One may argue that one hour is too short, given that there may be some unavoidable circumstances. Hence, a balance could be struck – three or four hours perhaps.
DHLR: The current legislative policy in the proviso to section 167(2) allows magistrates to authorise detention in judicial custody for periods exceeding 15 days. However, unlike section 187(3) of the Bharatiya Nagarik Suraksha Sanhita 2023 of India, which sets the maximum period for authorising detention, the amended provision remains silent on any such ceiling. How do you evaluate this in terms of the constitutional right to life and personal liberty?
Professor Dr Muhammad Mahbubur Rahman: The phrase ‘in the whole’ in section 167(2) of CrPC 1898 had been interpreted by courts as ‘at a time’ for almost 100 years. It was the 41st Report of the Law Commission of India that first interpreted the phrase ‘in the whole’ to refer to the total period of detention, not merely ‘at a time.’ The Law Commission then proposed that the Parliament of India amend the law, which would enable the detention beyond fifteen days. Surendra Kumar Sinha J in BLAST (2016) also followed the same approach.
As regards the non-incorporation of any ceiling of detention, there might be two considerations: first, the authorities may be awaiting the judgment in the BLAST (2016) review; second, there may be uncertainty as to the appropriate basis for determining such a ceiling. In India, under the 1973 Code of Criminal Procedure, an extendable ceiling was introduced, and most recently, in 2023, a more or less definitive limit has been prescribed.
However, in our context, before imposing any such limit, a rigorous study to determine how much time is generally required to investigate major offences is required. In the absence of such data, arbitrarily setting a ceiling, for instance, of 120 days or so, may prove to be counterproductive. That being said, there certainly should be an upper limit, as indefinite detention is clearly tantamount to an encroachment upon the right to liberty.
DHLR: The amendment does not introduce separate provisions on anticipatory bail, sentencing hearing, and the requirement of recording special reasons for the imposition of the death penalty. Do you think this was a missed opportunity, or is the non-incorporation better?
Professor Dr Muhammad Mahbubur Rahman:
On Anticipatory Bail
In my opinion, section 498 offers a more flexible framework than what a separate statutory provision like section 497A (as existed earlier) would likely achieve. Introducing a distinct section could risk curtailing the judicial discretion under section 498 and invite legislative encroachment upon judicial powers. Hence, it is preferable to retain the current position rather than codifying anticipatory bail through a new provision.
On Sentencing Hearing
A separate provision for sentencing hearings ought to be introduced. The Law Commission is currently working on this issue, but a consensus has yet to be reached. From my perspective, such a mechanism should apply only in the Sessions Courts, not in the Magistrates’ Courts.
On Recording Special Reasons for the Death Penalty
Section 367(5) of the Code already contains a requirement, but judicial practice has not consistently upheld it. Several decisions have even been rendered per incuriam, and the statutory standard that exists is itself not being properly followed. Thus, merely reiterating the need to record special reasons is unlikely to produce meaningful reform. In India, for example, although the special reasons requirement and the Bachan Singh rarest of the raredoctrine led to a reduction in the number of death sentences, they failed to uproot arbitrariness.
What is needed instead is a comprehensive sentencing guidelines. Rather than tinkering with the requirement of special reasons, it is time to reassess the very legitimacy of the death penalty itself.
Missed Opportunity?
Under an interim government, such amendments should not be introduced hastily. Substantive reforms of this nature necessitate extensive deliberation and consultation over a sustained period. Therefore, in truth, this was not a “missed opportunity.”
DHLR: Do you consider it advisable, as in India, to remove the provision that allows courts to draw an inference from an accused’s silence under section 342?
Professor Dr Muhammad Mahbubur Rahman: No. To understand this, section 342 must be viewed holistically. Its main purpose is to allow the accused to explain the circumstances appearing in the evidence against them. An inference is already established, and the provision gives the accused an opportunity to rebut that inference. If the accused does not take that opportunity, the inference will stand. This means there is no need to go beyond that established inference. In this sense, section 342 is very well drafted.
DHLR: Section 67A requires Magistrates or Courts to examine whether the provisions relating to arrest have been complied with, and in cases of non-compliance, they may direct appropriate action to be taken against the concerned officer under the applicable service rules. Should the arrest and remand thereon also be vitiated as those would be ‘fruits of the poisonous tree’?
Professor Dr Muhammad Mahbubur Rahman: This provision did not previously exist, yet Magistrates already had such authority under the Police Regulations of Bengal, 1943 (PRB 1943). A Magistrate could, if necessary, recommend to higher police authorities that disciplinary action be taken against the officer in default. That approach, in my view, was preferable because remedial measures could be taken not only under the service rules but also within the broader framework of the Police Act, 1861. The response could thus be both judicial and administrative; it was not essential to limit the matter strictly to service rules.
Secondly, it is important to distinguish between illegal and arbitrary arrests. In cases of illegal arrest, the arrest itself must be vitiated; no separate statutory provision is required for that. Under section 167(1), a Magistrate cannot authorise detention beyond twenty-four hours if the accusation is not well-founded. In Nurul Islam Babul v Bangladesh (2004) 56 DLR 347, it was held that if the conditions under Section 167(1) are not satisfied, the Magistrate must order unconditional release, not even bail. However, in practice, applications for vitiation of illegal arrest are rare, which, in my opinion, is reflective of a failure of judicial oversight rather than a lack of legal basis.
DHLR: Section 54A imposes a novel obligation upon the arresting officer to inform the person arrested without a warrant of the reasons for his arrest. Should an arrestee be informed of his relevant rights at this point as well? The average person may not be aware of the Constitutional safeguards against self-incrimination or the right to consult legal counsel; with that in mind, is there any practicality in introducing an equivalent of the Miranda warning in our jurisdiction?
Professor Dr Muhammad Mahbubur Rahman: From a human rights perspective, it is imperative that the person be informed of the reasons for arrest at the time of arrest. In cases of arrest with a warrant, the warrant itself serves as the reason; but in arrests without a warrant, the obligation under section 54A is explicit, ie, the arrestee must be informed of the grounds.
As to the Miranda warning, it must be noted that it is not a statutory provision but a judicially evolved safeguard to protect against self-incrimination during interrogation. It serves well for jurisdictions where statements made in police custody are admissible in evidence. However, in our corpus juris, statements made in police custody are not admissible except under section 27 of the Evidence Act 1872. I do not believe it is essential to incorporate a binding Miranda-type provision into the CrPC itself. Such guidance may instead be included in the PRB or through judicial directions.
In my opinion, a more pressing concern lies in section 27 of the Evidence Act, 1872. This provision is exceedingly prone to abuse. It enables the police to transplant evidence and present it as having been ‘discovered’ as a result of the accused’s information. Instances of such misuse have been judicially recognised. Reforming this section would therefore be more crucial than formally transplanting Miranda-type warnings into our legal system.
DHLR: The introduction of a memorandum of arrest is being hailed as a significant milestone, wherein the ‘reasons for arrest’ portion must be filled in by the arresting officer with relevant laws and sections. Can this be misused, given that there is no obligation on the part of the officer to substantiate the grounds for arrest? Particularly in cases of arrest without a warrant, should the memorandum contain a stricter requirement for detailing the grounds for arrest?
Professor Dr Muhammad Mahbubur Rahman: The jurisprudence of the United Nations Human Rights Council (UNHRC) makes it clear that the ‘reasons for arrest’ in Article 9 of the International Covenant on Civil and Political Rights (ICCPR) must refer to the factual grounds justifying the deprivation of liberty – not merely the citation of a law or section number.
In the prescribed format of the Memorandum of Arrest in the appendix to the amendment, the phrase ‘reasons for arrest (mention law and section)’ also suggests that the legislative intent was to ensure compliance with substantive justification.
DHLR): In your opinion, what other major reforms should be introduced to the Code of Criminal Procedure, 1898?
Professor Dr Muhammad Mahbubur Rahman: Previously, there was the Committal Proceeding in the CrPC 1898, which was repealed because it was allegedly causing delays. Afterwards, the standard for granting discharge by trial courts has become extremely strict and is now rarely given. This led to an increase in false cases and a longer overall disposal time. Therefore, the repeal went counterproductive.
The Committal Proceeding deserves a serious discussion to evaluate whether it should exist. At the very least, before sending a case to the trial court, there should be reasonably sufficient evidence, not just prima facie evidence. Currently, the police can name anyone in a statement under Section 161 within the charge sheet, and that alone is considered sufficient to proceed. Consequently, one has to face the entire trial unnecessarily. We should also consider how to limit the scope of cognisable offences, expand the scope of bailable offences and increase the number of compoundable offences.
DHLR: Thank you so much for your precious time, Sir.
Professor Dr Muhammad Mahbubur Rahman: Thank you.
The interview was conducted by Md. Ashifuzzaman Anik, Gazee Muzeeru, on behalf of the DHLR team, in person at the Faculty of Law, University of Dhaka.
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