Illegal and improper detention

April 10, 2009

From the first information report, charge sheet and judgment of the trial Court it appears that the convict Kohinoor was arrested on the date of occurrence and then she absconded after being released on bail. From the photostat copy of report of the Magistrate submitted to the Deputy Commissioner, Khulna it shows that the detenu Moyna Begum is not the convict Kohinoor Begum and the learned Deputy Attorney General verbally submitted that the said report is genuine. Original copy of Nikahnama of the petitioner supports the enquiry report of the Magistrate. The High Court Division finds that the detenu Moyna Begum has been wrongly arrested by the police by way of treating her as the absconding convict Kohinoor and without proper verification of the identity of the two women. No doubt, this is unwarranted and the result is illegal detention of Moyna Begum for a period of about 3 years. Accordingly, the detention of the detenu Moyna Begum is found to be illegal and improper and she is entitled to be released from the prison. Government should take immediate steps to make appropriate legal provisions and other steps to prevent or least minimise similar abuses of process and ensure that quick and less expensive remedy is available. In appropriate cases, legal aid may also be provided by the Government. tt (6,7,8,11 & 17)

Seema Zahur, Advocate-For Petitioner No.1.

Md. Idrisur Rahman, Advocate-For Petitioner No.2.

Md Abdur Rouf, Assistant Attorney-General-For the Government Opposite Party.

Judgment

Md Emdadul Huq J: This Rule under section 491 of the Code of Criminal Procedure is about the legality and propriety of the detention of one Moyna Begum, wife of Abdul Kader, as a convict prisoner in Jessore Central Jail pursuant to the judgment and order dated 10-5-2004 passed by the learned Additional Sessions Judge, 4th Court, Khulna in Sessions Case No. 32 of 2003.

2. Briefly stated, the facts relevant for disposal of the Rule are as follows:

3. In the above noted case, two absconding women namely Kohinoor Begum, wife of Abdul Kader of village Railgate Modhyadangi, under PS Daulatpur, District Khulna and another woman were convicted and sentenced under sections 19(1) and 19(4) of the gv`K `ªe¨ wbqš¿b AvBb, 1990 to suffer imprisonment for life. A third woman was convicted and sentenced under the same section to suffer a lesser penalty. Pursuant to such conviction and sentence, police arrested a woman on 29-5-2004 showing her as the said convict Kohinur Begum and she was sent to the prison. Then on 8-6-2004 the arrested woman filed an application to the learned Additional. Sessions Judge, claiming herself to be a different person named Moyna Begum of a different address and prayed for her release. But the said court, by its order dated 8-6-2004 rejected the application on the ground that on that date it had no jurisdiction.

These facts were firstly published in a local daily named Dainik Purbachal (Annexure-A Series) on 18 July, 2004, However, Moyna Begum filed another application to the Deputy Commissioner Khulna seeking her release. This time, an inquiry was conducted by a Magistrate who submitted a report dated 11-122005 (Annexure-B-Series) to the effect that the petitioner Moyna Begum was not the actual convict Kohinur Begum though the names of the husbands of both the women are the same, namely Abdul Kader, and that the two women are residents of two different places.

These facts were again reported in the month of August, 2006 in the Daily Ittefaq and the Daily Jai Jai Din (Annexure-A-Series). Against such backdrop, petitioner No.1 and petitioner No.2, as members of the Bangladesh Mahila Ainjibi Samity (shortly the Samity) and Bangladesh Legal Aid and Service Trust (shortly BLAST), both being human rights activist organisations, caused an inquiry through the Jessore BLAST unit and collected necessary information (Annexure-C) and other documents. Thereafter, the petitioners approached this court for release of the detenu under section 491 of the Code of Criminal Procedure and obtained a Rule.

4. In response to the Rule, the opposite parties have not entered appearance.

5. We have heard Mr Md Idrisur Rahman with Ms Seema Zahur, the learned Advocates appearing on behalf of BLAST and the Samity respectively being the two petitioners and Mr Md Abdur Rouf, the learned Deputy Attorney General, who submitted that he had no instruction on the matter from the Government being the opposite party No. 1.

We have perused the application, the documents annexed thereto and considered the submission of the learned Counsels of both sides.

6. It is revealed from the certified copies of the first information report, charge sheet and judgment of the trial Court that Kohinoor was arrested on the date of occurrence and then she absconded after being released on bail.

7. The photocopy of the report of the Magistrate, submitted to the Deputy Commissioner Khulna on 12-12-2005 (Annexure-B) shows that he conducted a local inquiry by examining a good number of witnesses and also co-accused Hazera as to the identity including the addresses of the detenu Moyna Begum and of the convict Kohinoor. The Magistrate has also consulted the judicial records of the concerned case. After such inquiry he came to the conclusion that the detenu Moyna Begum, wife of Abdul Kader and daughter of late Akram of village-Chilerkanda post office Salta, PS Salta (at present) (old PS Nagarkanda) District-Faridpur is not the convict Kohinoor Begum, wife of Abdul Kader of Village-Raligate Modhybhangi under PS-Daulatpur District Khulna whose permanent address is Morichbunia tmder PS Ka thalia, District- Jhalakhati.

8. Petitioners have also produced the original copy of the Nikahnama of the petitioner Moyna Begum the detenu which supports the inquiry report of the Magistrate.

9. The above facts as revealed’ from the documents annexed to the application and the submission made by the learned Advocates for the petitioners have not been controverted.

However, considering the gravity of the matter, we verbally asked Mr Abdul’ Rouf, the learned Deputy Attorney-General to collect information from the office of the Deputy Commissioner Khulna about the genuineness of the photocopy of the inquiry report (Annexure-B) Accordingly, Mr Abdul’ Rouf verbally submitted that the report is genuine.

10. In view of the above, we are inclined to interfere in the matter under section 491 of the Code of Criminal Procedure.

11. We hold that the detenu Moyna Begum has been wrongly arrested by the police by way of treating her as the absconding convict Kohinoor and without proper verification of the identity of the two women No doubt, this is unwarranted and the result is illegal detention of Moyna Begum for a period of about 3 years. Accordingly, the detention of the detenu Moyna Begum is found to be illegal and improper and she is entitled to be released from the prison.

12. However, before we depart, we consider it proper to make some observation on the matter. The learned Advocates for the petitioners submitted that the responsible police personnel should be directed to pay fine that may be paid as a compensation to the poor and innocent detenu. But they admitted that in our jurisdiction there is no instance of such direction in a proceeding under section 491 of the Code of Criminal Procedure.

13. While we appreciate the efforts of the petitioners, our anxious concern is that mistaken arrests of similar nature may happen in other cases as well and our laws do not sufficiently address this problem. Again, the process of release of a detenu like the present one is not easily accessible to the poor. The Code of Criminal Procedure and, to our knowledge, any other law do not authorise the trial Court or the Jail Authority or the District Magistrate to release a person wrongly arrested and detained as a convict because of mistaken identity.

14. The Identification of the Prisoners Act, 1920 is a sketchy law with a few sections for maintaining some information about a prisoner. The Jail Code (Rules 507 to 511) contain some provisions which require the recording of certain particulars of a prisoner in the Register of the Jail Authority for identification purpose. But these provisions do not require the preservation of photograph, thumb impression and other particulars of prisoners which many help ensy identification.

15. It is not clear whether the Jail Authority recorded the relevant particulars of the two women as required by the said rules 507 to 511 of the Jail Code or whether the Magistrate, conducting the inquiry, consulted the Register. The inquiry report of the Magistrate is silent about it.

16. Be that as it may, under the present legal regime the only remedy for a detenu like Moyna Begum is invoking the jurisdiction of this court under section 491 of the Code. The petitioners as human rights activists have invoked it on 28-8-2006/ that is after the arrest of Moyna on 29-5-2004. The inquiry report was submitted by the Magistrate on 12-12-2005/ that is after about 18 months of the said arrest. Obviously there has been a significant delay in undertaking the said activities. Perhaps our government functionaries are not aware that they could also invoke the jurisdiction of this Court under section 491 of the said Code.

17. No amount of money or even penalisation of the responsible police personnel will be a proper compensation for the illegal detention of the detenu for three years. Again, these actions will require separate proceedings which is likely to take a considerable time to be finally disposed of. So, we strongly feel that Government should take immediate steps to make appropriate legal provisions and other steps to prevent or at least minimise similar abuses of process and ensure that quick and less expensive remedy is available. In appropriate cases, legal aid may also be provided by the Government.

18. In the result, this Rule is made absolute. The detention of the detenu Moyna Begum, wife of Abdul Kader, daughter of late Akram of village Chilerkanda post office Salta PS Salta (Old Nagarkanda) District Faridpur detained in Jessore Central Jail in connection with judgment and order dated 10-5-2004 passed by the learned Additional Sessions.

Judge/4th Court Khulna in Sessions Case No. 32 of 2003 is declared to be illegal and improper. The opposite parties are directed to set her at liberty at once, if not wanted in connection with any other case.

19. Send a copy of the Judgment to the Jessore Central Jail Authority immediately.

A copy of this judgment be also sent to the Secretaries of the Ministry of Home Affairs and the Ministry of Law. Justice and Parliamentary Affairs for information and necessary action in the light of the observations made above.

Illegal and improper detention

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