Published By The Daily Star on May 08, 2010(Link Above)
This week your advocate is Barrister Omar Khan Joy of the Supreme Court of Bangladesh and Head of ‘The Legal Counsel’. His professional interests include commercial law, corporate law, family law, land law, constitutional law, banking law, arbitration and intellectual property laws. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.
Is it true that a person accused of Nari Nirjaton will be arrested immediately? Or is there an investigation process which takes place before the arrest which verifies whether or not the accusations are true? If there is an immediate arrest warrant issued, how does the accused avoid it? What are one’s rights on arrest? Eagerly waiting for your response.
I would like to thank you very much for asking me to advise regarding the Nari Nirjaton and arrest related matters. Upon receipt of your query, I would like to elaborate the following legal provisions for your understanding so that you can be sufficiently benefited.
There are different legislations in our country to deal with Nari Nirjaton matters. I assume from your query that you have been accused under the Suppression of Women and Children Oppression Act 2000 (Nari-O-Shishu Nirjaton Daman Ain). This Act contains stringent provisions for prevention of offences related to oppression on women and children. Trafficking and kidnaping of children and woman, rape, death resulting from rape and dower, sexual harassment etc. are dealt with under this legislation.
Section 19 of this Act renders all the offences punishable under this Act as ‘cognisable’. According to Sec.4 (1) (f) of Code of Criminal Procedure (CrPC), a ‘cognisable offence’ is one for which a police officer may arrest someone without any warrant. Therefore, a person accused under the Nari-O-Shishu Nirjaton Daman Ain may be arrested immediately. However, the police will only arrest such a person if, he (the accused) has been concerned in any cognisable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his been so concerned. In most of the cases, therefore, police may arrest the person against whom any complaint has been made for committing any offence under the Nari-O-Shishu Nirjaton Daman Ain. It may be prudent to mention that in certain circumstances, a private person may also arrest any person if that private person believes that the other person has committed a non-bailable and cognisable offence (in practice, the serious offences including offences under Nari-O-Shishu Nirjaton Daman Ain). But, in such cases the arrestee must be handed over to the police without any unnecessary delay.
The provisions in relation to investigation are contained in the S. 18 of the Act. According to S. 18 (1)(a), investigation into the offences shall have to be concluded within fifteen working days from the date of the arrest of the accused or handing over of the accused to the police while caught red handed at the time of commissioning of the offence. Alternatively, S. 18(1) (b) provides for the investigation to be completed within sixty working days where the accused is not caught red handed but in consequence of the lodging of First Information Report (FIR) or following order of investigation by the authorized officer or the Tribunal. The time limit may be extended subject to the fulfilment of conditions contained in the subsequent sections. So, from the aforesaid provisions it seems that investigation of any Complaint regarding Nari Nirjaton does not depend on arrest of the accused person. Law requires every case to be investigated followed by the Police Report to be submitted to the Court. In the meantime since the offence in question is an arrestable (cognisable) one, the law-enforcing agency is in duty bound to arrest the accused person pending the outcome of the investigation as per Law. After the accused is arrested, he may pray before the Tribunal under sec. 19 to enlarge him on bail. Furthermore, to avoid the arrest, the accused may try to get anticipatory bail from the Hon’ble High Court Division under section 498 of the CrPC.
Since the provisions under the Nari-O-Shishu Nirjaton Daman Ain are considerably harsh against the accused, to protect malicious prosecution, section 17 provides for rigorous imprisonment for a term not exceeding seven years and fine in case if someone lodges a false complain or files a false case with intent to cause harm to other person.
The rights that a person may possess in relation to arrest are contained between sections 46-67 of the CrPC. Some of the important rights may be as follows:
The person arrested to be taken before Magistrate or officer in charge of police station without unnecessary delay. The arrestee cannot be detained for more than twenty-four hours. The police have to follow the rules regarding search of the arrestee and seizure of any material.
I hope that the aforesaid guidelines shall help you to understand your queries regarding the issues of Nari Nirjaton and the provisions of arrest related to such offences.
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