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The Justice Corner 01 Jul, 2025

Legal Provisions Regarding Arrest, Remand, and Custody

Legal Provisions Regarding Arrest, Remand, and Custody in Bangladesh

The laws governing arrest, remand, and custody in Bangladesh are mainly found in two key documents:

  1. The Code of Criminal Procedure, 1898 (CrPC)   
  2. The Constitution of the People's Republic of Bangladesh   

Other laws and guidelines also contribute to these legal procedures.   

Arrest

1. When Can a Person Be Arrested?

  1. With a Warrant: Generally, a person can only be arrested if a court has issued a warrant, which is a legal order for their arrest. (Section 75, CrPC)  .
  2. Without a Warrant: In certain specific situations, a police officer can arrest someone without a warrant. (Section 54, CrPC) These situations include when:  
  • The person is suspected of being involved in a serious crime (a "cognizable offense"), or there's a reasonable complaint or reliable information against them.   
  • The person is carrying tools used for breaking into houses without a valid reason.   
  • The person has been officially declared an offender by the court or the government.   
  • The person has something that is reasonably suspected to be stolen, or they are suspected of committing a crime related to the stolen item.   
  • The person is obstructing a police officer performing their duties or has escaped, or tried to escape, from lawful custody.   
  • The person is reasonably suspected of being a deserter from the armed forces of Bangladesh.   
  • The person is suspected of committing a crime outside of Bangladesh that would be punishable in Bangladesh, and they are subject to extradition (being sent back to Bangladesh) or are liable to be detained under specific laws.   
  • A released convict violates the rules set under Section 565, sub-section (3) of the CrPC.   

     C. Another police officer has requested the arrest, providing details of the person and the reason for arrest, and the arrest would be lawful without a warrant.   

2. How is an Arrest Carried Out?

  • To make an arrest, the arresting officer must physically touch or hold the person, unless the person willingly submits to custody, either by what they say or do. (Section 46(1), CrPC)   
  • If the person resists or tries to escape, the officer can use necessary force to make the arrest. (Section 46(2), CrPC)   
  • However, the officer cannot use force that causes death unless the person is accused of a crime punishable by death or life imprisonment. (Section 46(3), CrPC)   
  • The person being arrested has the right to know why they are being arrested, and the officer must inform them as soon as possible. (Article 33(1) of the Constitution)  
  • If the arrest is without a warrant but based on another officer's order, the arrested person must be told the details of that order, and the order must be shown if requested. (Section 55, CrPC)   
  • The arresting officer must identify themselves to the arrested person and, if the arrest is at their home or workplace, to the people present. They must also show their official ID if asked. (as per High Court Division guidelines)   
  • Once the arrested person is taken to the police station, the officer must immediately record the reasons for the arrest, details of the offense, how the arrest was made, and where the information came from. (as per High Court Division guidelines) The arrested person must be given a copy of this record.   
  • If the person is not arrested at their home or in the presence of someone they know, the police must inform their nearest relative by phone or messenger within one hour of bringing them to the police station. (as per High Court Division guidelines)  
  • The arrested person must be allowed to speak with their lawyer before being taken to court. (as per High Court Division guidelines and Article 33(1) of the Constitution)  

3. Rights of Arrested Persons

  • Right to be informed of the grounds of arrest: The arrested person has the right to know why they are being arrested. (Article 33(1) of the Constitution)  
  • Right to consult and be defended by a lawyer: The arrested person has the right to speak with a lawyer and have them defend them. (Article 33(1) of the Constitution)   
  • Right to be produced before a Magistrate within 24 hours: The arrested person must be taken to the nearest Magistrate (a judge) within 24 hours of the arrest. 
  • The time taken for the journey to the Magistrate's court is excluded from this period. (Article 33(2) of the Constitution and Section 61 of the CrPC)  
  • Right to remain silent: The arrested person cannot be forced to give evidence against themselves. (Article 35(4) of the Constitution)   
  • Right to be medically examined: The arrested person has the right to a medical examination, especially if there are claims of torture. (High Court Division)
  • Right to apply for bail: Depending on the crime, the arrested person can apply to be released on bail.   

Remand

1. What is Remand?

Remand is the process where a Magistrate authorizes keeping an arrested person in custody. This can be either in police custody or jail custody. The main reason for remand is to give the investigating agency enough time to complete the investigation, especially if it cannot be done within 24 hours of the arrest. (Section 167, CrPC)   However, there are concerns that remand is sometimes misused, such as to force confessions through torture.   

2. Legal Provisions for Remand (Section 167, CrPC)

If an investigation cannot be completed within 24 hours, the police officer must take the arrested person to the nearest Judicial Magistrate. The police officer must also send a copy of the case diary (a record of the investigation) to the Magistrate. The Magistrate can authorize keeping the arrested person in police custody for a maximum of 15 days. This can be done in one period or in shorter periods, but the total cannot be more than 15 days. If needed, the Magistrate can authorize further detention in judicial custody (jail) after the 15 days. For serious offenses (punishable by death, life imprisonment, or imprisonment of more than ten years), if the investigation is not completed within 120 days, the Magistrate or the Court of Session can authorize further detention. For less serious offenses, if the investigation is not completed within 60 days, the accused must be released on bail if they are willing to provide it. The Magistrate must record the reasons for ordering remand in writing. (Section 344, CrPC). A copy of the remand order must be sent to the Chief Metropolitan Magistrate or the Sessions Judge. (Section 193(4A), CrPC)   

Important Points on Arrest and Remand

The word "concerned" in the law can be interpreted broadly, giving police officers significant power to arrest people. Police officers should only arrest someone if they have specific evidence. A general suspicion is not enough. Some argue that the power given to the police in these sections is inconsistent with the fundamental rights in the Constitution. When producing an arrested person before the Magistrate, the police must explain why the investigation wasn't completed in 24 hours and provide the reasons for believing the information against the person. If the purpose of questioning (interrogation) is to force information from the accused, that information cannot be used against them in court. (Article 35(4) of the Constitution) Any information obtained through torture or force cannot be used as evidence. Using remand to force information is against the spirit of the Constitution.   

3. Safeguards Against Misuse of Remand

  • Constitutional Guarantees: The Constitution prohibits torture or cruel, inhuman, or degrading treatment. (Article 35(5))   
  • Torture and Custodial Death (Prevention) Act, 2013: This law makes torture and causing death in custody a crime.   
  • High Court Division Guidelines (BLAST case): The High Court has issued guidelines to protect the rights of arrested persons, including the right to legal consultation before remand and the right to a medical examination.   
  • Limitations on Police Custody: The CrPC limits police custody to a maximum of 15 days.   
  • Judicial Oversight: Magistrates must carefully consider whether there are valid reasons for remand and not simply agree to the police's request.  

Custody

1. Types of Custody

  1. Police Custody: This is when an arrested person is detained in a police station or other police facility, authorized by a Magistrate for investigation (for a maximum of 15 days).   
  2. Judicial Custody (Jail Custody): This is when an arrested person is detained in jail, authorized by a Magistrate or a court, either during the investigation (after the initial 15 days of police custody) or during the trial and after conviction.   

2. Legal Provisions Regarding Custody

A person can only be kept in custody if there is a lawful order from a Magistrate or a court. (Article 33(2) of the Constitution and Section 167, CrPC). Police custody is limited to a total of 15 days during the investigation. Any detention beyond 15 days must be in judicial custody, and the Magistrate must be convinced that there are valid grounds for it. The total detention period during investigation for serious offenses is limited to 120 days, after which the accused may be entitled to bail. For other offenses, this limit is 60 days. Torture or cruel, inhuman, or degrading treatment in custody is prohibited. (Article 35(5) of the Constitution). The Torture and Custodial Death (Prevention) Act, 2013, addresses torture and death in custody. 

3. Rights of Persons in Custody

  • Right to life and personal liberty (Article 32)   
  • Protection against arbitrary arrest and detention (Article 33)   
  • Prohibition of torture (Article 35(5))   
  • Right to a fair trial (Article 35)   

Rights under the CrPC and other laws: These include:

  1. Right to be informed of the grounds of arrest   
  2. Right to legal consultation   
  3. Right to be produced before a Magistrate within 24 hours   
  4. Right to apply for bail   

Right to humane treatment: Persons in custody must be treated with dignity and respect. This includes the right to adequate food, water, clothing, medical care, and hygienic conditions.  

Right to communicate with family and lawyers: Detainees generally have the right to communicate with their family members and legal counsel, with some reasonable restrictions for security.  

Right to challenge unlawful detention: A person who is unlawfully detained can seek legal remedies, such as filing a writ of habeas corpus in the High Court Division, to secure their release. (Article 102 of the Constitution)     

Conclusion

The legal provisions in Bangladesh aim to balance the need to investigate and prosecute crimes with the protection of individual rights and freedoms. While laws and safeguards exist, there are concerns about their proper implementation and the potential for misuse of power in arrest, remand, and custody. It is essential to continuously work towards ensuring that these legal provisions are upheld to protect the rights of everyone within the criminal justice system.