LAW AND REALITY
Shahnewaz and AZM Abdullah Al Mamun
IN CRIMINAL justice system of Bangladesh, confessional statement secured under section 164 of Code of Criminal Procedure, 1898 (Cr PC) is considered a very crucial evidence in the legal proceedings. However, there are mass allegations from the accused persons that it is often taken under coercive conditions by the police.
In most cases, these statements are retracted at the time of the trial. During the trial, many accused persons complained to the judges that they were mercilessly beaten and threatened by the police to confess before the magistrates about the crime they are accused of. They said, if they refuse to give confessional statements, police threatened them of further torture.
It is mentionable that, as per law, confessional statement secured under section 164 is acceptable, only if it is given by the accused voluntarily. The Section 164 (3) provides that a magistrate shall, before recording any such confession, explain to the person making the confession that he is not bound to make a confession and that if he does so it may be used as evidence against him and no magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect:
I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
This statement will include the signature of the magistrate. So this section in text upholds one of the basic principles of natural justice that a person should not be compelled to give witness against him/her about his/her crime. This notion of the human rights of the accused is also guaranteed in our constitution. As per Article 35 of the Bangladesh Constitution, no person accused of any offence shall be compelled to be a witness against himself. The article also includes that no person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. Bangladesh is also the signatory country of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, which prohibits torture to get confession and encourage state parties to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under their jurisdiction. Therefore, coercing an accused person to be a witness against himself/herself in the name of confessional statement under section 164 is the apparent violation of natural justice and human rights of the accused person.
However, it may be asked that why an accused person would consider voluntary confessional statement? It is true that at present our criminal justice system provides no incentive for the accused people who voluntarily confess about the crime they are accused of. This is why generally accused person does not want to give confessional statements voluntarily.
If our criminal justice system stipulates provision of reducing usual punishment imposed for an offence to the persons who voluntarily give confessional statements, then accused persons may consider giving confessional statements willingly and voluntarily. Instead of third degree method to get confessional statements from the accused, prosecution side may make arrangement with the accused side to bring lesser charge against the accused in exchange of voluntary confession. Prosecution side should take initiatives to convince the accused that they will recommend to reduce punishment of the accused to the court, if they voluntarily give confessions. Voluntary confessional statement helps the prosecution to complete the investigation of a case quickly. So it is beneficial and cost effective for the prosecution side. It also helps out the prosecution to conduct thorough investigation and extract meticulous details of a criminal case and it allows them to make stronger case to stand the test of trial.
We should keep in mind that taking confessions by undue influence and coercion has an adverse affect on the mind of the accused and it carries the risk of making the entire process questionable. If the prosecution-side professionally deal with the accused and encourage the offenders to confess voluntarily then they may repent for their crime. It ultimately fosters the rehabilitation and reform process and creates more scope for an offender to reconsider his/her own action. In what follows, chances of recurring crime from the same accused individual may decrease, and offenders will be more encouraged to return as a responsible citizen after the completion of their sentence. It helps the offender to gain confidence and trust over the justice system. This is why, it is important on part of the police and prosecution to create an enabling environment in which an accused would consider voluntary confession and repent the crime they have committed.
At present, retraction of confession is very frequent as it is often taken by torture, threat and other coercive means. Confession, in practice, is not the result of penitence, regret, anguish and remorse as it should in Bangladesh. Therefore, a considerable number of accused wish to retract their confessions at the time of trial. If police apply third degree method on the accused to secure confessions then it is risking trust and confidence in the administration of criminal justice. In the long run it hampers the very purpose of the restorative justice system.
Shahnewaj is an advocate and research officer at Bangladesh Institute of Law and International Affairs and A Z M Abdullah Al Masum is an advocate with the Dhaka Judge Court.
- Courtesy: New Age, Mar 20, 2018
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