BANGLADESH: False charges against two persons in jail must be dropped

Dear friends,

The Asian Human Rights Commission (AHRC) has received information from Bangladesh that a judge of a Special Tribunal for Women has ordered the detention of two persons in absence of a thorough investigation and solely on the basis of a false complaint. The two detainees, whom the police have arrested on March 30, 2008, were charged for abducting and trafficking a woman. It is reported that, in fact the woman in question, had eloped with her fiancée and that the accused had nothing to do with the case.  It is also reported that the entire case is a fabrication that exploits the legal and procedural anomalies in Bangladeshi domestic law.

CASE DETAILS: (background of the case based on the report filed by a local human rights group)

Ms. Archana Rani Sardar alias Fulmala Sardar, 26-years-old, is the daughter of Mr. Thakur Das Sardar. Archana was employed in Madhukhali village as a domestic maid at the house of Mr. Bishwajit Mollik, a member of the Deloti Union Council. It is reported that during this time Archana had a love affair with one Mr. Amrita Sarkar, a fish retailer, with whom she eloped to India in 2005. Amrita was a neighbour of Bishwajit.

Bishwajit has land disputes pending at the local Civil Courts with three neighbours.  They are Mr. Durgapad Mollik, Mr. Kalipad Mallik and Mr. Virendra Nath Mallik, with case numbers 37/2000, 56/05 and 88/06 respectively. It is reported that when Bishwajit found that he may lose his case, he took advantage of Archana’s elopement to prevail over her father Mr. Thakur and prompted him to file a false complaint against the family members of the three neighbours with whom Biswajit had disputes.

Accordingly, on 26 July 2007, two years after Archana’s departure from Bangladesh, Thakur, Archana’s father filed a complaint against Mr. Durgapad Mollik, Mr. Kalipad Mallik and Mr. Virendra Nath Mallik accusing them as women traffickers. These three persons are the immediate relatives of Biswajit’s neighbours. It is also reported that this false complaint was made with an intention to put pressure upon the three families so that Bswajit could possibly secure a forced compromise in the civil disputes he had with the accused’s families.

The complaint was lodged before the Special Tribunal for Women and Children Repression Prevention in Khulna. The accused, namely Mr. Sukriti Mondol, Mr. Nikhil Mollik and Mr. Dibakar Bishwas, were charged for abduction and trafficking (selling Archana for forced unethical activities — meaning prostitution). The case (number: Miscellaneous -362/07 C-228/07) is lodged under Section 5(1) of the Women and Children Repression Prevention Act 2001 (as stands amended in 2003). The Judge of the Special Tribunal, Ms. Kabita Khanam, ordered the Upazilla Magistrate to investigate into the complaint.

The Upazilla Magistrate, Mr. Mohammad Mamun-Ul-Hassan, who was also the Investigating Officer of the case, issued summons to the complainant, Thakur, on 18 October 2007 asking him to appear at the Magistrate’s office at 9am on 25 October together with the witnesses. The Process Server, Mr. Haroshit, delivered the summons to the complainant on 21 October 2007. But he did not serve the summons upon the accused. The Magistrate’s investigation report also does not mention how the process was served upon the accused. According to Section 71 of the Code of the Criminal Procedure-1898, in case a court process could not be served upon an accused in person, the same has to be pasted on a conspicuous part of the accused last known address. This alternate means of serving summons by the Magistrate’s office must be recorded by the Magistrate in his proceedings. Thus in reality the three accused neither were aware of such a summons, nor where they informed that a proceeding is underway against them at the office of the Upazilla Magistrate.

On October 29, the Magistrate, Mr. Mamun, submitted his investigation report to the forwarding Judge, the Special Tribunal for Women and Children Repression Prevention in Khulna. In this report the Magistrate reported that the complaint against the three accused persons was proven to be true. However, the one-page-report of the Magistrate contains less than 100 words where the officer in a few lines states that the complaint is true from the statement given by the complainant in the case and that it is substantiated by the witnesses produced by the complainant. Biswajit is also a key witness in the case.

From the report, it is obvious that the Magistrate did not in fact conduct any investigation as required by law, but has merely summoned the complainant and his witnesses, heard them and came to a summary conclusion that the case is true, that too without hearing the accused or taking reasonable steps to secure their presence at his office before a decision was made. The one-page-report of the Magistrate is annexed to a four page copy of the original complaint, the complainant’s and his witnesses’ statements among other records of the proceedings.

There are several anomalies in the Magistrate’s report, which for a reasonable person, should cast a doubt regarding Thakur’s intention in filing a complaint after two years since his daughter was allegedly sold for women trafficking. The “testimony analysis” portion of the Magistrate’s investigation report states that Mr. Thakur’s complaint had already been rejected by the Paikgachha Police Station when he tried to lodge a complaint at the police station. However this is contradicted by the facts of the case. The first Prosecution Witness (PW1), Mr. Thakur, claims that he had gone to the police station with Mr. Supad Roy, the second prosecution witness, to lodge a complaint but Sub Inspector (SI), Mr. Ismaile, suggested that he lodge a complaint before the Court instead. However when the local human rights groups checked with the Paikgachha police they were informed that no police officer named Ismaile served in that station in 2007. In Supad Roy’s statement he states that neither he nor the Thakur had gone to the police station to lodge a complaint. The Magistrate has also noted this fact in his report.

Nevertheless, on receipt of the report from the Magistrate, Judge Ms. Kabita Khanam, the presiding officer at the Special Tribunal for Women and Children Repression Prevention, issued arrest warrants against the three accused persons on 13 March 2008.

On 30 March 2008, at about 9pm a police team led by Sub Inspector (SI) Mr. Nur Mohammad along with four constables of the Bigardana Police Camp raided the houses of the three accused. They arrested Nikhil and Dibakar. The other accused, Sukirti, escaped from being arrested, as he was not present during the raid. The police later assaulted Nikhil and Dibakar. They also detained in the camp overnight.

The following day, at around 11am Nikhil and Dibakar were taken to the Paikgachha Police Station. The local people, including the human rights defenders, saw that their hands had been tied together behind their backs with ropes and handcuffs while on their way from the Bigardana camp to the police station. At around 2pm they were produced before the Upazilla Judicial Magistrate’s Court of Paikgachha. The Magistrate ordered them to be detained in judicial custody at Khulna District Jail, rejecting their bail petition. The police however detained them at the Paikgachha Police Station that night claiming that they did not have arrangements to transport the accused to Khulna District Jail with security. The jail is located about 60 kilometers from the police station.

On April 2, the accused’s lawyers lodged another bail petition before the Special Tribunal for Women and Children Repression Prevention. But it was rejected by the Judge on April 17. Both Nikhil and Dibakar are now detained at the Khulna District Jail.

When contacted by the local human rights group, the Special Public Prosecutor (SPP) Mr. Kamrul Munir said on 17 April 2008, that there will be no more investigation involving any other investigating agencies apart from what the Magistrate has done. The Tribunal will follow the investigation report prepared by the Magistrate, Mr. Mamun, and that the case will proceed further for a trial. The Tribunal has already adjourned the case for six times, and it is expected that the case will go on for the next few years. It is feared that the accused will have to remain in custody till the trial is over, if they fail to be released on bail.

ADDITIONAL COMMENT:

From the contradictions in the witness statements, which was also noted by the enquiring Magistrate, it is apparent that the case is a fabricated one. This case is yet another classical example how the justice system in Bangladesh could be ‘bought’ by those who can afford it.

The very purpose of referring a complaint that is lodged at the Special Tribunal for Women and Children Repression Prevention to a local Magistrate to inquire is to filter out false claims from clogging the system. It is this very purpose that has been defeated by a lopsided enquiry conducted by the Mr. Mohammod Mamun-Ul-Islam, the Upazilla Magistrate of Paikgachha of Khulna district. Though the investigative role of the Magistrate is limited to that of evaluating the statements given by the complainant and the witnesses, the evaluation process is important and has to be discharged with due care and caution so that the complainant as well as the accused does not suffer from unfair decisions. As is evident from this case, the Magistrate has only recorded the statements, failed to properly evaluate the material contents and the contentions in the statements and prepared a report without applying his mind.

The Upazilla Magistrate is an Executive Magistrate, who entertains quasi-judicial authorities, conferred upon the officer by the Code of Criminal Procedure of 1898 and some other specific laws like the Arms Act and the Explosive Substances Act. However, these officers being revenue officers are more prone to corruption and are notorious for using their position for corrupt means. Often these officers accept money from the people and issue orders in their favour. It is widely known in Bangladesh that these officers could be bought easily for bribes in cash and kind. Being executive government officers these officers also misuse their office for pacifying petty politicians in the locality, as it is suspected in this case. These officers are also notorious for not knowing the actual legal position in cases referred to them and for deciding cases as they come as if they are dealing with a simple procedural issue like a clerical job. The contemptuous acts of officers like these are however at the expense of poor people who approach these officers seeking justice. Sometimes their actions force people to be detained without adequate cause, as it happened in this case.

The Magistrate’s report in this case has sent two innocent persons to jail and has forced yet one more person to be on the run thereby putting their families into trouble, all because of the wishful malice of a few persons and their lust for acquiring landed property. The entire justice mechanism was misused for this. The very fact that the report of the Magistrate lacks the minimum clarity for the initiation of criminal proceedings is indicative of this fact. For example the report of the Magistrate fails to look into pivotal aspects of a crime, for instance, how and when did the abduction taken place? Who were the persons involved? How the abducted woman was supposedly trafficked elsewhere? How was she forced into an unlawful profession and so on. The mere fact that the woman in question is in India makes it now the burden of the accused to take the trouble to present the woman before the court to prove their innocence. If the woman is not willing for this, there is no means by which the accused could prove their case. In the meanwhile, until the trail is over they will have to probably remain in custody.

The Bangladesh’s Women and Child Repression Prevention Act of 2001 is concerned, the punishment of offences registered under this law is quite strong which includes ten years of imprisonment to life terms of rigorous imprisonment or even death penalty in addition to fines. The police officers, prosecutors and lawyers of the record agree that there is trend in the country to misuse this law to harass their enemies, fabricating charges under this Act.

In this case registered under Section 5 (1) of this Act, a sentence may lead to a minimum punishment of ten years imprisonment that may extend to 20 years of rigorous imprisonment or even a death penalty for the accused. Every investigation into a crime has to be done with due care and caution. But when the offense leveled against a person is of such nature that it attracts severe punishments such an investigation has to be conducted with additional caution. A miscarriage of justice will prove to be extremely expensive affair to be defended, particularly for the poor as it is in this case.

SUGGESTED ACTION:
Please write letters to the relevant authorities to investigate into this alleged incident of arbitrary arrest and detention by the police as well as the courts and provide adequate compensation to the victims of this incident.

The AHRC has also written separate letters to the UN Special Rapporteur on the Independence of Judges and Lawyers and the Working Group on Arbitrary Detention calling for their appropriate intervention in this case.
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