Golam Mohammad Khan vs Bangladesh (2002) 54 DLR 405

The fact of the case:

The detainee Al-Haj Mokbul Hossain's workers and supporters met at his home at night to make plans and strategies for the hartal that the Bangladesh Awami League had called for on February 12, 2001. During that particular day's hartal, Detenu, his followers, and his employees built barricades, blocked numerous highways, and also damaged public property. Additionally, it is said that he was detained on 2-12-2001 for these acts in accordance with Section 54 of the Code of Criminal Procedure, 1898.

Issue of the case:

This Rule was given requesting the respondents to provide justification as to why he should not be summoned before this Court so that it may ensure that he is not being held in custody unlawfully or without a valid reason.

Decision:

In accordance with the aforementioned factors, the court has come to the conclusion that the detainee in this specific case cannot be considered to have been detained unlawfully. As a result, it deems the Rule lacking substance and is likely to be discharged.

Justification:

1. Ms. Tania Islam made the argument that since the current detainee was a member of the previous parliament and holds significant status in society, he should have access to Division 1 facilities while he is being held. The issue of treatment of a detainee was thoroughly examined in the case of Shariar Kabir, which was only recently settled.

2. The submission of a final report after a police investigation cannot be a bar to passing an order of detention. A detention order may be passed after acquittal in a particular case under section 3(2) of the Special Power Act 1974.
 
3. A detenu, neither being a convict nor an under-trial prisoner, should get separate treatment and should be given more opportunity to meet members of his family and should get other facilities. All detenus in preventive detention should get more human treatment from the authority concerned under section 3(2) of Special power Act 1974.

4. There is no prohibition on the same individual being detained under preventative detention after being arrested in accordance with section 54 of the Code of Criminal Procedure.  Preventive detention cannot be subject to the same rule that is used to determine whether bail should be granted. The court may issue bail if it determines that there is no evidence linking the accused to the crime. However, if the imprisonment is deemed essential by the government to stop the detainee from repeating the same actions, a detention order may be issued.

5. The mention of current criminal cases involving the detainee in the detainee's history shows that his prior behavior will not make the order of detention null and void. However, the pending status of cases cannot be a reason for detention.

Written by---
Sadia Hosen Ema
Department of Land Management and Law
Jagannath University, Dhaka

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