The Right to Fair and Effective Investigation in Pre-trial stage refers to various aspects of criminal procedure designed to safeguard the innocent from the harassment of the state authorities, both judiciary and executive. Each and every accused person of the offence should be treated as an innocent person till the guilt is proved by the court. The accused person has rights to be just, fair, reasonable, and effective before the court in which the court and authorities must apply the just, reasonable and fair procedures on conducting their investigative task. They must perform their duties in accordance with procedure established by law. The United Nations contributed a lot in adopting declarations, conventions, and principles etc. which ensure the rights to fair trial in the court of law of the accused person. However pre-trial investigation is closely connected with fair trial of an accused. Impartial investigation is depending on the authority conducting the investigation. In absence of a separate investigating agency in Bangladesh, the investigating officers who belong to the police force are at times lagging behind the professionalism in wrapping up investigation of crimes for a plethora of reasons. In many instances the investigating officers are alleged to be discharging their duties in a casual manner. Though separate judicial magistracy started its journey about twelve years ago, delayed, defective and biased investigation of crimes is one of the major stumbling blocks that haunt our crippling criminal justice system. Colonial rules, too much reliance on confession of the accused rather than evidence oriented way of investigation and heavy workloads of law enforcing agency are major causes for lackadaisical investigation. Many officers also tend to be conveniently indifferent to the modern trends and technical developments of investigation techniques and human rights of the accused. It is also critical that the investigating officers are well-versed with the essential ingredients of the offences they are investigating. The investigators are also often handicapped in undertaking effective investigation for want of modern gadgets and equipment etc. In this age, the crime detecting members can also in no way sideline the core human dignity of the accused.

1. Abuse of policing power in pre-trial
investigation in Bangladesh: Risking the
right to fair trial
Presented by
Shah Arafat Ayatullah
Roll: 19005009
LLM: Batch: 5th
Department of Law
Faculty of Security and Strategic Studies (FSSS)
Bangladesh University of Professionals (BUP)

2. Introduction
• A fair trial is an open trial by an impartial judge in which all parties are treated
equally. The right to fair trial is one of the fundamental guarantee of human rights
and rule of law, aimed at ensuring administration of justice. Fair trial includes fair
and proper opportunities allowed by law to prove innocence.
• A pre-trial investigation may be brought to an end if it is not possible to find
enough material to prove the guilt of the suspect or because there are other
obstacles to the procedure. The investigation may also be terminated if it can be
acknowledged that the suspect cannot be held legally responsible for the crime
committed.
• criminal investigation is an applied science that involves the study of facts, used to
identify, locate and prove the guilt of a criminal before trial.
• On the basis of that investigation a trial starts. To ensure fair trial investigation
under CrPC has strictly followed. Investigation officer of any criminal cases should
enjoy freedom during the entire period of investigation. It took time but under
some special circumstances i.e critical cases it can’t be possible to follow the
prescribed tenure given by the law. On that ground police officer take unfair
advantage and it become lengthy to complete any investigation. Some other
problem also rise which hindering the fair trial process as well.

3. Background of the research
• From time immemorial, Torture of a fellow human being by another human being
has become a habitual instrument to impose the will of the stronger to the weaker.
It had become a global phenomenon till to 1974 those who are in power were
used to gyrating and turning people through violence, tortures and tortures under
custody.
• Reference, in this context, is irresistibly drawn to ‘modus operandi’ exercised by
the British Security Forces in suppressing armed insurgency and terrorism carried
out by Republican and Loyalist groups in Northern Ireland in 1969.
• Between 1971-1974, allegations of maltreatment and assault by the security forces
arose increasingly. Different ways and methods to increase and encourages these
malpractices of violence and tortures through arbitrary arrest, detention and
disappearance.
• Abuse of policing power have been the most widespread and diurnal incidences in
Bangladesh but has been routinely ignored by successive governments since the
independence of Bangladesh in 1971 where it is considered that the voice people
is the voice of God.
• Several recent incidences, in which the Law enforcement agency is directly
involved and partaken, bound me to pay concentration to search the actual reason
which drives and increases this kind of abuse of power even extra-judicial killing
and have also hidden behind it.

4. Research questions
• What is the power of police in pre-trial
investigation?
• How excessively this power has been abused?
• What are the features of right to fair trial and
its exigency?
• How the right to fair trial is undermined by the
abusing of policing power in pre trial
investigation in Bangladesh?

5. Objective of the research
• The main objective of the research is to
evaluate the existing conditions of abuse of
policing power in Bangladesh.
• To investigate the legal right to fair trial in
Bangladesh.
• To identify the policing power in pre-trial
investigation of Bangladesh.
• To analyze how policing power is hindering
right to fair trial in Bangladesh.

6. Research methodology
• This is qualitative research and data were collected by secondary
data collection method. The research is done regarding Bangladesh
Constitutions as well as criminal procedure codes and in
international convention and judgments of the courts (the Supreme
Court of Bangladesh, respectively).
• The primary aim of the research is to discover by explaining,
comparing and analyze and illustrating in a systematic form of the
facts, investigation, concept of fair, just and reasonable procedures
established by laws as in aspects of criminal proceedings,
constitutional provisions of the rights of the accused persons to be
provided in fair and effective investigation and finally he can access
to justice equally to others, theories and the working of certain
laws, judicial interpretation and legal institutions.
• The legal propositions and doctrines are to be gathered through the
judgments; statute laws include constitutions, criminal procedure
codes and international conventions, books, article scholars‟

7. Research methodology(cont.)
• Thus, the research will use the Descriptive and Exploratory
approaches which the intends to determine and examining whether
any inadequacies or gaps of the existing law, how the criminal
concept of rights of the accused to fair trial and effective
investigation in pre-trial stage applies in each criminal justice
system and different implication of jurisprudential philosophy of
right to fair trial and effective investigation in both Constitutions
and criminal procedure codes and in various judgments of the
Bangladesh Supreme Court in investigative phases of an offence.
The consequence of fair trial resulted from the arts of fair and
impartial investigation. In all criminal justice systems, the basic of
fair trial depends upon the fair investigation and the fair
investigation shall depend upon doctrine of fair and effective or just
procedure in its arts of investigation of the Investigating Officers.

8. Research methodology(cont.)
• Finally, through Analytical and Critical approaches is
expecting to analyze the existing applicability of right
of the accused persons to fair and effective
investigation which has been adopted into the
Constitutional laws and criminal procedure codes in
Bangladesh ‟ legal systems in order to elaborate of
fundamental understanding of the differences of the
criminal justice systems and to critically analyze, to
draw the inadequacies, disadvantages, advantages,
weakness and strengths of the systems and to express
opinion on rational basis and then come to conclusion
of the research at the end.

9. Limitations & Significance of
the research
 Limitations:
• Lack of secondary source-based information regarding police of our country,
• Insufficient information in Police website related to number and ratio of police,
• Sole focus was on data collected from Police station and law chamber.
 Significance:
 Majority of arrestees are homeless, rickshaw puller, street children, opposite party
leader. Young men suspected as terrorists, extortionists and belonging to various
political parties is also regular victim of arbitrary arrest by police.
 Apart from the Government initiatives to separate enforcement and investigation
activities of police personnel in police stations, it has also approved the recruitment of a
good number of new police officers for this purpose.
 Formation of separate investigation and enforcement units are expected to specify
works of police personnel and reduce excessive workload of them in police stations. It is
expected that it will also help in improving the service and behaviour of police towards
common people.
 The notion of ‘suspicion’ is a very subjective term and police applies it subjectively to
harass people. Although there is a legal provision to produce arrested people before
court within 24 hours of arrest or trial proceeding police does not do that. Rather police
tend to get bribe from arrested people and let them free from police station.

10. Pre-trial rights
• The prohibition on arbitrary arrest and
detention.
• The right to know the reasons for arrest.
• The right to legal counsel.
• The right to a prompt appearance before a
judge to challenge the lawfulness of arrest
and detention.
• The prohibition of torture and the right to
humane conditions during pre-trial Detention.

11. Fair trial in criminal justice system of
Bangladesh
• The right to a fair trial, which is also called “fair administration of justice,”
is one of the cornerstones of a democratic society abiding by the “rule of
law.”
• However, the constitution has specifically guaranteed one’s rights to
equality before the law (Article 27), to enjoy the protection of the law, to
be treated “in accordance with law” (Article 31), and to consult and be
defended by a legal practitioner of his choice (Article 33).
• Predominantly, in Article 35, it has guaranteed certain rights which are the
components of “right to a fair trial,” such as the right to “a speedy and
public trial by an independent and impartial court or tribunal,” “right to be
secured from double jeopardy,” right to non self-discrimination, and
protection against “torture or cruel, inhuman, or degrading punishment or
treatment.”
• Rule 75 (3) of the Criminal Rules and Orders-2009,
• Rule 330(a) of the Police Regulations
• section 19 of Penal Code

12. Criminal justice system in Bangladesh
under CrPC 1898
• Arrest with warrant in Bangladesh
• Arrest without warrant in Bangladesh
• Mode of arrest and power of law enforcers
during the time of execution-
– Use of restraints (Section 50 of the CrPC).
– Search and seizure on arrest (Sections 51,52 and 53).
Ascertaining the age of an arrested person
– Children in conflict with the law
– Protection against Double Jeopardy (section 403 )
– Remand (section 61,167)

13. Right to fair trial in international law
• The International Covenant on Civil and Political Rights
was the first international human rights instrument to
officially prescribe the specific details of the extent of
application of this right. These rights could generally be
divided into two main categories: procedural rights
during trial process and rights in relation to the general
administration of justice by the states .
• Pre-trial rights of an accused-
– Article 14 (1): The Right of Equal Access to Courts
– Article 14 (2): Presumption of Innocence
– Article 14 (3) and the maxim of ‘Equality of Arms’
– Article 14 (3)(a): The Right To be Informed of the Charge
– Article 14(3) (b): Preparation of defense
– Article 14 (7): Freedom from Double Jeopardy

14. Victim of abuse of policing power

15. Pattern of extrajudicial execution
• All killed in early hours.
• Witness testimonies.
• Alleged enforced disappearances followed by
suspected extrajudicial executions .
• Socio-economic statuses.
• Arguments in favor of Extrajudicial Killing.
• Discrimination in Enforcement of Law

16. Findings
• Duration of investigation.
• Delay in starting investigation.
• Non -recording of information on cognizable offence.
• Lackadaisical recording of statement of witnesses.
• Faulty search and seizure.
• Less-explored forensic science.
• Plea of allibi.
• Investigation by informant.
• Lack of legal perception about offence.
• Use of third degree method and too much reliance on confession.
• Plight of the victims of crimes.
• Lack of modern equipment.
• Illegible writing.
• Lack of efficient officer.
• Lack of proper supervision.

17. Recommendations
• Alternative to the appointment of Legal officers.
• Recording Reasons for delay by IO.
• Surathal Witnesses
• Mandatory recording of statements of witnesses in the presence of the
Magistrate:
• Prompt filing of Charge-sheet
• Case Diary
• Forensic Experts
• Increasing the number of Scientific Experts
• Salaries and Allowances
• Securing the cooperation of Public
• Effective interrogation method
• Periodic report
• Compensation
• Increase salaries
• Investigation of extra judicial killing

18. Conclusion
So law enforcement agencies are showing more cautious
about the human rights and also other rights of our country
for her citizen. Its commitment to promoting and
protecting right to fair trial & human rights flows from the
realization that the well-being of the people can only be
ensured through effective pre-trial investigation . But it is
also mentioned that the number of crime and murder is
not decreasing with the following abuse of power. To keep
our society safe and crime free, it is most important to stop
any type of abuse of policing power and deviant activities
by all. It also needs to ensure that there will be no violation
of pre-trial rights and right to fair trial by anyone so that all
can enjoy their rights feely.