Following the rising violence against women, especially rape incidents throughout the country, the protection of woman and child has become the centre point of discussion. As these incidents seem to be irresistible, curbing the violence against women has become a challenge for us.
Presently there is no doubt that people committing crimes against women and children must be punished to ensure justice. On the other hand, it is also necessary to protect innocent victims of malicious prosecution. However there exists a common trend in Bangladesh to use the public emotion and opinion on these issues. As a result, there is a very high chance of using the laws regarding women and child protection in favour of someone’s vindictive purpose.
The Bangladesh Women & Children Repression Prevention Act 2000 (Nari-O-Shishu Nirjaton Daman Ain) (the “Act”) is a specialized law that passed into law and came in force on 17 July 1995. This law mainly deals with the violence’s against women and children.
This Act contains stringent provisions for prevention of offences related to oppression on women and children. Trafficking and kidnaping of children and woman, rape, death resulting from rape and dower, sexual harassment etc. are dealt with under this legislation. According to Section 250 of the Code the Criminal Procedure, Section 211 of the Code of the Criminal Procedure and Section 17 of the Act the complainant shall be given protection throughout the whole procedure .The Act was introduced with great expectation to reduce and remove the violence against women and children.
The Procedure in brief
Section 19 of this Act renders all the offences punishable under this Act as ‘cognisable’. According to Sec.4 (1) (f) of Code of Criminal Procedure (CrPC), a ‘cognisable offence’ is one for which a police officer may arrest someone without any warrant. Therefore, a person accused under the Act may be arrested immediately. However, the police will only arrest such a person if, he (the accused) has been concerned in any cognisable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his been so concerned. In most of the cases, therefore, police may arrest the person against whom any complaint has been made for committing any offence under the Act. It may be prudent to mention that in certain circumstances, a private person may also arrest any person if that private person believes that the other person has committed a non-bailable and cognisable offence. But, in such cases the arrestee must be handed over to the police without any unnecessary delay.
The provisions in relation to investigation are contained in the S. 18 of the Act. According to S. 18 (1)(a), investigation into the offences shall have to be concluded within fifteen working days from the date of the arrest of the accused or handing over of the accused to the police while caught red handed at the time of commissioning of the offence. Alternatively, S. 18(1) (b) provides for the investigation to be completed within sixty working days where the accused is not caught red handed but in consequence of the lodging of First Information Report (FIR) or following order of investigation by the authorized officer or the Tribunal. The time limit may be extended subject to the fulfilment of conditions contained in the subsequent sections. So, from the aforesaid provisions it seems that investigation of any Complaint regarding oppressive behaviour against women and children does not depend on arrest of the accused person.
Law requires every case to be investigated followed by the Police Report to be submitted to the Court. In the meantime since the offence in question is an arrestable (cognisable) one, the law-enforcing agency is in duty bound to arrest the accused person pending the outcome of the investigation as per Law. After the accused is arrested, he may pray before the Tribunal under sec. 19 to enlarge him on bail. Furthermore, to avoid the arrest, the accused may try to get anticipatory bail from the Hon’ble High Court Division under section 498 of the CrPC.
Since the provisions under the Act are considerably harsh against the accused, to protect malicious prosecution, section 17 provides for rigorous imprisonment for a term not exceeding seven years and fine in case if someone lodges a false complain or files a false case with intent to cause harm to other person.
The rights that a person may possess in relation to arrest are contained between sections 46-67 of the CrPC. Some of the important rights may be as follows:
- The person arrested to be taken before Magistrate or officer in charge of police station without unnecessary delay.
- The arrestee cannot be detained for more than twenty-four hours.
- The police have to follow the rules regarding search of the arrestee and seizure of any material.
Abuse of the Act
The abuse of this law has a very adverse impact on our legal system. Innocent people are suffering for this law. At the same time, it is facilitating further malpractices in the legal system. It has caused loss of substantial resources of the state and society as good amounts of working hours are spent by the complainants or informants, police, jail personnel, lawyers, judges and the support personnel and staff of the courts. Friends and relatives of the accused, victims and witnesses and their associated costs and expenditures are also factors to consider regarding misuse of resources.
Thousands of innocent persons have been jailed for many months, including scores of older men, women and children. Even organizations working for women’s rights acknowledge that, plaintiffs who are aggrieved with minor conjugal issues misuse this law. Ultimately, this situation deprives everyone from the possibilities of remedies. Women often file false graver allegations against their husbands or convinced by their lawyers to do so although the conjugal issues may not be that much serious. If proved guilty, that innocent husband receives conviction; but if proved innocent, the aggrieved women lose the chances of reconciliation.