The High Court ruled that the accused cannot be kept in solitary confinement (known as condemned cell) before the death sentence is finalised. The court said death row convicts should be treated like other prisoners. However, in the interest of the safety of death row convicts or other prisoners, the prison authorities can keep him in the condemned cell due to exceptional circumstances including infectious disease, health. In this case, the statement of the prisoner sentenced to death should be heard.
After the final hearing of a writ, Justice Sheikh Hasan Arif and Justice Md. The High Court bench composed of Bazlur Rahman gave this judgment along with observations and instructions on Monday. Jail authorities have been directed to initiate initiatives including infrastructural arrangements for shifting death row inmates to common cells. But not more than two years, the court said.
The writ was filed in 2021 by the three accused who were sentenced to death in the condemned cell in the judicial court regarding the legality of keeping the convicted accused in the condemned cell before the finalization of the death sentence through the judicial and administrative forum. On April 5, 2022, the High Court ruled on the preliminary hearing of the writ. The rule sought to know why keeping the convict in condemned cell before finalization of death sentence in judicial and administrative forum should not be declared beyond legal authority. At the end of the final hearing, the court settled the rule and gave the judgment with observations and instructions. Concerned lawyers say that this judgment has opened new horizons in the criminal justice system.
After the verdict, Attorney General AM Amin Uddin told Prothom Alo that the issue of the verdict will be informed to the relevant authorities of the government. Further action will be taken as per instructions.
Meanwhile, according to a November 2022 report by the prison authorities, there are 2,657 cells in the country’s prisons for people who have been sentenced to death. And there are 2 thousand 162 prisoners in the condemned cell.
According to section 374 of the Code of Criminal Procedure, if the accused is sentenced to death by the judgment of the judicial court in a criminal case, it has to be approved by the High Court. This is known as a death reference. According to section 410 of the Criminal Procedure Code, the accused can appeal to the High Court against the judgment of the trial court. If the death sentence is upheld in the High Court, the convict has the opportunity to appeal against it in the Appellate Division. According to Article 105 of the Constitution, there is an opportunity to apply for review against the judgment of the Appellate Division. Apart from this, according to Article 49 of the Constitution, the accused who has been sentenced to death can seek pardon from the President. If the pardon is rejected by the President, the death penalty becomes legally enforceable, the writ states. In respect of the three accused who filed the writ petition, the death penalty has been awarded by the trial court in separate cases. Their appeal and death reference against it are pending disposal in the High Court.
In the judgment, the High Court said, it appears that the High Court has to wait six years for disposal of death references. If it was appealed, the case took another eight years to conclude. If it is reviewed then it takes two years to settle it. As such, one has to wait 15-20 years for the final settlement. Under Sections 73 and 74 of the Penal Code, the accused can be kept in solitary confinement (known as condemned cell). As per provision this period shall not exceed 30 days. During this 30 day period, solitary confinement cannot exceed 14 consecutive days and 7 days in a month. Longer terms of solitary confinement before the death penalty are final include serving the sentence twice.
Talking about the lengthy process in the trial of the case, the court said that it takes 5-6 years to complete the trial of the murder case in the judicial court. The investigation into Sagar-Rooney murder case, a conscious citizen and journalist, has not been completed even after 12 years. It’s a burning example of longevity.
Noting that there is no precedent for the bail of the accused, the High Court said in the judgment that the death row prisoner can apply for bail. In that case the High Court Division should entertain the bail application under Section 426 of the Code of Criminal Procedure.
According to the Right to Information Act, prison authorities are required to provide information on the number of death row inmates and Supreme Court Registry Office death reference cases, commutations and acquittals. The Act requires the information to be provided on request and published on the Supreme Court’s website and in the annual report.
Lawyer Mohammad Shishir Monir heard on behalf of the writ petitioners. Attorney General A. M. Amin Uddin and Deputy Attorney General Amit Talukdar, accompanied by Assistant Attorney General M. G. Sarwar, heard for the state. Lawyer Khondkar Shahriar Shakir appeared on behalf of the prison authorities. In this case, senior advocates Prabir Niyogi and SM Shahjahan presented the opinion as amicus curiae (legal assistant of the court).
After the verdict, the lawyer of the writ petitioners, Mohammad Shishir, told Monir Prothom Alo that the death sentence of the accused cannot be said to be final if the death sentence is imposed in the judicial court. In this case, the death sentence will be finalized only after the completion of these four stages – High Court Division, Appellate Division (Appeals and Review) and Apology to the President. The High Court has ruled that the accused whose death sentence is pending cannot be kept in the condemned cell before the completion of these steps. In this judgment, a new horizon was opened in the criminal justice system.