The High Court on Tuesday again banned use of bar-fetters for the accused except top listed criminals and extremists while producing detained accused in courts from the jail and shifting them between prisons.

The High Court also asked the jail authorities to strictly follow a notification issued by the department of prisons on November 22, 2022, asking the superintendents of jails across the country to only use bar-fetters for top listed and heinous criminals and extremists during their transportation from the jails to the courts and shifting from one jail to another.

The department issued the notification following a directive issued by another High Court bench in suo motu cognizance on March 19, 2017.

The present bench also asked the government and the prison authorities to explain in four weeks why the arbitrary and unreasonable use of bar-fetter for detained accused while they were taken out of prisons would not be a violation of the constitution, Prisoners Act and Universal Declaration of Human Rights. 

The court observed that it would frame guidelines on the use of bar-fetters as the jail authorities have been randomly putting any prisoners on bar fetters.  

‘We have to save life and liberty of the citizen,’ the court observed.

The bench of Justice Mustafa Zaman Islam and Justice Md Atabullah issued the directive after hearing a writ petition filed by Patuakhali unit Chhatra Dal leader Nazmul Mridha, who was seen attending namaz-e-janaza of his father with shackles in his legs on January 13 while he was out of jail on parole.

The fresh order has come as the prison authorities have continued putting detained people on bar-fetters arbitrarily in violation of the High Court’s another directive issued by the bench of Justice Nozrul Islam Chowdhury and Justice Md Rezaul Haque on April 27, 2006, prohibiting the random use of bar-fetters on a prisoner, Nazmul’s lawyer Kayser Kamal said.   

Kayser said that the High Court issued this directive, while delivering the verdict after hearing a writ petition filed by then Ain o Salish Kendra executive director Salma Sobhan in 1997, challenging the legality of putting Fazlu alias Hafizur Rahman, a convicted prisoner of Jhenaidah district jail, in bar-fetters for 33 months.

Fazlu, a resident of Bazar Gopalpur village in Jhenaidah, was jailed for 18 years in 1990 for illegal possession of arms and explosive substances.

ASK’s the then lawyer, Md Nizamul Huq, told New Age on Tuesday that they appealed against the HC verdict on a point that while the court had prohibited the use of bar-fetters, it did not respond to ASK’s plea to declare the use of bar-fetters unconstitutional.

The Appellate Division, although granted permission to appeal against the High Court verdict on that point, has not heard the case till now, he added.  

Nazmul Mridha, joint convener of Chhatra Dal’s Mirzaganj upazila unit, was taken out of Patuakhali District Jail on parole to attend the namaz-e-janaza of his father Motaleb Hossain Mridha, at West Subidkhali village on January 13.

Nazmul’s handcuffs were removed but his legs were shackled.

Nazmul pleaded with the police to remove his shackles, but they refused.

He could not even put soil on his father’s grave as the police sent him back to the jail before expiry of the parole time.

Nazmul’s father Motaleb was a former president of the BNP’s Deuli Subidkhali union unit and a member of the union parishad.

Appearing for Nazmul, lawyer Kayser Kamal, contended that the state repeatedly treated hundreds of opposition leaders inhumanly in both jail and police custody, including producing them in courts in handcuffs and bar-fetters.  

He said that the opposition leaders were detained in a crackdown launched from October 28, 2023, ahead of January 7 parliamentary election, which was boycotted by 16 political parties, including the BNP, demanding the election after resignation of the Awami League government.

He said that earlier in November 2023, shackled Jashore Jatiyatabadi Juba Dal leader Aminur Rahman was put on medical treatment at the National Institute of Cardiovascular Diseases in Dhaka under the custody of Dhaka Central Jail.

Aminur was later unshackled and freed on bail on the intervention from the High Court, he said.

‘We feel it necessary to direct the respondents not to impose bar-fetters upon any of the prisoners except with strict adherance to the mandate of law and the rules framed thereunder and under the facts warranted under the prisoners act and the Jail Code,’ the HC said.

Referring to Section 56 of the Prisoners Act and Section 485 of the Jail Code, the High Court observed, ‘We find that no prisoner inside a jail shall be fettered except on the ground that the prisoner is violent or dangerous or unless he had escaped or has attempted to escape or made preparation to escape, unless the prisoner is sentenced to transportation (which is no longer available under our Penal Code); from a perusal of Rule 486 we find that it is incumbent upon the superintendent to record his reasons for considering the use of fetters necessary in respect to a prisoner.’

The High Court also directed the jail authority to strictly monitor its staff members so that they do not abuse the rules of bar-fetters and punish those who are found abusing those rules.

‘We are, therefore, of the opinion that the power under Section 56 of the Prisoners Act can be excercised only for reasons and considerations which are germane to the objective of the statute, viz. safe custody of the prisoners….’ the High Court observed.