Third and Fourth Periodic Report on CRC - Unicef

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<strong>Third</strong> <strong>and</strong> <strong>Fourth</strong> <strong>Periodic</strong> <strong>Report</strong> THE CHILDREN ACT, 1974 (BANGLADESH’S CONTRIBUTION) The aims <strong>and</strong> goals thus spelled out led to the multitude of nations enacting laws incorporating the recommendations <strong>and</strong> embodiments of the international instruments. Let us examine the background to the enactment of our Children Act, 1974 in order to see its applicability in the criminal justice delivery system in our country. The first introduction of law in our parts referring to trial of youthful offenders was in the Bengal Children Act, 1922, which was localised to Kolkata <strong>and</strong> its suburbs as well as the Port of Kolkata <strong>and</strong> Howrah. There was also provision to extend it to other parts of Bengal. Later by amendment, section 29B was added by the Code of Criminal Procedure (Amendment) Act, 1923 (XVIII of 1923). Previous to that only confinement of youthful offenders was dealt with by the Reformatory Schools Act 1897. Section 29B of the Code provides as follows: "29B. Any offence, other than one punishable with death or transportation for life, committed by any person who at the date when he appears or is brought before the Court is under the age of fifteen years, may be tried by a District Magistrate or the Chief Metropolitan Magistrate, or by any Magistrate specially empowered by the Government to exercise the powers conferred by or under any law providing for the custody, trial or punishment of youthful offenders, by any Magistrate empowered by or under such law to exercise all or any of the powers conferred thereby." We are not aware that any special court was set up to hear matters relating to youthful offenders specifically either under the Bengal Children Act or the Code of Criminal Procedure. Both those provisions were repealed/abolished by the Children Act, 1974. LEGISLATION IN EXERCISE OF CONSTITUTIONAL POWER We believe that the Children Act 1974 was promulgated as a direct manifestation of Article 28(4) of the Constitution, which has been placed in the Part III – under the title "Fundamental Rights", <strong>and</strong> at the same time in response to, <strong>and</strong> with a view to fulfilling the m<strong>and</strong>ate of, the relevant international instruments of the UN mentioned above. Article 28(4) of the Constitution provides as follows: "Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens." Thus the framers of the Constitution have given the power even to promulgate discriminatory laws favouring the womenfolk <strong>and</strong> children. Hence it can be said that the Act is a beneficent legislation purposely enacted to give beneficial effects to a particular community of women <strong>and</strong> children <strong>and</strong> once enacted the rights which accrue cannot be frittered away by subsequent enactment. The Act incorporates provisions of international covenants in order to safeguard the juvenile from exposure to the rigours of Court process <strong>and</strong> the stigma of trial <strong>and</strong> conviction. Hence the requirement for separate trial from adults has been incorporated in section 6 of the Act. It may be noted that section 6(2) of the Act emphatically gives this provision precedence over all other provisions of any laws which may dictate joint trials, including section 239 of the Code of Criminal Procedure. In this regard comparison may be made with the system prevalent in Engl<strong>and</strong>. It appears that in case of serious offences triable by the Crown Court, there is a discretion given to the Juvenile Court whether or not to allow the juvenile to be tried with the adult <strong>and</strong>/or for the trial to take place in the Crown Court. With all due respect, such a provision effectively waters down the rights given to the juvenile to be ‘protected’ from the terrorizing harshness of the criminal justice system <strong>and</strong> is contrary to the spirit of the international instruments, mentioned above, which enjoin segregation from adult offenders. We note that our legislature has catered for cases of youthful offenders involved in serious crimes by enacting section 5(3) of the Act, which provides as follows: 150
Convention on the Rights of the Child "When it appears to a Juvenile Court or a Court empowered under section 4, such Court being subordinate to the Court of Session, that the offence with which a child is charged is triable exclusively by the Court of Session, it shall immediately transfer the case to the Court of Session for trial in accordance with the procedure laid down in this Act." Thus even when it is m<strong>and</strong>ated by law for the trial to be conducted by a Sessions Judge, the proceedings must take place in accordance with the provisions of the Act. In other words, the juvenile will get the benefit of all the rights to which he would be entitled had the proceedings taken place in the Juvenile Court. That, we believe, follows the spirit <strong>and</strong> intendment of the international instruments which crave for the well-being of the youthful offender <strong>and</strong> enjoin segregation of youths from adults at all stages from apprehension to incarceration. The aspect of segregation is highlighted further by section 7(2) of the Act, which provides as follows: "In the trial of the case in which a child is charged with an offence a Court shall, as far as may be practicable, sit in a building or room different from that in which the ordinary sittings of the Court are held, or on different days or at different times from those at which the ordinary sitting of the Court are held." This is emphasised further by the provisions of section 8 (1) of the Act, which provides: "When a child is accused along with an adult all having committed an offence <strong>and</strong> it appears to the Court taking cognisance of the offence that the case is a fit one for committal to the Court of Session, such Court shall, after separating the case in respect of the child from that in respect of the adult, direct that the adult alone be committed to the Court of Session for trial." Thus under our laws there is no chance of joint trials of a youthful offender <strong>and</strong> an adult. No matter what offence is alleged, irrespective of the seriousness of the act, a juvenile is to be tried separately from adults <strong>and</strong> in accordance with provisions of the Act. If the case is triable by the Court of Session only, then the case of the juvenile is to be dealt with under section 5(3) of the Act. Our courts have strictly interpreted this provision in a number of cases, including the State vs Deputy Commissioner, Satkhira, 45 DLR 643. It may be pointed out at this juncture that there is no provision equivalent to section 5(3) that serious offences under any special laws, such as the Arms Act, 1878 or the Special Powers Act, 1974, both of which predate the Children Act, or Nario-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 etc. are to be tried by the appropriate Tribunal in accordance with provisions of Children Act. Until such incorporation juveniles charged with offences falling under special law will have to be dealt with by the Juvenile Court in accordance with provisions of the Children Act, which, in our view, is of universal application <strong>and</strong> approach, irrespective of the offence alleged, as illustrated by the observations <strong>and</strong> references made above. In the case before us, the learned Sessions Judge sent the case for trial by the learned Additional Sessions Judge, First Court <strong>and</strong> Nari-o-Shishu Nirjatan Daman Tribunal, Jhenaidah. This clearly defeated the purpose of the trouble taken by him to ascertain the age of the accused under the provisions of section 66(1) of the Act. It further appears that at the time of framing the charge, the learned judge, in a feint <strong>and</strong> half-hearted way proclaimed himself as the Juvenile Court <strong>and</strong> framed charge against the accused under section 6(2) of the Ain. This is clearly a patent contradiction in terms. Moreover, there is nothing on record to show that all the formalities of a juvenile trial were followed. On the contrary, the offender has all along been described as an ‘accused’ which is not a term found in the Act. Moreover, the sentence passed clearly shows that the learned judge lost sight of the provisions of the Act. We also do not know whether the other aspects of informality of the proceedings before a Juvenile Court, i.e. lax procedures <strong>and</strong> absence of publicity <strong>and</strong> members of public apart from parents/guardian of juvenile <strong>and</strong> his representative, <strong>and</strong> even the dispensation with attendance of the child which are provided by the various provisions of the Act, were followed during the trial. It appears from the order dated 22.1.2001 passed by the Judge, Nari-o-Shishu Nirjatan Daman Tribunal that the learned Judge followed the procedure laid down under section 66 of the Act <strong>and</strong> ascertained the age of the accused after due process <strong>and</strong> in accordance with the law. Section 66(1) of the Act provides as follows: 151
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