Third and Fourth Periodic Report on CRC - Unicef

<strong>Third</strong> <strong>and</strong> <strong>Fourth</strong> <strong>Periodic</strong> <strong>Report</strong>
We may add that the above is not meant to be a comprehensive list <strong>and</strong> provides only some of our perceptions <strong>and</strong>
suggestions. We wish only to emphasise the importance of giving the deviant child an opportunity to do better <strong>and</strong> rejoin
mainstream social structure. As was stated by the Supreme Court of India in Sheela Barse v. Secretary, Children’s Aid
Society <strong>and</strong> others, 1987 (3) SCC 50, "If there be no proper growth of children of today, the future of the country will be
dark. It is the obligation of every generation to bring up children who will be citizens of tomorrow in a proper way. Today’s
children will be the leaders of tomorrow who will hold the country’s banner high <strong>and</strong> maintain the prestige of the Nation. If a
child goes wrong for want of proper attention, training <strong>and</strong> guidance, it will indeed be a deficiency of the society <strong>and</strong> of the
government of the day."
BACK TO THE CASE IN HAND:
With the above scheme of criminal trial in view, we find that the Children Act, 1974 deals with the jurisdiction of a Court with
regard, inter alia, to accused persons under the age of 16 years. The Act is of universal application <strong>and</strong> gives the jurisdiction
over all such accused persons to the Juvenile Court set-up under the provision of the Children Act, 1974. The Act, therefore,
has an overriding character having a universally acceptable approach, inasmuch as it gives the jurisdiction to the Juvenile
Court to try all offences which may concern any child below the age of 16 years. It is with this view in mind, we believe, that
so many of the decisions of this Bench have been either sent on rem<strong>and</strong> for trial by the Juvenile Court upon assessment of
age or judgments have been set aside due to lack of jurisdiction of the Court other than the Juvenile Court trying the accused
children. We are, therefore, of the view, that jurisdiction over the offence is a secondary consideration, the first consideration
being the jurisdiction over the person of the accused. When the jurisdiction over person is established then no other Court
has power to try a child below the age of 16 years. In such view of the matter, we find that the trial of the accused who was
found to the below the age of 16 years at the framing of charge was without jurisdiction.
The trial having been without jurisdiction, under normal circumstances it would be incumbent upon this Court to send the
case back for fresh trial by the appropriate Court, namely the Juvenile Court. It appears from the records of the instant case
that upon the finding that the accused was a minor, the Nari-o-Shishu Nirjatan Daman Tribunal assumed the role of Juvenile
Court. We see from the order sheets that the Judge claimed himself to be the Additional Sessions Judge thus discarding his
own title of Judge, Nari-o-Shishu Nirjatan Daman Tribunal. However, at the same time, we find that the Judge, while framing
the charge, was the Additional Sessions Judge, 1st Court <strong>and</strong> Judge of the Nari-o-Shishu Nirjatan Daman Special Tribunal,
Jhenaidah. This has created a serious anomaly. The Nari-o-Shishu Nirjatan Daman Tribunal cannot be the Juvenile Court.
What is apparent from the judgment is that the death sentence having been awarded, the Court which tried the condemned
prisoner, could not have been the Juvenile Court, because the Juvenile Court Judge, under the procedures laid down by the
Children Act, could not have passed a sentence of death. We note from the letter of Reference that the learned Judge has
signed himself as the Additional Sessions Judge, 1st Court, Jhenaidah, again discarding his title of Judge, Nari-o-Shishu
Nirjatan Daman Tribunal. In the end we are left with the feeling that the learned Judge did not know exactly what role he
was playing, whether it was as the Judge of the Nari-o-Shishu Nirjatan Daman Tribunal or the Juvenile Court. Clearly he did
not exercise his judicial mind. Be that as it may, we would be inclined to send the case on rem<strong>and</strong> for fresh trial before a
Juvenile Court. However, on the evidence <strong>and</strong> materials on record we find that the decision is based on the confession of
the accused <strong>and</strong> circumstantial evidence, it being admitted that there is no eyewitness of the occurrence. On careful scrutiny
of all the evidence <strong>and</strong> materials on record we do not find any circumstantial evidence to connect the accused with the
offence. As we have stated earlier, the learned D.A.G. c<strong>and</strong>idly <strong>and</strong> correctly conceded that the confessional statement could
not be said to be voluntary since it was recorded three days after the accused was arrested <strong>and</strong> certainly after illegal
detention in police custody. We note from the evidence of the witnesses that the accused was apprehended <strong>and</strong> h<strong>and</strong>ed
over to the police by one Kamal, who was not examined as a witness in the case. We also note that the witnesses, including
the victim’s father, stated in their evidence that the accused had been tortured by the police before he confessed <strong>and</strong> that
in his cross-examination the victim’s father stated that neither he nor anyone in his family suspected this accused <strong>and</strong> that
so far as he was aware, the accused was not connected with the murder of his daughter <strong>and</strong> that he had no complaint
against the accused. We feel that sending the case back for trial before the Juvenile Court would not unearth any further
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