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> 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 160
Convention on the Rights of the Child evidence. The confessional statement would still remain the involuntary confessional statement that it was <strong>and</strong> the evidence of the witnesses could not be bettered in any way. Therefore, in the light of the decision Asiman Begum Vs. State, 51 DLR (AD) 18, we feel that it would be futile to send the case back on rem<strong>and</strong>, since no further evidence could possibly be unearthed which could legally be accepted in support of the prosecution case. Before parting we wish to record our gratitude for the valuable assistance given by the learned advocate for the condemned prisoner/appellant, the learned Deputy Attorney General, <strong>and</strong> in particular Dr. Shahdeen Malik who acted as amicus curiae. The learned D.A.G. <strong>and</strong> Dr. Malik provided us with a wealth of relevant reference material, which we found immensely helpful. We would also wish to record our utter dissatisfaction at the manner of conduct of the case by the learned trial judge. His comments <strong>and</strong> findings with regard to the order of the Judge dated 22.1.2001 concerning the age of the accused is highly improper <strong>and</strong> illegal since he was not sitting in appeal over that order nor was that order appealed by any party to the proceedings. Moreover, having assumed the role of a Juvenile Court, to pass a sentence of death is abundant indication of the improper exercise of the judicial mind. The actions of the learned trial Judge are highly deprecated. In the light of the above discussion, the Reference is rejected. The appeal is allowed. The judgment <strong>and</strong> order of conviction <strong>and</strong> sentence is hereby set aside. The Jail Appeal is accordingly disposed of. Md. Roushan Mondal alias Hashem is hereby acquitted of the charge levelled against him <strong>and</strong> may be set at liberty forthwith if not wanted in connection with any other case. Let a copy of this judgment be sent to the Ministry of Law Justice <strong>and</strong> Parliamentary Affairs for recommending legislation in line with the views expressed by us in this judgment. Send down the lower Court’s records along with a copy of this judgment at once. A.K.M. Fazlur Rahman, J. I agree. I s m a i l. 161
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Third and Fourth Periodic Report on CRC - Unicef

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