Children Act 1974 | Case Reference

CHILDREN ACT, 1974 (XXXIX OF 1974)

Section-2(1) Child Witness

A child witness who is himself a victim of assaults by the assassins of his father and saw the accused persons killing him and he testifies in details before the Court about the occurrence and remains unshaken in the face of cross-examination is a competent witness and he can be safely relied upon.

Forkan alias Farhad and another Vs. The State, 15BLD(AD) 163

Section-2(0)

Child witness

The law requires that before examining a child of tender age as a witness the Court should satisfy itself that the child is intellectu ally developed enough to comprehend what he has seen and to give an intelligent account of it to the Court. If the Court finds other wise, it should decline to examine him as a witness. On the other hand, if the child is sufficiently intelligent to understand the questions put to him and he is capable of giving rational answers to those questions, then his capacity to give evidence is on the same footing as that of any other adult witness. FazlulHaqSikder Vs. The State, 15BLD (HCD)364

Sections-2(f), 6 and 8

Section 2(f) provides that a boy under the age of 16 is a child. Section 6 provides that there can be no joint trial of the child and the adult and as such no child is to be charged with or tried for any offence together with an adult. The child must be tried separately in the Juvenile Court and not in the ordinary Court. Only the Junveile Court is competent to take cognizance against the juvenile of fenders. The State Vs. Deputy Commissioner, Satkhira, and others, 14BLD(HCD) 266 Ref: 1980 A.LR (SC) 1579 and 1986 A.LR. (SC) 1773 Cited

Children Act, 1974

Children Act (XXXIX of 1974)

S. 2(9-Reckoning date for the determination of the age of the juvenile is the date of framing of charge and not the date of commission of the offence. Saiful Islam Jitu (Md) Vs. State (Criminal), 65 DLR (2013)-HCD-234.

Children who come face to face with the law, are entitle for special consideration under the Act. This appeal preferred by appellant against the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge-in-Charge of Sessions Judge's Court Joypurhat. In this case, there being no tangible evidence connecting the accused appellant with the crime alleged, High Court Division of the view that the appellant is entitled to the benefit of doubt and that his conviction and sentence is liable to be set aside and also recommend the Ministry of Law, Justice and Parliamentary Affairs to take steps for incorporating within the law a provision to have a parent, guardian, custodian or legal representative of any minor to be present at the time of recording her/his statement either by the police or any Magistrate. Audio recording of the discourse between the accused and the Police/Magistrate would also give a better indication to the Courts as to the voluntariness of any confession recorded. Jaibar Ali Fakir Vs. The State, (Criminal), 18 MLR (2013)-HCD-167.

Sections-2(f), 6 and 66

The trial Court failed to apply its judicial mind to find if appellant Shiplu, who appears to below the age of 16 years at the time of trial is a child. This makes the order of con viction and sentence passed by the trial Coun upon appellant Shiplu illegal The impugnes judgment and order are set aside for want of jurisdiction. Shiplu and another Vs The State, 17BLD (HCD)243 Ref: 3 BLD (HCD) (1983)193 Cited Sections-2(f) and 6(1)

Under section 2(f) a 'Child' means a per son under the age of 16 years and when used with reference to a child sent to a certified institute or approved home or committed by a Court to the custody of a relative or other fit person means that he is a child during the whole period of his detention notwithstanding that he may have attained the age of 16 years during that period.

Sections-2(f) and 66 In view of the finding by the learned Ad ditional Sessions Judge as the trial Court that the petitioners are not children within the meaning of section 2 sub-section (f) of the Children Act, the High Court Division re jected the defence plea that the petitioners are children and they cannot be tried by the ordi nary criminal Court. Mohammad Hossain &ors. Vs. The State &anr. 18BLD(HCD)407 Ref: 47DLR(AD) 96-relied

Section 2(f)- Reckoning date for the determination of the age of the juvenile is the date of framing of charge and not the date of commission of the offence. Saiful Islam Jitu (Md) vs State, 65 DLR 234

Sections 2(f) and 66-An accused will be entitled to the benefits of the provisions of the Children Act if he can establish that he was a child on the date of commission of the offence and that it is the duty of the Court to initiate an inquiry before the commencement of the trial to determine the age of the accused in order to establish jurisdiction of the Court and ensure the due rights of the accused in accordance with law. (PER MD IMMAN ALI J, MINORITY) Mehedi Hasan @ Modern (Md) vs State, 66 DLR (AD) 111

Section 2(f)- In view of the definition of child as appearing in section 2(f) appellant Nasir ought to have been tried by Juvenile Court. Trial of child along with adult is forbidden by law. The trial of the appellant being held not by Juvenile Court is hit by want of jurisdiction. Md Nasir Ahmed vs State 42 DLR (AD) 89. Section 2(f)- The appellant has never been sent to a certified institute or approved home or committed to anyone's custody by the Court. In fact he has been on bail. Therefore the passage of time did not stop for the purpose of computing the age of the appellant which means the appellant had already attained the age of 16 years. Bimal Das vs State 46 DLR 460. Section 2(f), 6 & 8-No Child is to be charged with or tried for any offence together with an adult. The child must be tried in the Juvenile Court and not in the ordinary Court. Only the adult can be committed to the Court of Sessions and the Juvenile Court will take cognizance of juvenile offenders State vs Deputy Commissioner 45 DLR 643. Sections 2(f) & 6(1)-Joint trial of appellant Sunil, a child, along with the appellants being adults was illegal. Kadu vs State 43 DLR 163. Sections 2(f) & 6(1)-The trial of the minor accused appellant together with adult accused is hit by want of jurisdiction and, as such, the trial was vitiated. Kawsarun Nessa vs State 48 DLR 196. Sections 2(f), 6(2)(f) & 66-In order to get the benefit of separate trial the accused must satisfy the trial Court that he is a child and Court after consideration of the materials on record and bringing the accused before him shall come to a finding whether he is of the age of 16 or upwards. Hossain vs State 50 DLR 494. Sections 2(f), 55-58 & 61-Offence against child-question of custody-If an offence is committed against a child before its attaining the age of 16, the Court has the power to keep it in custody till the child attains the age of 18 or till the proceeding in respect of the crime is terminated. Sumati Begum vs Rafiqullah 44 DLR 500. Section 2(f), 6 & 66-The trial Court failed to apply its judicial mind as to the age of appellant Shiplu, who appears to have been below the age of 16. This makes the order of conviction and sentence in respect of Shiplu liable to be set aside for want of jurisdiction. Shiplu vs State 49 DLR 53.

Sections 3 and 66-The trial Court is the competent Court to determine its jurisdiction to try a particular case. Saiful Islam Jitu (Md) vs State, 65 DLR 234

Section-5

The appellant is aged about 14 years and as such the trial of the appellant must be held by the Juvenile Court according to section 5 of the Act and not by any other Court. The trial held by Special Tribunal in respect of the appellant is without jurisdiction.Md Shamim Vs The State, 19BLD (HCD)542 Ref: 17BLD(1997)(HCD) 243:49 DLR 53-relied upon

Section 5(3) Since the jurisdiction over the offences contained in the special laws are not specifically excluded by inclusion in section 5(3) of the Children Act, jurisdiction over offences committed by youthful offenders will be exercised by the Juvenile Court. State vs Md Roushan Mondal @ Hashem 59 DLR 72.

Sections 5(3) & 66(1) When an accused claims to be below 16 years of age, a duty is cast upon the court to direct an enquiry to satisfy itself as to whether the accused is a child below 16 years of age on the day of framing charges against him. Rahamatullah (Md) vs State 59 DLR 520.

Section 6- Once a child offender crosses the age of 16 years and then charged with an offence or tried for the same, the statutory requirement of the child being tried by a Juvenile Court comes to an end. Baktiar Hossain vs State 47 DLR 542.

Section 6- Intention of section 6, Children Act requiring separate trial of a child is to ensure a special procedure and to secure certain legal rights for the accused child. An adult is not entitled to those rights and the adult accused in this case has not been prejudiced because of the joint trial. Ismail Howlader vs State 58 DLR 335.

Section 6- The trial is without jurisdiction since the petitioner was a minor and the trial was held by a Special Judge and not by a juvenile Court. The petitioner has gone through the motion of a full scale trial without jurisdiction will be an if injustice if he is required again to go for a fresh trial. Solaman vs State 58 DLR 429.

Sections 6 & 66-A close scrutiny of the section will show that the age referred to therein relates to the age of the accused when he is "charged with or tried" or, "and not to the age when the offence has been committed". Once a child offender crosses the age of 16 years and then charged with an offence or tried for the same the requirement of the child being tried by a Juvenile Court comes to an end.

From the records it appears that the appellant has admitted that at the time of occurrence the appellant was 15 yeas 11 months and 10 days, only 20 days less than 16 years. We have already seen that by the time the appellant was charged with the offence he had reached the age of 16 years and thereby forfeiting his right to claim a trial by a Juvenile Court. In our view the appellant's interest has not been prejudiced by the failure of the Special Tribunal to give a finding on his age as under the circumstances it has become an unnecessary exercise on the part of the Special Tribunal. Bimal Das vs State 46 DLR 460.

Sections 6 & 66(1) When age of the accused is claimed to be below 16 years a duty is cast upon the Court to direct an enquiry to be satisfied itself as to whether the accused is a child below 16 on the day of framing charges against him. Monir Hossain @ Monir Hossain vs State 53 DLR 411.

Section 6(1)- No child shall be charged with or tried for any offence together with an adult. The trial Court in violation of the specific law conducted the trial of the juvenile offenders with the adult. The excuse given by the trial Court for the joint trial that the witnesses are same cannot be considered as fair and legal. The trial Court without following the specific law in the name of saving his time cannot violate the specific provisions of law. Selim-bin-Hakim @Rubel vs State, 67 DLR 532

Section 6(1) of the Act provides that no child shall be charged with, or tried for, any offence together with an adult. In the instant case the trial of the minor accused appellant Kawsarun-nessa together with adult BaheraKhatun must be held to be illegal. Such a trial is without jurisdiction and as such the impugned order of conviction cannot be sustained. Kawsarun Nessa and another Vs. The State, 15BLD(HCD)21

Section 7(2)- Juvenile Court-When the jurisdiction over a person is established then no other Court has power to try a child below the age of 16 years. The trial of the accused found below the age of 16 years at the framing of charge was without jurisdiction. State vs Md Roushan Mondal @Hashem 59 DLR 72.

Sections 35-The Sessions Judge may also, whether the situation demands it, exercise the power of a Juvenile Court, Bimal Das vs State 46 DLR 460.

Section 49(1)

The appellant has been in jail hajat since 1.6.1998 in association with other adult criminals in contravention of section 49(1) of the Act and in such view of the matter the prayer for bail deserves consideration. Md Shamim Vs The State, 19BLD (HCD) 542

Section 51-There is no doubt that the accused have committed a heinous offence. However, where any special law gives specific benefit to an accused, then he deserves to be treated in accordance with such beneficial provisions. Under the second proviso to section 51, an accused found guilty of any offence, even one carrying the sentence of death or life imprisonment, may be sentenced in exceptional circumstances to imprisonment for a maximum period of ten years. Even upon conviction under section 7 of the Ain, accused Asha may not be sentenced to 14 years in prison. The sentence that may be lawfully imposed is a maximum of ten years imprisonment. (PEK MUHAMMAD IMMAN ALI J, MINORITY) Mehedi Hasan @ Modern (Md) vs State, 66 DLR (AD) 111

Section 51-When any offender is a child the law requires that she must be dealt with in accordance with the provisions of the Act, no matter how serious or heinous the offence might be. The same principle is applicable in cases of offences under special laws. (PERMUHAMMAD IMMAN ALI J, MINORITY) Mehedi Hasan @ Modern (Md) vs State, 66 DLR (AD) 111

Section 53- Children are entitled to trial before the Juvenile Courts and positive step should have been made to make their trial in accordance with law of Juvenile Court, not to be tried jointly with the adults. The respondents are directed to comply with the earlier direction and report compliance within six months from date. Bangladesh Legal Aid and Services Trust vs Bangladesh 57 DLR 11.

Section 66-Under this section it is for the Court to consider whether a person charged with an offence and brought before it for trial appears to be a child or not and then proceed accordingly. Abdul Munem Chowdhury @ Momen vs State 47 DLR (AD) 96.

Section 66-Child accused-Since the accused Tonmoy did not appear to be a 'child' within the meaning of the Children Act and no petition was filed before the trial Court to the effect that he was a 'child'. The Court below did not deem it necessary to make any enquiry into the alleged childhood. In such view of the matter, the lower Court concluded the trial of the case treating the accused Tonmoy as an adult. No exception can be taken thereto at this stage. State vs Md Fazlur Rahman Tonmoy 61 DLR 169.

Section 66-In view of the fact that the trial Judge opined that the accused was not a minor, it cannot be said that the provisions of section 66 of the Children Act were contravened. When the accused was claiming to be a minor, the learned Judge ought to have followed the provisions of section 66 of the Children Act in order to allay any possibility that the accused was indeed a minor and to give him an opportunity to prove his entitlement under the Children Act. Jaibar Ali Fakir vs State 61 DLR 208.

Section 66(1)- In the absence of any finding as to the age of the accused-petitioner or determi- nation of the accused-petitioner's age by holding an inquiry, the Special Tribunal and Sessions Judge has failed to comply with section 66(1) of the Children Act. Baktiar Hossain vs State 47 DLR 542.

Section-66

Presumption and determination of age Under Section 66 of the Children Act it is for the Court to consider whether a person charged with an offence and brought before it for trial appears to be a child or not and then to proceed accordingly.

In the instant case the learned Additional Sessions Judge observed that the age of the petitioner could not be less then 16 years. He also noticed that there was sign of interpolation in the registration card and the certificate issued from the school. The learned Sessions Judge did not rely on those documents. From the materials on record the learned Additional Sessions Judge found it difficult to hold the petitioner to be a child on the date of framing of charges. The learned trial Court committed no illegality. Abdul Munem Chowdhury alias Momen Vs. The State, 15BLD(AD)184 Section 66(1)

It provides that when it appears to the Court that a person charged with an offence is a child, the Court is required to direct an enquiry to ascertain the age of the accused. When an accused is above 16 years of age at the time of framing of the charge he is not entitled to get the benefit of the Children Act. Bimal Das Vs. The State 14 BLD (AD) 218

Section 66(1)

It provides that when an accused is brought before any criminal court for facing trial and it appears that he is a child, the Court shall make an enquiry as to his age by taking such evidence as may be forthcoming and shall record a finding thereon stating his age as nearly as possible. When such a plea is taken by the accused, a duty is cast upon a court to determine the age of the accused by holding an enquiry. Baktiar Hossain Vs. The State, 14 BLD (HCD)381

Section 66-I am of the firm view that the interpretation of law in the cases of Abdul Monem Chowdhury alias Momen vs State, Bimal Das vs State and Mona alias Zillur Rahman vs State were not correct so far as it relates to the duty of the Court to determine the age of the accused and the occasion on which the age of the accused is relevant. Hence it is the duty of this Division to revisit those earlier decisions and, to the extent necessary, overrule them. (PER MUHAMMAD IMMAN ALI J, MUORITY) Mehedi Hasan @ Modern (Md) vs State, 66 DLR (AD) 111

Section 66-  The accused claimed to be about 16 years of age on the date of recording of his confessional statement and, therefore, he was below 16 years of age on the date on which he is alleged to have committed the offence. This assertion was part of the record and neither the Court nor the prosecution took any steps to act in accordance with section 66 of the Act. which in my humble opinion is a mandatory and most salutary provision of law for the purpose of the rights of youthful offenders. (PER MUHAMMAD IMMAN ALI J. MINORITY) Mehedi Hasan @ Modern (Md) vs State, 66 DLR (AD) 111

Section 66(1)- Criminal Court shall be under an obligation to make an inquiry as to the age of a person who is brought before it whether charged with an offence or not, otherwise than for the purpose of giving evidence as mandated in section 66(1) of the Act, if it appears to it that the person so brought is a child. (PER MD ABDUL WAHHAB MIAH J, MAJORITY). Mehedi Hasan @Modern (Md) vs State, 66 DLR (AD) 111

Section 66(1)- This Division rightly interpreted the provisions of section 66(1) of the Act, in the cases of Abdul Momen Chowdhury @ Momen vs State (supra) and Bimal Das vs State (supra) in taking the view that under the section, it is for the Court to consider whether a person charged with an offence and brought before it for trial appears to be a child or not and then to proceed accordingly and if it does not so appear to a Court that the person so brought is a child, it has no duty to ascertain the age of that person. Question of revisiting those decisions as opined by the learned brother does not arise at all. Neither at the hearing of the leave petition nor at the final hearing of the appeal, submission was made by the learned counsel for the appellants that the decision of this Court in the said two cases were wrong and those need to be revisited or reconsidered. (PER MD ABDUL WAHHAB MIAH J, MAJORITY) Mehedi Hasan @ Modern (Md) vs State, 66 DLR (AD) 111

Section 66(1)-Since the word "appear" has not been defined in the definition given in section 2 of the Act, we are to fall back upon the dictionary meaning of the same and that is permissible. (PER MD ABDUL WAHHAB MIAH J, MAJORITY) Mehedi Hasan @ Modern (Md) vs State, 66 DLR (AD) 111

Section 66(1)-resumption/assump- tion/formation of opinion by the Court whether the person brought before it is a child or not, as envisaged in sub-section (1) of section 66, may be from his physical appearance or with reference to papers and documents produced by the parties concerned and may be in consideration of both. And to presume/assume/form such a first hand idea by a Court, it need not be a doctor or a medical expert and no radio- logical or bone ossification report is necessary. Even after inquiry the Court shall record a finding as to the age of the person so brought "as nearly as may be." (PER MD ABDUL WAHHAB MIAH J, MAJORITY). Mehedi Hasan @ Modern (Md) vs State, 66 DLR (AD) 111