Children Act (XXXIX of 1974)
Custody of a minor girl—
Code of Criminal Procedure 1898— Section 491—
Custody of a minor girl-Determinattion of age of the victim—Acceptability of father's statement when supported by school certificate and opinion of Radiologist—
In a case for bail of a minor girl in judicial custody the High Court Division is not precluded from deciding the case on merit by reason of the order of the Appellate Division directing retaking of the girl to judicial custody arising out of adinterim matters. In deciding the age of the victim girl pending determination by the trial court during trial, the statement of the father when supported by the school certificate and the opinion of the Radiologist can well be accepted even in the face of different opinion of the Medical Board. High Court Division is not required to proceed with the hearing of the bail petition in the absence of the peititioner or his lawyer, but it needs to decide the criminal appeal or criminal r vision on merit even in the absence of. the appellant or the petitioner as the case may be. Basha Dev Chatterjee Vs. Umme Salma and another— 4, MLR (1999) (AD) 209.
Custody of Minor–
Considering the facts and circumstances- especially the facts that minor S.A.M.M. Zohaibuddin has already attained the age of almost 7 years and he is now residing along with his ailing elder brother in his father’s house and is being taken good care of by his father, grandfather and grandmother, we are inclined to allow the prayer of the leavepetitioner to retain the custody of his minor son S.A.M.M. Zohaibuddin till disposal of Family Suit. .....S.A.M.M. Mahbubuddin =VS= Laila Fatema, (Civil), 2017 (2)– [3 LM (AD) 468]
Section 2(f)
The Code of Criminal Procedure 1898—- Section 491—Judicial custody of minor girl— Father is legally entitled to her custody—
The father as lawful guardian is legally entitled to the custody of his minor daughter. The opinion of immature mind of a minor girl is immaterial. On the basis of the unwillingness of the girl, she can not be kept in judicial custody for indefinite period. Mongol Chandra Nandi (Sree) Vs. Bangladesh represented by the Secretary, Ministry of Home Ajjairs and others— 2, MLR(1997) (AD) 62.
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)
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, 15 BLD (AD) 163
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 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 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. Hç also noticed that there was sign of interpolation in the registraiion 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, 15 BLD (AD) 184
Section 66(1)
It provide 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- 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
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.
