WRIT PETITION NO. 1341 OF 2000

IN THE SUPREME COURT OF BANGLADESH
HIGH COUT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 1341 OF 2000

In the matter of:
An application under Article 102 of the
Constitution of the People’s Republic of
Bangladesh.
-And-
In the matter of:
Bangladesh Legal Aid and Services Trust and
another
...........Petitioners
-Versus-
Bangladesh and others
...........Respondents
Mr. Md. Idrisur Rahman with
Mr. M.A. Mannan Khan and
Mr. Md. Ekramul Islam,
...........for the petitioner.
Mr. Naimur Alam Khandakar, D.A.G.
...........for the respondents.
Judgment on 06.11.2001

Present:
Shah Abu Nayeem Mominur Rahman, J.
And
Md. Arayes Uddin, J.
Md. Arayes Uddin, J:

Rule was issued calling upon the respondents to show cause why the trial,
conviction and sentence of the child to imprisonment for life inflicted by the Courts and
Tribunals of Bangladesh, not being Juvenile Court properly constituted under the law,
being violative of the consistent/repeated directions of the High Court Division, should
not be declared unconstitutional, illegal and without jurisdiction and is of no legal effect,
and why the judgment and order of conviction and sentence dated 1-12-1998 passed by
Mr. Ikteder Ahmed, Bicharak (District and Sessions Judge), Nari-O-Shishu Nirjatan
Daman Bishesh Adalat, Comilla, in Nari-O-Shishu Case No. 4 of 1998 convicting the
petitioner No. 2 under sections 5(kha) and 5(gha) of the Nari-O-Shishu Nirjatan (Bishesh
Bidhan) Ain, 1995 sentencing him to suffer imprisonment for life and also to pay a fine
of Tk.1,000/- in default to suffer imprisonment for another one year for committing
offence under section 5(kha) and further sentencing him to suffer imprisonment for 14
years and also to pay of Tk. 500/- in default to suffer imprisonment for another 6 months
for committing offence under section 5(gha) having been passed without jurisdiction
should not be declared illegal, without lawful authority and is of no legal effect.

Facts necessary to dispose of this Rule, in brief, is that the petitioner No. 1, the
Bangladesh Legal Aid and Services Trust, hereinafter referred to as BLAST, is registered
under the Companies Act, 1913. It is non profit trust and provides legal aid to people to
enforce their human rights guaranteed by the Constitution and to uphold the supremacy
of the Constitution. BLAST, on request, has filed this writ petition for the benefit of the
convict Md. Alamgir Hossain. One Md. Junab Ali on 25-08-997 lodged F.I.R. at the
Comilla Kotwali Police Station alleging that on 24-08-1997 at about 9-45 P.M. while his
daughter Khodeza Begum was studying beside the window of their east Bhiti dwelling
but she cried out. Informant rushed there and saw that face and other parts of the body of
his daughter burnt by acid. Earlier a goat belonging to the father of the convict ate
saplings planted in the nursery of the informant and upon that his son beat the goat
causing fracture on legs. Khodeza was taken to Comilla General Hospital and was
admitted there for treatment. After investigation Police submitted charge-sheet against
petitioner No. 2 Alamgir Hossain under sections 5(kha) and 5(gha) of the Nari-O-Shishu
Nirjatan (Bishesh Bidhan) Ain, 1995. Nari-O-Shishu Nirjatan Daman Bishesh Adalat
took cognizance of the case and framed charges against Alamgir Hossain under sections
5(kha) and 5(gha) of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995. The
convict pleaded him not guilty and accordingly trial was held in the Court of the Nari-O3
Shishu Nirjatan (Bishesh Bidhan) Adalat. The convict Alamgir Hossain is a child below
the age of 16 years and as such the trial as held and the judgment passed by the Special
Tribunal is without jurisdiction in view of the provisions of section 5 of “The Children
Act, 1974”. The learned Tribunal seriously erred in law in trying and punishing the
petitioner No.2 when the Tribunal itself found the petitioner Alamgir Hossain under the
age of 16 years. The conviction and the sentence passed against petitioner Alamgir
Hossain by the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain is violative of the
provisions of “The Children Act, 1974” as well as the fundamental rights guaranteed by
the Constitution and also a violation of the directions of this Court in its various
judgments. Being aggrieved and dissatisfied with the impugned judgment and order of
conviction of petitioner No.2 in this particular case with the help of petitioner No.1
moved this Court and obtained the present Rule.
On behalf of the respondents no affidavit-in-opposition was filed.
On behalf of the petitioner No.1 BLAST, the learned Advocate Mr. Idrisur
Rahman submitted that the impugned judgment and order of conviction and sentence
passed by the learned Special Tribunal, Nari-O-Shishu Nirjatan Daman Bishesh Adalat,
is not sustainable in law since the Tribunal itself found that petitioner No. 2 is 14-15
years of age at the time of occurrence and under “The Children Act, 1974”, trial of
children is exclusively within the jurisdiction of Juvenile Court and no other Court can
take cognizance of any offence committed by the child i.e. below the age of 16 years. The
learned Advocate has drawn our attention to the provisions of “The Children Act, 1974”,
wherein powers of the Juvenile Court has been embodied in section 5. In that section it
has been clearly laid down that a Juvenile Court has the exclusive jurisdiction to take
cognizance of the offences committed by a child and ‘child’ has been defined in Section
2(f) of “The Children Act, 1974 which runs as: “Child” means a person under the age of
sixteen 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 during the whole period of his
detention notwithstanding that he may have attained the age of sixteen years during that
period”. From the impugned judgement and order of conviction passed by the learned
Tribunal it is found that the Tribunal came to a decision that the age of petitioner No. 2
Alamgir Hossain was 14-15 years at the time of occurrence. Accordingly the jurisdiction
of the Nari-O-Shishu Nirjatan Daman Bishesh Adalat (Tribunal) was excluded by section
5 of the Children Act, 1974. The learned Advocate for the petitioner has relied on the
decision in the case of State-Vs.-Deputy Commissioner, Satkhira and others reported in
45 DLR (HCD) 643. In that case a Division Bench of this Court held that “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. In the case of Shiplu and another –Vs.-
The State reported in 49 DLR(HCD)53 it has been held that any order of conviction and
sentence passed by the Trial Court not being a Juvenile Court in respect of an accused
below the age of 16 years is liable to be set aside for want of jurisdiction, in view of “The
Children Act, 1974”.

On behalf of the State, Mr. Taimur Alam Khandaker, the learned Deputy Attorney
General, submitted, that age of the petitioner No. 2 has not been properly ascertained in
the instant case as there was no medical report and as such the age of petitioner No. 2
should be ascertained by medical test. We are unable to accept the submissions of the
learned Deputy Attorney General in view of the fact that the Tribunal on due
consideration and discussion came to the decision that age of petitioner No. 2 Alamgir
Hossain was 14-15 years at the time of trial. So the question of medical examination does
not arise as the learned Tribunal came to a conclusive decision about the age of petitioner
Alamgir Hossain.

On behalf of the petitioner No. 2, the learned Advocate Mr. Md. Idrisur Rahman
submitted that the impugned judgment and order of conviction passed by the learned
Tribunal is illegal, without jurisdiction and violative of the fundamental rights guaranteed
by Article, 35 of the Constitution. The learned Advocate further submitted that apart from
jurisdiction point it is a case of no evidence as there is no eye witness of the occurrence.
The conviction and sentence of the petitioner No. 2 has been passed on the basis of an
uncorroborated confessional statement of the convict who in his statement under section
342 Cr.P.C. clearly asserted that the confessional statement was procured through
coercion and false promise of his release if he gives statement as per Police version.
Since the Tribunal had no jurisdiction to take cognizance of the case against the convictpetitioner
being barred by “The Children Act, 1974”, the learned advocate submits, that
the whole trial and the impugned judgment and order of conviction is bad for non coram
judice and void abinitio. That the learned Advocate for the petitioner contended that the
charges framed against petitioner Alamgir Hossain under section 5(kha) and 5(Gha) of
the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 have not been proved, by any of
the witnesses. Furthermore, the accused-petitioner is found to be a child, the ordinary
Criminal Court loses its jurisdiction to try him and the entire trial becomes illegal and
without jurisdiction in view of section 5 of “The Children Act, 1974”.
In the case of Bablu –Vs.- State reported in 1 BLD, 1981(HCD)454, Bakhtair
Hossain Vs. The State reported in 47 DLR (HCD) 542 and Sheela Barse and another -
Vs.- Union of India and others reported in AIR, 1973 the above view has been
consistently held.

In the case of Sheela Barse and another vs. The Union of India and others
reported in AIR, 1986(SC) 1777 it has been held that:
“If a child is a national asset, it is the duty of the State to look after the child with
a view to ensuring full development of its personality. That is why all the Statutes
dealing with children provide that a child shall not be kept in jail. Even apart from
this statutory prescription, it is elementary that a jail is hardly a place where a
child should be kept. There can be no doubt that incarceration in jail would have
the effect of dwarfing the development of the child, exposing him to benefit
influences, coarsening his conscience and alienating him from the society. It is a

matter of regret that despite statutory provisions and frequent exhortations by
social scientists, there is still large number of children in different jails in the
country as is now evidence from the reports of the Survey made by the District
Judges pursuant to our order dated 15th April, 1986. Even where children are
accused of offences, they must not be kept in jails. It is no answer on the part of
the State to say that it has not got enough number of remand homes or observation
homes or other places where children can be kept and that is why they are lodged
in jails. It is also no answer on the part of the State to urge that the ward in the jail
where children are kept is separate from the ward in which the other prisoners are
detained. It is the atmosphere of the jail which has a highly injurious effect on the
mind of the child, estranging him from the society and breeding in him aversion
bordering on hatred against a system which keeps him in jail. The State must set
up necessary remand homes and observation homes where children accused of an
offence can be lodged pending investigation and trial. On no account should
children be kept in jail. If a State has not got sufficient accommodation in its
remand homes, the children should be released on bail instead of being subjected
to incarceration in jail.”

In the People’s Republic of Bangladesh, “The Children Act 1974” (XXXIX of
1974) (hereinafter called the Act) came into effect for Dhaka District vide Notification
dated 11-09-1967 and for all other Districts it came into effect from 1st of June, 1980.
Sections 2(F)6, 8, 15, 48, 49, 50, 51, 53, 54, 66 and 71 of the Act deal with trial of
juvenile offenders and the definition of child as appearing in sections 2(F) of the Act
provides that a boy under the age of 16 is called a child. Section 6 provides that no joint
trial of the child and adult can be held. No child is to be charged with, or tried for, any
offence together with an adult even if the offence may be same of the child and adult.
Adult must be tried separately. The child must be tried in the Juvenile Court and not in
ordinary Court. Section 8 speaks that only the adult can be committed to Court of
Sessions and the Juvenile Court will take cognizance of the juvenile offenders. Section 15
of the Act shows the factors to be taken into consideration for orders by the Court with
regard to juvenile offenders. The characters and the age of the child and the
circumstances in which the child is living are to be considered. Sections 48 and 49 of the
Act provide that when a child is arrested in a non-bailable offence and cannot be brought
forthwith before the Court, the officer-in-charge of the Police Station may release him on
bail and if bail cannot be granted, the officer-in-charge of the Police Station shall keep
him detained in a remand or place of safety until he can be brought before the Court. If
bail cannot be granted, the Court shall send him to remand home or a place of safety.
Sections 50-54 provide as to how the Juvenile offenders are to be treated and tried in
different manners by the Court. Section 41 provides even the word conviction and
sentence cannot be used in relation to children and section 51 of the Act provides that life
sentence cannot be awarded to a child. So, the provisions of “The Children Act, 1974”
have provided different processes and modes of arrest, detention and trial of the juvenile
offenders below the age of 16 years.

In view of the discussions made above and considering the provisions of law and
the decisions of the Superior Courts of this Sub-Continent we find that the trial of
petitioner No. 2 Alamgir Hossain has been held by the Bicharak (Judge) Nari-O-Shishu
Nirjatan Daman Bishesh Adalat is without Jurisdiction and without lawful authority and
as such the impugned judgment and order of conviction is void ab initio.
As has been referred above, in the case of Shiplu and another Vs. State reported in
49 DLR (HCD) 55 a Division Bench of this Court held that:
“Having considered this question in the light of the evidence on record, we hold
that 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 years at the time of trial.
This makes the order of conviction and sentence passed by the trial in respect of
appellant Shiplu as liable to be set aside for want of jurisdiction.”
Further on scrutinizing the deposition of the witnesses, certified copy of which
were produced before us by the learned Advocate for the petitioner Alamgir Hossain, it
appears that there is no evidence to support the order of conviction and sentence as the
charge brought against accused Alamgir Hossain has not been proved by a single witness.
The order of conviction has been passed on the basis of his uncorroborated confessional
statement. The confession made by a child is of no legal effect, more so, when the child
(convict hereof) in his written statement under section 342 Cr.P.C. categorically stated
that the confessional statement was procured through coercion, threat and false promise
to release him on giving the statement before the Magistrate as tutored by the Police as
evidenced by Annexure-‘A’ to the writ petition. The convict had no maturity to
understand the consequences of such confessional statement. The Tribunal Court
considered the confessional statement holding that the confessional statement was
recorded on the date the convict was arrested, which is not correct and true. As per case
record, statement of the convict under section 342 Cr.P.C. (Annexure-‘A’) the convict
was produced before the Magistrate for recording his confessional statement after two
days of Police remand and that confessional statement under no circumstances be
voluntary since the accused is mere a child.
Before parting with the matter we are constrained to put on record that how a
Sessions Judge could ignore “The Children Act, 1974”, more so when previously, on
several occasions, the High Court Division in different judgments passed, directed all
concern to take care as to the trials of Juvenile offenders, and particularly in the case of
State-Vs.-Deputy Commissioner, Satkhira and others reported in 45 DLR (HCD) 643.
We also appreciate the move of the petitioner No. 1 Bangladesh Legal Aid and Services
Trust for bringing this matter before this Court.
In the result, this Rule is made absolute without any order as to cost. The
impugned judgment and order of conviction and sentence dated 1-12-1998 passed by Mr.
Ikteder Ahmed, Bicharak (District and Sessions Judge), Nari-O-Shishu Nirjatan Daman

Adalat, Comilla, in Nari-O-Shishu Nirjatan Case No. 4 of 1998 is hereby set aside. Let
the petitioner No. 2 Alamgir Hossain be set at liberty forthwith if not wanted in
connection with any other case.
The respondents No. 2 and 4 are directed to instruct the law officers of the
Government to take due care in conducting the cases of juvenile offenders under the “The
Children Act, 1974” and accordingly let a copy of this judgment and order be sent to the
respondent Nos. 1 and 2 for supply of the copy thereof to all the Deputy Commissioners
for onward transmission to all Government law officers.
Further, let a copy of this judgment and order be sent to the learned Registrar,
Supreme Court of Bangladesh, to ask for an explanation from Mr. Ikteder Ahmed,
District and Sessions Judge, the author of the impugned judgment and order convicting
and sentencing the petitioner No. 2 of this Writ Petition, in Case No. 4 of 1998 as
Bicharak, Nari-O-Shishu Nirjatan Daman Bishesh Adalat, Comilla, as to how he could
award sentence of imprisonment for life to a Juvenile offender and ignored “The Children
Act, 1974”; and further to send a copy of this judgment and order to all Sessions Judges
of the Country advising them to discuss on “The Children Act, 1974” with judicial
officials working under their respective judgeship.
Md. Arayes Uddin.
Shah Abu Nayeem Mominur Rahman, J:
I agree.
S. A. N. M. Rahman.