Justice For Children in Bangladesh

Justice for Children in Bangladesh
An Analysis of Recent Cases
Najrana Imaan, Barrister-at-Law
EUROPEAN UNION
Text: Najrana Imaan (Barrister-at-Law)
Coordination: Laila Karim, Child Protection, Save the Children
Text Editor: Farheen Khan/Insight Initiatives Ltd.
Design & Layout: Masuma Pia/Matri
Cover Photo: Shafiqul Alam Kiron/Map Photo Agency
Published by: Save the Children

House No. CWN (A) 35, Road No. 43
Gulshan-2, Dhaka 1212
Bangladesh
Web: www.savethechildren.net
Copyright: Save the Children in Bangladesh
First Published: December 2012
ISBN NO: 978-984-33-8055-5

Project: Strengthening Non-State Actors (NSA) and Local Bodies (LBs) to Reduce Child Proverty
and Promote Rights of Vulnerable Children (VC)/EuropeAid/128141/L/ACT/BD
This Publication has been produced with the assistance of the European Union. The Contents of this
publication are the sole responsibility of the author and can no way be taken to reflect the views of
the European Union or Save the Children.
An Analysis of Recent Cases
TABLE OF CONTENTS
PREFACE vi
FOREWORD viii
LIST OF CASES xi
LIST OF LEGISLATION xiii
INTRODUCTION 1
Laws governing issues related to children in Bangladesh 1
Status of implementation of existing laws 3
Incorporation of international instruments into national laws 3
Judicial proactivism to address the gaps in the laws and their application 5
Current steps to address the needs of children 5
VOLUME ONE: CASE HEADNOTES 7

VOLUME SUMMARY 9
AGE 11
Age of criminal responsibility 11
Whether or not the Court has jurisdiction to try the accused 11
Definition of a child 12
Philosophy behind separate justice system for juveniles 12
Point in time when age of accused is relevant 12
Determination of age 13
DUTIES 15
Duty of the Police on arrest of child accused 15
1. To inform childs parents 15
2. To inform the Probation Officer 15
3. To consider bail of the child accused 16
Duty of the Public Prosecutor 17
Duty of Probation Officers 17
Duty of Magistrates 18
1. Consider jurisdiction 18
2. Consider bail of the accused child 18
BAIL 21
TRIAL PROCEDURES 22
Separate trial for children 22
Jurisdiction of Court to try the offender 23
iii
Ascertaining age of offender 24
Mode of trial of child offender 25
SENTENCING 26
Sentencing children tried under the provisions of the Children Act 26
Detention as sanction against children convicted of any offence 27
Children to be kept in prison as a last resort and for the shortest period of time 28
Maximum period of custody in case of child offender 28
Leniency in punishing child offenders 29
Attitude of judiciary in sentencing 29
Tendency to demonise deviant children 30
Legality of statutory mandatory death penalty 30
POWER OF THE STATE TO RELEASE ON GOOD BEHAVIOUR 32
CUSTODY 33
Alternative custody in case of children - Place of safety under the law 33
Duty of Police under section 49(1) of the Act 33
Duty of Court under section 49(2) of the Act 33
Custody of children who are victims 33
DETENTION 35
Children not to be kept in prisons 36
CONFESSIONAL STATEMENT OF A MINOR 38
CORPORAL PUNISHMENT 39
CHILD WORKERS 40
Age 40
Laws regulating child labour 41
Recommended steps 42
BEST INTERESTS OF THE CHILD 43
The best interests of the child a primary consideration 43
Safe custody as last resort 43
No legal requirement for parents to apply for custody 43
Childs views to be considered 43
Right to be not subjected to cruel and inhuman treatment 44
Need for building awareness and sensitisation of judiciary to the rights of the child 44
Knowledge of domestic and international laws and norms 44
In spite of deviant behaviour best interest still primary consideration 45
ANONYMITY OF CHILD 46
Aim of law - Protection of children from stigma and victimisation 46
TREATMENT OF CHILDREN DIFFERENT TO ADULTS 47
iv
Children Act to protect and preserve the fundamental rights of children 48
Provisions in case of allegation of serious offence triable by Court of Sessions 49
Provisions of Children Act applicable 49
Court atmosphere unlike adult trial 49
No joint trial of child offender with adult accused 50
APPLICATION OF INTERNATIONAL INSTRUMENTS 51
VOLUME TWO: CASE SUMMARIES 55
VOLUME SUMMARY 57
Jaibar Ali Fakir-versus- The State, 28 BLD 627 59
State v Secretary, Ministry of Law, Justice & Parliamentary Affairs and others
(SUO MOTU RULE NO.5621 OF 2009), 29 BLD 656 63
Bangladesh National Woman Lawyers Association (BNWLA) v Govt. of
Bangladesh (Writ Petition No.8769), 31 BLD 324 73
The State -Versus- The Secretary, Ministry of Home Affairs, and others
(Suo-Motu Rule No.01 of 2010), 30 BLD 265 75
The State -Versus- The Secretary, Ministry of Home Affairs, Bangladesh
Secretariat, Dhaka and others (Suo-Motu Rule No.15 of 2010), 19 BLT 376 79
The State Versus- The Metropolitan Police Commissioner, Khulna and
others (Suo-Motu Rule No.04 of 2008), 60 DLR 660 81
Ain O Salish Kendra (ASK), and another VERSUS Bangladesh, represented
by the Secretary, Ministry of Labour and Manpower, and others (Writ Petition
No.1234 of 2004), 63 DLR 95 89
Fahima Nasrin -VERSUS Government of Bangladesh and others
(Writ Petition No.3646 of 2008.) 61 DLR 232 95
Bangladesh Legal Aid and Services Trust (BLAST), and another Versus
Secretary, Ministry of Education, and others(Writ Petition No.5684 of 2010),
31 BLD 201 101
Bangladesh National Woman Lawyers Association (BNWLA)-VERSUS-
The Cabinet Division (Writ Petition No.3598 of 2010), 31 BLD 265 111
The State -Versus- Md. Roushan Mondal @ Hashem (Death Reference
No. 05 of 2004), 59 DLR 72 115
Bangladesh Legal Aid and Services Trust (BLAST) and another -VERSUS-
Bangladesh, represented by the Secretary, Ministry of Home Affairs, and
others, 63 DLR 10 121
APPENDIXES
TABLE OF CASES
FULL TEXT OF JUDGEMENTS
v
PREFACE
Mahatma Ghandi is reputed to have said a nations greatness is measured
by how it treats its weakest members. In a similar line, a former
Vice-President of the United States, Hubert Humphrey, stated that the
moral test of a government is how it treats those who are at the dawn of
life, the children; those who are in the twilight of life, the aged; and those
who are in the shadow of life, the sick and the needy, and the
handicapped.
The founders of the new nation of Bangladesh certainly shared these
sentiments, and the nations constitution requires that the state provide
the basic necessities of life to all, mandates free and compulsory
education and measures to ensure public health and guarantees all
fundamental human rights and freedoms and respect for the dignity and
worth of the human person. Bangladesh was one of the first countries in
the world to pass a Childrens Act, to provide for the protection and
support of children. More recently the National Child Policy of 2011
comprehensively sets out the measures that must be taken to protect and
meet the needs of children.
However, necessary measures have not been taken to ensure that the
rights of children are respected. In the field of juvenile justice, children
are still imprisoned pending trial, their trials are delayed, and the
measures that are mandated in the NCP to ensure that children are
protected during the trial process are routinely ignored.
Even before they are arrested, the authorities fail to recognize the
seriousness of abuse of children by parents, teachers, police and others
with a duty of care, and make scant provision for either preventing such
abuse of assisting children to obtain redress in the event of abuse. Most
abuse goes unreported, but even so, the litany of cases of rape, sexual
abuse, child marriage and physical mistreatment of children in the daily
press makes harrowing reading.
There are few juvenile correction institutions, and these are well below
acceptable standards, and on occasion children are still sent to adult
prisons, placing them at risk of loss of innocence, health and life, and
exposing them to adult criminal attitudes and behavior.
vi
PREFACE
One reason why this situation persists is that there is a lack of knowledge
on the part of all of those involved in the juvenile justice system police,
prosecutors, lawyers and court staff, magistrates and judges of the
relevant law. This publication is designed to rectify that problem, by
ensuring that key judgments of Mr. Muhammad Justice Imman Ali,
Honorable Justice of the Appellate Division of the Supreme Court of
Bangladesh, are accessible and available to all.
However, the continuing failure to respect the rights of children in the
juvenile justice system is also due to an even more disturbing factor,
which is the indifference of many to the suffering that children suspected
or accused of criminal activity, or charged with the same, face every day.
It must never be forgotten that every person is innocent in the eyes of
the law until they are found guilty by a proper court, and that
all innocent or guilty deserve to be treated with respect. If this is true
for adults, it is even more critical for children, who are the most
vulnerable members of our society.
Michael McGrath
Country Director
Save the Children in Bangladesh
vii
FOREWORD
I would like to believe that the justice delivery system for children in
Bangladesh has improved in the last six years since the judgement in the
case of Roushan Mondal [59 DLR 72]. However, I am constrained to say
that juvenile justice in Bangladesh is still in its infancy. The Children Act
1974, though in the statute books for long, has been minimal in its use
and implementation. After many years of providing training to hundreds
of members of the subordinate judiciary, police personnel, officials of
the Department of Social Welfare, NGO workers and others, I feel
astounded at the lack of basic knowledge of fundamental legal principles
involved in the subject matter, as demonstrated in the case of The State
-versus- The Secretary, Ministry of Home Affairs and others, 16 MLR
254. This occurred in the year 2010. Nevertheless, I do not feel totally
discouraged and take solace from the fact that I have not been able to
impart training to everyone and feel encouraged by the interest and
enthusiasm shown by those whom I have met over the years. The subject
is now taken much more seriously. Perhaps introduction of the subject in
university/college curricula would be beneficial.
Ms. Najrana Imaan, Barrister-at-Law, has devoted considerable time and
energy in compiling this treatise. In spite of her engagement in other
regular pursuits, she has spent long hours preparing this book. I am
witness to her toils.
Having witnessed my endeavours to make people aware of the law
concerning justice for children and to ensure its implementation, the
author agreed to compile this treatise, based on my judgements.
However, the parameters of the book are limited by the expanse of
subjects covered in our judgements, which in turn is limited to the
subject matters brought before the Court. Hence, not all topics
concerning children have been covered by our judgements and for the
same reason are not covered in this book. Particularly important topics
such as children with disabilities, street children, children of imprisoned
parents, children of prostitutes, children of broken marriages, early
marriage of girls and boys, and the plight of orphans, etc. could not be
dealt with in any of our judgements and hence do not feature in this
book.
Of course, the author cannot be blamed for not covering all topics
concerning children. However, it is hoped that as and when the occasion
arises, she or another equally competent person will take on the task to
enlighten us.
viii
I take this opportunity to express my heart-felt appreciation to Save the
Children for taking on the task of bringing the judgements of the High
Court Division of the Supreme Court of Bangladesh to those who
matter for the wellbeing of the children of this country. I also wish to put
on record my gratitude to the author for taking on the task, which she did
with avid enthusiasm, without realising the real extent of the burden
coming on her shoulders.
This was the only way to bring all the judgements within the reach of the
judiciary, legal practitioners and other actors concerned in the children
justice scenario. I earnestly hope that the book will be of use to everyone
who is interested in the welfare of the children of this country. It is an
undeniable fact that every child has her/his rights enshrined in the
Constitution and laws of the land as well as in international norms and
directives. If by our dealing with any one child we are able to stem
her/his deviant behaviour, we may have saved society from the clutches
of another hardened criminal and from the economic burden of having
to cater for a future habitual offender. If by giving proper and congenial
surroundings to a deprived child, we manage to educate her/him, we
create a good, productive citizen who in turn will raise a family free from
poverty. Above all we endeavour to ensure for the children of this
country their rights under the Constitution and national and
international laws and norms, not out of any motive other than the fact
that it is their right as a human being and a citizen of this country.
We all should, therefore, strive to ensure that the best interests of our
children in all aspects of their lives are assured. The rights are theirs and
the duty is upon us to ensure them.
Hon Justice Muhammad Imman Ali

Appellate Division
Supreme Court of Bangladesh
ix
LIST OF CASES
Bangladeshi Cases
Ain O Salish Kendra (ASK), and another VERSUS Bangladesh, represented by the Secretary, Ministry of Labour
and Manpower, and others (Writ Petition No.1234 of 2004), 63 DLR 95
Bangladesh Legal Aid and Services Trust (BLAST) and another -VERSUS- Bangladesh, represented by the
Secretary, Ministry of Home Affairs, and others, 63 DLR 10
Bangladesh Legal Aid and Services Trust (BLAST), and another Versus Secretary, Ministry of Education, and
others (Writ Petition No.5684 of 2010), 31 BLD 201
Bangladesh National Woman Lawyers Association (BNWLA) -VERSUS- The Cabinet Division (Writ Petition
No.3598 of 2010), 31 BLD 265
Bangladesh National Woman Lawyers Association (BNWLA) v Govt. of Bangladesh(Writ Petition No.8769), 31
BLD 324
Fahima Nasrin VERSUS Government of Bangladesh and others (Writ Petition No.3646 of 2008.) 61DLR 232
Jaibar Ali Fakir v The State, 28 BLD 627
The State Versus- The Metropolitan Police Commissioner, Khulna and others (Suo-Motu Rule No.04 of 2008), 60
DLR 660
The State -Versus- The Secretary, Ministry of Home Affairs, Bangladesh Secretariat, Dhaka and others (Suo-Motu
Rule No.15 of 2010), 19 BLT 376
The State -Versus- The Secretary, Ministry of Home Affairs, and others (Suo-Motu Rule No.01 of 2010), 30 BLD
265
State v Secretary, Ministry of Law, Justice & Parliamentary Affairs and others (SUO MOTU RULE NO.5621 OF
2009), 29 BLD 656
The State -Versus- Md. Roushan Mondal @ Hashem (Death Reference No.05 of 2004), 59 DLR 72
Abdul Munem Chowdhury @ Momen vs. State, 47 DLR (AD) 96

Bablu vs. The State, 1 BLD (HCD) 454
Baktiar Hossain vs. State, 47 DLR 542
Bangladesh Legal Aid and Services Trust vs Bangladesh and others, 22 BLD 206
Bangladesh Legal Aid and Services Trust vs Bangladesh and others, 57 DLR 11
Hussain Muhammad Ershad Vs. Bangladesh and others, 21 BLD (AD) 69
Kawsarun Nessa and another vs. State, 48 DLR 196
Md. Shamim vs The State, 19 BLD 542
Monir Hossain (Md) @ Monir Hossain vs State, 53 DLR 411
Munna and others vs. The State 7 BLC (HCD) 409
Shiplu and another vs, The State 49 DLR 53
State vs Deputy Commissioner, Satkhira, 45 DLR 643
State Vs. Metropolitan Police Commissioner, 60 DLR 660
State vs Shukur Ali, 9 BLC 239
The State Vs. Tasiruddin, 13 DLR 203
xi
Other Jurisdictions
JohnsonJohnson v. Texas, 509 U. S. 350, 359-362 (1993)
Hiralal Mallik v. the State of Bihar, 1977 (4) SCC 44
Patrick Reyes Vs, The Queen [ Privy council ] ( downloaded from internet)
Peoples Union for Civil Liberties v. Union of India, 1997 SCC (Cri) 434
Minister for Immigration and Ethnic Affairs v. Teoh, (1995) 69 Aus LJ 423
xii
LIST OF LEGISLATION
Domestic Legislation
Constitution of the Peoples Republic of Bangladesh, 1972
Children Act, 1974
Children Rules, 1976
The Penal Code, 1860
Majority Act, 1875
Child Marriage Restraint Act, 1929
Family Laws Ordinance, 1961
Family Courts Ordinance, 1985
Guardians and Wards Act, 1890
Vagrancy Act, 1943
Railways Act, 1890
Juvenile Smoking Act, 1919
Labour Code, 2006
Domestic Violence Act, 2011
Prevention of Trafficking Act, 2011
Vagrancy Act, 2011
Birth and Death Registration Act, 2004
Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995
Arms Act, 1878
Special Powers Act, 1974
Code of Criminal Procedure, 1898
Nari-o-Shishu Nirjatan Daman Ain, 2000
Prisoners Act, 1894
Whipping Act, 1909
Cantonment Pure Foods Act, 1966
Suppression of Immoral Traffic Act, 1933
National Policies
National Child Policy, 2011
National Child Policy, 1994
National Child Labour Elimination Policy, 2010
International Instruments
UN Convention on the Rights of the Child (CRC)
United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), 1990
xiii
INTRODUCTION
Over the last few decades, there has been an increased understanding worldwide of the
vulnerability of children, and the consequent need for the protection of their rights and
interests. The UN Conventions on the Rights of the Child (CRC) was drawn up as a result of
this increased awareness. Although the UNCRC was signed and ratified by Bangladesh in
1990, the need for extra protection for children was recognised at a much earlier date. The
Constitution of the Peoples Republic of Bangladesh makes provision for childrens
rights/interests to be given priority, correctly recognising children as being an underprivileged
and vulnerable section of society.1 Shortly after this, the Children Act, enacted in 1974, was
drawn up exclusively to address the situation of children who find themselves coming into
contact with the law in some manner, either as accused, or as victims, or witnesses. These two
pieces of legislation, together with a number of other laws, form the legal infrastructure
surrounding children in Bangladesh today.
Laws governing issues related to children in Bangladesh
The area of juvenile justice in Bangladesh is regulated by a number of laws, including the
Children Act, 1974, the Children Rules 1976, and the Bangladesh Penal Code 1860, Majority
Act 1875, Family laws: Child Marriage Restraint Act 1929, Family Laws Ordinance, 1961,
Family Courts Ordinance, 1985 for custody and maintenance; Guardians and Wards Act, 1890,
Vagrancy Act, 1943, Railways Act, 1890, Juvenile Smoking Act, 1919 while child workers are
governed under the Labour Code 2006.
The laws governing children are scattered and varied. As a result, there are confusing
inconsistencies in the legal framework. One example of this is with regard to the age until
which a person is considered a child in the eyes of the law. This definition varies widely from
law to law, with the Children Act defining a child as a person under the age of sixteen years,
while the Majority Act 1875 very confusingly gives two definitions in the same section for
when a person will be deemed to have attained majority, as either 18 years or 21 years of age,
depending on the circumstances relating to guardianship of property. But generally, a person
shall attain majority on reaching the age of 18 years. Even more strangely, the Child Marriage
Restraint Act 1929 has differing definitions of a child depending on gender, with a female
being a child until the age of 18, and a male until the age of 21. Due to such inconsistencies
in the different laws, the legal framework relating to children has remained very unclear, which
is made even worse by differing interpretations given in the case law.
The primary legislation that deals with children coming into contact with the justice system in
Bangladesh is the Children Act 1974. At the time of its enactment, this was a very forward
thinking piece of legislation, which realized correctly that children who come into contact with
the justice system should be treated differently from adults. A child for the purposes of this
law is defined as a person under the age of sixteen years.2
1
Article 28(4), Constitution of the Peoples Republic of Bangladesh
2
Section 2(f), Children Act 1974
1
According to the Act, special courts known as Juvenile Courts should be set up to deal with
matters relating to children who come into contact with the law.3 The Act defines the powers
of the Juvenile Courts and lists the courts that may exercise the power of a Juvenile Court4
where one has not been set up in a particular locality.5 Under the provisions of the Act, a child
may not, under any circumstances, be charged or tried with an adult offender.6 If a child is
accused of an offence for which he or she would normally be tried together with an adult, but
for the provisions of the Act, the court will be bound to direct separate trials for the child and
the adult.7
It is an accepted fact that children will need different treatment from adults due to their
vulnerability, and this is reflected in the Act. The court may permit a child to be absent during
trial if it is satisfied that the presence of the child is not essential for the purposes of the
hearing.8 Furthermore, the Act recognizes the need to protect the identity of children in the
justice system, and prohibits the publication of any reports that might disclose the identity of
children involved in any trial.9 Publication of any report or picture of a child in breach of the
Act is an offence punishable with imprisonment for a term up to two months and/or a fine.10
When passing an order the Court must take into account the best interests of the child as well
as her/his age, the circumstances and surroundings from which she/he comes, and most
importantly, the report of the Probation Officer giving all the relevant details of the child.11
The Act generally discourages detention of children, and stresses that under no circumstances
may a child be detained together with adult prisoners.12 A child who has been arrested on a
charge of a non-bailable offence, and cannot immediately be brought before a Court, may be
granted bail by the Officer-in-Charge of the police station to which he or she has been
brought.13 If bail is not granted in these circumstances, the child may be detained in a remand
home or a place of safety.14
With regard to punishment of children for an offence, the Act states that no child shall be
sentenced to death, transportation (now imprisonment for life) or imprisonment.15 The Act is
quite clear on the fact that whenever there is any question of detention of a child, such
detention must be in a certified institute, a remand home16 or a place of safety, as defined in
section 2(j) of the Act. There is nothing in the Act which authorises the detention of a child
3
Section 3, ibid
4
Section 5, ibid
5
Section 4 and 5, ibid
6
Section 6, ibid
7
Section 6, ibid
8
Section 11, ibid
9
Section 17, ibid
10
Section 46, ibid
11
Section 15, ibid
12
Section 51(2), ibid
13
Section 48, ibid
14
Section 49, ibid
15
Section 51, ibid
16
Established under sections 19 and 20 of the Act
2
in any prison, pending trial. After conviction, a child may exceptionally be sentenced to
imprisonment17.
Although there is no provision prohibiting corporal punishment of children, the Act does
penalise cruelty to children, including assault, ill-treatment, neglect and abandonment, which
causes a child suffering or injury to health, including physical and mental injuries. Such an
offence is punishable with imprisonment for a term up to two years, and/or a fine.18
Status of implementation of existing laws

Although the laws have existed for a number of years, their proper implementation has been
significantly lacking. There is an evident lack of knowledge of the laws among the actors who
are most likely to be using them, particularly the police, magistrates and prosecutors. Added to
this is a lack of monitoring on the part of the government to ensure that the provisions of the
law are followed.
Incorporation of international instruments into national laws

Bangladesh is a party to the UN Convention on the Rights of the Child (CRC), having signed
the convention on 26 January 1990, and ratified it on 3 August of the same year. As a signatory
to this Convention, Bangladesh is under an obligation to adopt its provisions into the letter of
the domestic law. However, in the twenty plus years since the Convention was ratified, nothing
has been done to incorporate its provisions into national law through amendment of existing
laws or enactment of new laws, apart from a minor change in sections 82 and 83 of the Penal
Code raising the age of criminal responsibility. It may be argued that the incorporation of the
provisions of the Convention into our national legislation would result in uniformity of laws
and remove the confusing inconsistencies that exist in our legal framework relating to children.
It would also ensure that our legislation is in conformity with international standards in the
area of juvenile justice and protection of the rights of children.
The overarching principle of the Convention is that in dealing with children, the best interests
of the child should be a primary consideration.19 The Convention defines a child as any person
under the age of 18 years.20 The State is under an obligation to respect and ensure the rights
of children without any sort of discrimination.21 Further, the State should take legislative and
administrative measures necessary for the implementation of rights under the Convention.22
Where a child is capable of forming his or her own views, the State is obligated to ensure that
these views are taken into account in matters affecting the child, and that they are given due
weight in accordance with the age and maturity of the child.23 This provision would be
especially relevant, for example, in situations relating to the custody of a victim child. The
17
Proviso to section 51, ibid
18
Section 34, ibid
19
Article 3, UN Convention on the Rights of the Child
20
Article 1, ibid
21
Article 2, ibid
22
Article 4, ibid
23
Article 12, ibid
3
child should be able to give her/his views as to with whom she/he would prefer to live. A child
is better placed to say which of her/his relatives would treat her/him more kindly. Of course,
the decision to place a child in the care and custody of any particular person can be reviewed
periodically.
The State must take measures to protect children from all violence, physical and mental, abuse,
neglect, negligent treatment, maltreatment, exploitation, and sexual abuse.24 In addition,
children should be protected from being penalised for criminal activities which are in essence
carried out by others, for example, when children are used as carriers of drugs and arms. This
applies equally to situations where the treatment is coming from any person who has the care
of the child, including parents and legal guardians. If parents or legal guardians use the child
for criminal activity or do not give proper guidance then they may be considered inappropriate
as care-givers or inadequate as custodians. In complying with this provision, it may be argued
that the State must take steps to abolish all forms of corporal punishment. The issue of
corporal punishment in schools is touched upon under Article 28 of the Convention, which
ensures a childs right to education, and puts an obligation on the State to take measures to
ensure school discipline is administered in a manner consistent with the childs human dignity,
and in conformity with the Convention.25 This concept is reiterated in Article 37 of the
Convention, which ensures the protection of children from torture, cruel, inhuman or
degrading treatment or punishment.26 This article has broader application, and also deals with
the arrest and detention of children and the treatment of children within the justice system.
The provision allows for the protection from capital punishment or life imprisonment for
anyone below the age of 18 years. It goes on to state that arrest and detention of children
should be a measure of last resort and for the shortest appropriate time. Children deprived of
liberty should be treated with dignity, and specifies that in these circumstances they should be
separated from adults. The article also provides that children who have been deprived of their
liberty must be given prompt access to legal and other assistance.27 The aim is to guard and
protect children and to prevent them from mixing and coming into contact with the criminal
elements within the adult community and to ensure that the children are not stigmatised and
victimised in their future lives.
The State is also obligated under the Convention to recognize the right of children to
protection from economic exploitation and from performing work that is hazardous or
interferes with the childs education or is harmful to the childs health and development.28 In
other words, children must not be forced into doing dangerous work or to do work which
would jeopardise their education. If necessary the State must take legislative or administrative
measures to fulfil the provisions of this article.
The failure to incorporate the provisions of the Convention into domestic law so many years
after its ratification is certainly a huge cause for concern. In a number of decisions the Courts
24
Article 19, ibid
25
Article 28, ibid
26
Article 37 and 5, ibid
27
Ibid
28
Article 32, ibid
4
have recognised the need to incorporate the provisions of the Convention in our domestic
law.29 It has been held by the High Court Division that when dealing with cases involving
children, it is an accepted principle that the provisions of international instruments may be
taken into account where there is no conflict with domestic law, even if the provisions of the
international instrument has not been reflected in national legislation.30
Judicial proactivism to address the gaps in the laws and their application
Where gaps in the law have been identified, the courts have stepped in to fill in the gaps and
to clarify ambiguous legal provisions. The judges of the High Court Division of the Supreme
Court of Bangladesh have stepped in and identified situations where the lower courts and the
actors in the area of juvenile justice have misinterpreted the law and their powers and duties
under the Act. A number of these cases will be discussed in Volumes 2 and 3 of this book.
Current Steps to address the needs of children
The Government of Bangladesh approved the National Child Policy (NCP 2011) on 14
February 2011. This is the second national policy relating to children after ratification of the
UNCRC, the first having been drawn up in 1994. The NCP 2011 emphasises the necessity to
respect the rights and dignity of children in all relevant spheres from the family to the
education system. A child is defined under the NCP 2011 as any person under the age of 18.31
A number of statutes have been enacted where a child has been defined as anyone under the
age of 18 years, e.g. Domestic Violence Act 2011, Prevention of Trafficking Act 2011, and
Vagrancy Act, 2011.
The NCP 2011 ensures that all necessary steps will be taken to protect children from all forms
of violence, begging or physical, mental or sexual torture.32 It goes on to state that the
Children Act will ensure the right of children to participate in the judicial process when they
come into conflict with the law, or in contact with the law.33
The implementation of the Birth and Death Registration Act 2004 is assured by the NCP
2011, so that registration will be carried out immediately on the birth of every child.34
The NCP 2011 ensures the gradual elimination of child labour.35 It makes reference to the
National Child Labour Elimination Policy 2010 (NCLEP 2010) and guarantees that a number
of necessary steps set out in the NCLEP 2010 will be carried out. In particular, the NCP 2011
states that a suitable working environment must be ensured for the physical and mental
wellbeing of the child. In this regard, it will be ensured that children are not employed in any
antisocial, humiliating and dangerous work. In addition, daily hours of work and a designated
29
Hussain Muhammad Ershad Vs. Bangladesh and others, 21 BLD (AD) 69; State Vs. Metropolitan Police Commissioner,
60 DLR 660
30
Hussain Muhammad Ershad Vs. Bangladesh and others, 21 BLD (AD) 69
31
Section 2.1, National Children Policy 2011
32
Section 6.7.1, National Children Policy 2011
33
Section 6.7.2, ibid
34
Section 6.10.1, ibid
35
Section 9, ibid
5
time of break will be guaranteed for children in the work force.36 Further, it is stated that
education and recreation facilities must be made available to the children on completion of
their work hours.37 The NCP 2010 goes on to state that children in the labour force need to be
removed from the cycle of poverty, and for this purpose, steps need to be taken to involve
their parents in work that will help to increase the family income.38
Incentives must be given to encourage working children to return to school, such as
scholarships and stipends.39
The NCP 2011 recognises that the work of the National Committee on Women and Childrens
Development must be continued, which could help in ensuring the rights of women and
children, and in the proper implementation of laws, rules and regulations relating to women
and children.40 Further, it assures that an Ombudsman for Children will be appointed in order
to monitor the situation with regard to the rights of children and to ensure that the obligations
under the CRC are being followed.41
It is asserted in the NCP 2011 that the development of children will be considered a priority
in the countrys development goals, and this will be reflected in the allocation of budget for
the development of children.42
In addition to the NCP 2011 and NCLEP 2010, the Government of Bangladesh is in the
process of amending and updating the Children Act, to incorporate some of the obligations
under the UNCRC and other international instruments, as well as the recommendations made
by the honble Supreme Court of Bangladesh in their judgements from time to time.
36
Section 9.1, ibid
37
Section 9.2, ibid
38
Section 9.7, ibid
39
Section 9.8, ibid
40
Section 10.1, ibid
41
Section 10.3, ibid
42
Section 14, ibid
6
VOLUME ONE
Case Headnotes
VOLUME SUMMARY
The Supreme Court of Bangladesh has
given a number of landmark judgements
on matters relating to children who come
into contact with the law. These
judgements have given some clarity to an
area of law that has been confusing, since
the laws that govern the area are largely
inconsistent and contradictory. The
judgements give a number of
recommendations and directions that
would serve to bring the area of juvenile
justice in Bangladesh into conformity with
internationally accepted standards as
prescribed by international conventions
such as the UN Convention on the Rights
of the Child (CRC).
The judgements deal with a wide variety
of issues that arise when dealing with
children who come into contact with the
justice system. These include issues
relating to children who are involved in
offences, the age at which a person should
be considered a child for the purposes of
the law, child workers, corporal
punishment, the impact of international
instruments, among many other things.
This volume is a compilation of
headnotes taken from the judgements
delivered by the honble Supreme Court
and is designed to act as an aid in
identifying the most significant parts of
those judgements, which may aid lawyers
in the preparation of their cases involving
children.
9
AGE
Age of criminal reponsibility:
It is a tragedy that the law enforcing agencies are unaware of the fundamental laws of the
country, namely the Penal Code (section 82) which provides as follows:
"82. Nothing is an offence which is done by a child under nine years of age."
Any police personnel worthy of his badge could not arrest a child below the age of nine years,
since that child would be immune from prosecution. (Para 16)
(State Vs. Secretary, Ministry of Home Affairs, and ors.,
16 MLR (HCD) 254)
Whether or not the Court has jurisdiction to try the accused:

For our part we would consider the whole scenario on a different dimension. If one looks at
the scheme of criminal process and trial, it is seen that, first of all, the jurisdictional aspect
with regard to the accused is to be ascertained and established. In other words, it must first be
established that the accused person is one who is within the jurisdiction of the Court to be
tried. As a matter of fact the very first question to be ascertained before proceeding with the
trial is whether the accused has the capacity to be tried. This aspect is generally taken for
granted and is so obvious as to defy contemplation. In English Law it is irrebuttably presumed
that a child under the age of 10 years is doli incapax, i.e. is incapable of committing a crime.
[See s.50 Children and Young Persons Act 1933, as amended by s.16 of the Children and
Young Persons Act 1963]. We have a similar provision in section 82 of the Penal Code, as
amended by Act XXIV of 2004.
82. Nothing is an offence which is done by a child under [nine] years of age.
Thus a child under 9 years of age, for example, although he may in common parlance commit
some crime or other would not be prosecuted as he is doli incapax, i.e. incapable of
committing crime. A child above 9 and below 12 years of age who has not attained sufficient
maturity of understanding to judge of the nature and consequence of his conduct on that
occasion would also be exempt from criminal liability [s.83 Penal Code]. The same applies to
the mentally disabled. No Court can assume jurisdiction over any such person as they do not
have the capacity to commit any crime. When the accused is arraigned he may be found unfit
to stand trial, in which case he will be removed to the mental hospital and the Court has no
discretion in the matter. Thus, although the Court has jurisdiction over the offence, it cannot
assume jurisdiction over the accused until he is found fit to plead. (Para 23)
Hence jurisdiction over the person is a precondition to the case proceeding to trial by any
Court or Tribunal. Once it is established that a Court has jurisdiction over the accused then
only the Court will go on to see whether it has jurisdiction over the offence alleged. Thereafter,
the Court will proceed with the trial, if appropriate, and then conclude by passing judgement.
(Para 25)
(State Vs Md. Roushan Mondal @ Hashem,
59 DLR 72)
11
Definition of a child:
A child is defined in section 2(f) of the Act as a person under the age of 16 years. Section 2(n)
defines youthful offender as a child who has been found to have committed an offence. We
shall see later that many international instruments and laws of some other countries define a
child to be a person under the age of 18 years. It may be noted that in neighbouring India the
Juvenile Justice Act 1986 defined juvenile as under 16 years of age in case of a male and
under 18 years in case of a female. Uniformity was brought to prevail by the Juvenile Justice
(Care and Protection of Children) Act 2000 where juvenile is defined as any person under 18
years of age. (Para 28)
59 DLR 72)
Philosophy behind separate justice system for juveniles:

The concept of juvenile justice has developed over the last 150 years or more and essentially
follows the notion that a person of tender years does not have full control over his impetuous
actions nor the mental maturity to realise the consequences of his conduct. To put it simply,
they do not think in the same way as an adult and are more susceptible to act impulsively
without considering the severity of the act or the likely end result. (Para 29)
59 DLR 72)
Point in time when age of accused is relevant:

In view of the international covenants, declarations and other instruments, we feel inclined to
the view that the relevant date must be the date on which the offence is committed, otherwise
the whole thrust of the law to protect those who are immature, impetuous, unwary,
impressionable, young, fickle-minded and who do not know the consequences of their act,
would be lost. It is the mental capacity of the offender at the time of committing the offence
which is of crucial importance. (Para 60)
59 DLR 72)
In at least two decisions of our High Court Division, Bablu (supra) and State vs Deputy
Commissioner, Satkhira (supra), the relevant date has been taken to be the date of
occurrence, which we believe, with respect, is the correct approach. On the other hand there
are many decisions of our superior Courts holding the view that the relevant date is the date
of framing charge or commencement of trial. In our humble and respectful view, this
mis-interpretation arose initially due to the inaptly applied wording of section 6(1) of the Act,
which provides as follows:

6. No joint trial of child and adult.-(1) Notwithstanding anything contained in
section 239 of the Code or any other law for the time being in force, no child shall be charged with,
or tried for any offence together with an adult.
12
Dr. Malik submitted that this provision is concerned with the matter of separate trial for
children and does not lay down the point in time at which the age will be relevant for the
purpose of determining whether the accused is a child. We are inclined to agree with this
submission, particularly in view of the stance taken by the Indian Supreme Court, bearing in
mind the similar provision which exists in the (Indian) Juvenile Justice (Care and Protection of
Children) Act, 2000:
18. No joint proceeding of juvenile and person not a juvenile.-(1)
Notwithstanding anything contained in section 223 of the Code of Criminal Procedure, 1973 (2
of 1974) or in any other law for the time being in force, no juvenile shall be charged with or for any
offence together with a person who is not a juvenile.
We have noted earlier that the Indian Supreme Court has decided that the relevant date is the
date of commission of the offence and not the date of trial. (Para 60)
59 DLR 72)
We also bear in mind that the whole purpose of the Act may be defeated by the capricious
dealings of the investigating agency, who may intentionally or whimsically delay the
investigation and thereby deprive the accused the benefits of the Act. It is the act of the
youthful offender done in a moment of indiscretion due to his lesser mental faculty that is
being targeted by the Act. Therefore the relevant point in time at which to qualify for the
benefits of the Act must be the time of the commission of the offence. We may refer to the
reasoning found in a decision of the US Supreme Court,
[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often
than in adults and are more understandable among the young. These qualities often result in
impetuous and ill-considered actions and decisions. JohnsonJohnson v. Texas, 509 U. S. 350,
359-362 (1993). (Para 62)

59 DLR 72)
In the light of our views above and bearing in mind the views already expressed by our
Superior Courts, we would, with respect suggest that the relevant date aspect for the purpose
of jurisdiction of the Juvenile Court may be rethought and brought into line with the aims and
purports of the childrens legislation worldwide. (Para 63)
59 DLR 72)
Determination of age:
In view of the fact that the learned 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.
However, 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, 1974. In hindsight we find that later in the trial the learned Judge recording
13
the statement of the accused under section 342 of the Cr.P.C. wrote the age of the accused as
16, which would certainly mean that he was a minor at the time of commencement of the trial.
Nevertheless, the fact that the accused was around 12 years of age at the time of the offence
and at the time of recording his confessional statement under section 164 of the Code of
Criminal Procedure cannot be ignored. (Para 13)
(Jaibar Ali Fakir v. The State,
28 BLD 627)
14
DUTIES
Duty of the Police on arrest of child accused:
1. To inform childs parents:
Sequentially the next step is when the child is brought to the police station. Section 13(2) of
the Children Act provides as follows:
"13(2) Where the child is arrested, the Officer-in-Charge of the police-station to which he is
brought shall forthwith inform the parent or guardian, if he can be found, of such arrest,......"
But from the records we do not find any evidence that the police personnel involved in the
apprehension and arrest of the children or the Officer-in-Charge of the police station (OC)
were at all aware of the provisions of the Penal Code or the Children Act. For good reason the
provisions have been incorporated in our law and it is a mandatory provision which the
authorities are bound to follow. Yet we find failure of the police to follow the legal
requirements. (Para 17, 18)
(State Vs. Secretary, Ministry of Home Affairs, and ors.,
16 MLR 254)
It is stated in the F.I.R., lodged by a police officer at 14.15 on the date of occurrence
(20.04.2008) that accused Arifa was 10 years old. Thus S.I. Ashim Kumar Das, who arrested
her, cannot be faulted for doing so. But he could and should have tried to locate the girls
parents which he did not do. There is nothing on record to indicate that either he or the
Officer-in-Charge of the police station took any steps in this regard. There is a clear mandate
in section 13(2) of the Act, 1974 to do so. (Para 6)
As stated above they also appear to have ignored the provisions of section 13(2) of the Act.
(Para 11)
(State Vs The Metropolitan Police Commissioner,
60 DLR 660)
2.To inform the Probation Officer:

Furthermore, it appears from the record that both the police officers were totally oblivious of
the provisions of section 50 of the Act, 1974, which provides as follows:
50. Submission of information to Probation Officer by police after
arrest.-Immediately after the arrest of a child, it shall be the duty of the police officer, or any other
person affecting the arrest to inform the Probation Officer of such arrest in order to enable the said
Probation Officer to proceed forthwith in obtaining information regarding his antecedents and family
history and other material circumstances likely to assist the Court in making its order.
(Para 11)
(Secretary, Ministry of Home Affairs, and ors.,
16 MLR 254)
15
The police, it appears, acted in violation of the provisions of the Act. At least, there appears
to be no indication that they were aware of the above-noted provisions of law or made any
attempt to comply with the requirements. The police station is two kilometres from the place
of occurrence. But there is nothing in the reports produced before us to suggest that they
made any attempt to locate the parents of the girl or any other relatives. No attempt was made
to appoint a probation officer, which is the requirement of section 50, as quoted above.
(Para 12)
60 DLR 660)
3.To consider bail of the child accused:

At the very first instance, the police officer dealing with the child has a responsibility to
consider bail. If the offence alleged is bailable, then bail is to be granted as of right. Under
section 48 of the Act, 1974, the officer has to consider bail even if the child is arrested for a
non-bailable offence. Section 48 of the Act provides as follows:
48. Bail of child arrested. - Where a person apparently under the age of sixteen years is
arrested on a charge of a non bailable offence and cannot be brought forthwith before a Court, the
Officer-in-Charge of the police station to which such person is brought may release him on bail, if
sufficient security is forthcoming, but shall not do so where the release of the person shall bring him
into association with any reputed criminal or expose him to moral danger or where his release would
defeat the ends of justice. (Para 8)
60 DLR 660)
It appears from the order sheet of the Court of the learned Chief Metropolitan Magistrate
that Arifa was produced before the Court on 21.04.08. It is not apparent where she was kept
during the night of 20.04.08. Section 49 (1) of the Act, 1974 provides as follows:
49. Custody of child not enlarged on bail.-(1)Where a person apparently under
the age of sixteen years having been arrested is not released under section 48, the Officer-in-Charge
of the police-station shall cause him to be detained in a remand home or a place of safety until he
can be brought before a Court.
There is nothing on record to suggest that Arifa was sent to any remand home or place of
safety either on 20.04.2008 or after she was produced before the Magistrate on 21.04.2008.
(Para 9, 10)
60 DLR 660)
In forwarding Arifa to the Court of learned Metropolitan Magistrate, the police officer, S.I.
Shibu Prasad Dutta had observed that Arifa was a 10 year old child and accordingly she must
be dealt with under the provisions of the Act, 1974. Having said that, he prayed that the
accused be kept in jail custody till the conclusion of the investigation and he strongly opposed
16
her release on bail. So much for the knowledge of the Children Act! He obviously needs
more training and better knowledge about the provisions of the Children Act. (Para 7)
60 DLR 660)
Duty of the Public Prosecutor:

We also note from the order of the learned Magistrate dated 24.01.2010 that instead of
assisting the Court in releasing the two non-prosecutable children, the learned advocate
appearing on behalf of the State, rather drew the Courts attention to the fact that it was a case
under Narcotics Control Act, thereby hinting at the gravity of the offence. The learned Public
Prosecutor (PP) or anyone appearing on his behalf is equally liable to have a thorough
knowledge of the provisions of law and to act in accordance with the law and, above all, to
ensure that all others, including the investigating agencies and the judiciary, are made aware of
the relevant provisions of law. It is his duty to assist the Court to come to a just and fair
decision in accordance with the law. Quite clearly, the learned advocate appearing for the State
was himself ignorant of the law. (Para 31)
(State Vs Secretary, Ministry of Home Affairs, and ors.,
16 MLR 254)
Duty of Probation Officers:

In the facts of the instant case it appears that a Probation Officer has been appointed by the
Court, who has duties as detailed in Section 16 and 31 of the Act, 1974 and Rule 21 of the
Children Rules 1976 (the Rules, 1976). The trial Court or appellate Court is not in a position
to ascertain the physical aspects with regard to the family background, character of the
accused and the circumstances in which he or she was brought up. For this reason it is
imperative that the Court should rely on a report from the probation officer, who will go to
the locality, if necessary, to ascertain all the factual aspects necessary for the Court to come to
a decision with regard to the child. (Para 34)
60 DLR 660)
The earliest reference to a probation officer is found in the order of the learned CMM dated
20.05.08. This appointment should have been made by the police on 20.04.08, when the girl
was first arrested, as dictated by section 50 of the Act. However, though late, the appointment
of the probation officer was made on 20.05.2008 by the learned CMM, and we appreciate this
action as better late than never. (Para 20)
60 DLR 660)
17
Duty of Magistrates:
1. Consider jurisdiction:
In view of the fact that she was found by the learned CMM to be above nine years of age, the
Court was then bound to consider application of section 83 of the Penal Code to the facts of
the case. Section 83 provides as follows:
83. Nothing is an offence which is done by a child above [nine] years of age and under twelve, who
has not attained sufficient maturity of understanding to judge of the nature and consequence of his
conduct on that occasion.
In the face of such legislation it is the bounden duty of the Court in every case to ascertain
whether the accused would fall into the category provided by section 83, quoted above. It
would be all the more necessary for the Court to go through this exercise in view of the reality
of our society that in the vast majority of the cases the accused persons from the
poverty-stricken sector of our society remain undefended or poorly defended. (Para 22)
60 DLR 660)
.. where the accused is barely above the age of full exemption from criminal prosecution, it
would be incumbent upon the Court to ascertain that the accused understood that the item she
was carrying was contraband, that what she was doing was illegal, that she appreciated the
consequence of supplying the item to others, and whether she was at all aware of the effect of
drugs and whether or not she was simply obeying the orders of her elders out of deference or
fear. The Court must consider whether the accused child is capable of having the mens rea to
commit the offence alleged. In our view it is necessary for the Court to visualize the position
of the child and to try and appreciate his or her mental state in doing the act for which she or
he is being prosecuted. We hasten to add that our comments are meant to be for consideration
generally and should not prejudice the Court in any way when dealing with the accused in the
instant case. It is for the Court dealing with any particular case to consider all the relevant legal
provisions and all the prevailing circumstances before reaching any decision on the issues
raised in the case. (Para 23)
60 DLR 660)
18
We find it outrageous that the learned SJM would be so ignorant of the provisions of a
fundamental law within the criminal justice system, namely the Penal Code. When a child is
exempt from prosecution either under section 82 of the Penal Code or upon inquiry under
section 83 of the said Code, no question of arrest, custody or handing over on bond at all
arises. It was wrong for the Magistrate to expect that anyone would apply for the bail or
custody of those two children. They should have been sent to their parents immediately.
(Para 28)
16 MLR 254)
19
It is equally obvious that the learned Magistrate was ignorant of the provisions of section 2(j)
of the Act. There is absolutely no reason why a prison should be considered as a place of
safety. On the contrary, we find that from the year 2003 the High Court has laid down that no
children, even after conviction, should be found in the jails. We cannot accept that the learned
Magistrate did not find any other suitable place when the Kishore Unnayan Kendra in Gazipur
is a mere one and half hour's distance by road. (Para 29)
16 MLR 254)
On 31.01.2010 the matter was transferred to the Senior Judicial Magistrate. From the order
dated 02.02.2010 it appears that the learned advocate appearing on behalf of the three
children produced their Birth Registration Cards, from which it was apparent that the eldest
child was aged 13 years and two younger ones were 8 years and 6 years respectively.
Having come to such a finding we are astounded that still the learned Senior Judicial
Magistrate refrained from releasing the two children aged 8 years and 6 from the binds of a
criminal proceeding. (Para 32)
16 MLR 254)
20
BAIL
The underlying theme of international covenants and instruments relating to children is that
they are to be enlarged on bail and to be detained only as a last resort. (Para 25)
(State Vs Metropolitan Police Commissioner,
60 DLR 660)
Section 49 of the Act, 1974 provides that if a child, who is accused of an offence, is not
released on bail then the Court shall order him/her to be detained in a remand home or a place
of safety. (Para 25)
60 DLR 660)
..if the learned Judge, before whom the matter appears for trial, feels inclined, he may consider
the bail matter, particularly bearing in mind the probable unsuitability of safe home
atmosphere for a child of such tender age. However, the bail may be subject to custody of the
girl being given to any person considered suitable by the learned Judge. The Court, in all
circumstances, must ensure the best interests of the child. (Para 26)
60 DLR 660)
On 24.01.2010 a bail application was moved on behalf of the three children. An application
for bail is only warranted when a person, against whom an allegation of criminal offence is
brought, is at all liable to be apprehended, prosecuted and kept in custody. No question of bail
otherwise arises. In such view of the matter granting of bail to a seven year old and nine year
old, who has no understanding about the offence, is unwarranted. (Para 30)
(State Vs Secretary, Ministry of Home Affairs,
and ors.,
16 MLR 254)
21
TRIAL PROCEDURES
Separate trial for children:
We are of the view that for proper administration of justice for children, until such time as
Juvenile Courts are set up in each district, there must be a Court designated as being dedicated
to hear cases involving children, otherwise the requirement of the law to have expeditious
hearings will be frustrated. Reference may be made to Rule 3 which requires hearing of
childrens cases at least once a week. This is not possible since the Courts are otherwise busy
hearing the regular criminal cases, which are given priority. Hence, one Court in each district
must be designated as being a Court dedicated to hear cases involving child offenders so that
childrens cases can be heard and disposed of on priority basis [Art.37(d) CRC]. Legal Aid
must be made available in all matters involving children so that no child remains
unrepresented [Art.40(2)(b)(ii)CRC]. Make Probation Officers available on call round the
clock in all parts of the country to enable proper and effective implementation of section 50
of the Children Act. Similarly, places of safety must be set up, at least one in every district
and local health clinics must be empowered for the purpose of medical examination of
victims so that the need to detain victims in custody will be considerably reduced. (Para 28)
(The State v. Secretary, Ministry of Law,
Justice and Parliamentary Affairs & Ors,
29 BLD 656)
The finding of this Court in State Vs. Deputy Commissioner, Satkhira and others
(supra) is that no child is to be tried with an adult and a child must be tried by the Juvenile
Court. The decision in the Shiplu case, cited above, is that the judgement and order of
conviction passed by the trial Court, not being a Juvenile Court, and the accused being below
the age of 16 years, is to be set aside for want of jurisdiction. Monir Hossain (Md) @
Monir Hossain vs State, 53 DLR 411 was a case which was remanded by the High Court
for assessment of the age of the accused upon setting aside the conviction for lack of
jurisdiction. The Baktiar Hossain case (supra) was sent on remand where this Court gave
specific direction to examine the accused with a view to ascertaining his age and then, if he
was found to be below 16, to be tried by the Juvenile Court, otherwise to be tried by the
Special Tribunal. In the more recent case of Bangladesh Legal Aid and Services Trust
vs Bangladesh and others, 57 DLR 11 it was noted that children are entitled to be tried
by the Juvenile Court and not to be tried jointly with adults. There is one other case, namely
State vs Shukur Ali, 9 BLC 239 where a different view was taken by a Division Bench of
this Court. In that case the trial was of an offence under Section 6(2) of the Nari-o-Shishu
Nirjatan (Bishesh Bidhan) Ain, 1995. The accused for the first time, when before the appellate
Court, claimed to have been below the age of 16 at the time of trial. Before the High Court
Division the argument was put forward that he ought to have been tried by the Juvenile Court.
In support a number of decisions were cited namely, the Shiplu case cited above, Kawsarun
Nessa and another vs. State, 48 DLR 196, Abdul Munem Chowdhury @
Momen vs. State, 47 DLR (AD) 96, Md. Shamim vs The State, 19 BLD 542 and
Bangladesh Legal Aid and Services Trust vs Bangladesh and others, 22 BLD
22
206. After considering the above decisions, the Court distinguished all the cases apart from
the case of Abdul Momen Chowdhury, which was taken to support the contention that a
child cannot be tried by the Juvenile Court, since there is a bar under Section 3 of the Nari-o-
Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, which gives exclusive jurisdiction to the Tribunal
for hearing such cases. The Honble Judges distinguished the other cases, particularly cases
triable by the Tribunal, since section 3 of the relevant enactment, which seemingly ousts the
jurisdiction of the other Courts under other laws, was not brought to the notice of the Court.
However, on close scrutiny of the decision we find that the case of Abdul Momen
Chowdhury does not in fact support the contention that the case concerning a child cannot
be tried by the Juvenile Court. On the question of challenge to jurisdiction on the ground of
age, we note that in the instant case the issue of age was raised at the earliest stage and the
learned Judge found the accused to be a minor. (Para 22)
59 DLR 72)
Jurisdiction of Court to try the offender:
For our part we would consider the whole scenario on a different dimension. If one looks at
the scheme of criminal process and trial, it is seen that, first of all, the jurisdictional aspect
with regard to the accused is to be ascertained and established. In other words, it must first be
established that the accused person is one who is within the jurisdiction of the Court to be
tried. As a matter of fact the very first question to be ascertained before proceeding with the
trial is whether the accused has the capacity to be tried. This aspect is generally taken for
granted and is so obvious as to defy contemplation. In English Law it is irrebuttably presumed
that a child under the age of 10 years is doli incapax, i.e. is incapable of committing a crime. [See
s.50 Children and Young Persons Act 1933, as amended by s.16 of the Children and Young
Persons Act 1963]. We have a similar provision in section 82 of the Penal Code, as amended
by Act XXIV of 2004.
82. Nothing is an offence which is done by a child under [nine] years of age.
Thus a child under 9 years of age, for example, although he may in common parlance commit
some crime or other would not be prosecuted as he is doli incapax, i.e. incapable of committing
crime. A child above 9 and below 12 years of age who has not attained sufficient maturity of
understanding to judge of the nature and consequence of his conduct on that occasion would
also be exempt from criminal liability [s.83 Penal Code]. The same applies to the mentally
disabled. No Court can assume jurisdiction over any such person as they do not have the
capacity to commit any crime. When the accused is arraigned he may be found unfit to stand
trial, in which case he will be removed to the mental hospital and the Court has no discretion
in the matter. Thus, although the Court has jurisdiction over the offence, it cannot assume
jurisdiction over the accused until he is found fit to plead. (Para 23)
Hence jurisdiction over the person is a precondition to the case proceeding to trial by any
Court or Tribunal. Once it is established that a Court has jurisdiction over the accused then
only the Court will go on to see whether it has jurisdiction over the offence alleged. Thereafter,
23
the Court will proceed with the trial, if appropriate, and then conclude by passing judgement.
(Para 25)
59 DLR 72)
It may be pointed out at this juncture that there is no provision equivalent to section 5(3) that
serious offences under any special laws, such as the Arms Act, 1878 or the Special Powers Act,
1974, both of which predate the Children Act, or Nari-o-Shishu Nirjatan (Bishesh Bidhan)
Ain, 1995 etc. are to be tried by the appropriate Tribunal in accordance with provisions of
Children Act. Until such incorporation juveniles charged with offences falling under special
law will have to be dealt with by the Juvenile Court in accordance with provisions of the
Children Act, which, in our view, is of universal application and approach, irrespective of the
offence alleged, as illustrated by the observations and references made above. (Para 52)
59 DLR 72)
Ascertaining age of offender:
In the case before us, the learned Sessions Judge sent the case for trial by the learned
Additional Sessions Judge, First Court and Nari-o-Shishu Nirjatan Daman Tribunal,
Jhenaidah. This clearly defeated the purpose of the trouble taken by him to ascertain the age
of the accused under the provisions of section 66(1) of the Act. It further appears that at the
time of framing the charge, the learned judge, in a feint and half-hearted way proclaimed
himself as the Juvenile Court and framed charge against the accused under section 6(2) of the
Ain. This is clearly a patent contradiction in terms. Moreover, there is nothing on record to
show that all the formalities of a juvenile trial were followed. On the contrary, the offender has
all along been described as an accused which is not a term found in the Act. Moreover, the
sentence passed clearly shows that the learned judge lost sight of the provisions of the Act.
We also do not know whether the other aspects of informality of the proceedings before a
Juvenile Court, i.e. lax procedures and absence of publicity and members of public apart from
parents/guardian of juvenile and his representative, and even the dispensation with
attendance of the child which are provided by the various provisions of the Act, were
followed during the trial.
Section 66(1) of the Act provides as follows:
66. Presumption and determination of age.-(1) Whenever a person whether charged with an
offence or not, is brought before any criminal Court otherwise than for the purpose of giving evidence,
and it appears to the Court that he is a child, the Court shall make an inquiry as to the age of that
person and, for that purpose, shall take such evidence as may be forthcoming at the hearing of the
case, and shall record a finding thereon, stating his age as nearly as may be.
This section is, therefore the first and foremost procedural consideration when any criminal
Court is faced with a person brought before it, who appears to the Court to be a child. It
comes even before the consideration of any offence, whether charged or not. In our view the
24
mandate of the section is indicative of the need to establish jurisdiction of the Court over the
accused even before he is charged with any offence. (Para 53, 54)
59 DLR 72)
... we are of the view that 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. Had the
legislature intended otherwise an amendment could easily have been incorporated in section
5(3) giving jurisdiction over offences under the special laws to the respective Tribunals set up
under those laws. This not having been done, we are of the view that the Children Act, being
a special law in respect of, inter alia, trial of youthful offenders, preserves the jurisdiction over
them in respect of all offences under any law, unless specifically excluded. (Para 55)
59 DLR 72)
Mode of trial of child offender:
Finally we may comment upon the nomenclature of the Court dealing with
juveniles/children. In England the Juvenile Court is now called the Youth Court. Most
countries still retain the title Juvenile Court. In India the task of dealing with juveniles in
conflict with the law is entrusted upon the Juvenile Justice Board. In Scotland it is a Panel
who conducts the Childrens Hearings. It matters little by what name the justice-provider
is called. However, in view of the fact that our Children Act deals with children who are
destitute, neglected and vulnerable to cruelty and abuse as well as delinquent children, and
therefore, is concerned with children of every age, we would suggest a more neutral term,
such as Childrens Justice Panel or Childrens Justice Board in order to encompass the
non-delinquent children whom the Act also seeks to protect. (Para 71)
59 DLR 72)
25
SENTENCING
Sentencing children tried under the provisions of the Children Act:
Sections 52 and 53 of the Act are the substantive provisions of law which provide for
sentencing a child offender upon conviction of an offence punishable with death,
transportation (which is now imprisonment for life, viz. Ordinance No.XLI of 1985) or
imprisonment. Section 52 provides as follows:
52. Commitment of child to certified institute:- Where a child is convicted of
an offence punishable with death, transportation or imprisonment, the Court may, if it considers
expedient so to deal with the child, order him to be committed to a certified institute for detention for
a period which shall be not less than two and not more than ten years, but not in any case extending
beyond the time when the child will attain the age of eighteen years.
Hence section 52 is the substantive provision of law which provides for punishment of a child
upon conviction of an offence and section 53 provides an even more lenient alternative at the
discretion of the Court in a fit case. Perhaps these two sections should have been placed in the
statute before section 51 which is a non-obstante provision. On the other hand, section 51 has
perhaps been placed before the substantive sentencing provisions because of its very
fundamentally important character, i.e. the modes of punishment which are not permissible to
be inflicted upon children. Section 51(1) provides as follows:
51. Restrictions on punishment of child:-(1) Notwithstanding anything to the
contrary contained in any law, no child shall be sentenced to death, transportation or imprisonment:
Provided that when a child is found to have committed an offence of so serious a nature that the
Court is of opinion that no punishment, which under the provisions of this Act it is authorised to
inflict, is sufficient or when the Court is satisfied that the child is of so unruly or of so depraved
character that he cannot be committed to a certified institute and that none of the other methods in
which the case may legally be dealt with is suitable, the Court may sentence the child to imprisonment
or order him to be detained in such place and on such conditions as it thinks fit:
Provided further that no period of detention so ordered shall exceed the maximum period of
punishment to which the child could have been sentenced for the offence committed: (emphasis added)
Provided further that at any time during the period of such detention the Court may, if it thinks
fit, direct that in lieu of such detention the youthful offender be kept in a certified institute until he
has attained the age of eighteen years.
Hence the importance of section 51(1) is that the punishments which cannot be imposed on
a child upon conviction are placed first and foremost in order to give the provision primacy
and more emphasis. The purport of the section is that no child shall be sentenced to death
or imprisonment for life or imprisonment (emphasis added). In our view this clearly indicates
the intention of the legislature to keep children, as far as possible, outside the system of
incarceration in prisons. Then the first proviso to section 51(1) provides exceptions to the
substantive provision giving instances when a sentence of imprisonment may be imposed.
Moreover, in fact the law intends to protect youthful offenders (defined in section 2(n) as any
child who has been found to have committed an offence). This is further highlighted by
26
section 51(2), which provides that a youthful offender sentenced to imprisonment shall not be
allowed to associate with adult prisoners.
Clearly the substantive provision of section 51(1) is an exception to the general law. (Para 24,
25, 26)
(Fahima Nasrin vs Bangladesh,
61 DLR 232)
.. in the case of an offence punishable under section 302 of the Penal Code, the prescribed
punishment is a sentence of death or imprisonment for life. However, in case of children such
punishment cannot be imposed. But then there is an exception to the exception. A sentence
of imprisonment may be imposed on a child upon conviction, if the Judge conducting the trial
forms the opinion that the offence is of so serious in nature that no punishment under the
provisions of this Act which he is authorised to inflict (i.e. under sections 52 and 53 of the
Act) is sufficient or if the Court is satisfied that the child is of so unruly or so depraved
character that he cannot be committed to a certified institute. Thus, the crux of the proviso is
that there must be an opinion and/or satisfaction of the Judge. (Para 26)
61 DLR 232)
We agree with the submissions of the learned amici curiae that in the absence of any clear
opinion expressed by the Judge that the offence was so serious and the punishment authorised
by the Act was not sufficient, or that he was satisfied that the child was of so unruly or so
depraved character that he could not be committed to a certified institute, the sentence of
imprisonment is untenable. (Para 26)
61 DLR 232)
We are inclined to agree with his submissions that the inclusion of the word TJrJh in the
sentencing portion of the judgement is improper or perhaps the learned Judge misconceived
the provisions laid down in section 52 of the Act in awarding the sentence. (Para 26)
61 DLR 232)
Detention as sanction against children convicted of any offence:

Section 52 of the Act provides for detention of any child in a certified institute for a period
which shall not be less than two and not more than ten years, but not in any case extending
beyond the time when the child will attain the age of 18 years. We agree with Mr. Islam that
the last part of the section quite clearly indicates that the maximum sentence that a child may
be awarded under section 52 will end on his attaining the age of 18 years and, therefore, he
may not be kept in detention after his 18th birthday. When section 52 of the Act is invoked
then imprisonment is out of the question. (Para 27)
27
On the other hand, it is always possible at any time to revert a child from prison, if
imprisonment or detention in some other place was ordered under the first proviso to section
51(1), to a certified institute, as provided by the third proviso. This, therefore, fortifies the view
that children should not ordinarily be sentenced to imprisonment, unless absolutely necessary
where exceptional circumstances exist, and then only as a matter of last resort and for the
shortest appropriate period of time. (Para 28)
61 DLR 232)
Children to be kept in prison as a last resort and for the shortest period of time:
At this juncture we may also advert to the second proviso to section 51(1), which is quoted
above. With all due respect, we are constrained to observe that it appears that this provision was
not considered in its proper context and perspective in the case of Munna, cited above. We
cannot agree with Mr. Mahmoods view that the word detention used in the second and third
provisos must refer to the prison sentence imposed under the first proviso. Our view is that
detention in the second and third provisos refers to detained (in such place) in the first
proviso. What it means is that when the Court is satisfied that the child is of so unruly or so
depraved character that he cannot be committed to a certified institute, then he may be sent to
prison or be detained in such place and on such conditions as it thinks fit. As mentioned
above, the third proviso contemplates sending the youthful offender back to a certified institute
after a period of detention in the place where he was sent under the first proviso, to be detained
there until he attains the age of eighteen years. (Para 28)
61 DLR 232)
Maximum period of custody in case of child offender:

The second proviso to section 51(1) mandates that the detention as mentioned in the first
proviso shall not exceed the maximum period of punishment to which the child could have
been sentenced for the offence committed. For proper appreciation of this provision one must
keep in view the fact that the offender is a child to whom the provisions of the Children Act,
1974 apply and that the substantive sentencing provision is contained in sections 52 and 53. As
we have discussed above, section 52 permits a child to be sentenced to detention in a certified
institute, even in cases where the offence is punishable with death or imprisonment for life or
imprisonment. All penal offences are, therefore, covered. But at the same time all other penal
sanctions are excluded. Thus, it follows that upon conviction of any offence under any law the
sentence must be awarded in accordance with the sentencing provisions of the Children Act,
1974 and the maximum sentence that could have been imposed on a child upon conviction of
any offence would have been detention in a certified institute for 10 years or up to the date of
his attaining the age of 18 years, whichever is earlier. In exceptional circumstances a sentence
of imprisonment may be imposed under the first proviso to section 51(1) of the Act. It follows,
therefore, that on conviction under section 302, for example, if the learned Judge expresses
28
his view that the first proviso is attracted, an offender may be sentenced to imprisonment or
detention in some place other than a certified institute but that order of detention cannot be
in excess of 10 years. Likewise, if the learned Judge chose to impose a sentence of
imprisonment, then that also could not exceed 10 years, since the reason for imposing the
sentence of imprisonment or detention in some place other than a certified institute would
have been based on the same opinion/satisfaction. The law provides that in the event of such
detention the learned Judge may direct that the child be returned from that place of detention
to be detained in a certified institute up to the age of 18 years. However, with all due respect
to all concerned, we fully agree with the learned amici curiae that the sentence of imprisonment
for 14 years in the Munna case does not stand to reason. Moreover, although both the
appellants were children at the time of the trial, the case was not tried following the provisions
of the Children Act, 1974 and, therefore, there was no question of the learned trial Judges
formation or expression of opinion/satisfaction as required by the first proviso to section
51(1). (Para 29)
61 DLR 232)
Leniency in punishing child offenders:

We may also point out at this juncture that the Act itself provides alternative and less
draconian punishment in section 53, as an alternative to that which may be imposed under
section 52. Be it noted that section 53 applies equally to serious offences as mentioned in
section 52. The learned trial Judge has discretion under section 53 of the Act to deal with the
child more leniently and, instead of sentencing the child to detention under section 52, may
choose one of the alternative methods of punishment as provided in section 53, including
discharge with or without condition. However, this is where the learned Judge must exercise
his discretion judiciously and cautiously in a fit case. It is always necessary to bear in mind that
there must be proportionality between the offence committed and the sentence imposed. This
is where the learned Judge must weigh in the balance all facts relating to the antecedents and
background of the child, which he should glean from the use of the services of the Probation
Officer. (Para 33)
61 DLR 232)
Attitude of judiciary in sentencing:

To even consider any form of retributive or deterrent punishment in the guise of protection
of society would be a regressive step shutting our eyes to our obligation to provide a congenial
environment in which our children may grow and flourish into worthy citizens. At all times the
welfare and the best interest of the child must be kept in the mind. (Para 34)
Yet again we express our views with the direction that the authorities concerned, including the
Police, Judiciary and the Probation Service are to accord importance in interpreting and
implementing the Act and the Rules in order to take appropriate action in respect of children
who come before them in accordance with the laws of the land, keeping in mind the best
29
interest of the child. (Para 35)
61 DLR 232)
Tendency to demonise deviant children:

We note that when it comes to children committing more serious crimes, they are tried
effectively as adults and the best interests of child takes back-stage as a mere slogan. This is in
spite of the clear mandate in Article 3 of the CRC for State Parties to ensure that in all actions
concerning children taken by institutions, including Courts of law, the best interests of the
child shall be a primary consideration. The age old attitude of demonising children who
commit serious crimes is to be deplored. Courts should at all times consider the reasons
behind the deviant behaviour of the child and after taking into account all the attending facts
and circumstances decide what treatment would be in the best interests of the child.
(Para 40)
(The State v. Secretary, Ministry of Law, Justice
and Parliamentary Affairs & Ors.,
29 BLD 656)
Legality of statutory mandatory death penalty:

When the legislature prescribes any punishment as a mandatory punishment the hands of the
Court are thereby tied. The Court becomes a simple rubberstamp of the legislature. Upon
finding the accused guilty, the Court can do no more than impose the mandatory punishment,
which the legislature has prescribed for that offence. This certainly discriminates and
prejudices the Courts ability to adjudicate properly taking into account all the facts and
circumstances of the case. (Para 38)
(BLAST vs Bangladesh,
63 DLR 10)
In the case of Reyes their Lordships (in the Privy Council) considered the submission of
counsel that a sentencing regime which imposes a mandatory sentence of death on all
murderers, or all murderers within specified categories, is inhuman and degrading because it
requires the sentence of death, with all the consequences such a sentence must have for the
individual defendant, to be passed without any opportunity for the defendant to show why
such sentence should be mitigated, without any consideration of the detailed facts of the
particular case or the personal history and circumstances of the offender and in cases where
such a sentence might be wholly disproportionate to the defendant's criminal culpability. With
respect, we would share the same view and observe that where the appellant is not a habitual
criminal or a man of violence, then it would be the duty of the Court to take into account his
character and antecedents in order to come to a just and proper decision. But where the law
itself prescribes a mandatory punishment then the Court is precluded from taking into
consideration any such mitigating or extenuating facts and circumstances. (Para 38)
30
In Bangladesh there is no provision or scope to argue in mitigation or to bring to the notice
of the Court any extenuating facts and circumstances in any given criminal trial. There is no
provision of sentence hearing. Such a provision existed in 1982 as section 255K of the Code
of Criminal Procedure, but the provision was abolished in 1983. It is our view that it is
imperative that such provision should exist, particularly in view of the fact that in our country
the adversarial system denies the accused any opportunity to put forward any mitigating
circumstances before the Court. Even the most senior advocates will fight tooth and nail to
maintain their clients innocence. As a result, in our criminal justice system, the accused from
the beginning to the end of the trial will maintain a plea of not guilty and since no separate
date is fixed for sentencing the accused, there is thereby no opportunity to put forward any
mitigating or extenuating circumstances. (Para 39)
63 DLR 10)
In the light of the discussions, we are of the view that any mandatory provision of law takes
away the discretion of the Court and precludes the Court from coming to a decision which is
based on the assessment of all the facts and circumstances surrounding any given offence or
the offender, and that is not permissible under the Constitution. The Court must always have
the discretion to determine what punishment a transgressor deserves and to fix the
appropriate sentence for the crime he is alleged to have committed. The Court may not be
degraded to the position of simply rubberstamping the only punishment which the legislature
prescribed. There is such finality and irreversibility in the death penalty. If the discretion of the
Court is taken away then the right of the citizen is denied. (Para 42)
63 DLR 10)
However, so far as the point in issue before us, we are of the view that the mandatory
provision of death penalty given in any statute cannot be in conformity with the right accruing
to the citizen under the Constitution and, accordingly, we find that section 6(2) of the Nari-o-
Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 is ultra vires the Constitution. We would venture
further to say that, in view of our discussion above, any provision of law which provides a
mandatory death penalty cannot be in accordance with the Constitution as it curtails the
Courts discretion to adjudicate on all issues brought before it, including imposition of an
alternative sanction upon the accused found guilty of any offence under any law. (Para 45)
63 DLR 10)
31
POWER OF THE STATE TO RELEASE ON GOOD
BEHAVIOUR
We note from Rule 9 of the Children Rules, 1976 that the inmates of the certified institute or
approved home are constantly and continuously monitored with regard to their background,
character, performance etc. Rule 9 of the Rules provide as follows:
9. Management of certified institutes.-(1) The Superintendent shall maintain case
file for each inmate separately containing detailed information about the family background,
character, aptitude, performance in education, training and such other matters as he may consider
necessary.
(2) The governing body of a certified institute shall exercise such powers and shall conduct its,
business in such manner as the Director may determine, and the decisions of the governing body shall
require approval of the Director."
It appears to us, therefore, that the intention of the legislature is to ensure assessment of the
children who are sentenced to detention in order to gauge the improvement in their character
and behaviour with the view to setting them at liberty either conditionally or without
condition. (Para 30)
In our view, any offender who shows sufficient improvement in his character and behaviour in
the assessment of those who are given the duty to assess his development may be discharged
before the completion of his sentence of detention. That is the purpose of the law. (Para 31)
61 DLR 232)
32
CUSTODY
Alternative custody in case of children -place of safety under the law:
Duty of Police under section 49(1) of the Act:
It appears from the order sheet of the Court of the learned Chief Metropolitan Magistrate
that Arifa was produced before the Court on 21.04.08. It is not apparent where she was kept
during the night of 20.04.08. Section 49 (1) of the Act, 1974 provides as follows:
49. Custody of child not enlarged on bail.-(1)Where a person apparently under
the age of sixteen years having been arrested is not released under section 48, the Officer-in-Charge
of the police-station shall cause him to be detained in a remand home or a place of safety until he
can be brought before a Court.
There is nothing on record to suggest that Arifa was sent to any remand home or place of
safety either on 20.04.2008 or after she was produced before the Magistrate on 21.04.2008.
(Para 9, 10)
(State vs The Metropolitan Police Commissioner,
60 DLR 660)
Duty of Court under section 49(2) of the Act:

60 DLR 660)
... the Court may consider the third alternative, i.e. placement with any close relatives who
might be willing to take the girl into their custody. Failing that, the Court would look to other
distant relatives/any other benevolent person, who might agree to take the girl into their
custody at their risk and responsibility. In this respect fostering might be a realistic alternative.
(Para 33)
60 DLR 660)
Custody of children who are victims:

The relevant provision of law dealing with custody of victim children is found in section 58
of the Children Act, 1974, which provides as follows:
"58. Order for committal of victimised children.-The Court before which child is
produced in accordance with section 57 may order the child-

(a) to be committed to a certified institute or an approved home until such child attains the age of
eighteen years or, in exceptional cases, for a shorter period, the reasons for such shorter period to be
recorded in writing, or
33
(b) to be committed to the care of a relative or other fit persons on such bond, with or without surety,
as the Court may require, such relative or fit person being willing and capable of exercising proper
care, control and protection of the child and of observing such other conditions including, where
necessary, supervision for any period not exceeding three years, as the Court may impose in the
interest of the child.
Provided that, if the child has parent or guardian fit and capable, in the opinion of the Court, of
exercising proper care, control and protection, the Court may allow the child to remain in his custody
or may commit the child to his care on bond, with or without surety, in the prescribed form and for
the observance of such conditions as the Court may impose in the interest of the child."
The learned Senior Judicial Magistrate in his written explanation sent to this Court stated that
since he did not receive any prayer for releasing the victim girl to the custody of the parents
he ordered for her to be sent to the safe home.
Upon a careful reading of the relevant section of law it appears to us that the proviso has an
over-riding effect, inasmuch as if the child has a parent or guardian fit and capable in the
opinion of the Court of exercising proper care, control and protection, then the custody of
the victim girl is to be given to her parents and that would obviate the need for the Court even
to consider the other two alternatives, namely committing her to a certified institute or
approved home or committing her to care of a relative or other fit person. We do not find
from the above mentioned section of the Children Act that there is any requirement for an
application to be made by the parents. On the contrary, in view of the age of the victim girl,
who was seven years old at the relevant time, and had been brutally raped, we feel that the
learned Judge should have realised that it would be inhuman to separate such a tender-aged girl
from her parents and send her to a safe home. We find from subsequent records that the girl
was crying to go to her mother and the mother was crying to have her back home. This must
be sufficient notice to anyone that the girl is required to be given to the custody of her parent.
Moreover, we note from the order sheet of the learned Magistrate that on 07.04.2009 there
was a written application made by the Officer-in-Charge of the police station to allow the
mother of the victim to stay with her in the safe home. At that stage it should have been
abundantly clear to the learned Magistrate that the parents of the girl were eager to have her
custody. Even then the learned Magistrate was not sufficiently moved either by sentiment,
compassion or by requirement of law to release the girl to the custody of her parents.
(Para 13, 14, 15)
Justice and Parliamentary Affairs & Ors.,
29 BLD 656)
34
DETENTION
(State vs Metropolitan Police Commissioner,
60 DLR 660)
Section 2(j) of the Act provides as follows:
(j) place of safety includes a remand home, or any other suitable place or institution, the occupier
or manager of which is willing temporarily to receive a child or where such remand home or other
suitable place or institution is not available, in the case of a male child only, a police station in which
arrangements are available or can be made for keeping children in custody separately from the other
offenders;
There is, therefore, no provision in the Act for keeping a female child in the police station
overnight. In the absence of any explanation, it would appear that the girl was kept in unlawful
custody overnight. It is not a solution under the law to keep a female child with an older
female. Even in the case of a male child, the section provides that such child may be kept in
the police station overnight, if there is room to keep him separate from other offenders.
(Para 22, 23)
(State Vs. Secretary, Ministry of Home Affairs & ors.,
16 MLR 254)
It is equally obvious that the learned Magistrate was ignorant of the provisions of section 2(j)
of the Act. There is absolutely no reason why a prison should be considered as a place of
safety. On the contrary, we find that from the year 2003 the High Court has laid down that no
children, even after conviction, should be found in the jails. We cannot accept that the learned
Magistrate did not find any other suitable place when the Kishore Unnayan Kendra in Gazipur
is a mere one and half hour's distance by road. (Para 29)
16 MLR 254)
The children wing of the prison is meant for children who have been convicted and who
cannot be placed in detention in any certified institute in accordance with the law. Certainly the
children wing in the prisons are not meant to be used for children who are kept on remand or
simply kept overnight as a place of safety. The prison cannot in any event be classified as a
place of safety. It transpires that a seven year old girl was kept in the female ward of the
prison. Even that is not sanctioned by the law and must be avoided at all costs. The law
requires that children kept in any confinement, must be kept separate from adults and
convicted prisoners should not be allowed to mix with those under trial.
Evidently the little girl was kept in the female wing of the District Jail in utter violation of the
law in every respect. (Para 34, 35)
16 MLR 254)
35
Children not to be kept in prisons:
It is a fundamental aspect of the Children Act that children are not to be kept in custody
within the prisons, during the pendency of any trial of the child. The law permits the Court to
enlarge any child alleged to have committed a non-bailable offence on bail under the proviso
to section 497 of the Code of Criminal Procedure. Section 49(2) of the Children Act provides
that if the Court does not grant bail, then the child shall be ordered to be detained in a remand
home or place of safety. Section 2(j) of the Children Act defines a place of safety as follows:
2(j) place of safety includes a remand home, or any other suitable place or institution, the
occupier or manger of which is willing temporarily to receive a child or where such remand home or
other suitable place or institution is not available, in the case of a male child only, a police-station in
which arrangements are available or can be made for keeping children in custody separately from the
other offenders.
We note that, therefore, the Court has no authority whatsoever to send any child during the
pendency of a trial to be held in custody within any prison. A place of safety is clearly defined
in the Act itself and no mention is made to the effect that any prison will be a place of safety
for any child. A child is defined within section 2(l) of the Children Act as any one below the
age of 16. There is no provision within the Children Act or any other law which permits any
judge to send a child during the pendency of a trial to be held in custody within any prison.
Had it been intention of the legislature to allow any child to be kept in custody in a prison that
provision could have been mentioned in section 49(2) and the word jail could have been
added in the definition of place of safety in section 2(j) of the Children Act. It is quite clear,
therefore, that no child can be sent to jail custody during the pendency of a trial. (Para 5)
(The State Vs. Bangladesh & Ors,
19 BLT 376)
We are aware that in some parts of the country there are a number of safe homes provided
for the purpose of housing women and female children. However, we do not find that there
are any safe home or places of safety provided for male children throughout the country. We
recall that in the judgement in the case of State v. Secretary, Ministry of Law, Justice
& Parliamentary Affairs and others, 29 BLD 656, we recommended that the
government must provide sufficient numbers of safe homes within an accessible distance of
every district. We again reiterate our recommendation that unless sufficient numbers of safe
homes are provided for housing children, who are not granted bail, particularly male children,
then injustice will be done. The State is failing in its duty to provide facilities which it is duty
bound to provide. In any event we do not find any provision within the law to keep any
under-trial children or children who are not alleged offenders in custody within the jails of this
country. (Para 10)
19 BLT 376)
36
...the learned Judges must be aware that children cannot under any circumstances be kept in
prison pending trial. It is the responsibility of the Department of Social Welfare to provide
either a safe home, remand home or any other suitable place where children who have come
into contact with the law may be kept during the pendency of their trial, if they are at all to be
kept in custody. (Para 11)
19 BLT 376)
We find that these children held in the prisons, whose age is below 16 years, are being held
there illegally and without lawful authority and are to be removed from prison forthwith.
(Para 12)
19 BLT 376)
37
CONFESSIONAL STATEMENT OF A MINOR
Although, there is no law in our country regulating the mode of recording confessional
statements of minors, it can be seen from jurisdictions other than ours that the Courts are
always careful when taking into consideration confessions made by accused who are minors.
Indeed in countries such as the United States of America and Australia confessional
statements of minors cannot be recorded in the absence of their parent, guardian or
custodian. Moreover, one must also bear in mind the essence and philosophy behind the
Children Act, 1974. By their nature children are not mature in thought and cannot be expected
to have the same level of understanding of legal provisions and appreciation of the gravity of
situations in which they find themselves. So much so that it is an accepted phenomenon that
children will act impetuously and do not always appreciate the consequences of their actions,
criminal or otherwise. In a situation when they are under apprehension they are liable to panic
and say and do things which, in their estimation, are likely to gain their early release. (Para 14)
28 BLD 627)
In the facts and circumstances discussed above, we are of the view that it would be entirely
unsafe to rely upon the confessional statement of a child, as defined in the Children Act, 1974,
without corroboration of the fact that he made the confession voluntarily and knowing the
consequence of waiving his right to remain silent. There being no such corroboration in this
case, we find that it is unsafe to rely on the confession. (Para 23)
28 BLD 627)
In the facts of the instant case, in view of the timing of the two statements of Jaibar Ali Fakir
recorded by the Magistrate, firstly as a witness and, secondly as an accused, and the doubts
which arise with regard to his whereabouts in the interim period, we are of the view that the
confessional statement could not in any event be taken into consideration as the basis of the
conviction. Moreover, in cases of this nature such statements ought not to be accepted as the
sole basis of the conviction, without corroboration. (Para 24)
28 BLD 627)
Furthermore, we are of the view that, although our law does not provide for presence of any
parent, guardian or custodian at the time of recording confessional statement, the children of
our country are no different from the children of any other country and they ought to get the
protection of the law so that they do not make false confessions or confessions under threat
or coercion. We feel, therefore, that prudence demands that when children are taken to record
their confessional statements, they must be accompanied by a parent, guardian, custodian or
legal representative. (Para 25)

28 BLD 627)
38
CORPORAL PUNISHMENT
Generally, corporal punishment, i.e. punishment inflicted on the body, as a form of discipline
has been exercised across the world possibly from the first existence of family on earth.
Corporal punishment includes hitting (smacking, slapping, spanking) children, with the
hand or with an implement - a whip, stick, belt, shoe, wooden spoon, etc. But it can also
involve, for example, kicking, shaking or throwing children, scratching, pinching, biting,
pulling hair or boxing ears, forcing children to stay in uncomfortable positions, burning,
scalding or forced ingestion (for example, washing childrens mouths out with soap or forcing
them to swallow hot spices). In addition, there are other non-physical forms of punishment,
including, for example, punishment which belittles, humiliates, denigrates, scapegoats,
threatens, scares or ridicules the child. Parents rebuke and chastise their own children for all
sorts of behaviour which is not to their liking. In fact children bear the brunt of so-called
disciplinary action from everyone older in age or bigger in size. Corporal punishment imposed
upon children of all ages by parents and teachers is an every-day affair and has been going on
through the ages.
As we have noted from the materials placed before us, the severity of the punishment ranges
from verbal abuse/rebuke to physical violence by the use of the limbs or other implements
varying in size, shape and degree of lethalness. Conversely, the effect of the corporal
punishment manifests in various forms and varies with the mental and physical state and
stature of the child and can range from the not so visible psychological effect to the patent
physical injury requiring hospitalisation, and occasional death. Constant and prolonged rebuke
can also lead to suicide of the child. (Para 24, 25)
(BLAST & Anr. v. Secretary Ministry of Education & Ors.,
31 BLD 201)
Article 35 of our Constitution deals broadly with protection of citizens in respect of trial and
punishment. Clause (5) of article 35 provides that no person shall be subjected to torture or
to cruel, inhuman or degrading punishment or treatment. Taken one step further, it should
be obvious that if any person is protected from torture or to cruel, inhuman or degrading
punishment or treatment after conviction of a criminal offence, then it stands to reason that
a child shall not be subjected to such punishment for behaviour in school which cannot be
termed criminal offence. (Para 30)
(BLAST & Anr. v. Secretary Ministry of Education & Ors.,
31 BLD 201)
39
CHILD WORKERS
Age:
We are of the view that it is high time that the work done in the domestic sector is recognised
as such and the rights of these workers ensured by incorporating the workers of the domestic
sector within the definition of worker in the Labour Act, 2006. (Para 16)
So far as the work of children is concerned, we note that the new Children Policy of 2011
defines a child as anyone up to the age of 18. At long last the definition of a child has come
into line with the definition as recognised internationally. The Labour Act, 2006 defines a child
in section 2 sub-section (63) as anyone below the age of 14 and defines anyone between the
ages of 14 to 18 as an adolescent. (Para 21)
(BNWLA v. Cabinet Division, Secretariat, Dhaka & Ors.,
31 BLD 265)
At this juncture, we may simply point out that for the sake of uniformity a child should be
defined in all laws as anyone below the age of 18, and, if necessary, the restriction or
concession to allow children of a certain age to work may be defined in the Labour Act as has
been done. Therefore, children up to the age of 14 may not be engaged in doing work as
mentioned in section 34 of the Labour Act. The law is relaxed to some extent by section 44
which provides that a child who has reached the age of 12 years may be engaged in light work,
if it does not harm his health or if his education is not hampered. (Para 22)
Section 34 also provides that an adolescent, i.e. a child between the age of 14 and 18, may be
engaged to do work so long he has a certificate from a registered medical practitioner
certifying his fitness. We are of the view that the same provision could apply to children
working in the domestic sector. (Para 24)
31 BLD 265)
...Factories Act, 1965 was abolished by the Labour Act, 2006, but all the relevant provisions
have been re-enacted in sections 51 to 60 of the current law. With regard to the age of work-
ers, section 2(Ka) of the Factories Act described as adolescent someone between the age of
16 to 18 years and an adult as someone who has completed the age of 18 years and a child
as anyone who has not completed the age of 16 years. A young person is one who is a child
or an adolescent. He pointed out that section 66 of the Factories Act, 1965 prohibited the
employment of any child who had not completed 14 years of age and section 67(Ka) provided
that non-adult workers between the age of 14 to 18 years would not be allowed to work unless
a certificate of fitness was granted for the purpose under section 68 of the Act. (Para 4)
(Ain-o-Salish Kendra vs Bangladesh,
63 DLR 95)
40
Laws regulating child labour:
We are of the view that the beneficial provisions outlined in the three policy documents
namely, Domestic Worker Protection and Welfare Policy 2010 (Draft), National Elimination
of Child Labour Policy, 2010 and the Children Policy 2011 must be brought into effect at once
so that the benefits of the provisions of those policies may be given to the domestic workers
and, in particular, to the children in domestic work. It is our view that at any cost children
below the age of 12 should not be allowed to engage in any type of work, including domestic
work, and we believe that is the intendment of the Domestic Worker Protection and Welfare
Policy, 2010 (Draft) which in turn reflects the provisions of the Labour Act as found in section
44. Quite clearly, the children below the age of 12 are required to go to school. The national
policy on education is such that the primary education is compulsory for all children and for
such Education Policy to be effective and meaningful children below the age of 12 should not
be made to work under any circumstances. (Para 33)
31 BLD 265)
Since the time of British rule there have been many laws protecting children from the harsh
world of hazardous labour. The Employment of Children Act, 1938 (repealed by the Labour
Act 2006) provided as follows:
3(3) No child who has not completed his twelfth year shall be employed, or permitted to work, in
any workshop wherein any of the processes set forth in the Schedule is carried on :
........
THE SCHEDULE
List of Process:
1. Bidi-making
2. Carpet-weaving
3. Cement manufacture, including bagging of cement
4. Cloth-printing, dyeing and weaving
5. Manufacture of matches, explosives and fireworks
6. Mica-cutting and splitting
7. Shellac manufacture
8. Soap manufacture
9. Tanning
10. Wool cleaning.
Clearly the above processes were recognised as hazardous preoccupations for children of
tender years, and yet thousands of children of this country are engaged in such hazardous
labour, in spite of laws providing sanction for violation of the laws. Unfortunately the
sanction for violation as provided in section 4 of the above mentioned Act was a fine which
could extend to five hundred taka. With the introduction of new law, namely the Labour Act
2006 the penalty has been increased to a fine of five thousand taka as provided by section 284.
It may be noted that the Employment of Children Act, 1938 was replaced in India by the Child
41
Labour (Prohibition and Regulation) Act, 1986. Section 14 of the Act has provided for
punishment up to 1 year imprisonment (minimum being 3 months) or with fine up to
Rs.20,000 (minimum being ten thousand) or with both to one who employs or permits any
child to work in contravention of provisions in section 3. It is no wonder that the employers
of child labour in this country choose to pay the fine in the rare event of being prosecuted.
(Para 15, 16)
63 DLR 95)
Recommended steps:
The current initiative to make school compulsory up to Class VIII is laudable. However, for
compulsory education to be a reality and effective for those to whom it matters most, there
must be other financial benefits, sufficient to entice the student population to attend school
and also to continue attending school. Good quality teaching in the schools must also be
ensured. Absenteeism on the part of the teachers is rampant. Rather than being committed to
teaching the students during school hours, it is more lucrative for them to teach the same
students privately for a fee. The want of the teachers must also be satiated to prevent their
engaging in other activities in order apparently to supplement their income. So, effective
measures must be put in place to ensure that children, who do attend school, are given
adequate stipend provided by the State, which will be sufficient incentive for their parents to
send them to school and for the children also to attend regularly and have a meaningful
education which will be a benefit to them in their future lives. (Para 25)
63 DLR 95)
Steps must be taken to ensure that children engaged in harmful work must be registered as
such and their movements must be monitored, making sure that all facilities such as education,
rest and leisure are ensured. A system of registration and monitoring of domestic child
workers, for example would deter the employers from physically and sexually abusing them.
Newspaper reports indicate the extent of the problems faced by the domestic child workers,
including instances where they have committed suicide or were murdered. (Para 26)
63 DLR 95)
42
BEST INTERESTS OF THE CHILD
The Best Inte rests of the child a primary consideration:
...if the learned Judge, before whom the matter appears for trial, feels inclined, he may
consider the bail matter, particularly bearing in mind the probable unsuitability of safe home
atmosphere for a child of such tender age. However, the bail may be subject to custody of the
girl being given to any person considered suitable by the learned Judge. The Court, in all
circumstances, must ensure the best interests of the child. (Para 26)
60 DLR 660)
Safe custody as last reso rt:
From the explanation of the learned Senior Judicial Magistrate, 2nd Court, Sylhet, it appears
that he was also under a misconception of the law when he seemingly passed an order for
keeping the girl in safe custody when the law required that the safe custody should be only the
last resort and the parents, if they are fit and capable, should get precedence so far as custody
of the victim girl is concerned. To our mind, the learned Magistrate who believes that an
application from the parents is necessary, and under that misconception ordered the girl to be
held in safe custody, acted illegally and inhumanely in the facts and circumstances of the case.
It is only natural that the best interests of a seven year old child can only be served when she
is allowed to remain in the custody of her parents. (Para 17)
29 BLD 656)
No legal requi rement for pa rents to app ly for custody:
Moreover, we find that on 07.04.2009 there was an application by the Officer-in-Charge of the
concerned police station indicating that the girl needed to be with her mother. This clearly is
an indication that the parent wished to have the custody of the girl and there can be no earthly
reason why at this stage the learned Magistrate did not allow the girl to go to the parents. Quite
clearly, the learned Magistrate acted in total violation of the provisions of law. (Para 42)
29 BLD 656)
Child s vi ews to be conside red:
When it is apparent that the girl was crying to be with her mother, that clearly is an expression
of the view of the child to be with her mother and in compliance with Article 12 of the CRC
the learned Magistrate should have given effect to it. A crying child is itself a patent
application before any right-thinking person that s/he wants to be with her/his mother. We
feel that the learned Judge is bound to take into account the childs view. There is nothing on
record to suggest that the learned Magistrate at all considered the views of the child which
shows abject ignorance of the international provisions, which are meant to be for the welfare
43
and wellbeing of children. (Para 42)
29 BLD 656)
Right to be not subjected to cruel and inhuman treatment:
Moreover, the tearing away of a seven year old female child from the bosom of her mother
can be nothing other than cruel and inhuman treatment which is contrary to Article 27 of the
CRC as well as Article 35(5) of our Constitution. The learned Magistrate has clearly acted in
contravention of the provisions of law, the Constitution and the CRC, to which Bangladesh is
a signatory. He has caused immeasurable human suffering to the victim girl and her parents.
(Para 42)
(
The State v. Secretary, Ministry of Law,
29 BLD 656)
Need for building awareness and sensitisation of judiciary to the rights of the
child:
It is abundantly clear that the lower judiciary is not sensitised enough nor indeed sufficiently
aware of relevant provisions of law to cope with a situation of this nature. It does not take a
lot of intelligence to realize that a seven year old girl, who had been raped and severely
traumatised, needs the company and succour of her mother and yet the learned Magistrate
caused even more trauma by wrenching the girl apart from her mother and putting her in a safe
home totally isolated from her family at the time of her greatest need. Such a decision of the
learned Magistrate clearly shows his lack of appreciation of the severity and gravity of the
situation and the feelings of the victim girl. (Para 42)
29 BLD 656)
Knowledge of domestic and international laws and norms:
Moreover, his interpretation of the law shows his callous disregard for both our domestic law
as well as international instruments. We would only remind all members of the judiciary that
according to the decision in the case of Hussain Muhammad Ershad Vs. Bangladesh
and others, 21 BLD (AD) 69, unless the provisions of the international instrument
conflict with our domestic law, as signatories to those instruments, we are obliged to
implement and apply the provisions of those instruments. (Para 42)
29 BLD 656)
44
In spite of deviant behaviour best interests still primary consideration:
We note that when it comes to children committing more serious crimes, they are tried
effectively as adults and the best interests of child takes back-stage as a mere slogan. This is in
spite of the clear mandate in Article 3 of the CRC for State Parties to ensure that in all actions
concerning children taken by institutions, including Courts of law, the best interests of the
child shall be a primary consideration. The age old attitude of demonising children who
commit serious crimes is to be deplored. Courts should at all times consider the reasons
behind the deviant behaviour of the child and after taking into account all the attending facts
and circumstances decide what treatment would be in the best interests of the child.
(Para 40)
29 BLD 656)
45
ANONYMITY OF CHILD
Aim of law - Protection of Children from stigma and victimisation:
Finally, we must again reiterate that section 17 of the Act prohibits the publicity in relation to
any child who is involved in any case or proceeding in any Court under the Children Act,
which leads directly or indirectly to the identification of such child, nor shall any picture of
such child be published. We appreciate that the newspaper has brought to the notice of the
public at large the illegality which have been committed by the law enforcing agencies and the
judiciary, but at the same time, we must insist that they refrain from identifying children who
are alleged to have committed criminal offences and are again reminded of provisions of 17
of the Children Act and the sanction that is provided under section 46 of the Children Act.
(Para 38)
16 MLR 254)
In view of the fact that the matter involves a child, we wish to remind all concerned that
section 17 of the Children Act, 1974 provides that the picture, name and identity of a child
offender shall not be published in the media and any such publication would be an offence
under the said Act. Hence, the publication of any photograph or the real name, address and
identity of the detenu is strictly prohibited in any form or manner whatsoever in any
electronic, print or other media. (Para 39)
61 DLR 232)
46
TREATMENT OF CHILDREN DIFFERENT TO ADULTS
The Children Act, 1974 provides for special consideration for children who come face to face
with the law. They are dealt with differently due to their immaturity and vulnerability. By the
same token, children who are produced for questioning by the police or for recording their
statement by a Magistrate under section 164 of the Cr.P.C., either as a witness or as an accused,
must be dealt with differently from adults. They must be accompanied by a parent, guardian,
custodian or legal representative. (Para 25)
28 BLD 627)
We can only reiterate the submissions of Mr. Islam and Mr. Mahmood that the intention of
the legislature in enacting the Children Act is to treat young offenders differently and to give
them the opportunity to be reformed and rehabilitated since our entire sentencing policy is
reformative, not retributive. We would suggest that the aim of the law is to treat the deviant
child to make him a better citizen as the punishment prescribed is purposely lenient and meant
to reform and rehabilitate him. (Para 33)
61 DLR 232)
Referring, inter alia, to the (Indian) Children Act, 1960, Krishna Iyer, J. in the case of Hiralal
Mallik v. the State of Bihar, 1977 (4) SCC 44, observed as follows:
Conceptually, the establishment of a welfare-oriented jurisdiction over juveniles is predicated and
over-judicialisation and over-formalisation of Court proceedings is contra-indicated. Correctionally
speaking the perception of delinquency as indicative of the person's underlying difficulties, inner
tensions and explosive stresses similar to those of maladjusted children, the belief that Court
atmosphere with forensic robes, gowns and uniforms and contentious disputes and frowning
paraphernalia like docks and stand and crowds and other criminals marched in and out, are
physically traumatic and socially stigmatic, argues in favour of more informal treatment by a free
mix of professional and social workers and experts operating within the framework of the law.
There is a case to move away from the traditional punitive strategies in favour of the nourishing
needs of juveniles being supplied by means of treatment oriented perspective. This radicalisation and
humanisation of juveniles has resulted in legislative projects which jettison procedural rigours and
implant informal and flexible measure of freely negotiated non-judicial settlement of cases.
With respect we agree. Let our children see not the rigours of our system but the compassion
of our treatment of their indiscretion. (Para 30)
The overall aim is therefore not to punish the offender, but to seek out the root of the
problem, in other words, not treating the delinquents as criminals, but treating the cause of
their criminality and directing them on a path which will be acceptable to mainstream society
in order to ensure their rehabilitation. More so in our case, since our penal policy is basically
reformative and not retributive. (Para 44)
(State vs Md. Roushan Mondal @ Hashem,
59 DLR 72)
47
We may also refer to the relatively more recent document on the subject: United Nations
Guidelines for the Prevention of Juvenile Delinquency (The Riyadh
Guidelines) adopted and proclaimed by General Assembly resolution 45/112 of 14
December 1990. The guidelines are aimed at preventing crime by preventing juvenile
delinquency by engaging juveniles in activities which will steer them away from criminal
activities. The Guidelines recognise that the adolescent years are to be used for moulding the
character of the youth and that youthful behaviour or conduct that does not conform to overall social
norms and values is often part of the maturation and growth process and tends to disappear spontaneously in
most individuals with the transition to adulthood. The emphasis is to urge society to provide facilities
for the youth so that their propensity towards deviant behaviour and the opportunity to
commit delinquent acts is reduced. Thus the community is loaded with the responsibility of
providing positive, proactive programmes to keep the youth occupied and kept on the path
perceived to be correct by society and also to bring those who have deviated back to the
acceptable path by ensuring proper education and socialisation, i.e. reformation and
rehabilitation. (Para 45)
59 DLR 72)
Thus the thrust of the international declarations, rules, covenants and other instruments is
towards reformation and rehabilitation of youthful offenders and for establishment of
facilities for proper education and upbringing of youths so that they are prevented from
coming into conflict with the law. In the event that a child or juvenile does come into conflict
with the law, then the aim is to provide a system of justice which is child-friendly and which
does not leave any psychological scar or stigma on the child, and, on the contrary, prepares
him for a fruitful future. (Para 46)
59 DLR 72)
Children Act to protect and preserve the rights of children:

We believe that the Children Act 1974 was promulgated as a direct manifestation of Article
28(4) of the Constitution, which has been placed in the Part III under the title
Fundamental Rights, and at the same time in response to, and with a view to fulfilling the
mandate of, the relevant international instruments of the UN mentioned above.
Article 28(4) of the Constitution provides as follows:
Nothing in this article shall prevent the State from making special provision in favour of women
or children or for the advancement of any backward section of citizens.
Thus the framers of the Constitution have given the power even to promulgate discriminatory
laws favouring the womenfolk and children. Hence it can be said that the Act is a beneficent
legislation purposely enacted to give beneficial effects to a particular community of women

and children and once enacted the rights which accrue cannot be frittered away by subsequent
enactment. (Para 49)
48
The Act incorporates provisions of international covenants in order to safeguard the juvenile
from exposure to the rigours of Court process and the stigma of trial and conviction. Hence
the requirement for separate trial from adults has been incorporated in section 6 of the Act.
It may be noted that section 6(2) of the Act emphatically gives this provision precedence over
all other provisions of any laws which may dictate joint trials, including section 239 of the
Code of Criminal Procedure. (Para 50)
59 DLR 72)
Provisions in case of allegation of serious of fence tria ble by Court of Session:

We note that our legislature has catered for cases of youthful offenders involved in serious
crimes by enacting section 5(3) of the Act, which provides as follows:
When it appears to a Juvenile Court or a Court empowered under section 4, such Court being
subordinate to the Court of Session, that the offence with which a child is charged is triable
exclusively by the Court of Session, it shall immediately transfer the case to the Court of Session for
trial in accordance with the procedure laid down in this Act. (Para 50)
59 DLR 72)
Provisions of Children Act applica ble:

Thus even when it is mandated by law for the trial to be conducted by a Sessions Judge, the
proceedings must take place in accordance with the provisions of the Act. In other words, the
juvenile will get the benefit of all the rights to which he would be entitled had the proceedings
taken place in the Juvenile Court. That, we believe, follows the spirit and intendment of the
international instruments which crave for the well-being of the youthful offender and enjoin
segregation of youths from adults at all stages from apprehension to incarceration. (Para 50)
59 DLR 72)
Court atmosphe re unli ke adult trial:

The aspect of segregation is highlighted further by section 7(2) of the Act, which provides as
follows:
In the trial of the case in which a child is charged with an offence a Court shall, as far as may be
practicable, sit in a building or room different from that in which the ordinary sittings of the Court
are held, or on different days or at different times from those at which the ordinary sitting of the
Court are held.
This is emphasised further by the provisions of section 8 (1) of the Act, which provides:
When a child is accused along with an adult all having committed an offence and it appears to the
Court taking cognisance of the offence that the case is a fit one for committal to the Court of Session,
such Court shall, after separating the case in respect of the child from that in respect of the adult,
49
direct that the adult alone be committed to the Court of Session for trial. (Para 51)
59 DLR 72)
No joint trial of child of fender with adult accused:

Thus under our laws there is no chance of joint trials of a youthful offender and an adult. No
matter what offence is alleged, irrespective of the seriousness of the act, a juvenile is to be
tried separately from adults and in accordance with provisions of the Act. If the case is triable
by the Court of Session only, then the case of the juvenile is to be dealt with under section
5(3) of the Act. Our courts have strictly interpreted this provision in a number of cases,
including the State vs Deputy Commissioner, Satkhira, 45 DLR 643. (Para 51)
59 DLR 72)
50
APPLICATION OF INTERNATIONAL INSTRUMENTS
Bangladesh ratified the UN Convention on the Rights of the Child in August of 1990. As a
signatory to the convention Bangladesh is duty bound to reflect the above Article as well as
other articles of the CRC in our national laws. We are of the view that the time is ripe for our
legislature to enact laws in conformity with the UNCRC. This would also give the opportunity
to iron out some of the difficulties faced so far in relation to the date relevant for determining
the age of the accused for the purpose of jurisdiction of the Juvenile Court and at the same
time it may be spelt out that this legislation will take precedence over all other laws when
matters relating to children are in issue. We feel that if the goal of the legislation is to protect
children, who are our treasures and future generations, and to give them benefits which they
would not otherwise get in a Court dealing with adult offenders, then they must get that
benefit for whatever offence they may be alleged to have committed. The seriousness of their
action may be reflected in the severity of the order passed by the Juvenile Court. But the child,
in our view, must be dealt with by a Court geared to hear matters relating to children.
(Para 65)
59 DLR 72)
Under normal circumstances any child ordered by the Court to be enlarged on bail would go
to the parents; normally the best interests of any child would demand that it be kept in the
custody of the parents. In this regard we get some guidelines from the United Nations
Convention on the Rights of the Child (UNCRC). Bangladesh was one of the first signatories
to the Convention and is bound to take steps for implementing the provisions thereof. Being
signatory we cannot ignore, rather we should, so far as possible, implement the aims and goals
of the UNCRC. The matter of international covenants/conventions and their incorporation
into national laws was considered in a decision of the Indian Supreme Court in Peoples
Union for Civil Liberties v. Union of India, 1997 SCC (Cri) 434. Their Lordships
made extensive reference to an Australian decision in Minister for Immigration and
Ethnic Affairs v. Teoh, (1995) 69 Aus LJ 423. In the latter case the applicability of the
UNCRC was in issue. Mason C.J. stated the position as follows:
It is well established that the provisions of an international treaty to which Australia is a party do
not form part of Australian law unless those provisions have been validly incorporated into our
municipal law by statute..... [B]ut the fact that the Convention has not been incorporated into
Australian law does not mean that its ratification holds no significance for Australian law.
HisLordship went on to say, The provisions of an international convention to which Australia is
a party, especially one which declares universal fundamental rights, may be used by the Courts as a
legitimate guide in developing the common law. Jeevan Reddy J. delivering the judgement in the
Peoples Union for Civil Liberties case, cited above, after deliberation on the Australian decision,
stated as follows: .... the provisions of the covenant, which elucidate and go to effectuate the
fundamental rights guaranteed by our Constitution, can certainly be relied upon by Courts as facets
of those fundamental rights and hence, enforceable as such. (Para 27)
51
Our Appellate Division also propounded a similar view in Hussain Muhammad Ershad
Vs. Bangladesh and others, 21 BLD (AD) 69. B.B. Roy Chowdhury J. stated as follows:
True it is that Universal Human Rights norms, whether given in the Universal Declaration or in
the Covenants, are not directly enforceable in national Courts.
His Lordship went on to say that they would be enforceable if the provisions are incorporated
into the domestic law and that Courts should not ignore the international obligations, which a
country undertakes. If domestic laws are not clear enough or there is nothing therein, the
national Courts should draw upon the principles incorporated in the international
instruments. If domestic law is inconsistent with international instrument, then the Court
must respect national law, but shall draw attention of the law makers to such inconsistencies.
(Para 28)
So, it is an accepted principle that international covenants, conventions treaties and other
instruments signed by State parties are not considered to be binding unless they are
incorporated into the laws of the land. To our knowledge Bangladesh has not yet incorporated
all the provisions of the UNCRC into its national laws. On the other hand our domestic laws
do not contain the beneficial provisions of the UNCRC and they also are not in conflict with
our domestic laws, save and except Article 21 regarding adoption. They may, therefore, be
considered if it would be in the best interests of the child. (Para 29)
60 DLR 660)
The underlying theme of International Covenants and instruments relating to children is that
they are to be enlarged on bail and to be detained only as a last resort. (Para 25)
60 DLR 660)
... we are somewhat perturbed to note that the authorities concerned and the agencies involved
in dealing with children are still unfortunately unaware of the relevant provisions of the law
and international instruments which are in a way binding upon us. Whether or not provisions
of international instruments are binding was discussed in the case of State v. Metropolitan
Police Commissioner, 60 DLR 660. In this regard we may again refer to the decision in the
case of Hussain Muhammad Ershad Vs. Bangladesh and others, 21 BLD (AD)
69, where his Lordship B.B. Roy Chowdhury, J. pointed out that although the provisions of
international instruments are not binding unless they are incorporated in the domestic law,
they should not be ignored. His Lordship went further to say that beneficial provisions of the
international instruments should be implemented as is the obligation of a signatory State. We
note that in the same vein we mentioned in the case of State Vs. Metropolitan Police
Commissioner, 60 DLR 660 that as signatory Bangladesh is obliged to implement the
provisions of the CRC. We also stated in that case that if the beneficial provisions of the
international instruments do not exist in our law and are not in conflict with our law, then they
52
ought to be implemented for the benefit and in the greater interests of our children. But sadly
the provisions of the international instruments are rarely, if at all, implemented. Moreover,
proper implementation of the provisions of our existing law is sadly lacking and often
ignored. (Para 24)
29 BLD 656)
We find that the neglect of the Bangladesh Government to implement the provisions of the
CRC has led to numerous anomalies in our judicial system when dealing with cases where an
offender and/or the victim are children. A glaring example can be found in the Railways Act,
1890 where in section 130 (1) the provisions of sections 82 and 83 of the Penal Code have
been overridden, thus making children below the age of 9 years liable to be prosecuted and
punished for offences under the Railways Act. Quite clearly this is patently contrary to the
intent and purpose of the provisions relating to children both in the Children Act and the
international instruments. Had there been a proper assimilation of our laws then such a
glaring discrepancy or incongruity would not have arisen. Another glaring anomaly is found in
the Children Rules, 1976 where the punishment that can be awarded to a child who attempts
to run away in violation of the Code of Conduct of the Detention Centre, is caning. This is
in stark contradiction with the UN Instrument relating to punishment for children and the
prohibition of corporal punishment. (Para 25)
We would, therefore, strongly recommend that immediate steps must be taken by the
Government to enact laws or amend the existing law in order to ensure implementation of all
the provisions of the CRC, which are beneficial to children and also to minimise the
anomalous situations which arise when dealing with children. In particular, in order to avoid
further complications in the proper application of the existing laws, prompt action must be
taken to ensure that the definition of child is uniformly fixed in all statutes as anyone below
the age of 18 years [Art.1 CRC]; the date relevant for considering the age of the accused is the
date of commission of the offence, which is fundamental to the concept of protection of
children who are not fully mature and do not appreciate the consequence of their actions
[explained in detail in the Roushan Mondal case]; in all matters where a child is an accused,
victim or witness, the best interests of the child shall be a primary consideration [Art.3 CRC];
that a childs views shall be considered by the Court [Art.12 CRC]; in ALL cases where a child
is accused of commission of any offence under the Penal Code or under any special law he is
to be tried by a Juvenile Court or any other appropriate Court or Tribunal in accordance with
the provisions of the Children Act and Children Rules [discussed in Roushan Mondal]; the use
of children for the purpose of carrying drugs or arms or in any other activity which exposes
them to physical and moral danger or any harm must be made a criminal offence to be tried
under the Children Act [Art.33 CRC]. (Para 27)

29 BLD 656)
53
54
VOLUME TWO
Case Summaries
VOLUME SUMMARY
This volume is a compilation of
summaries of the judgements
delivered by the Supreme Court of
Bangladesh on issues related to
children in the juvenile justice system.
The summaries contain brief facts of
the case, the honble Courts
discussions regarding the issues
involved in the case and the findings
and directions of the honble Court.
The summaries are designed to
function as a research tool for
practitioners to aid them in their case
preparation, so that they may decide on
what judgements might best support
their case.
57
Jaibar Ali Fakir- versus- The State, 28 BLD 627
This was a Criminal Appeal against an order of the Sessions Court, Joypurhat, under which the
appellant, Jaibar Ali Fakir, was convicted of murder and abetment and sentenced to
imprisonment for life.
The facts of the case, in chronological order, were as follows:
On 19.2.81, the dead body of Meher Ali was recovered from a well at the Baroshibaloy
Mondir in village Belamla. Police came to the place of occurrence, held an inquest and sent
the body to the morgue for post mortem examination, which was done on 20.2.81.
On 26.2.81, a First Information Report (FIR) was lodged by the victims brother, Afaz
Uddin, naming seven accused persons alleging that they forcibly took the victim away and
after killing him, threw him into the well.
During the course of investigation it was found by the officer investigating the case (I.O.)
that the F.I.R. was false and that the appellant Jaibar Ali Fakir, Dulal Kazi and Ayub Hossain
as well as Dudum (absconding) who is the son of the victim Meher Ali, were the persons
who killed the victim.
The I.O. took steps for recording the confessional statements of accused Jaibar Ali Fakir and
Dulal Kazi as well as of prosecution witness Saleha Khatun (PW5), the 2nd wife of deceased
Meher Ali, under section 164 of the Code of Criminal Procedure (Cr.P.C.).
On 8.6.81 the I.O. produced Jaibar Ali Fakir before a Magistrate for recording his statement
as a witness under section 164 of the Cr.P.C. In the statement the accused appeared to have
implicated himself in the murder of the victim. However, there was no record to show that
he was immediately arrested for the crime.
The accused was subsequently brought to the Magistrates Court under arrest on 7.7.81 and
again he was forwarded to a Magistrate First Class for recording his confessional statement
judicially.
On 8.5.82, charge sheet was submitted against the accused persons under sections
302/201/34 of the Penal Code.
Charge was framed on 2.8.84 against the four accused persons, although the case was not
ready due to the fact that accused Dudum was absconding and the formalities had not been
fully complied with.
Subsequently, charge was framed again on 16.3.85 under sections 302/109 of the Penal Code
which was read over and explained to the accused present in Court, to which they pleaded
not guilty and claimed to be tried.
The prosecution examined 11 witnesses.
The defence case was one of innocence and false implication.
During the trial, the appellant was examined under section 342 of the Cr.P.C., and filed a
written statement to the effect that the confessional statement was extracted from him
through police torture and illegal confinement in police custody for 21 days.
The learned Judge recording the statement of the accused under section 342 of the Cr.P.C.
wrote the age of the accused as 16.
59
Jaibar Ali Fakir v The State 28 BLD 627
Discussion of the honble High Court Division

The honble High Court Division noted in its judgement that from the trend of witness
examination, it was apparent that the sole basis of the conviction of the appellant was his
statement recorded under section 164 of the Cr.P.C. by a Magistrate, who was not examined
before the Court. The honble Court further noted from the records that while the appellant
had claimed to be a minor at the time of trial, the learned trial Judge did not accept that he was
a minor even though the record supported the fact that he was a minor.
The honble Court accepted that in view of the fact that the learned trial Judge opined that the
accused was not a minor, it could not be said that the provisions of section 66 of the Children
Act were contravened. However, it stated that since the accused Since the accused was
was claiming to be a minor, the learned judge ought to have claiming to be a minor,
followed the provisions of section 66 of the Children Act in the learned judge ought
order to allay any possibility that the accused was indeed a to have followed the
minor and to give him an opportunity to prove his entitlement provisions of section 66
under the Children Act, 1974. The honble Court observed that of the Children Act )
since, during the trial, the learned Judge recording the statement of the accused under section
342 of the Cr.P.C. wrote the age of the accused as 16, this would mean that the accused must
have been a minor at the time of commencement of the trial. The honble Court opined that
the fact that the accused was around 12 years of age at the time of the offence and at the time
of recording his confessional statement under section 164 of the Code of Criminal Procedure
could not be ignored.
While comparing the statement of Jaibar Ali Fakir recorded as a witness under section 164 of
the Cr.P.C. and the statement recorded as a judicial confession 21 days later, the honble Court
noted that both statements were almost identical. The Court was particularly interested in the
whereabouts of the accused during the interim period from 8.6.81, when he appeared to have
confessed his guilt before a Magistrate, and 7.7.81, when a confession was recorded by a
Magistrate judicially. The Court took into account the explanation given by the appellant,
under section 342 of the Cr.P.C., where he stated that at the relevant time he was a student of
Class-VI and that the police took him to the police station and beat him and told him to say
the names of Ayub, Hamid, Chunnu and Dudum as the assailants of Meher Ali and after
giving him some more beating he was taken to the Magistrate. When he declined to say
anything before the Magistrate he was again taken outside and threatened that if he did not
state before the Magistrate as directed he would again be taken to the police station. So the
accused gave the statement at the dictates of the police. Thereafter, from there he was taken
before the Magistrate and told to repeat before the Magistrate what he had told the Magistrate
earlier. That having been done, he was sent to jail custody. In the view of the honble Court,
this narration showed that after his first admission before the Magistrate as a witness,
indicating his complicity in the murder, the accused was taken into police custody and again
produced before the Magistrate on 7.7.81 for recording his confessional statement judicially.
60
28 BLD 627 Jaibar Ali Fakir v The State
The Court was of the view that the accused would not have been released by the police after
he made the statement before the Magistrate as a witness on 8.6.81 admitting that he was
involved in the killing of the victim.
Findings and directions

The honble Court commented that although there is no law in our country regulating the
mode of recording confessional statements of minors, it can be seen from other jurisdictions
that the Courts are always careful when taking into
The honble Court gave examples
consideration confessions made by accused who are
of countries such as the United
minors. The honble Court gave examples of States of America and Australia,
countries such as the United States of America and where confessional statements of
Australia, where confessional statements of minors minors cannot be recorded in the
cannot be recorded in the absence of their parent, absence of their parent, guardian or
guardian or custodian. The Court opined that by custodian. The Court opined that
by their nature children are not
their nature children are not mature in thought and
mature in thought and cannot be
cannot be expected to have the same level of expected to have the same level of
understanding of legal provisions and appreciation understanding of legal provisions
of the gravity of situations in which they find and appreciation of the gravity of
themselves. So much so that it is an accepted situations in which they find
phenomenon that children will act impetuously and themselves.
do not always appropriate the consequences of their actions, criminal or otherwise. In a
situation when they are under apprehension they are liable to panic and say and do things
which, in their estimation, are likely to gain their early release.
It was the view of the honble Court that juveniles in our country should not be seen as
different to those in other parts of the world. Rather it should be recognized that our youths
are at a greater disadvantage, since they are deprived of the advanced media and information
sources available in developed countries, and in most cases are uneducated.
The Court further stated that we must also bear in mind the age of the accused at the time of
the occurrence and at the time of the alleged
.. it would be entirely unsafe to rely
upon the confessional statement of
confessional statement. It opined that children are
a child, as defined in the Children impressionable, gullible and more ready to admit
Act, 1974, without corroboration guilt for other ulterior reasons, and referred to
of the fact that he made the research which shows that children will falsely
confession voluntarily and knowing confess to have committed a crime when they
the consequence of waiving his believe that they may get some benefit as a result.
right to remain silent. Since there

was no such corroboration in the The honble Court expressed the view that it would
present case, the Court held that it be entirely unsafe to rely upon the confessional
was unsafe to rely on the statement of a child, as defined in the Children Act,
confession. 1974, without corroboration of the fact that he made
61
Jaibar Ali Fakir v The State 28 BLD 627
the confession voluntarily and knowing the consequence of waiving his right to remain silent.
Since there was no such corroboration in the present case, the Court held that it was unsafe to
rely on the confession.
In the facts of the instant case, in view of the timing of the two statements of Jaibar Ali Fakir
recorded by the Magistrate, firstly as a witness and, secondly as an accused, and the doubts
which arise with regard to his whereabouts in the interim period, the Court expressed the view
that the confessional statement could not in any event be taken into consideration as the basis
of the conviction. It further stated that in cases of this nature such statements ought not to be
accepted as the sole basis of the conviction, without corroboration.
The Court further recommended that even though our law ... when children are taken
does not provide for this, when children are taken to record to record their confessional
their confessional statements, they must be accompanied by a statements, they must be
parent, guardian, custodian or legal representative, so that they accompanied by a parent,
do not make false confessions or confessions under threat or guardian, custodian or legal
representative, so that they
coercion. do not make false
The honble Court reminded us that the Children Act, 1974 confessions or confessions
provides for special consideration for children who come face under threat or coercion.
to face with the law, and that they are dealt with differently due
to their immaturity and vulnerability. The Court expressed the view that as such, children who
are produced for questioning by the police or for recording their statement by a Magistrate
under section 164 of the Cr.P.C., either as a witness or as an accused, must be dealt with
differently due to their immaturity and vulnerability. The Court expressed the view that as
such, children who are produced for questioning by the police or for recording their statement
by a Magistrate under section 164 of the Cr.P.C., either as a witness or as an accused, must be
dealt with differently from adults. They must be accompanied by a parent, guardian, custodian
or legal representative.
62
State v Secretary, Ministry of Law, Justice & Parliamentary Affairs
and others (SUO MOTU RULE NO.5621 OF 2009), 29 BLD 656
This was a Suo Motu Rule, regarding custody of a child, issued in response to a news item,
which was first broadcast on 10.04.2009, at about 9:00 p.m. on Television Channel I.
Facts
It was reported that a minor girl by the name of S. [the identity of the girl is withheld in
compliance with the provisions of section 17 of the Children Act, 1974 and section 14(1) of
the Nari-o-Shishu Nirjatan Daman Ain, 2000] was allegedly raped by her neighbour and
distant relative [identity withheld]. The parents of the girl, after getting treatment for her from
a local clinic, took her for better treatment to the Osmani Medical College Hospital, Sylhet
and, thereafter, took her to the Osmani Nagar Police Station on 27.03.2009 in order to lodge
a First Information Report (F.I.R.). Police, after recording the case, sent the girl to the Court
of the learned Magistrate, who ordered the girl to be kept in safe custody at the Safe Home in
Bagbari, Sylhet, managed by the Department of Social Welfare.
It was reported that being aggrieved by the occurrence which took place, the parents of the
victim girl took her before the authorities in order to seek justice and the 7 (seven)-year-old
child, who was a student of Class III at the time, was sent to safe custody. She was so young
that she could not sleep without her mother. The report further indicated that the parents were
not allowed to visit the girl and the Magistrate would not give the girl to the jimma (custody) of
her father. It was also reported that one well-wisher of the locality spent Tk.26,500/- on
publicity in a newspaper addressed to the Prime Minister, but nothing had yet been done at the
time of issuance of the Rule.
Having found the reported events to be disturbing, especially since it appeared that the little
girl was being held in safe custody without lawful authority while her parents, who were willing
and capable of keeping her, were allegedly denied her custody, the honble Court issued a Suo
Motu Rule upon the respondents to show cause as to why S. should not be released from the
Safe Home of the Department of Social Welfare and be dealt with in accordance with law.
Pending hearing of the Rule, S. was directed to be released from custody forthwith to the
jimma of her father. The Metropolitan Police Commissioner, Sylhet was directed to ascertain
and report within seven days, narrating the events leading up to the confinement of the
seven-year-old girl S. in the safe home. The Chief Judicial Magistrate was directed to give an
explanation within seven days as to under what authority he had passed the order of safe
custody of a victim girl aged seven years, refusing custody to her parents.
In due course the honble Court received a response from the Police authority, Sylhet, dated
16.04.2009. The Police Commissioner in his memo dated 20.04.2009, narrated that the case
was recorded under section 9(4)(Kha) of the Nari-o-Shishu Nirjatan Daman Ain with Osmani
Nagar Police Station on 27.03.2009 where the father of the victim was the informant. The
victim was produced at the police station by her parents. The investigating officer referred the
victim to the Local Government Health Complex for treatment on 27.03.2009. The local
health complex referred the victim to MAG Osmani Medical College Hospital, Sylhet, for
examination, where she was produced on 29.03.2009. In the meantime she was kept in the
jimma of her parents. After her medical examination at the OCC (Outdoor Crisis Centre) the
63
29 BLD 656 State v Secretary, Ministry of Law, Justice & Parliamentary Affairs and others
victim was handed over to the investigating officer on 31.03.2009 and the investigating officer
on the same day forwarded the victim to the Court of the learned Magistrate for recording her
statement under section 22 of the Nari-o-Shishu Nirjatan Daman Ain. The learned Magistrate
did not have time to record the statement on that day and sent the victim to the safe home on
31.03.2009 and her statement was recorded on the next day, i.e. on 01.04.2009. After recording
her statement the learned Magistrate again sent her to the safe home. In the meantime the
Officer-in-Charge of Osmani Nagar Police Station made a prayer to the Court for allowing the
victim's mother to stay in the safe home with her daughter S. The learned Magistrate did not
allow this prayer on the ground that the matter is within the exclusive jurisdiction of the
Nari- o-Shishu Nirjatan Daman Tribunal. The Magistrate sent the case record to the
Nari-o-Shishu Nirjatan Daman Tribunal for proper order in the matter. At that time the father
of the victim also filed a Criminal Miscellaneous Case in the Nari-o-Shishu Nirjatan Daman
Tribunal for taking jimma of his daughter S. By order dated 12.04.2009 the Tribunal placed the
victim in the jimma of her father.
It is stated in the explanation of the learned Chief Judicial Magistrate, Sylhet that on
31.03.2009 the victim was not produced before him and he did not pass the order for sending
her to the safe home. He explained that it was the Judicial Magistrate, 1st Class, before whom
the girl was produced, who ordered her safe custody and on the following day recorded her
statement under section 22 of the Nari-o-Shishu Nirjatan Daman Ain and on that date neither
the parents of the victim nor the police officer who brought her before the learned Magistrate,
either in writing or verbally, made any request to give the custody of the victim to her parents.
He further stated that on 01.04.2009 the learned Magistrate, after recording the statement of
the victim, did not pass any other order to send the girl to the safe home. Subsequently, on
07.04.2009 the Officer-in-Charge of Osmani Nagar Police Station lodged an application with
a prayer to allow the victim's mother to remain with her in the safe home. Although, that
application was made before the learned Chief Judicial Magistrate, Sylhet, in fact it was not
placed before the learned Chief Judicial Magistrate, Sylhet; rather it was placed before the
learned Magistrate, 1st Class, who recorded the victim's statement, who rejected the
application on the ground that the same was beyond jurisdiction. On the other hand the case
docket was ordered to be sent to the Nari-o-Shishu Nirjatan Daman Tribunal. Even at that
time there was neither any oral or written prayer to give custody of the girl to her parents.
Ultimately, on 10.04.2009 the request for the record from the Nari-o-Shishu Nirjatan Daman
Tribunal in connection with Miscellaneous Case No.89 of 2009 dated 07.04.2009 was received
and the records were sent to the Tribunal and on 12.04.2009 the victim was handed over to the
custody of her parents. The learned Chief Judicial Magistrate, Sylhet also forwarded with his
explanation photocopies of the order sheets relating to the matter which was then pending
before the Court of the Magistrate.

The honble Court subsequently also sought an explanation from the learned Magistrate, 1st
Class who had sent the victim girl to safe custody. By his Memo dated 25.5.2009 the learned
Senior Judicial Magistrate, 2nd Court, Sylhet explained that the victim S. (7) was produced
before him on 31.03.2009 in the afternoon for recording her statement under section 22 of the
64
State v Secretary, Ministry of Law, Justice & Parliamentary Affairs and others 29 BLD 656
... the proviso has an over-riding effect, so that if the child has a parent or guardian fit and
capable in the opinion of the Court of exercising proper care, control and protection, then
the custody of the victim girl is to be given to her parents and there would be no need for
the Court even to consider the other two alternatives, namely committing her to a
certified institute or approved home or committing her to care of a relative or other fit
person.
65
above mentioned section of the Children Act regarding any requirement for an application to
be made by the parents. The Court was of the opinion that in view of the age of the victim
girl, who was seven years old at the relevant time, and had been brutally raped, the learned
Judge should have realised that it would be inhuman to separate such a tender-aged girl from
her parents and send her to a safe home. It was apparent from the records that the girl was
crying to go to her mother and the mother was crying to have her back home, and the Court
opined that this must be sufficient notice to anyone that the girl is required to be given to the
custody of her parent. In addition to this, the Court noted from the order sheet of the learned
Magistrate that on 07.04.2009 there was a written application made by the Officer-in-Charge
of the police station to allow the mother of the victim to stay with her in the safe home. The
Court was of the view that at that stage it should have been clear to the learned Magistrate that
the parents of the girl were eager to have her custody, and as such, should have released the
girl to the custody of her parents.
The Court was of the view that the learned Senior Judicial Magistrate, 2nd Court, Sylhet was
also under a misconception of the law when he seemingly passed an order for keeping the girl
in safe custody when the law required that the safe custody should be only the last resort and
the parents, if they are fit and capable, should get precedence so far as custody of the victim
girl is concerned. It was the finding of the Court that the learned Magistrate, who believed that
an application from the parents was necessary, and under that misconception ordered the girl
to be held in safe custody, acted illegally and inhumanely under the facts and circumstances of
the case. The Court opined that the best interests of a seven year old child can only be served
when she is allowed to remain in the custody of her parents.
The honble Court discussed at length the relevant provisions of the law and international
instruments to which Bangladesh is a signatory. In this regard the Court referred to the
decision in the case of Hussain Muhammad Ershad Vs. Bangladesh and others, 21
... although the provisions of BLD (AD) 69, where his Lordship B.B. Roy Chowdhury, J.
international instruments pointed out that although the provisions of international
are not binding unless they instruments are not binding unless they are incorporated in
are incorporated in the the domestic law, they
domestic law, they should should not be ignored. His .. beneficial provisions of the
not be ignored. international instruments
Lordship went further to say should be implemented as is
that beneficial provisions of the international instruments the obligation of a signatory
should be implemented as is the obligation of a signatory State.
State. The Court further noted the case of State Vs. Metropolitan Police Commissioner, 60
DLR 660 in which it had stated that as signatory Bangladesh is obliged to implement the
provisions of the CRC, and that if the beneficial provisions of the international instruments
do not exist in our law and are not in conflict with our law, then they ought to be implemented
for the benefit and in the greater interests of our children.
66
The honble Court was of the opinion that the neglect of the Bangladesh Government to
implement the provisions of the CRC has led to numerous anomalies in our judicial system
when dealing with cases where an offender and/or the victim are children. The Court cited the
example of the Railways Act, 1890 where in section 130 (1) the provisions of sections 82 and
83 of the Penal Code have been overridden, thus making children below the age of 9 years
liable to be prosecuted and punished for offences under the Railways Act. The Court was of
the view that such glaring discrepancies were a result of the lack of proper assimilation of our
laws. The Court also referred to another glaring anomaly, in the Children Rules, 1976 where
the punishment that can be awarded to a child who attempts to run away in violation of the
Code of Conduct of the Detention Centre, is caning, which is in contradiction with the UN
Instrument relating to punishment for children and the prohibition of corporal punishment.
The honble Court recommended that immediate steps must be taken by the Government to
enact laws or amend the existing law in order to ensure implementation of all the provisions
of the CRC, which are beneficial to children and also to minimise the anomalous situations
which arise when dealing with children.
The Court recommended that in order to avoid further complications in the proper
application of the existing laws, certain Articles of the CRC must be assimilated into our
national law: to ensure that the definition of child is uniformly fixed in all statutes as anyone
below the age of 18 years [Art.1 CRC]; the date relevant for considering the age of the accused
is the date of commission of the offence, which is fundamental to the concept of protection
of children who are not fully mature and do not appreciate the consequence of their actions
[explained in detail in the Roushan Mondal case]; in all matters where a child is an accused,
victim or witness, the best interests of the child shall be a primary
... there must be a
consideration [Art.3 CRC]; that a childs views shall be considered by Court designated
the Court [Art.12 CRC]; in ALL cases where a child is accused of as being dedicated
commission of any offence under the Penal Code or under any special to hear cases
law he is to be tried by a Juvenile Court or any other appropriate Court involving children
or Tribunal in accordance with the provisions of the Children Act and [Art.37(d)CRC]...
Children Rules [discussed in Roushan Mondal]; the use of children for the purpose of
carrying drugs or arms or in any other activity which
... Legal Aid must be made exposes them to physical and moral danger or any harm
available in all matters involving must be made a criminal offence to be tried under the
children so that no child
remains unrepresented
Children Act [Art.33 CRC].
[Art.40(2)(b)(ii)CRC]. The honble Court opined that until such time as Juvenile
... Probation Officers should be Courts are set up in each district, there must be a Court
designated as being dedicated to hear cases involving
available on call round the

clock in all parts of the country children [Art.37(d) CRC], otherwise the requirement of
to enable proper and effective the law to have expeditious hearings will be frustrated.
implementation of section 50 The Court further stated that Legal Aid must be made
of the Children Act. Similarly,
places of safety must be set up.
available in all matters involving children so that no child
remains unrepresented [Art.40(2)(b)(ii)CRC]. Also,
67
Probation Officers should be available on call round the clock in all parts of the country to
enable proper and effective implementation of section 50 of the Children Act. Similarly,
places of safety must be set up, at least one in every district and local health clinics must be
empowered for the purpose of medical examination of victims so that the need to detain
victims in custody will be considerably reduced.
The Court noted that when it comes to children committing
Courts should at all
more serious crimes, they are tried effectively as adults and the
times consider the
best interests of child are not taken into consideration in reasons behind the
practice. This goes against Article 3 of the CRC for State deviant behaviour of the
Parties to ensure that in all actions concerning children taken by child and after taking
institutions, including Courts of law, the best interests of the into account all the
child shall be a primary consideration. The Court stated that attending facts and
circumstances decide
Courts should at all times consider the reasons behind the
what treatment would
deviant behaviour of the child and after taking into account all be in the best interests
the attending facts and circumstances decide what treatment of the child.
would be in the best interests of the child.
The Court was of the opinion that the learned Judge should have taken into account the childs
view with regard to custody, in compliance with international provisions, which are meant to
be for the welfare and wellbeing of children. Further, the Court felt that the tearing away of a
seven year old female child from the bosom of her mother can be nothing other than cruel
and inhuman treatment which is contrary to Article 27 of the CRC as well as Article 35(5) of
our Constitution. The Court found that the learned Magistrate had acted in contravention of
the provisions of law, the Constitution and the CRC, to which Bangladesh is a signatory, and
as such had caused immeasurable human suffering to the victim girl and her parents. The
Court concluded that the lower judiciary is not sensitised enough nor sufficiently aware of
relevant provisions of law to cope with a situation of this nature.
Directions
The honble Court made the following general and specific recommendations:
1. First and foremost, we feel that for proper appreciation of the provisions relating to
justice for children, it is essential that all persons concerned with children, including
the concerned Government officials of the relevant Ministries and officials of the
concerned Government Departments, law enforcing agencies, the judiciary,
personnel in the detention and penitentiary system as well as community leaders and
local government officials must be aware and sensitised to the needs of children in
contact with the law.

2. Initial training and all subsequent refreshers training/courses for Judges, Judicial
Magistrates and Executive Magistrates should include the concept and practice of
Justice for children as a separate topic giving it proper importance.
68
3. Establishment of child-specific Courts in every district which will be dedicated to

cases relating to children and will deal with cases involving children on a priority basis
and other cases only if there is no outstanding case of a child.
4. There is a patent need for a child-sensitive specifically trained Police force. Each Police
Station shall have at least two officers, of whom one shall be a female, to deal with
cases involving children in contact with the law. That officer shall be designated as a
focal point for children in conflict/contact with the law who shall deal with all cases
relating to children as far as practicable. The training courses of the members of the
law enforcing agencies must include justice for children as a separate subject focusing
on their duties and obligations under the law.
5. Detailed separate Rules under the Children Act, 1974 should be formulated and
incorporated therein, which will deal with victim children and will specifically
determine the duties and responsibilities of police officers, probation officers, the
Court and others concerned in dealing with them.
6. It is time for Bangladesh to live up to its promises to set up a Childrens
Commission/Childrens Ombudsman. Alternatively, a National Juvenile Justice
Forum, which are in vogue in certain countries, may be set up under the
Chairmanship of a senior sitting Supreme Court Judge. The practical benefit would
be that the Forum may be empowered to issue directions and guidelines to the
subordinate judiciary and other bodies regarding any issues relevant to justice for
children. Such an institution shall be set up under the Constitution giving it specific
powers to issue in guidelines/handbook relation to matters concerning justice for
children. Such guideline shall be adopted by the Ministries concerned with justice for
children and shall be translated into Bangla and disseminated to all the relevant bodies
and institutions, including the police and other law enforcing agencies, probation
service, prison service, Social Welfare Department, Courts and tribunals.
7. A summary of the said guideline (to be followed by the members of the police and
other law enforcing agencies with respect to the treatment of children in
contact/conflict with the law) should be displayed in prominent places of police
stations.
8. Each police station shall display in a prominent place the names and contact numbers
of Probation Officers, Doctors on duty, places of safety, approved homes, certified
institutions and NGOs working in the area.
9. In the police station, children shall be kept separately from adult accused persons.
10. Police officers should work in close cooperation with Probation Officers, the safe
homes and NGOs working in the field in the local area so that protection, safety and
well-being of a victim child can be provided without any delay.
69
11. As soon as a victim child is brought before the police station, or the police are
informed about the whereabouts of a victim child, the Probation Officer should be
informed.
12. The Probation Officer shall visit the victim child without any delay. He shall assist the
police officer in determining whether the child needs medical treatment or
examination and whether the child is safe with its parent or guardian. Where
necessary the child shall immediately be taken to the nearest clinic or hospital. If
medical examination cannot be done on the same day, the police officer concerned
shall record reasons for the same.
13. When a child is brought before the Police Station or the Court, it shall be the duty of
the police officer or the Court to determine whether it is safe for the child to return
with the parent or guardian. If required, the child shall be asked about these matters
confidentially and without presence of its parent or guardian.
14. A child shall not be separated from its parent or guardian save in exceptional cases.
These will include cases where the parent or guardian is unavailable or where the
threat of safety comes from the parent or guardian or where the parent or guardian is
unable to provide safety to the child from any impending threat.
15. In the absence of a parent or guardian, a relative or other fit person may be entrusted
to keep the child in safety.
16. Where appropriate, the child may be taken to a place of safety by the Probation
Officer himself under section 55 of the Children Act.
17. The Government must provide sufficient number of places of safety, at least one in
every district, so that such a place of safety is easily accessible from any part of the
country.
18. While separating the child from its parent or guardian, the police officer, the
probation officer or the Court must record the reasons thereof.
19. When it is necessary to separate a child from its parent or guardian, in exceptional
cases and where the situation demands, the guidelines under sections 55 and 58 of the
Children Act, should be strictly followed. Accordingly-
a) A probation officer or a police officer can take a child to a place of safety and detain
the child for a period of not more than 24 hours before producing the child before
the Court. (Section 55 of the Children Act).
b) Once produced before the Court in connection with any offence under the
Children Act, before institution of proceedings, the Court may make such order as
the circumstances may admit and require for the care and detention of the child
(section 56 of the Children Act).
70
c) After institution of proceedings, the child shall be produced before the Court and
the Court may commit the child to the care of any relative or fit person, or to a
certified institute or approved home. The conditions as provided in section 58 of
the Children Act shall be strictly followed.
d) Where the parent/guardian is fit, capable and willing to take custody of the child
then the Court shall hand over custody to the parent/guardian. The reasons for not
doing so must be clearly stated by the Judge.
20. Under the Children Act, 1974 and under the system of Justice for children there is no
requirement for anyone, including the parent or guardian, to apply before the Court
for any relief. It is the duty of the Court to ensure compliance of the law in the best
interests of the child.
21. Children shall be given special preference in getting legal aid under the IJAjVf xyJ~fJ
khJj IJAj, 2000 and for this purpose appropriate instructions shall be given by the
government to the District Legal Aid Committee.
22. Bangladesh Bar Council should develop a training manual for newly enrolled lawyers
to include Justice for Children as a separate subject for better understanding of child
protection and development of child rights and its different mechanisms where it
should explain their role and responsibility, concept of child rights and United
Nations Child Rights Convention and other international instruments.
23. The Judicial Administration Training Institute (JATI) should undertake training
programmes for Judges and Magistrates, including follow-up training for senior
Judges regarding Justice for Children and, in particular training regarding the
provisions of the Children Act, 1974, the Children Rules, 1976 and relevant UN and
other international instruments.
24. The Ministry of Women and Children Affairs and Ministry of Social Welfare should
provide training for their own officers as well as for Probation Officers, Managers and
concerned staff employed in the safe homes and other places used for detention of
children.
25. The Government should ensure training in good parenting and for awareness
development in the community to establish child protection and rehabilitation of
deviant children in the community.
26. The Government must take positive steps for dissemination of materials regarding
child rights in order to ensure awareness of all concerned with children in contact
with the law through the print media as well as the electronic media, including
television and radio.
27. Laws are required to be formulated for victim and witness protection in order to avoid
71
harassment of the victim children and to ensure effective prosecution of offenders,

keeping in mind the need to maintain confidentiality, privacy and dignity.
28. Informal atmosphere should be ensured in Juvenile Courts in order to protect
child/youthful offenders, child victims and witnesses. Presence of police should be
avoided, unless it is felt necessary for the protection of the child offender, victim or
witness. Judges/lawyers should not wear uniform during trial.
29. The concerned Ministries should consider the need to formulate community based
committees to develop child protection mechanisms, skill development training, and
training in child rights.
30. The State through its relevant Ministries shall take necessary steps to identify children
at risk of committing offences and at risk of being exploited by adult criminals for
criminal activity, i.e. young children engaged in theft, robbery, picketing, vandalism, as
carriers of drugs and arms, explosives, member/informer of criminal gangs and
suicide squad and should identify the reasons behind the criminal activities of
children and address the root cause of such deviant behaviour.
31. The concerned Ministries shall take appropriate measures to form, strengthen and
activate Upazila/Union/Ward level child protection motivational committees and
community based committees set up for ensuring and monitoring child protection in
their locality.
32. The Government should take steps for setting up a system and mechanism for the
rehabilitation of victims of crimes.
33. It is therefore imperative that the Government take immediate steps to amend the
existing laws or formulate new laws in order to overcome the anomalies and
procedural knots as highlighted above as well as to enable implementation of the
provisions of the international instruments which will undoubtedly be beneficial to
the children of this nation, thus fulfilling our obligations under international treaties
and covenants.
72
Bangladesh National Woman Lawyers Association (BNWLA) V
Govt. of Bangladesh (Writ Petition No.8769), 31 BLD 324
This was an application by way of Public Interest Litigation (PIL), filed by the Bangladesh
National Woman Lawyers Association (BNWLA), concerning the phenomenon of
stalking/eve teasing which is being faced by the girls and women of our society.
It was submitted by the learned advocate that the scenario has now gone out of proportion in
that the matter is not simply restricted to eve teasing, which has been long recognized, but has
taken a turn whereby the persons who are related to the victim girls and women are also being
targeted by the perpetrators and are being physically assaulted. She pointed out that in the past
the victims escaped their humiliation by taking their own lives, but now not only the victims
are suffering and sometimes committing suicide, but their relatives are under constant threat
from the perpetrators and have on occasions in the recent past been hounded and murdered
because they protested against the menace of eve teasing. She pointed out recent articles in the
newspapers regarding a girl who was forcibly taken away by stalker and locked inside his room,
having put vermillion on forehead thereby indicating his conjugality with her. The girl out of
shame committed suicide by hanging herself.
The honble Court issued a Rule Nisi calling upon the respondents to show cause as to why
they should not be directed to enact guidelines, or issue policy statement or specific legislation
to address the issue of sexual abuse, sexual harassment, eve-teasing, stalking in order to
protect and safeguard the rights of the women and girls in our society in their homes and on
their way to and from education institutions/schools/colleges and other public places
wherever necessary, and/or such other or further order or orders passed as to this Court may
seem fit and proper.
In the interim the honble Court gave the following directions:

i) the Inspector General of Police (IGP) is hereby directed to take immediate steps to
apprehend all stalkers/eve-teasers who physically, psychologically, emotionally or
sexually abuse or harass women and children, in particular those against whom any
allegation is made of harassing/stalking girls and women in any place including at their
homes, in the streets, work places and other public places.
ii) the respondent No.1 is directed to issue immediate instructions to all the Deputy
Commissioners throughout the country and all Upazilla Nirbahi Officers to be on high
alert and to deal with this particular menace of stalking/eve-teasing and sexual
harassment separately and independently of any other crime and to take appropriate
and immediate action against the alleged offenders.

iii) the Secretary, Ministry of Home Affairs and the Inspector General of Police are hereby
directed to take immediate steps to direct the Superintendent of Police of every
73
31 BLD 324B BNWLA v Govt. of Bangladesh
District as well as the Officer-in-Charge of the Police Stations to take appropriate and
immediate steps for providing protection to the family members as well as the civil
society who come forward to assist in the event of any eve teasing, to ensure that no
harm may come to them through any reaction by the stalkers/eve teasers.
iv) the respondents No.3 and 4 are hereby directed to take steps to ensure that the media,
including the electronic media, namely radio and television to broadcast the
seriousness of the menace of eve-teasing and stalking and also to notify the severe
consequence that may be brought upon the perpetrators. The respondents No.3 and 4
may also engage the NGOs and civil society in order to make the general public aware
of the menace which now besieges us. The community must also be told how best to
protect themselves.
In view of the peculiar nature of the offence, the honble Court was of the view that the
existing laws in the Penal Code and DMP Act and the Nari-o-Shishu Nirjatan Ain are not
sufficient to deal with the situation which has in the recent months blown out of proportion.
The Court stated that this is a peculiar situation which must be catered for by appropriate and
specific laws, rules and regulations. The Court therefore directed the respondent No.2 in
consultation with the respondents No.3-7 to take immediate steps for formulating specific
laws to counter the menace of eve teasing/stalking, and sexual abuse and harassment, keeping
in mind that in the prevailing situation deterrence should be the aim of the new law.
74
The State - Versus- The Secretary, Ministry of Home Affairs, and
others (Suo-Motu Rule No.01 of 2010), 30 BLD 265
This was a Suo Motu Rule issued in response to a newspaper report appearing in the Daily
Prothom Alo of 25.01.2010, which was brought to the notice of the Court by Ms. Fahima
Nasrin, learned advocate of the Supreme Court and Vice President of the Bangladesh
National Woman Lawyers Association (BNWLA).
Facts
The report showed a picture of three very young children, two boys and one girl, alleged to be
aged 14, 9, and 7 years respectively. They were apprehended by the Bhairab Railway Police for
having in their possession a total of 3kg of hemp (ganja) and were being held in jail custody.
In the affidavit in opposition the Secretary, Ministry of Home Affairs confirmed that the three
children were arrested on 22.01.2010 by on-duty police party comprising one Habilder and
three Constables of GRP, and two Ansar personnel. The children had in total 3 kg ganja taped
with a bandage to their bodies. He further reported that the children were enlarged on bail on
25.01.2010 by the learned Judicial Magistrate, Court No.2, Kishoregonj. He also narrated that
the Superintendent of District Jail, Kishoregonj reported that the two boys were kept in the
juvenile ward where there is capacity to keep five children in the jail and the seven year old girl
was kept in the female ward inside the jail (Kishoreganj District Jail).
The honble Court noted that fact that the law enforcing agencies are unaware of the
fundamental laws of the country, namely the Penal Code (section 82) which provides as
follows:
"82. Nothing is an offence which is done by a child under nine years of age."
Pursuant to this provision, a child below the age of nine years could not be arrested under any
circumstances, since that child would be immune from prosecution.
The honble Court then looked at section 13(2) of the Children Act, which provides that:
"13(2) Where the child is arrested, the officer in charge of the police-station to which he is brought
shall forthwith inform the parent or guardian, if he can be found, of such arrest,......"
The Court noted that from the records there was no evidence that the police personnel
involved in the apprehension and arrest of the children or the Officer in Charge of the police
station (OC) were at all aware of the provisions of the Penal Code or the Children Act. The
Court emphasised that these were mandatory provisions which the authorities are bound to
follow, and which the police had failed to follow in this instance.
The honble Court further considered section 2(j) of the Act which provides as follows:
(j) place of safety includes a remand home, or any other suitable place or institution, the occupier
suitable place or institution is not available, in the case of a male child only, a police station in which
75
30 BLD 265 The State - Versus- The Secretary, Ministry of Home Affairs, and others
offenders;
The Court stressed that there is no provision in the Act for keeping a female child in the police
station overnight, and as such, the girl was kept in unlawful custody overnight. The Court
further went on to state that even in the case of a male child, the section provides that such
child may be kept in the police station overnight, if there is room to keep him separate from
other offenders.
The Court expressed the view that the police personnel must be more alert with regard to the
provisions of law.
The Court further noted the lack of appreciation on the part of officials that matters
concerning children should get priority, from the fact that the children, who were arrested on
22.01.2010, were produced before the learned Magistrate on 23.01.2010 at 5 p.m., and not
earlier.
The Court looked at the order sheet dated 23.01.2010 in which the learned Senior Judicial
Magistrate (in charge) had recorded as follows:
Magistrate should have
reprimanded the police
officer for arresting children
who are incapable of
committing an offence and
should have directed the
The honble Court stressed that when the learned Magistrate
children to be taken back to
becomes aware that a child is below the age of nine years or their parents forthwith.
a child between the age of nine and twelve years is not able
to fully understand the consequence of his act, then he should have immediately realised that
no offence could have been committed and he should have immediately released the two
children, who were obviously not capable of committing an offence under the law. The Court
continued that the learned Magistrate should have reprimanded the police officer for arresting
children who are incapable of committing an offence and should have directed the children to
be taken back to their parents forthwith.
The Court reiterated that when a child is exempt from prosecution either under section 82 of
... when a child is exempt from
the Penal Code or upon inquiry under section 83 of the
prosecution either under said Code, no question of arrest, custody or handing
section 82 of the Penal Code or over on bond at all arises. As such, it was wrong for the
upon inquiry under section 83 Magistrate to expect that anyone would apply for the bail
of the said Code, no question of or custody of those two children, and the Court opined
arrest, custody or handing over that they should have been sent to their parents
on bond at all arises. As such, it

was wrong for the Magistrate to
immediately.
expect that anyone would apply The Court further opined that the learned Magistrate
for the bail or custody of those was ignorant of the provisions of section 2(j) of the Act,
two children. given that he had considered a prison should to be a
76
The State - Versus- The Secretary, Ministry of Home Affairs, and others 30 BLD 265
place of safety. The Court pointed out that from the year 2003 the High Court has laid down
that no children, even after conviction, should be found in the jails. It also indicated that the
learned Magistrate could have found another suitable place, for example the Kishore Unnayan
Kendra in Gazipur, which was a mere one and half hour's distance by road.
The Court then looked at the bail application which was moved on behalf of the three
children on 24.01.2010. The Court stated that an application for bail is only warranted when a
person, against whom an allegation of criminal offence is brought, is at all liable to be
apprehended, prosecuted and kept in custody. No question of bail otherwise arises. In such
view of the matter the Court stated that the granting of
...an application for bail is only
bail to a seven year old and nine year old, who has no warranted when a person,
understanding about the offence, is unwarranted. against whom an allegation of
The Court further noted from the order of the learned criminal offence is brought, is at
Magistrate dated 24.01.2010 that instead of assisting the all liable to be apprehended,
prosecuted and kept in custody.
Court in releasing the two non-prosecutable children, No question of bail otherwise
the learned advocate appearing on behalf of the State, arises. In such view of the matter
rather drew the Courts attention to the fact that it was a the Court stated that the
case under Narcotics Control Act, thereby hinting at the granting of bail to a seven year
gravity of the offence. The Court stressed that the old and nine year old, who has
learned Public Prosecutor (PP) or anyone appearing on no understanding about the
offence, is unwarranted.
his behalf is equally liable to have a thorough knowledge
of the provisions of law and to act in accordance with the law and, above all, to ensure that all
others, including the investigating agencies and the judiciary, are made aware of the relevant
provisions of law. It is his duty to assist the Court to come to a just and fair decision in
accordance with the law. The Court expressed the view that the learned advocate appearing for
the State was ignorant of the law. The Court further expressed its astonishment at the fact that
when the matter was transferred to the Senior Judicial Magistrate, and the learned advocate
appearing on behalf of the three children produced their Birth Registration Cards, from which
it was apparent that the eldest child was aged 13 years and two younger ones were 8 years
and 6 years respectively, the learned Senior Judicial Magistrate still refrained from releasing
the two children aged 8 and 6 years from the binds of a criminal proceeding.
The honble Court was informed by learned advocate Ms.
...there are in existence a Fahima Nasrin that as a result of the Suo Motu Rule
National Task Force (NTF) and issued by the High Court Division in 2003, there are in
District Task Force (DTF) whose
duty it is to meet regularly in
existence a National Task Force (NTF) and District Task
order to see that no children are Force (DTF) whose duty it is to meet regularly in order
languishing in the prisons. to see that no children are languishing in the prisons. The
Court expressed the view that such task force should also
take upon themselves the duty to ensure that whenever any child is apprehended, an
alternative place of custody is available for her/him in the immediate vicinity, so that even at
the weekend or any odd hour of the night children may be placed in a place of safety in
77
30 BLD 265 The State v The Secretary, Ministry of Home Affairs, and others
accordance with law, rather than in the police station or in the prison
Keeping children in
in breach of law. Keeping children in a prison in so-called safe
a prison in so-called
custody is not contemplated by the law and must at all times be safe custody is not
avoided. contemplated by the
The Court stated that the children wing of the prison is meant for law and must at all
times be avoided.
children who have been convicted and who cannot be placed in
detention in any certified institute in accordance with the law. It is not meant to be used for
children who are kept on remand or simply kept overnight as a place of safety. The prison
cannot in any event be classified as a place of safety. The Court further stressed that the
keeping of a seven year old girl in the female ward of the prison is not sanctioned by the law
The Court stated that the and must be avoided at all costs. The Court reminded us
children wing of the prison is that the law requires that children kept in any
meant for children who have confinement, must be kept separate from adults and
been convicted and who cannot convicted prisoners should not be allowed to mix with
be placed in detention in any those under trial.
certified institute in accordance
with the law. It is not meant to As a final point, the honble Court pointed out that
be used for children who are section 17 of the Act prohibits the publicity in relation to
kept on remand or simply kept any child who is involved in any case or proceeding in
overnight as a place of safety. any Court under the Children Act, which leads directly
The prison cannot in any event or indirectly to the identification of such child, nor shall
be classified as a place of safety.
any picture of such child be published. While the Court
appreciated the fact that the newspaper had brought to the notice of the public at large the
illegality committed by the law enforcing agencies and the judiciary, it directed them to refrain
from identifying children who are alleged to have committed criminal offences and were again
reminded of provision 17 of the Children Act and the sanction for breach of that section as
provided under section 46 of the Children Act.
78
The State -Versus-The Secretary, Ministry of Home Affairs, Bangladesh
Secretariat, Dhaka and others (Suo-Motu Rule No.15 of 2010), 19 BLT 376
This was a Suo Motu Rule issued in response to a report in the Daily Star published on
29.09.2010 under the caption Keep child prisoners in correction centres instead of jails.
Facts
The Rule was issued on that date directing the Secretary, Ministry of Home Affairs and the
Inspector General of Prisons to report to the Court within two weeks specifying where the
145 children were being held and by order of what authority they were being so held. The
Secretary, Ministry of Social Welfare was also directed to furnish a list of all remand homes
and places of safety within the country under the control and supervision of the said Ministry.
According to the newspaper report 145 children were being held in 67 prisons within the
country.

The honble Court stated that it is a fundamental aspect of the Children Act that children are
not to be kept in custody within the prisons, during the pendency of any trial of the child. The
Court highlighted the proviso to section 497 of the Code of Criminal Procedure, which
permits the Court to enlarge any child alleged to have committed a non-bailable offence on
bail. The Court further looked at section 49(2) of the Children Act, which provides that if the
Court does not grant bail, then the child shall be ordered to be detained in a remand home or
place of safety, defined under section 2(j) of the Children Act as follows:
2(j) place of safety includes a remand home, or any other suitable place or institution, the occupier
suitable place or institution is not available, in the case of a male child only, a police-station in which
offenders.
The honble Court noted that a Court has no

Court has no authority whatsoever authority whatsoever to send any child during the
to send any child during the pendency pendency of a trial to be held in custody within
of a trial to be held in custody within
any prison. The definition of a place of safety in
any prison.The Definition of a place of
safety in the Act makes no mention to the Act makes no mention to the effect that any
JUSTICE FOR CHILDREN IN BANGLADESH
the effect that any prison will be a prison will be a place of safety for any child. The
place of safety for any child. Court further stressed that there is no provision
within the Children Act or any other law which
permits any judge to send a child during the pendency of a trial to be held in custody within
any prison.
79
The State v The Secretary, Ministry of Home Affairs, Bangladesh Secretariat, Dhaka and others 19 BLT 376
Looking at the issue of safe homes, the Court pointed out

that while there are a number of safe homes provided for the [The Court] recommended
purpose of housing women and female children in some that the government must
parts of the country, there are no safe home or places of provide sufficient numbers
of safe homes within an
safety provided for male children throughout the country. accessible distance of every
The Court highlighted its judgement in the case of State v. District.
Secretary, Ministry of Law, Justice &
Parliamentary Affairs and others, 29 BLD 656, where it had recommended that the
government must provide sufficient numbers of safe homes within an accessible distance of
every District. The Court reiterated its recommendation that unless sufficient numbers of
safe homes are provided for housing children, who are not granted bail, particularly male
children, then injustice will be done.
The honble Court stressed that the learned Judges must be aware that children cannot under
any circumstances be kept in prison pending trial. Further, they opined that it is the
responsibility of the Department of Social Welfare to provide either a safe home, remand
home or any other suitable place where children who have come into contact with the law may
be kept during the pendency of their trial, if they are at all to be kept in custody.
In conclusion the Court held that these children held in the prisons, whose age is below 16
years, are being held there illegally and without lawful authority and are to be removed from
prison forthwith.
80
The State Versus- The Metropolitan Police Commissioner,
Khulna and others (Suo-Motu Rule No.04 of 2008), 60 DLR 660
This was a Suo Motu Rule issued in response to a newspaper report published in the Daily Star
dated 22.04.2008, under the caption 8-yr-old sued, sent to jail for drug trade. The alleged
offender was reported to be aged only eight years and, therefore, not liable for criminal
prosecution, and as such, the honble Court issued Rule Nisi calling upon 1. The Metropolitan
Police Commissioner, Khulna, 2. Chief Metropolitan Magistrate, Khulna and 3. Sub-Inspector
Ashim Kumar Das, of the Detective Branch, Khulna Metropolitan Police to show cause as to
why they would not be directed to explain under what authority a criminal case had been
started against a minor girl of 8 years of age and under what provision of law she was
arrested and detained in custody in the District Jail, Khulna and why the minor girl should not
be paid compensation for her illegal arrest and detention, and why the compensation would
not be directed to be paid from the personal funds of those found to have acted in violation
of the laws of the land.
Facts
On 20.04.2008 a young girl by the name of Arifa, daughter of Rajab Uddin of village Bhomra,
District-Shatkhira, along with one Ripon, was caught red-handed having in her possession 29
bottles of phensedyl, which were strapped to various parts of Arifas body. Police seized the
incriminating articles in the presence of witnesses and produced Arifa and Ripon before the
Magistrate on 21.04.2008. The informant stated in the F.I.R. that Arifa was 10 years old. The
learned Magistrate, upon perusing the F.I.R. and the forwarding of the Investigating Officer,
sent Arifa and Ripon to jail custody. Subsequently a prayer was made for their bail, which was
opposed by the prosecution and rejected by the learned Magistrate. However, Arifa was
directed to be sent to safe custody.
Findings and discussions
...given the fact that [the police officer]
The honble Court discussed the lack of deemed her to be 10 years of age, once
knowledge of the law on the part of the law he had arrested her, he could and
enforcement officers. The Court expressed the should have tried to locate the girls
opinion that although the police officer who parents which he did not do. The Court
pointed out that there is a clear
arrested Arifa was not at fault in doing so, given mandate in section 13(2) of the Act,
the fact that he deemed her to be 10 years of age, 1974 to do so.
once he had arrested her, he could and should
have tried to locate the girls parents which he did not do. The Court pointed out that there is
a clear mandate in section 13(2) of the Act, 1974 to do so.
The Court observed that the police officer, who forwarded Arifa to the Court of learned
Metropolitan Magistrate, had observed that Arifa was a 10 year old child and accordingly she
must be dealt with under the provisions of the Act, 1974. However he then went on to pray
that the accused be kept in jail custody till the conclusion of the investigation and he strongly
opposed her release on bail. The Court opined that this demonstrated a deplorable lack of
knowledge of the Children Act, and noted that the officer in question required more training
and better knowledge about the provisions of the Children Act.
81
The State v The Metropolitan Police Commissioner, Khulna and others 60 DLR 660
The honble Court also considered the issue of bail, and

... at the very first instance, the
stated that at the very first instance, the police officer police officer dealing with the
dealing with the child has a responsibility to consider child has a responsibility to
bail. If the offence alleged is bailable, then bail is to be consider bail. If the offence
granted as of right. The Court referred to section 48 of alleged is bailable, then bail is to
the Act, 1974, under which the officer has to consider be granted as of right.
bail even if the child is arrested of a non-bailable ... the officer has to consider bail
offence. Section 48 of the Act provides as follows: even, if the child is arrested of a
non-bailable offence.
48. Bail of child arrested.- Where a person
apparently under the age of sixteen years is arrested on a charge of a non bailable offence and cannot
be brought forthwith before a Court, the officer in charge of the police station to which such person is
brought may release him on bail, if sufficient security is forthcoming, but shall not do so where the
release of the person shall bring him into association with any reputed criminal or expose him to
moral danger or where his release would defeat the ends of justice.
The Court also looked at section 49 (1) of the Act, 1974, dealing with the custody of a child
not released on bail, which provides as follows:
49. Custody of child not enlarged on bail.- (1)Where a person apparently under
the age of sixteen years having been arrested is not released under section 48, the officer-in-charge of
the police-station shall cause him to be detained in a remand home or a place of safety until he can be
brought before a Court.
The Court noted that there was nothing on record to suggest that Arifa was sent to any
remand home or place of safety either on 20.04.2008 or after she was produced before the
Magistrate on 21.04.2008. The Court further noted that both the police officers appeared to
have been totally oblivious of the provisions of section 50 of the Act, 1974, which provides
as follows:
50. Submission of information to Probation Officer by police after
arrest.- Immediately after the arrest of a child, it shall be the duty of the police officer, or any other
person affecting the arrest to inform the Probation Officer of such arrest in order to enable the said
Probation Officer to proceed forthwith in obtaining information regarding his antecedents and family
history and other material circumstances likely to assist the Court in making its order.
It also appeared to the Court that the police officers had ignored the provisions of section
13(2) of the Act, which provides as follows:

13(2) Where the child is arrested, the officer in charge of the police station to which he is brought
shall forthwith inform the parent or guardian, if he can be found, of such arrest, and shall also cause
him to be directed to attend the Court before which the child will appear and shall specify the date of
such appearance.
82
60 DLR 660 The State v The Metropolitan Police Commissioner, Khulna and others
The Court observed that in addition to their failure to comply with the above provisions of
law the police made no attempt to inform a probation officer, which is the requirement of
section 50, as quoted above.
It also appeared to the honble Court that the learned Additional Chief Metropolitan
Magistrate also failed to consider the provisions of the Act, 1974. The learned CMM points
out that the accused was not brought before the Court, which is not borne out by the order
sheet. He also states that in Khulna Jail there is a separate ward for the safe custody of accused
women and children. There is nothing on record to indicate that Arifa was ordered to be kept
in safe custody separately from other adults. On 22.04.08 an application for bail was filed,
which was kept for hearing on 23.04.08. In such situation section 49(2) of the Act, 1974 is
applicable, which provides as follows:
49(2) A Court, on remanding for trial a child who is not released on bail, shall order him to be
detained in a remand home or a place of safety.
The Court emphasized that as soon as a child is brought before the Court the Judge should
automatically realize that provisions of the Children Act are applicable and he should
immediately consider all possible means of releasing the child, unless there is good reason to
keep her/him in detention. The Court further observed the failure of the learned Additional
Chief Metropolitan Magistrate to consider the proviso to section 497 of the Code of
Criminal Procedure, which allows granting of bail to a child even in cases involving non-
bailable offences. The order sheet of the learned Additional Chief Metropolitan Magistrate
shows that on 21.04.08 Arifa was sent to jail custody with a custody warrant. On 23.04.08 Arifa
was ordered to be taken to safe custody. No mention was made that she must be kept
separated from adult detainees. Also there is nothing on record to indicate that any other steps
were taken to ascertain alternative measures regarding her custody.
While the Court appreciated the fact that the CMM appeared to have appointed a probation
officer, this was not done by the police at the time of arrest as required under section 50 of
the Act, but was only done a month later when Arifa appeared before the CMM.
The honble Court observed that in view of the fact that she was found by the learned CMM
to be above nine years of age, the Court is then bound to
...in view of the fact that
consider application of section 83 of the Penal Code to the facts
she was found by the
learned CMM to be of the case. Section 83 provides as follows:
above nine years of age, 83. Nothing is an offence which is done by a child above nine
the Court is then years of age and under twelve, who has not attained sufficient
bound to consider
maturity of understanding to judge of the nature and consequence
application of section
83 of the Penal Code to of his conduct on that occasion.
the facts of the case.
83
The Court expressed the view that where the accused is barely
above the age of full exemption from criminal prosecution, it ... where the accused is
barely above the age of
would be incumbent upon the Court to ascertain that the
full exemption from
accused understood that the item she was carrying was criminal prosecution, it
contraband, that what she was doing was illegal, that she would be incumbent
appreciated the consequence of supplying the item to others, upon the Court to ascer-
and whether she was at all aware of the effect of drugs and tain that the accused
whether or not she was simply obeying the orders of her understood that the item
she was carrying was
elders out of deference or fear. The Court must consider
contraband, that what she
whether the accused child is capable of having the mens rea to was doing was illegal, that
commit the offence alleged. However, the honble Court she appreciated the
emphasized that these were general comments and stated that consequence of supplying
it is for the Court dealing with any particular case to consider the item to others, and
all the relevant legal provisions and all the prevailing whether she was at all
aware of the effect of
circumstances before reaching any decision on the issues
drugs and whether or not
raised in the case. she was simply obeying
The Court went on to consider the issue of bail in greater the orders of her elders.
depth, and observed that the underlying theme of
international covenants and instruments relating to children is that they are to be enlarged on
bail and to be detained only as a last resort. This is in addition to section 49 of the Act, 1974
which provides that if a child, who is accused of an offence, is not released on bail then the
Court shall order him/her to be detained in a remand home or a place of safety. The Court
stated that if the learned Judge, before whom the matter appears for trial, feels inclined, he
may consider the bail matter, particularly bearing in mind the probable unsuitability of safe
home atmosphere for a child of such tender age. However, the bail may be subject to custody
of the girl being given to any person considered suitable by the learned Judge. The Court, in
all circumstances, must ensure the best interests of the child.
The Court stated that under normal circumstances any child ordered by the Court to be
enlarged on bail would go to the parents. The Court looked at the United Nations Convention
on the Rights of the Child (UNCRC), to which Bangladesh was one of the first signatories and
is bound to take steps for implementing the provisions thereof. The Court recommended that
we should take all necessary steps to implement the aims and goals of the UNCRC. The
honble Court illustrated the matter of international covenants/conventions and their

incorporation into national laws by giving the example of a decision of the Indian Supreme
Court in Peoples Union for Civil Liberties v. Union of India, 1997 SCC (Cri)
434. In this case, their Lordships had made extensive reference to an Australian decision in
Minister for Immigration and Ethnic Affairs v. Teoh, (1995) 69 Aus LJ 423. In
the latter case the applicability of the UNCRC was in issue. Mason C.J. stated the position that
the fact that a Convention has not been incorporated into their national law does not mean
that its ratification holds no significance to national law. Rather, the provisions of an
84
international convention should be used as guidance while developing common law. This view
was reiterated by the judges in the Indian case, and a similar view was taken by our Appellate
Division in Hussain Muhammad Ershad Vs. Bangladesh and others, 21 BLD
(AD) 69. B.B. Roy Chowdhury J. stated as follows:
True it is that Universal Human Rights norms, whether given in the Universal Declaration or in
the Covenants, are not directly enforceable in national Courts.
His Lordship went on to say that they would be enforceable if the provisions are incorporated
into the domestic law and that Courts should not ignore the international obligations, which a
country undertakes. If domestic laws are not clear enough or there is nothing therein, the
national Courts should draw upon the principles incorporated in the international
instruments. If domestic law is inconsistent with international instrument, then the Court
must respect national law, but shall draw attention of the law makers to such inconsistencies.
The honble Court observed that while Bangladesh has not yet incorporated all the provisions
of the UNCRC into its national laws, our domestic laws do not contain the beneficial
provisions of the UNCRC, and they also are not in conflict with our domestic laws, save and
except Article 21 regarding adoption. The Court recommended that the provisions may,
therefore, be considered if it would be in the best interests of the child.
The honble Court suggested that in upholding the best interest of the child, the Court may
consider the third alternative, i.e. placement with any close relatives who might be willing to
take the girl into their custody. Failing that, the Court would look to other distant relatives/any
other benevolent person, who might agree to take the girl into their custody at their risk and
responsibility. In this respect fostering might be a realistic alternative.
The Court then went into a discussion of the duties of the Probation Officer, which are
detailed in Section 16 and 31 of the Act, 1974 and Rule 21 of the Children Rules 1976 (the
Rules, 1976). The Court stated that since the trial Court or appellate Court is not in a position
to ascertain the physical aspects with regard to the family
background, character of the accused and the ... since the trial Court or
circumstances in which he or she was brought up, it is appellate Court is not in a
necessary that the Court should rely on a report from the position to ascertain the
physical aspects with regard
probation officer, who will go to the locality, if necessary, to the family background,
to ascertain all the factual aspects necessary for the Court character of the accused
to come to a decision with regard to the child. He would and the circumstances in
also speak to the accused as provided by the UNCRC. which he or she was
Article 12 provides as follows: brought up, it is necessary
that the Court should rely
12.1. States Parties shall assure to the child who is capable on a report from the
of forming his or her own views the right to express those probation officer, who will
views freely in all matters affecting the child, the views of the go to the locality, if
child being given due weight in accordance with the age and necessary.
maturity of the child.
85
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial
and administrative proceedings affecting the child, either directly, or through a representative or an
appropriate body, in a manner consistent with the procedural rules of national law.
The Court stressed the importance of seeking and respecting Arifas views on the issue of her
custody, so far as practicable and reasonable, keeping in mind her age and mental
development. This is in consonance with the international covenants and treaties dealing with
children and juveniles. At the end of the day it will be up to the learned Judge/Magistrate
conducting the trial to decide what will be in the best interests of the child, bearing in mind all
the circumstances reported to him and brought before him by way of evidence and report,
particularly of the probation officer.
Observations of the Court

The honble Court summarized its observations as follows:
1. It is the duty of this Court and all other Courts as well as the other state departments,
functionaries and agencies dealing with children, to keep in mind that the best
interests of the child (accused or otherwise) must be considered first and foremost in
dealing with all aspects concerning that child.
2. The parents of the children who are brought before the police under arrest or
otherwise, must be informed without delay.
3. A probation officer must be appointed immediately to report to the Court with regard
to matters concerning the child.
4. Bail should be considered as a matter of course and detention/confinement should
ensue only as the exception in unavoidable scenarios.
5. In dealing with the child, its custody, care, protection and wellbeing, the views of the
child, its parents, guardians, extended family members as well as social welfare
agencies must be considered.
6. Where the best interests of the child demands its separation from its parents, special
protection and assistance must be provided and there must be alternative care for the
child.
7. Steps must be taken to assist the parents to mend their ways and to provide a
congenial atmosphere for the proper development of the child.
8. If a child is detained or placed in the care of someone other than the natural parents,
its detention or placement must be reviewed at short intervals with a view to handing
back custody to its parents or guardians, subject to their attainment of suitability to
get custody of the child.
9. When dealing with children, detention and imprisonment shall be used only as a
measure of last resort and for the shortest period of time, particularly keeping in view
the age and gender of the child.
86
10. If detention is inevitable, then the child shall be kept in the appropriate
Homes/Institutions, separated from adults and preferably with others of his/her
same age group.
11. Every effort must be made at all stages for reintegration of the child within the family
and so as to enable him/her to assume a constructive role in society.
12. Due consideration must be given to the fact that children come into conflict with the
law due to failure of their parents/guardians or the State to provide adequate facilities
for their proper upbringing. If the parents or guardians lead the child astray, then it is
they who are liable and not the child.
13. The Legislature should consider amending the Children Act, 1974 or formulating new
laws giving effect to the provisions of the UNCRC, as is the mandate of that
Convention upon the signatories.
14. The use of children as drug mules should be made an offence and incorporated in
the Children Act, making the parents/guardians of any child used for carrying drugs
criminally liable.
15. The State must make provision for diversion of child offenders from the formal
placement in government safe homes/prisons to be placed in an atmosphere where
the child may be guided in more congenial surroundings within a family unit, either
with relatives or unrelated foster families, if necessary on payment of costs for the
childs maintenance.
87
Ain o Salish Kendra (ASK), and another VERSUS Bangladesh,
represented by the Secretary, Ministry of Labour and Manpower,
and others (Writ Petition No.1234 of 2004), 63 DLR 95
This was a Writ Petition filed by the Petitioners in response to a number of news articles that
brought to light the huge numbers of child workers in the country, especially those toiling
in the bidi factories.
Facts
There are 25,000 child workers aged between 4 to 14 years in the bidi factories situated in
Haragacha, Rangpur and they work under unhealthy and unhygienic environment risking their
lives. This was stated in a report published in the Daily Ittefaq on 05.10.2003. A similar report
was published in the Daily Jugantar on 15.01.2004 reporting that 15,000 child workers are
carrying on work within the bidi factories of Haragacha in Rangpur under inhuman
conditions. The children are between the ages of 8-16 years. An editorial in the Daily Prothom
Alo dated 04.10.2003 also speaks of 10,000 children working in the bidi factories in
Haragacha who have lost their childhood. In view of such stories regarding children toiling in
the bidi factories in Rangpur the petitioners, Ain O Salish Kendra (ASK) and Aparajeyo
Bangladesh filed the instant writ petition seeking an order from the High Court Division
declaring the continuous failure of the respondents to ensure healthy, hygienic and safe work
place, for the workers within the bidi factories of respondents No.3 to 5 in accordance with
the provisions of the Factories Act, 1965 and why such activity should not be declared as
illegal and unconstitutional, being in violation of the fundamental rights guaranteed under
Articles 27 and 31 of the Constitution and why they should not be directed to discharge their
legal duties to ensure compliance with the aforesaid provisions of law. It was further prayed
that the respondents No.3, 4 and 5 be directed to provide cost of medical treatment to the
workers within those bidi factories including the children, who are suffering from diseases
due to their work in those establishments.
The petitioners, by filing a supplementary affidavit dated 11.07.2010, furnished a report of an
inquiry undertaken by ASK which tends to show that the modus operandi of the bidi factory
has now changed to a certain extent, inasmuch as the work is now handed by the factory
owners to middlemen, who supply the necessary paper and tobacco for rolling the bidi sticks
to the bidi rollers, who do the work within their homes. It is reported that once the raw
materials are taken to the homes the whole family, including adults and young children are
engaged in rolling bidi throughout the day. It is pointed out that the bidi rollers should
receive 63 taka per thousand, but in fact they receive about half of that, leaving the remainder
in the hands of the middleman. At the same time the report also confirms that the bidi
factories are still engaging children within their factories where the working condition is
unhygienic and inhuman. Children interviewed alleged that they suffered from headaches and
cough and that some even faint within the factories. On the other hand the Managers of the
bidi factories deny engaging any children within their factories and their registers do not
disclose any children being engaged by them for work within the factories.
89
Ain o Salish Kendra (ASK), and another v Bangladesh 63 DLR 95
Discussion and findings

Factories Act, 1965 was abolished by the Labour Act, 2006, but all the relevant provisions have
been re-enacted in sections 51 to 60 of the current law. With regard to the age of workers,
section 2(Ka) of the Factories Act described as adolescent someone between the age of 16
to 18 years and an adult as someone who has completed the age of 18 years and a child
as anyone who has not completed the age of 16 years. A young person is one who is a child
or an adolescent. Section 66 of the Factories Act, 1965 prohibited the employment of any
child who had not completed 14 years of age and section 67(Ka) provided that non-adult
workers between the age of 14 to 18 years would not be allowed to work unless a certificate
of fitness was granted for the purpose under section 68 of the Act.
The honble Court looked at the available statistics, and observed that according to data
published by UNDP Human Development Report, 2007-2008 there are 5.05 million working
children between the age of 5 to 14 years, the total number of children being 35.06 million in
that age group. The Court further noted that under the provisions of International Labour
Organisation (ILO) Convention No.182, which Bangladesh ratified on 12.03.2001, Article 3(d)
includes in the definition of hazardous child labour as work which, by its nature or the
circumstances in which it is carried out, is likely to harm the health, safety or morals of
children. The Court noted that an ILO study on hazardous child labour in Bangladesh found
that more than 40 types of economic activities carried out by children were hazardous to
them. The survey also reveals that except for light work, child labour usually had harmful
consequences on the mental and physical development of children.
Laws regulating child labour:
The Court noted that since the time of British rule there have been many laws protecting
children from hazardous labour. The Employment of Children Act, 1938 (repealed by the
Labour Act 2006) provided as follows:
3(3) No child who has not completed his twelfth year shall be employed, or permitted to work, in any
workshop wherein any of the processes set forth in the Schedule is carried on :
........
THE SCHEDULE
List of Process:
1. Bidi-making
2. Carpet-weaving
3. Cement manufacture, including bagging of cement
4. Cloth-printing, dyeing and weaving
5. Manufacture of matches, explosives and fireworks
6. Mica-cutting and splitting
7. Shellac manufacture
8. Soap manufacture
9. Tanning
10. Wool cleaning.
90
63 DLR 95 Ain o Salish Kendra (ASK), and another v Bangladesh
The Court observed that the above processes, which were recognised as hazardous
preoccupations for children of tender years, are now carried out by thousands of children of
this country, in spite of laws providing sanction for violation of the laws. The Court pointed
out that the sanctions for violation of these laws were negligible, for example, section 4 of the
above mentioned Act imposed a fine which could extend to five hundred taka. With the
introduction of new law, namely the Labour Act 2006 the penalty has been increased to a fine
of five thousand taka as provided by section 284. The honble Court noted that the
Employment of Children Act, 1938 was replaced in India by the Child Labour (Prohibition
and Regulation) Act, 1986. Section 14 of the Act has provided for punishment up to 1 year
imprisonment (minimum being 3 months) or with fine up to Rs.20,000 (minimum being ten
thousand) or with both to one who employs or permits any child to work in contravention of
provisions in section 3. With the lack of similar strict sanctions in our country, the Court
noted that the employers of child labour in this country choose to pay the fine in the rare
event of being prosecuted.
The Court went on to discuss the applicability of international instruments, of which
Bangladesh is a signatory, and stated that these are to be implemented in our domestic laws.
There is an obligation, which we should not ignore, as was held in Hussain Mohammad
Ershad vs Bangladesh & others, 21 BLD (AD) 69 and State v. Metropolitan
Police Commissioner, 60 DLR 660.
The Court discussed ways to allow families the choice to send their children to school rather
than work. It stated that the education system has to be
... the education system has to be
made more attractive for the poorest citizens, at least by
made more attractive for the
providing a level of income for the family which will not poorest citizens, at least by
require the children to go to work. The Court providing a level of income for
appreciated the current initiative to make school the family which will not require
compulsory up to Class VIII as laudable, but observed the children to go to work.
that for compulsory education to be a reality and effective for those to whom it matters most,
there must be other financial benefits, sufficient to entice the student population to attend
school and also to continue attending school. Good quality teaching in the schools must also
be ensured. Absenteeism on the part of the teachers is rampant. Rather than being committed
to teaching the students during school hours, it is more lucrative for them to teach the same
students privately for a fee. The want of the teachers must also be satiated to prevent their
engaging in other activities in order apparently to supplement their income. So, effective
measures must be put in place to ensure that children, who do attend school, are given
adequate stipend provided by the State, which will be sufficient incentive for their parents to
send them to school and for the children also to attend regularly and have a meaningful
education which will be a benefit to them in their future lives.
The Court, recognizing that there may still be situations where families had no choice but to
send children to work, urged that steps be taken to ensure that children engaged in harmful
work must be registered as such and their movements must be monitored, making sure that all
91
facilities such as education, rest and leisure are ensured. The

...ensure that children
Court suggested that a system of registration and monitoring
engaged in harmful work
of domestic child workers, for must be registered as such
... a system of registration
and monitoring of example would deter the and their movements must
domestic child workers, employers from physically and be monitored, making sure
for example would deter sexually abusing them. that all facilities such as
the employers from Newspaper reports indicate the education, rest and leisure
physically and sexually extent of the problems faced by are ensured.
abusing them.
the domestic child workers, including instances where they have
committed suicide or were murdered.
Directions
The Court made a number of observations, recommendations and directions, which are as
follows:
1. We are appalled by the revelation that in this day and age there is bonded labour
(hJxf) or servitude practised in the coastal fishing areas of the country and young
children are the victims. We have no hesitation in directing the Ministry of Labour to
take all necessary steps to put an end to such practice immediately and with the help
of the law enforcing agencies to bring the perpetrators of such practice to justice. At
the same time there must be a concerted effort on the part of the relevant Ministries
and government departments to ensure full time education and necessary financial
assistance to the parents/guardians of these children to enable them to desist from
such illegal and harmful practices and to encourage them to educate their children.
2. In the light of our observations in the body of this judgement, we are of the view
that the Ministry of Education must take the initiative to ensure that compulsory
education provided by statute enacted under the mandate of Article 17 of the
Constitution for all the children of Bangladesh becomes a realistic concept and not
just lip-service. To that end steps must be taken to ensure that children can attend
school without jeopardising the familys food security. In other words, there must be
financial provision for the family such that the childs attendance at school should not
result in the reduction of the familys income earning capacity. To put it more plainly,
the head of the family must be given the equivalent amount of benefit (cash or kind),
which the child would have earned if he was not compelled to attend school.
Moreover, to ensure continuity of attendance, provisions must be made for necessary
uniform and stationary for the childs use as well as any other costs that she or he may
incur in the course of attending a school. In addition, a hot and nutritious meal
provided for the child would be an added attraction for him or her as well as for the
family and would ensure attendance throughout the day. Of course, such financial
92
63 DLR 95 Ain o Salish Kendra (ASK), and another V Bangladesh
and other benefits would have to be closely monitored to ensure that attendance in
the school is not a mere paper transaction, giving benefit only to the unscrupulous
teachers and other officials.
3. The Ministry of Education must also ensure quality education for the children by
providing good quality teachers who are dedicated and committed to providing
curricular and extracurricular activities within the school premises for all-round
development of the children, gearing them up for a meaningful and productive
future. The teachers wants must also be properly catered for to ensure their
unfaltering and missionary-like dedication and commitment.
4. It appears to us that children share all their facilities with others and end up deprived
of due benefits. We would suggest that a separate Ministry or Department be set up
to cater for the needs of the children of this country. In addition, we strongly
recommend setting up of an independent constitutional body to oversee the
workings of all the agencies and government machinery engaged in serving the needs
of the children community.
5. In the light of the matters raised by the instant writ petition, Respondent No.1 is
hereby directed to ensure that all employers, particularly those engaging children as
labourers, abide by the law and do not engage those under the legal age stipulated by
statute, and provide all necessary facilities and equipment to ensure a healthy working
atmosphere in their establishments for those who may be lawfully engaged in
remunerated work. Needless to say prompt action must be taken against those who
violate the provisions of law thereby creating unhygienic, cramped and unhealthy
workplaces.
6. Respondent No.1 is directed to take appropriate measures against respondents No.3
to 5 to ensure that the working conditions within those establishments conform in
every respect to the requirements of the law.
7. Bearing in mind the inherent health hazards of the tobacco industry, the manufacturers
must be compelled to provide adequate medical facilities and medical insurance for
all employees.
8. In view of the inherent dangers to the health of children within the home, including
the unborn and newborn and those who may be forced by their parents to join in the
family avocation of bidi rolling, respondent No.1 is hereby directed to take
immediate steps to phase out within a period of one year further home bidi rolling
by directing the bidi factory owners not to allow working from home.
9. Respondent No.[2] is directed to ensure that all factories and manufacturing
establishments abide by the law in respect of maintaining a safe, healthy and hazard
free working condition in accordance with the provisions of the Labour Act.
93
10. The existing sanctions provided by the law against the manufacturers are patently
inadequate. We, therefore, direct respondent No.1 to take steps to ensure amendment
of the law to include adequately deterrent punishment so that the perpetrators will
heed the need to conform to the legal requirements. Steps must also be taken to make
the prosecution effective.
11. The law must also be amended to set a reasonable remuneration to the workers
engaged in the bidi factories.
12. The government must take all necessary steps to gear up capacity building of the
families by providing necessary financial assistance with a view to poverty
eradication.
94
Fahima Nasrin VERSUS- Government of Bangladesh and others
(Writ Petition No.3646 of 2008.) 61 DLR 232
Facts
Md. Zahidul Hasan, alias Rony, henceforth referred to as Rony, was accused of taking gold
jewellery from a young girl and thereafter killing her. He was charged under section 302 of the
Penal Code and tried in the Sessions Court. It having been established that Rony was below
the age of 16 years at the time of trial, the trial took place in the Court of Sessions Judge and
Juvenile Court, Kushtia. At the conclusion of the trial, the learned Judge came to a finding that
an offence under section 302 of the Penal Code was proved beyond doubt and, in view of his
youth, by Judgement and order dated 14.08.2006, Rony was sentenced in accordance with the
provisions of sections 51 and 52 of the Children Act, 1974 (the Act) to imprisonment for 10
years. He was ordered to be detained in an institute for youthful offenders until he reached the
age of 18 years. On 17.08.2006 Rony was sent from Kushtia District Jail to the Kishore
Unnayan Kendra (KUK) (Youth Development Centre) at Jessore. His date of birth was
recorded as 09.05.89 and, therefore, he would be 18 years of age on 09.05.2007. On
03.05.2007 the Assistant Director of the KUK, Social Welfare Department, Pulerhat, Jessore
expressed his findings in his memo dated 03.05.07 to the Secretary, Ministry of Social Welfare
(MoSW), that Rony was sufficiently rehabilitated and his behaviour was satisfactory. The
Secretary was requested to order his final release under the provisions of section 67 of the
Act. On 30.05.2007 Save the Children UK made representation to the Secretary, MoSW
echoing the request of the KUK. However by a memo dated 22.10.2007, it was decided by
MoSW that, as Rony was sentenced to 10 years imprisonment and there was no direction
from the Court that he was to be released upon attaining the age of 18 years, he would be
returned to the District Jail.
Discussion
The Court first discussed its own jurisdiction to hear the
... as the detenu had no
petition. It stated that as the detenu had no competent competent guardian and
guardian and was being detained without lawful authority, the was being detained without
Court had no hesitation to assume jurisdiction to adjudicate lawful authority, the Court
the legality or otherwise of the detention. In this regard the had no hesitation to assume
Court took support from the decision in case of State Vs. jurisdiction to adjudicate
Deputy Commissioner, Satkhira and others the legality or otherwise of
the detention.
reported in 45 DLR 643, where on the basis of a
newspaper report about the unlawful detention in jail of a juvenile this Court issued a suo
motu Rule in order to examine the facts and circumstances of the incarceration of a child for
a lengthy period of 12 years. The Court further pointed out that in this case, until the MoSW
expressed their interpretation in respect of the order of sentence passed by the learned trial
Judge, no cause of action arose. Therefore, the Court stated that the failure to lodge an appeal
against the sentence was not a bar to the writ petition challenging the interpretation of the
order of sentence in the context of the applicable law.
95
Fahima Nasrin v Government of Bangladesh and others 61 DLR 232
The Court looked at the provisions of the Children Act which provide for sentencing a child
offender upon conviction of an offence punishable with death, transportation (which is now
imprisonment for life, viz. Ordinance No.XLI of 1985) or imprisonment, namely, sections 52
and 53 of the Act. Section 52 provides as follows:
52. Commitment of child to certified institute:- Where a child is convicted of an
offence punishable with death, transportation or imprisonment, the Court may, if it considers
expedient so to deal with the child, order him to be committed to a certified institute for detention for
a period which shall be not less than two and not more than ten years, but not in any case extending
beyond the time when the child will attain the age of eighteen years.
The Court pointed out that section 52 is the substantive
... section 52 is the substantive
provision of law which provides for punishment of a
provision of law which provides
child upon conviction of an offence and section 53 for punishment of a child upon
provides an even more lenient alternative at the conviction of an offence and
discretion of the Court in a fit case. The Court also section 53 provides an even
considered section 51, which provides the modes of more lenient alternative at the
punishment which are not permissible to be inflicted discretion of the Court in a fit
case.
upon children and exceptions thereto. Section 51(1)
provides as follows:
51. Restrictions on punishment of child:-(1) Notwithstanding anything to the
contrary contained in any law, no child shall be sentenced to death, transportation or imprisonment:
Provided that when a child is found to have committed an offence of so serious a nature that the Court
is of opinion that no punishment, which under the provisions of this Act it is authorised to inflict, is
sufficient or when the Court is satisfied that the child is of so unruly or of so depraved character that
he cannot be committed to a certified institute and that none of the other methods in which the case
may legally be dealt with is suitable, the Court may sentence the child to imprisonment or order him
to be detained in such place and on such conditions as it thinks fit:
Provided further that no period of detention so ordered shall exceed the maximum period of
punishment to which the child could have been sentenced for the offence committed: (emphasis added)
Provided further that at any time during the period of such detention the Court may, if it thinks fit,
direct that in lieu of such detention the youthful offender be kept in a certified institute until he has
attained the age of eighteen years.
The Court gave the opinion that the importance of section 51(I) is that the punishments
which cannot be imposed on a child upon conviction are placed first and foremost in order
to give the provision primacy and more emphasis. It stated that the purport of the section
is that no child shall be sentenced to death or imprisonment for life or imprisonment
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61 DLR 232 Fahima Nasrin v Government of Bangladesh and others
The Court gave the opinion that the importance of ... the law intends to protect
section 51(1) is that the punishments which cannot be youthful offenders (defined in
imposed on a child upon conviction are placed first and section 2(n) as any child who has
foremost in order to give the provision primacy and been found to have committed an
more emphasis. It stated that the purport of the section offence). This is further highlighted
is that no child shall be sentenced to death or by section 51(2), which provides
that a youthful offender sentenced
imprisonment for life or imprisonment (emphasis to imprisonment shall not be
added by the Court). The Court was of the view that allowed to associate with adult
this clearly indicates the intention of the legislature to prisoners. The Court was of the
keep children, as far as possible, outside the system of view that the substantive provision
incarceration in prisons. Then the first proviso to of section 51(1) is an exception to
section 51(1) provides exceptions to the substantive the general law.
provision giving instances when a sentence of imprisonment may be imposed. The Court
opined that the law intends to protect youthful offenders (defined in section 2(n) as any child
who has been found to have committed an offence). This is further highlighted by section
51(2), which provides that a youthful offender sentenced to imprisonment shall not be allowed
to associate with adult prisoners. The Court was of the view that the substantive provision of
section 51(1) is an exception to the general law.
The honble Court observed that in the case of an offence punishable under section 302 of
the Penal Code, the prescribed punishment is a sentence of death or imprisonment for life.
However, the Court pointed out that in case of children such punishment cannot be imposed,
although there is an exception to the exception (in respect of awarding sentence of
imprisonment). The Court stated that a sentence of imprisonment may be imposed on a child
upon conviction, if the Judge conducting the trial forms the opinion that the offence is of so
serious in nature that no punishment under the provisions of this Act which he is authorised
to inflict (i.e. under sections 52 and 53 of the Act) is sufficient or if the Court is satisfied that
the child is of so unruly or so depraved character that he cannot be committed to a certified
institute. In the view of the Court, the crux of the proviso is that there must be an opinion
and/or satisfaction of the Judge.
... a sentence of imprisonment may be imposed on a child upon conviction, if the Judge
conducting the trial forms the opinion that the offence is of so serious in nature that no
punishment under the provisions of this Act which he is authorised to inflict (i.e. under
sections 52 and 53 of the Act) is sufficient or if the Court is satisfied that the child is of so
unruly or so depraved character that he cannot be committed to a certified institute.
The Court in this case heard submissions from amici curiae, and expressed its agreement with
their submissions that in the absence of any clear opinion expressed by the Judge that the
offence was so serious and the punishment authorised by the Act was not sufficient, or that he
was satisfied that the child was of so unruly or so depraved character that he could not be
committed to a certified institute, the sentence of imprisonment is untenable.
97
The Court further agreed with the submissions that the inclusion of the word TJrJh" in the
sentencing portion of the judgement is improper or perhaps the learned Judge misconceived
the provisions laid down in section 52 of the Act in awarding the sentence.
The Court stressed that section 52 of the Act provides for detention of any child in a certified
institute for a period which shall not be less than two and not more than ten years, but not in
any case extending beyond the time when the child will attain the age of 18 years. The Court
stressed that the last part of the section clearly indicates that the maximum sentence that a
child may be awarded under section 52 will end on his attaining the age of 18 years and,
therefore, he may not be kept in detention after his 18th birthday.
On the other hand, the Court stated that it is always ... it is always possible at any time
possible at any time to revert a child from prison, if to revert a child from prison, if
imprisonment or detention in some other place was imprisonment or detention in
ordered under the first proviso to section 51(1), to a some other place was ordered
certified institute, as provided by the third proviso. In under the first proviso to
the view of the honble Court, this fortifies the view that section 51(1), to a certified
institute, as provided by the third
children should not ordinarily be sentenced to proviso.
imprisonment, unless absolutely necessary where
exceptional circumstances exist, and then only as a matter of last resort and for the shortest
appropriate period of time.
The Court also considered in depth the second proviso to section 51(1). The Court was of the
view that detention in the second and third provisos refers to detained (in such place) in the
first proviso. The honble Court stated that this means that when the Court is satisfied that the
child is of so unruly or so depraved character that he cannot be committed to a certified
institute, then he may be sent to prison or be detained in such place and on such conditions
as it thinks fit. As mentioned above, the third proviso contemplates sending the youthful
offender back to a certified institute after a period of detention in the place where he was sent
under the first proviso, to be detained there until he attains the age of eighteen years.
The second proviso to section 51(1) mandates that the detention as mentioned in the first
proviso shall not exceed the maximum period of punishment to which the child could have
been sentenced for the offence committed. The Court opined
The second proviso to that for proper appreciation of this provision one must keep in
section 51(1) mandates
that the detention as view the fact that the offender is a child to whom the provisions
mentioned in the first of the Children Act, 1974 apply and that the substantive
proviso shall not exceed sentencing provision is contained in sections 52 and 53. Section
the maximum period of 52 permits a child to be sentenced to detention in a certified
punishment to which institute, even in cases where the offence is punishable with
the child could have death or imprisonment for life or imprisonment. All penal
been sentenced for the
offence committed. offences are, therefore, covered. But at the same time all other
penal sanctions are excluded. The Court stressed that upon
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61 DLR 232 Fahima Nasrin v Government of Bangladesh and others
conviction of any offence under any law the sentence must be awarded in accordance with the
sentencing provisions of the Childre Act, 1974 and the maximum sentence that could have
been imposed on a child upon conviction of any offence would have been detention in a
certified institute for 10 years or up to the date of his attaining the age of 18 years, whichever
is earlier. In exceptional circumstances a sentence of imprisonment may be imposed under the
first proviso to section 51(1) of the Act.
The Court noted from Rule 9 of the Children Rules, 1976 that the inmates of the certified
institute or approved home are constantly and continuously monitored with regard to their
background, character, performance, etc:
9. Management of certified institutes.-(1) The Superintendent shall maintain case file
for each inmate separately containing detailed information about the family background, character,
aptitude, performance in education, training and such other matters as he may consider necessary.
(2) The governing body of a certified institute shall exercise such powers and shall conduct its, business
in such manner as the Director may determine, and the decisions of the governing body shall require
approval of the Director."
The Court was therefore of the view that the intention of the legislature is to ensure
assessment of the children who are sentenced to detention in order to gauge the improvement
in their character and behaviour with the view to setting them at liberty either conditionally or
without condition. The Court felt that any offender who shows sufficient improvement in his
character and behaviour in the assessment of those who are given the duty to assess his
development may be discharged before the completion of his sentence of detention. That is
the purpose of the law. The honble Court was of the view that the interpretation given by the
Ministry to the sentence that Rony was to be sent back to prison is misconceived and not
tenable in the facts and circumstances of the case.
The Court discussed the implementation of various beneficial provisions of international
conventions, covenants and treaties, such as the UN Convention on the Rights of the Child
(UNCRC) and International Covenant on Civil and Political Rights (ICCPR), of which
Bangladesh is a signatory.
The Court further stressed the importance of
The Court further stressed the
proportionality between the offence committed and the importance of proportionality
sentence imposed. This is where the learned Judge must between the offence committed
weigh in the balance all facts relating to the antecedents and the sentence imposed.
and background of the child, which he should glean
from the use of the services of the Probation Officer. The Court felt that the intention of the
legislature in enacting the Children Act is to treat young offenders differently and to give them
the opportunity to be reformed and rehabilitated since our entire sentencing policy is
reformative, not retributive. The Court reiterated that the aim of the law is to treat the deviant
child to make him a better citizen as the punishment prescribed is purposely lenient and meant
to reform and rehabilitate him. The Court felt that to even consider any form of retributive or
99
deterrent punishment in the guise of protection of society would be a regressive step shutting
our eyes to our obligation to provide a congenial environment in which our children may grow
and flourish into worthy citizens. The Court stressed that at all times the welfare and the best
interest of the child must be kept in the mind.
... the publication of
Finally, the Court pointed out that in view of the fact that the any photograph or the
matter involves a child, section 17 of the Children Act, 1974 will real name, address and
apply, which provides that the picture, name and identity of a identity of the detenu
child offender shall not be published in the media and any such is strictly prohibited in
publication would be an offence under the said Act. Hence, the any form or manner
publication of any photograph or the real name, address and whatsoever in any
electronic, print or
identity of the detenu is strictly prohibited in any form or other media.
manner whatsoever in any electronic, print or other media.
100
Bangladesh Legal Aid and Services Trust (BLAST), and another
Versus Secretary, Ministry of Education, and others
(Writ Petition No.5684 of 2010), 31 BLD 201
An application under article 102 of the Constitution was filed by Bangladesh Legal Aid and
Services Trust (BLAST) and Ain o Salish Kendro (ASK), as a public interest litigation,
impugning actions such as caning, beating and chaining of children, both boys and girls,
studying in governmental and non-governmental primary and secondary educational
institutions, including madrashas, in particular those reported in a series of reports published
in national newspapers during 2010. It is stated that young children have been subjected to
corporal punishment by educational institutions, which in some cases appear to be quite
horrendous acts of violence administered in the name of discipline. Towards the beginning of
2010 there was a spate of newspaper publicity reporting numerous cases of corporal
punishment being meted out to children in various educational institutions, including
Madrasas, Primary Schools and High Schools, and the children upon whom the corporal
punishment had been inflicted were both boys and girls of various ages, as young as six years
up to 13/14 year olds.
The honble Court in its judgment considered the issue of corporal punishment and what is
happening in the name of instilling discipline into children.
What is corporal punishment?
The Court recognized that corporal punishment, i.e. punishment inflicted on the body, is a
form of discipline, which has been exercised across the world for many years. The Court
described the various forms of punishment that could be considered as corporal punishment.
In addition, to the physical forms of punishment, the Court also outlined other non-physical
forms of punishment, including, for example, punishment which belittles, humiliates,
denigrates, scapegoats, threatens, scares or ridicules the child. The Court stated that children
bear the brunt of so-called disciplinary action from everyone older in age or bigger in size. The
Court observed that the attitude of acceptance of corporal punishment as a norm has been
handed down from generation to generation, to the extent that some adults/parents acquiesce
to corporal punishment imposed upon their children as the only way to teach them and it is
normal since they themselves were subjected to the same treatment. Some go so far as to say
that had it not been for the chastisement and punishment, we would not be what we are today.
The Court noted that the severity of the punishment ranges from verbal abuse/rebuke to
physical violence by the use of the limbs or other implements varying in size, shape and degree
of lethalness. At the same time the Court observed that the effect of the corporal punishment
manifests in various forms and varies with the mental and physical state and stature of the
child and can range from the not so visible psychological effect to the patent physical injury
requiring hospitalisation and occasional death. Constant and prolonged rebuke can also lead to
suicide of the child.
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31 BLD 201 BLAST and another v Secretary, Ministry of Education, and others
The Court looked at Article 19 of the Convention on the Rights of the Child (CRC) 1989,
which provides as follows:
19.1. States Parties shall take all appropriate legislative, administrative, social and educational
measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or
negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of
parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment
of social programmes to provide necessary support for the child and for those who have the care of the
child, as well as for other forms of prevention and for identification, reporting, referral, investigation,
treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate,
for judicial involvement.
The Court also looked at Article 28.2 of the CRC, which provides as follows:
28.2. States Parties shall take all appropriate measures to ensure that school discipline is
administered in a manner consistent with the childs human dignity and in conformity with the present
Convention.
In addition to this, the Court looked at Article 37 of the CRC, which requires States to ensure
that no child shall be subjected to torture or other cruel, inhuman or degrading treatment or
punishment General Comment No.8 dated 02.03.2007 issued by the Committee of the CRC
focuses on corporal punishment and other cruel or degrading forms of punishment with a
view to highlight the obligation of all States parties to move quickly to prohibit and eliminate
all corporal punishment and all other cruel or degrading forms of punishment of children and
to outline the legislative and other awareness-raising and educational measures that States
must take.
The Court noted that the Committee recognises that the practice of corporal punishment
directly conflicts with the equal and inalienable rights of children to
... the practice of
corporal punishment
respect for their human dignity and physical integrity.
directly conflicts with In addition to international instruments, the Court pointed out that
the equal and Article 35 of our Constitution deals broadly with protection of
inalienable rights of citizens in respect of trial and
children to respect Article 35 of our Constitution
for their human
punishment. Clause (5) of deals broadly with protection of
dignity and physical article 35 provides that no citizens in respect of trial and
integrity. person shall be subjected to punishment. Clause (5) of article
torture or to cruel, inhuman 35 provides that no person shall
or degrading punishment or treatment. Taken one step be subjected to torture or to
cruel, inhuman or degrading

further, it should be obvious that if any person is
punishment or treatment.
protected from torture or cruel, inhuman or degrading
punishment or treatment after conviction of a criminal offence, then it stands to reason that
a child shall not be subjected to such punishment for behaviour in school which cannot be
termed criminal offence.
102
BLAST and another v Secretary, Ministry of Education, and others 31 BLD 201
Harmful effects of corporal punishment

The Court then moved on to look in depth at the effects of
... corporal punishment is
corporal punishment. It was of the view that corporal
detrimental to childrens
punishment is detrimental to childrens well-being and has well-being and has serious
serious physical, psychological and emotional effects, as well physical, psychological and
as causing truancy and dropping out of school. This in turn emotional effects, as well
exacerbates the cycle of illiteracy and poverty. as causing truancy and
dropping out of school.
The Court commended the steps taken by the Ministry of This in turn exacerbates
Education in issuing the circular prohibiting corporal the cycle of illiteracy and
punishment in all educational institutions. At the same time, poverty.
the Court strongly recommended that the awareness drive
must continue. In addition it stated that the authority concerned must take steps to
incorporate imposition of corporal punishment as
... the authority concerned
must take steps to misconduct within the service rules for teachers so that any
incorporate imposition of teacher imposing corporal punishment on a pupil will be
corporal punishment as subjected to departmental proceedings for misconduct. The
misconduct within the Court felt that the law must be amended accordingly.
service rules for teachers.
The Court felt that the authorities concerned must ensure that
everyone coming into contact with children must realise that corporal punishment is harmful
for the well-being of the children and, therefore, anyone contravening the prohibition is not
only in breach of the terms and conditions of his service, but also may be liable to punishment
under the existing criminal law.
When a child plays
The Court further noted the emotional harm and psychological truant, it is obvious
damage caused by corporal punishment, which is less easy to that going to school is
detect. It stated that emotional and psychological damage distasteful to the child.
manifest in the behaviour of children subsequent to being He or she fears more
subjected to corporal punishment. When a child plays truant, it is punishment. Children
become inattentive in
obvious that going to school is distasteful to the child. He or she their studies and in
fears more punishment. Children become inattentive in their some cases they end
studies and in some cases they end up dropping out of school up dropping out of
altogether. The Court stressed that this has far reaching effects school altogether. The
on the childs development and future prospects in life. Court stressed that
this has far reaching
In addition, the Court gave examples of a number of cases where effects on the childs
children have resorted to taking their own life, which is certainly development and
an unwanted and avoidable loss of human life.
future prospects in life.
103
Legal framework with regard to corporal punishment
The Court considered a case of the Indian Courts where an

existing law permitting corporal punishment was struck down ...the existing laws of
Bangladesh do not
by the High Court. Looking at the laws of Bangladesh, the
provide specifically for
Court observed that the existing laws of Bangladesh do not corporal punishment
provide specifically for corporal punishment either in the home either in the home or
or in the educational institutions. However, a number of cases in the educational
were brought to the notice of the Court which indicate that institutions.
corporal punishment is pervasive in the homes, schools and
work places. It is also pointed out that the Penal Code and the Code of Criminal Procedure,
the Prisoners Act, 1894, Whipping Act, 1909, Cantonment Pure Foods Act, 1966, Suppression
of Immoral Traffic Act, 1933, Railways Act, 1890 and the Children Rules, 1976 provide for the
imposition of corporal punishment for certain offences. But these do not relate to the school
or home setting.
The Court referred to a report compiled by Global Initiative where it has been suggested that
section 89 of the Penal Code provides a defence for the imposition of corporal punishment,
thereby suggesting that corporal punishment such as those imposed by the parents or teachers
are allowed by law. The Court expressed the view that this is an erroneous argument since
section 89 does not at all relate to corporal punishment, as would be apparent from the other
provisions of law contained in that chapter of the Penal Code. Chapter IV of the Penal Code
is titled General Exceptions and gives details of acts which would not constitute a criminal
offence. The Court felt that reading section 89 together with section 91 would expose the
error in the interpretation relied upon by Global Initiative. Section 89 and 91 provide as
follows:
89. Nothing which is done in good faith for the benefit of a person under twelve years of age, or of
unsound mind, by or by consent, either express or implied, of the guardian or other person having
lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended
by the doer to cause or be known by the doer to be likely to cause to that person:
Provided-
First.-That this exception shall not extend to the intentional causing of death, or to the attempting to
cause death;
Secondly.- That this exception shall not extend to the doing of anything which the person doing it
knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt;
or the curing of any grievous disease or infirmity;
Thirdly.- That this exception shall not extend to the voluntary causing of grievous hurt, or to the
attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or
the curing of any grievous disease or infirmity;
Fourthly.- That this exception shall not extend to the abetment of any offence, to the committing of
which offence it would not extend.
104
Illustration
A, in good faith, for his childs benefit without his childs consent, has his child cut for the stone by a
surgeon, knowing it to be likely that the operation will cause the childs death, but not intending to
cause the childs death. A is within the exception, inasmuch as his object was the cure of the child.
91. The exceptions in section 87, 88 and 89 do not extend to acts which are offences independently
of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the
person giving the consent, or on whose behalf the consent is given.
Illustration
Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is
an offence independently of any harm which it may cause or be intended to cause to the woman.
Therefore, it is not an offence by reason of such harm; and the consent of the woman or of her
guardian to the causing of such miscarriage does not justify the act.
The Court observed that the third proviso to section 89 provides that the exception of section
89 shall not extend to the voluntary causing of grievous hurt, or to the attempting to cause
grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing
of any grievous disease or infirmity. This, therefore, clearly excludes any situation where a
teacher causes grievous hurt to a student. Section 91 makes it clear that any hurt which itself
would amount to a criminal offence is not covered by the exception. Thus beating a child with
a cane causing a bleeding injury would be an offence under section 323 of the Penal Code and
would, therefore, not be covered by the exception in section 89. The Court was of the opinion
that this section, as well as some of the other sections in this chapter, relate to acts done by
persons giving medical care and as such corporal punishment is not contemplated by these
provisions in Chapter IV of the Penal Code.
... the argument that the parent or a child consents to corporal punishment in the school
is a fallacious argument. When a child is admitted in any school the parents and the child
consent to be given educational instruction. Unless any particular school has within its
written prospectus a stipulation that the child may be subjected to corporal punishment
in the event of any breach of school regulation or for lack of academic attainment or for
indiscipline generally, it cannot be said that either the parents or the student has consented
to the child being subjected to corporal punishment.
The Court went through the legislation relating to schools and madrashas, and found that
section 39(2) of the East Pakistan Intermediate and Secondary Education Ordinance, 1961
provides for framing regulations and in such regulations published in the Dacca gazette, part-I
dated 15th September 1966, there is provision for disciplinary action against students of
Justice for Children in BangladeshN
secondary school, intermediate colleges and intermediate section of degree colleges. In the
said regulations certain actions and behaviour of students are deemed to constitute the
offence of indiscipline and misconduct. The regulations then provide for infliction of suitable
105
penalties when, if any pupil is found guilty of indiscipline or misconduct, it would be for the
head of the institution to take disciplinary action and award punishment unless mass
punishment was considered necessary, when the matter would be reported to the Chairman of
the Board and his orders would be awaited. However, on perusal of the available punishments,
the Court did not find any reference to imposition of corporal punishment. The Court further
noted that this regulation relates to older children attending secondary schools and as such
there could not be any regulations allowing corporal punishment to younger children. The
Court also noted from the above mentioned regulations that before a teacher turns to
punishment he will naturally commence with remonstrance and reasoning and will show his
disapproval, which may in itself suffice to meet the case. A warning in many cases will be
found to be sufficient, especially if it is accompanied by entry of the boys name in the
conduct register. The Court felt that this demonstrated that the aim of the regulations relating
to discipline is to punish only as a last resort and still then there is no provision for subjecting
any student to corporal punishment.
The honble Court also perused the Madrasha Education Ordinance, 1978 and the
Registration of Private Schools Ordinance, 1962 and did not find any provision for imposition
of corporal punishment on students.
The Court observed that corporal punishment has almost become a fact of life in Bangladesh
and appears to be accepted as the norm by the children and adults alike. The Court cited
several examples of this phenomenon where parents had accepted corporal punishment
inflicted by teachers on their children. In each of these cases the teachers in question have
evaded any effective form of redress even in cases where the students have suffered serious
injuries.
The Court expressed its appreciation of the action taken by the Ministry of Education in the
past. On 21.04.2008 the Primary Education Directorate of the Ministry of Primary and Mass
Education issued a circular relating to appropriate behaviour towards students. This circular
concerned students between the ages of 5-10 years, so far as it is relates to punishment both
physical and mental both in the home setting as well as in the educational institution. It was
observed that such mental and physical abuse hampers healthy and natural development of
the child and steps were directed to be taken for the prevention of such abuse and for creating
awareness regarding the development of negative behaviour. Consequently the concerned
authorities were asked to direct all concerned to refrain from all physical and psychological
torture, cruelty, scolding and other untoward behaviour towards all students of primary
schools.
On 18.03.2010 the Primary Education Directorate issued another circular regarding behaviour
towards child students. It was observed that in spite of written directives not to behave badly
towards the students various types of physical and mental torture were being inflicted within
the schools. Reference was made to a report by UNICEF highlighting incidents of
scolding/insulting, caning on the rump, striking with the stick etc., which was not acceptable
106
to the students and which resulted in the student becoming frightened and reluctant to go to
the school and also some of them stopped going to school altogether. Consequently, a
direction was issued upon the teachers not to indulge in such behaviour, including physical and
mental torture, cruelty and scolding etc. In this regard the Training Division of the Directorate
was directed to take up these issues during the training programme.
The Court felt that effective steps were put in place for prohibiting corporal punishment in
schools, but in spite of that, it found that several other incidents in schools in Dhaka and
within the periphery of Dhaka had taken place subsequent to the issuance of the Rule. As a
result of this the Court directed proper steps to be taken by the authority concerned.
Subsequently, the Education Ministry and other concerned authorities took steps in order to
formulate a policy called, nr faPe R-RPcl nllL J jepL na fce eoLlZ eajm,
2010 (Guidelines for the Prohibition of Physical and Mental Punishment of the Students of
Educational Institutions, 2010). These draft guidelines included directions that children in
educational institutions shall not be subjected to physical and mental punishment, including all
sorts of physical assault on the body or any part of the body of the student by use of hands,
legs or any implement and also indirect physical assault by making the child hold his own ears
while doing sit-ups or putting his head under the table or bench or directing him/her to do
any work which is prohibited under the labour laws. Also to be prohibited is mental torture or
humiliation which includes adverse comments about the childs parents, his/her ethnic
identity etc. It is stated that if any teacher is found to have imposed any corporal punishment
then it would be deemed as misconduct punishable under the Government Servants
(Conduct) Rules 1979 and the Government Servants (Discipline and Appeal) Rules, 1985. The
delinquent teacher may also be punishable under the criminal laws. However, the Court noted
that there is no sanction against teachers of private schools other than under the criminal laws.
The Court suggested that such a situation would be discriminatory since no departmental
proceeding is envisaged for the teachers working in the private educational institutions. The
Court was of the view that in such a situation there should be separate law to regulate the
conduct/misconduct of teachers in the private educational institutions.
The Court observed that after the issuance of the present Rule, on 09.08.2010 the Ministry of
Education had issued a circular as a result of which all physical and mental torture, cruelty and
scolding as well as improper behaviour towards children in primary schools was to be
prohibited and the matter was to be informed to all school teachers.
The Court then looked at Article 35(5) of the Constitution, which provides that no person
shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment. The
Court was of the view that while this clause relates to punishment upon conviction for a
criminal offence, it is all the more applicable to persons who have not committed any offence
and who cannot be subjected to such treatment for acts and behaviour which does not amount
to a criminal offence.
107
The Court further noted that consequent upon the Rule issued by it, a meeting was held on
29.08.2010 presided over by the honble Minister, Ministry of Education where discussion
took place with regard to guidelines to be issued prohibiting corporal punishment on students.
Among the resolutions was one to broadcast through the various public media including radio,
television, private channels and national newspapers as well as leaflets and posters regarding
prohibition of corporal punishment in the schools.
The Court once again looked at the issue of applicability of international instruments, in
particular the Convention on the Rights of the Child (CRC) 1989. It discussed the decision in
the case of Hussain Muhammad Ershad Vs Bangladesh and others, 21 BLD (AD)
69. where B.B. Roy Chowdhury, J. had observed as follows:
The national Courts should not, I feel, straightway ignore the international obligations, which a
country undertakes. If the domestic laws are not clear enough or there is nothing therein, the national
Courts should draw upon the principles incorporated in the international instruments.
The Court also looked at the case of State vs Metropolitan Police Commissioner, 60
DLR 660 where it was held that being a signatory to the Convention Bangladesh is obliged to
implement the provisions thereof.
The Court stated that Article 28 of the Convention is relevant to the issue in this case, and
held that in the light of the Convention corporal punishment upon the children must be
prohibited in all settings including schools, homes and work places. Children who are
subjected to corporal punishment or indeed psychological and emotional abuse cannot be
expected to develop freely and properly and will not be able to give their best to this society.
The Court stated that the effects of physical and mental torture on the proper development
of children could not be ignored, and it would lead to inadequate achievement resulting in lack
of education and poor prospects of better living standards which in turn will stoke the poverty
cycle.
The Court gave examples of numerous countries of this world, both advanced and less
developed, who have adopted prohibition of corporal punishment both at home and in the
education institutions. The Court expressed the opinion that corporal punishment should be
prohibited throughout the country in all settings. There should be a positive awareness drive
aimed at all parents, teachers and others who take on the responsibility of caring for children
that physical, psychological and emotional abuse of children can never be for their good.
The Court felt that in order to make the prohibition of corporal punishment in the
educational establishments effective, the laws relating to disciplinary action against the
teachers, who impose corporal punishment on students are required to be amended. The
Court therefore directed the Ministry of Education to ensure inclusion of a provision within
the Service Rules of all teachers of public and private educational institutions of the country,
by incorporating the imposition of corporal punishment upon any students within the
definition of misconduct. Thus, any teacher accused of imposition of corporal punishment
108
any student will be liable to be proceeded against for misconduct and he or she shall face the
consequence of such disciplinary proceeding as mentioned in the Service Rules. In addition he
will be liable for any criminal offence committed in accordance with the existing laws of the
land.
The Court expressed the view that laws which allow corporal punishment, including
whipping under the Penal Code, Code of Criminal Procedure, Railways Act, Cantonment
Pure Food Act, Whipping Act, Suppression of Immoral Traffic Act, Children Rules, 1976
and any other law which provides for whipping or caning of children and any other
persons, should be repealed immediately by appropriate legislation as being cruel and
degrading punishment contrary to the fundamental rights guaranteed by the Constitution.
109
Bangladesh National Woman Lawyers Association (BNWLA)-VERSUS
The Cabinet Division (Writ Petition No.3598 of 2010), 31 BLD 265
This was an application under Article 102 of the Constitution brought by BNWLA regarding
the plight of child domestic workers.
Facts
An incident of physical violence against a child domestic worker was highlighted as reported
in the daily national newspaper Amar Desh on 03.05.2010.
A Rule Nisi was issued on 04.05.2010 calling upon the respondents No.1 to 6 in connection
with their inaction to take appropriate steps against respondent No.7 ( the employer of the
domestic child worker) regarding the incident reported in the daily newspaper "Amar Desh"
dated 03.05.2010 and to report to the Court within 24 hours with regard to their actions and
measures taken in connection with the incident and as to why direction should not be given to
respondents No.4 to 6 to send the victim Shuma (10) for immediate treatment in the nearest
One Stop Crisis Centre at Dhaka Medical College Hospital and why the respondents shall not
be directed to monitor the employment of children as domestic workers, and/or such other or
further order or orders passed as to this Court may seem fit and proper.
The Court expressed the
The Court expressed the view that the work done in the
view that the work done in
domestic sector should be recognised as such and the rights the domestic sector
of these workers should be ensured by incorporating the should be recognised as
workers of the domestic sector within the Labour Act. So such and the rights of
far as the work of children is concerned, the Court noted these workers should be
that the new Children Policy of 2011 defines a child as ensured by incorporating
the workers of the
anyone up to the age of 18. The Labour Act, 2006 defines a
domestic sector within the
child in section 2 sub-section (63) as anyone below the age Labour Act.
of 14 and defines anyone between the ages of 14 to 18 as an
adolescent. The Court pointed out that for the sake of uniformity a child should be defined
in all laws as anyone below the age of 18, and, if necessary, the restriction or concession to
allow children of a certain age to work may be defined in the Labour Act as has been done.
Therefore, children up to the age of 14 may not be engaged in doing work as mentioned in
section 34 of the Labour Act. The law is relaxed to some extent by section 44 which provides
that a child who has reached the age of 12 years may be engaged in light work, if it will not
harm his health or if his education will not be hampered. Section 34 also provides that an
adolescent, i.e. a child between the age of 14 and 18, may be engaged to do work so long he
has a certificate from a registered medical practitioner certifying his fitness. The Court
expressed the view that the same provision could apply to children working in the domestic
sector.
111
BNWLA v The Cabinet Division 31 BLD 265
The Court stressed that it must always be borne in mind

The Court felt that at any cost
that children are not in a position to consent to work and
children below the age of 12
work is forced upon them by the poverty of their family should not be allowed to engage
and the inability of their parents to adequately provide in any type of work, including
for them and ensure their food security. It further stated domestic work. The Court
that the lack of education of the children creates a emphasized that children below
vicious cycle of poverty since the children who are the age of 12 are required to go
to school pursuant to the
deprived of education can never hope to get out of the
National Policy on education.
poverty cycle and can never hope to achieve anything in
life other than menial work or becoming a burden upon the State joining the ranks of
criminals. The Court stated that in order to break this vicious cycle of the poverty it is crucial
that the government must have policies which will ensure that the children of school- going
age attend school and should by strict government policy be restrained from being employed
and protected from being employed forcibly by their parents.
The Court stressed that it must always be The Court stressed that the government
borne in mind that children are not in a must ensure that any children taken away
position to consent to work and work is forced from their home are registered with the
upon them by the poverty of their family and proper authorities so that their
the inability of their parents to adequately whereabouts can be traced. More
provide for them and ensure their food importantly, there must be constant
bsecurity.
monitoring of the movement of these
children perhaps from one household to another, particularly with the view to ascertaining and
ensuring their physical security. In this regard, the Court found that the provisions highlighted
in the Sau n nj elpe ea, 2 (National Child Labour Elimination Policy, 2010)
were in some way beneficial for the children, if those
The Court stressed that
provisions can be implemented. The Court therefore strongly the government must
urged the government to take immediate steps to implement ensure that any children
the provisions of the National Child Labour Elimination taken away from their
Policy 2010. home are registered with
the proper authorities so
With regard to children between the age of 14 and 18, the that their whereabouts can
Court accepted that they would not be of compulsory be traced.
school-going age, however it stressed that the government
policy must be such that opportunity should be made available to these children to continue
studies, if they so desire and accordingly, their work hours must be geared in such a way as to
enable their further education. The provisions for registration of their movement and
engagement in the domestic sector as workers must also be monitored strictly. Children
between the ages of 14 to 18, who are engaged in the domestic sector, will be incorporated
automatically within the provisions of the Labour Act, if and when those provisions are
112
31 BLD 265 BNWLA v The Cabinet Division
... the beneficial provisions outlined in the three policy amended in order to
documents namely, Domestic Worker Protection and Welfare include within the
Policy 2010 (Draft), National Elimination of Child Labour Policy,
2010 and the Children Policy 2011 should be brought into effect
definition of workers
at once so that the benefits of the provisions of those policies those persons of any
may be given to the domestic workers and, in particular, to the age working in the
children in domestic work. domestic sector.
Directions
The Court issued the following directions on the government:
1. To prohibit employment of children up to the age of 12 from any types of employment
including employment in the domestic sector, particularly with the view to ensuring that
children up to the age of 12 attend school and obtain the basic education which is
necessary as a foundation for their future life.
2. We urge the government to implement the provisions mentioned in the National
Elimination of Child Labour Policy 2010 published in the gazette dated 08.04.2010. In
particular, we strongly recommend the establishment of a focal Ministry/focal point,
Child Labour Unit and National Child Labour Welfare Council in order to ensure
implementation of the polices as mentioned in the Policy, 2010.
3. We urge the government to implement all the beneficial provisions of the draft of
Domestic Worker Protection and Welfare Policy 2010 as announced by the
government.
4. The cases relating to the violence upon the domestic workers must be monitored and
prosecution of the perpetrators must be ensured by the government. We note with
dismay the disinterested and sometimes motivated way in which the prosecution
conducts the investigation and trial procedure resulting in the perpetrators being
acquitted or discharged or even remaining untouched due to the high position, which
they hold in the society. The government has a duty to protect all citizens of this
country, be they rich or poor. It must not be forgotten that the domestic workers come
from a poverty-stricken background and deserve all the more protection from the
government and the authorities setup by the government.
113
The State -Versus- Md. Roushan Mondal @ Hashem
(Death Reference No.05 of 2004), 59 DLR 72
This was a Death Reference under Section 374 of the Code of Criminal Procedure submitted
by the learned Additional Sessions Judge, 1st Court, Jhenaidah, for confirmation of the
sentence of death imposed upon accused Md. Roushan Mondal @ Hashem upon finding him
guilty under Section 6(2) of the Nari-o-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995,
(the Ain) by the judgment and order dated 13.1.2004 passed by him sitting as the Nari-o-
Shishu Nirjatan Daman Bishesh Adalat and Additional Sessions Judge, 1st Court, Jhenaidah in
Nari-o-Shishu Nirjatan Daman Special Case No.1 of 2000.
Facts
On 15.10.1999 at about 8:30 p.m. Mst. Rikta Khatun, aged about 8 years, daughter of the
informant Md. Ziarat Mondal, left her fathers house in order to watch television at the
house of their neighbour, Md. Bazlu. When she did not return by 10:00 p.m. the informant
started to search for her and found out that she did not go to the aforementioned house in
order to watch television.
On 16.10.1999 at 5:00 a.m. one Md. Batu told the informant that his daughters dead body
was lying in the turmeric field to the west of the house of Prosanta Kumar Saha.
The informant then went to that place and identified the dead body of his daughter. He saw
marks of injury on his daughters neck. It is the prosecution case that the victim was raped
before being suffocated to death by the condemned prisoner.
The informant lodged the First Information Report (F.I.R.) with Shailakupa Police Station at
9:35 a.m. on 16.10.1999 without naming anyone as accused.
During investigation accused Roushan Mondal was arrested. He made a confessional
statement recorded by a Magistrate. After investigation the police submitted charge sheet
against the accused under Section 6(2) of the Ain. Cognizance was taken by the Judge of the
Nari-o-Shishu Nirjatan Daman Bishesh Adalat and Sessions Judge, Jhenaidah.
By his order dated 22.1.2001, upon taking evidence and after hearing submissions with
regard to the age of the accused, the learned Sessions Judge came to a finding that the
accused was at that time aged 15 years 21 days. Thereafter, he sent the case for trial to the
Additional Sessions Judge, 1st Court, Jhenaidah,-cum-Nari-o-Shishu Nirjatan Daman
Tribunal, Jhenaidah.
In view of the earlier order dated 22.1.2001 with regard to the age of the accused, the
learned trial Judge, by his order dated 28.2.2001, assumed the role of a Juvenile Court under
the Children Act, 1974 (henceforth referred to as the Act) and framed charges against the
accused under Section 6(2) of the Ain.
In the course of trial 11 prosecution witnesses were produced and examined in order to
substantiate the case against the accused person, whereas the defence did not examine any
witness. From the trend of the cross-examination of the prosecution witnesses and from the
statement of the accused given when examined under Section 342 of the Code of Criminal
115
The State v Md. Roushan Mondal 59 DLR 72
Procedure, 1898 (the Code) the defence case appears to be one of innocence. The accused
also alleged that he was tortured in police custody and compelled to make a confession.

The honble Court referred to a number of decisions where it had
The Court stated
been held that a minor should always be tried by a Juvenile Court, and
that jurisdiction
should be tried separately from adult offenders. The Court went on over the person is a
to discuss the aspects which determine whether a Court has jurisdic- precondition to the
tion to try the accused, such as the age and mental capacity of the case proceeding to
trial by any Court
accused. The Court stated that jurisdiction over the person is a
or Tribunal.
precondition to the case proceeding to trial by any Court or Tribunal.
The Court then discussed the issue of definition of a child. The Court looked at the Children
Act, where a child is defined in section 2(f) as a person
...the concept of juvenile
under the age of 16 years. Section 2(n) of the Act defines
justice has developed over
the last 150 years or more youthful offender as a child who has been found to have
and essentially follows the committed an offence.
notion that a person of The Court looked at the development of the area of
tender years does not have
juvenile justice, stating that the concept of Juvenile justice
full control over his
impetuous actions nor the has developed over the last 150 years or more and essentially
mental maturity to realise follows the notion that a person of tender years does not
the consequences of his have full control over his impetuous actions nor the mental
conduct. maturity to realise the consequences of his conduct.
The Court in considering the necessity for a separate law for children supported the Indian
decision of Hiralal Mallik v. the State of Bihar, 1977 (4) SCC 44, where it was
observed:
Conceptually, the establishment of a welfare-oriented jurisdiction over juveniles is predicated and
over-judicialisation and over-formalisation of Court proceedings is contra-indicated. Correctionally
speaking the perception of delinquency as indicative of the person's underlying difficulties, inner
tensions and explosive stresses similar to those of maladjusted children, the belief that Court
atmosphere with forensic robes, gowns and uniforms and contentious disputes and frowning
paraphernalia like docks and stand and crowds and other criminals marched in and out, are
physically traumatic and socially stigmatic, argues in favour of more informal treatment by a free mix
of professional and social workers and experts operating within the framework of the law. There is
a case to move away from the traditional punitive strategies in favour of the nourishing needs of
juveniles being supplied by means of treatment oriented perspective. This radicalisation and
humanisation of juveniles has resulted in legislative projects which jettison procedural rigours and
implant informal and flexible measure of freely negotiated non-judicial settlement of cases.
116
59 DLR 72 The State v Md. Roushan Mondal
The Court then went into a detailed discussion of the background

... the dominant
history suffered by the children/youth community. The Court cited a feature of the
number of articles and cases in describing the plight of children from legislation regarding
the middle of the 19th century onwards, and the development of proceeding against
case law relating to children in the justice system. the delinquent child
is that it is meant
The Court subsequently looked at the reasons why children should for the protection
be dealt with separately from adults. The Court highlighted the fact of the child.
that the dominant feature of the legislation regarding proceeding
against the delinquent child is that it is meant for the protection of the child. Another aspect
of keeping children separately to adults put forward by the Court was the fact that the mind
of the child is immature, impressionable and malleable. If kept in association with bad
company, it is likely to learn the wrong things; in association with criminals, it is likely to pick
up the trade of the criminals and improve upon the methodology with his young and fertile
mind.
The Court also discussed the treatment of children in the international instruments. These
provisions emphasise that the proceedings should
The individual circumstances of
result in the wellbeing of the juvenile and that the
the offender (for example social
status, family situation, the harm response/reaction to youthful offenders should be
caused by the offence or other based on the consideration not only of the gravity of
factors affecting personal the offence but also of personal circumstances. The
circumstances) should influence individual circumstances of the offender (for example
the proportionality of the social status, family situation, the harm caused by the
reactions.
offence or other factors affecting personal
circumstances) should influence the proportionality of the reactions.
The Court was of the view that the overall aim of the instruments is not to punish the
offender, but to seek out the root of the problem, in other words, not treating the delinquents
as criminals, but treating the cause of their criminality and directing them on a path which will
be acceptable to mainstream society in order to ensure their rehabilitation.
The Court concluded that the thrust of the international declarations, rules, covenants and
other instruments is towards reformation and rehabilitation of youthful offenders and for
establishment of facilities for proper education and upbringing of youths so that they are
prevented from coming into conflict with the law. In
the event that a child or juvenile does come into ... the aim is to provide a system
of justice which is child-friendly
conflict with the law, then the aim is to provide a
and which does not leave any
system of justice which is child-friendly and which psychological scar or stigma on
does not leave any psychological scar or stigma on the the child, and, on the contrary,
child, and, on the contrary, prepares him for a fruitful prepares him for a fruitful future.
future.
117
The Court then moved on to consider the Children Act 1974. The Court first discussed the
background to the Act, and talked about the legislation that was in place prior to the enactment
of the 1974 law.
The Court expressed the view that the Children Act 1974 was promulgated as a direct
manifestation of Article 28(4) of the Constitution, which has been placed in the Part III
under the title Fundamental Rights, and at the same time in response to, and with a view
to fulfilling the mandate of, the relevant international instruments of the UN. The Court noted
that the Act incorporates provisions of international covenants in order to safeguard the
juvenile from exposure to the rigours of Court process and the stigma of trial and conviction.
The honble Court commented that in the present case, the learned Sessions Judge had sent
the case for trial by the learned Additional Sessions Judge, First Court and Nari-o-Shishu
Nirjatan Daman Tribunal, Jhenaidah, which defeated the purpose of the trouble taken by him
to ascertain the age of the accused under the provisions of section 66(1) of the Act. The
Court further commented that there was nothing on record to show that all the formalities of
a juvenile trial were followed. On the contrary, the offender was all along described as an
accused which is not a term found in the Act. The Court considered that the sentence passed
clearly showed that the learned judge had lost sight of the provisions of the Act.
The Court looked at section 66(1) of the Act, which provides as follows:
66. Presumption and determination of age.-(1) Whenever a person whether charged with an offence
or not, is brought before any criminal Court otherwise than for the purpose of giving evidence, and it
appears to the Court that he is a child, the Court shall make an inquiry as to the age of that person
and, for that purpose, shall take such evidence as may be forthcoming at the hearing of the case, and
shall record a finding thereon, stating his age as nearly as may be.
In the opinion of the Court, this section is the first and foremost procedural consideration
when any criminal Court is faced with a person brought before it, who appears to the Court to
be a child. It comes even before the consideration of any offence, whether charged or not.
The Court looked at the issue of relevant date for application of the Children Act. The Court
observed that while the definition section of the Act says a child is any person under the age
of 16 years, it does not clarify whether he should be below 16 years of age at the time of
commission of the offence or at the time of framing the charge or commencement of the
trial. The Court, after examining relevant legislation from other jurisdictions and perusing the
international conventions, came to the conclusion that the relevant date must be the date on
which the offence is committed, otherwise the whole thrust of the law to protect those who
are immature, impetuous, unwary, impressionable, young, fickle-minded and who do not know
the consequences of their act, would be lost. The Court was of the opinion that it is the mental
capacity of the offender at the time of committing the offence which is of crucial importance.
The Court also took into account a number of case law decisions from various jurisdictions in
support of this view.
118
59 DLR 72 The State v Md. Roushan Mondal
Looking forward, the Court expressed the view that the time is ripe for our legislature to enact
laws in conformity with the UNCRC. The Court felt that this would also give the opportunity
to iron out some of the difficulties faced so far in relation to the date relevant for determining
the age of the accused for the purpose of jurisdiction of the Juvenile Court and at the same
time it may be spelt out that this legislation will take precedence over all other laws when
matters relating to children are in issue. The Court looked at the laws enacted by other
jurisdictions which had been drafted to reflect obligations under the international
conventions.
Directions
In conclusion the Court gave a number of directions as to what the law ought to provide,
which are as follows:
1. As soon as a child is apprehended for an alleged offence he must be taken before a

Magistrate, and at all times kept separate and detached from any adult offender. Under
no circumstances is the child to be kept in police lock-up.
2. The Magistrate must take immediate steps to ascertain the age of the child in
accordance with section 66 of the Act, and procedures laid down in the Act are to be
followed.
3. Parents/guardians of the child must be informed
4. The child should be considered for release to the custody of his parents/
guardians pending any inquiry regarding any allegation.
5. If his detention is felt absolutely necessary then he must be kept in a special home or
observation home established for the purpose, pending decision on the allegation
against him. The special homes must be separate and distinct from the approved
homes where children in conflict with the law are placed after they are found to have
been in breach of the law.
6. If it is established that she/he is a child then the matter must be adjudicated upon by a
Childrens Justice Board/Panel and the proceedings must be concluded
expeditiously.
7. The child must be given opportunity to be legally represented and afforded legal aid for
the purpose.
8. In deciding the case finally, the Board/Panel must take into account the childs
background and other family/community circumstances, including any report of a

Probation Officer or Social Worker.
119
9. If it is decided that confinement is necessary, then it must be in accordance with the

Children Act and in an approved home and at any cost NOT IN PRISON
(emphasis added)
10. The approved homes must be equipped to provide the necessary educational and
vocational training facilities and always with the view to the rehabilitation of the child
in the community.
The Court emphasized that the above is not a comprehensive list and provides only some of
the Courts perceptions and suggestions. The Court with these directions wished to emphasise
the importance of giving the deviant child an opportunity to do better and rejoin mainstream
social structure.
120
Bangladesh Legal Aid and Services Trust (BLAST) and another
-VERSUS- Bangladesh, represented by the Secretary, Ministry
of Home Affairs, and others, 63 DLR 10
The issue before the Court in this case was whether a mandatory death penalty is permisible
under the Constitution and wheather it could be imposed on a minor. This involved a Rule
Nisi which was issued upon an application by the petitioners under Article 102(1)(2)(b)(i) read
with Article 44 of the Constitution calling upon the respondents to show cause as to why
section 6(2) of the Nari-o-Shishu Nirjatan (Bishes Bidhan) Ain, 1995 (Act No.XVIII of 1995)
operative under section 34 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 (Act VIII of 2000)
should not be declared to be void, unconstitutional and ultra vires and as to why petitioner
No.2 the convicted detenu Md. Shukur Ali, son of late Hashem Mondal of
Village-Shibrampur Tepra, Police Station- Shibalaya, District-Manikganj detained in the
condemned cell of Dhaka Central Jail on conviction in Nari-o-Shishu Nirjatan Daman
Bishesh Case No.75 of 1999 by Nari-o-Shishu Nirjatan Daman Bishesh Adalat, Manikganj
purportedly under section 6(2) of the Nari-o- Shishu Nirjatan (Bishesh Bidhan) Ain, 1995
(Act of XVIII of 1995) should not be brought before this Court so that it may satisfy itself
that the petitioner is not being held in custody without lawful authority or in an unlawful
manner.
The Court considered whether or not the death penalty could be included as a punishment
after 1972 when the Constitution came into force. The Court concluded that since the
provision of the special laws incorporating the punishment of death sentence are essentially
for heinous crimes, including those leading to death of the victim, particularly, death caused
either during or subsequent to rape; death caused by acid etc., they are a reaction to the
perceived need of the day. It noted that the severest punishment is meted out only when the
crime is perceived to be most heinous.
The Court stated that the crime of murder itself being a heinous offence, the death penalty
had been prescribed under section 302. This penalty was provided in our laws prior to the
coming into force of the Constitution and is protected by the Constitution itself. The newly
enacted special laws prescribe the death penalty in cases where the crime is most heinous and
death of the victim has resulted. Thus the death penalty is prescribed for offences causing
death under various circumstances which was previously punishable under the Penal Code by
sentence of death. If the death penalty were not included as a punishment for death in the
newly enacted laws then there would be discrimination in treatment of offenders under the
new laws as compared with those dealt with under the Penal Code. As a result, the Court
expressed the view that the inclusion of the sanction of death penalty subsequent to the
coming into force of Constitution cannot by itself be said to be unconstitutional.
121
BLAST and another V Bangladesh 63 DLR 10
The Court considered the case of Reyes, in which their

The Court was of the opinion
Lordships in the Privy Council had considered the that when the legislature
submission of counsel that a sentencing regime which prescribes any punishment as
imposes a mandatory sentence of death on all murderers, a mandatory punishment the
or all murderers within specified categories, is inhuman hands of the Court are
and degrading because it requires the sentence of death, thereby tied. The Court
becomes a simple rubber-
with all the consequences such a sentence must have for
stamp of the legislature. Upon
the individual defendant, to be passed without any finding the accused guilty, the
opportunity for the defendant to show why such sentence Court can do no more than
should be mitigated, without any consideration of the impose the mandatory punish-
detailed facts of the particular case or the personal history
and circumstances of the offender and in cases where such a sentence might be wholly
disproportionate to the defendant's criminal culpability. The honble Court held the same
view and observed that where the appellant is not a habitual criminal or a man of violence,
then it would be the duty of the Court to take into account his character and antecedents in
order to come to a just and proper decision. But where the law itself prescribes a mandatory
punishment then the Court is precluded from taking into consideration any such mitigating or
extenuating facts and circumstances.
With regard to sentencing methods in Bangladesh, the Court observed that there is no
provision or scope to argue in mitigation or to bring to the notice of the Court any
extenuating facts and circumstances in any given criminal trial. There is no provision of
sentence hearing. The Court stated that such a provision existed in 1982 as section 255K of
the Code of Criminal Procedure, but the provision was abolished in 1983. The Court
expressed the view that it is imperative that such provision should exist, particularly in view of
the fact that in our country the adversarial system denies the accused any opportunity to put
forward any mitigating circumstances before the Court. In our criminal justice system, the
accused from the beginning to the end of the trial will maintain a plea of not guilty and since
no separate date is fixed for sentencing the accused, there is thereby no opportunity to put
forward any mitigating or extenuating circumstances.
The Court stated with regard to mandatory provision for sentencing that these take away the
discretion of the Court and precludes the Court
The Court must always have the
from coming to a decision which is based on the discretion to determine what
assessment of all the facts and circumstances punishment a transgressor deserves
surrounding any given offence or the offender, and and to fix the appropriate sentence
that is not permissible under the Constitution. The for the crime he is alleged to have
Court must always have the discretion to determine committed. The Court may not be
what punishment a transgressor deserves and to degraded to the position of simply

rubberstamping the only punishment
fix the appropriate sentence for the crime he is which the legislature prescribed.
alleged to have committed. The Court stated with
122
63 DLR 10 BLAST and another v Bangladesh
regard to mandatory provision for sentencing that

... any provision of law which
these take away the discretion of the Court and provides a mandatory death
precludes the Court from coming to a decision penalty cannot be in accordance
which is based on the assessment of all the facts and with the Constitution as it curtails
circumstances surrounding any given offence or the the Courts discretion to adjudi-
offender, and that is not permissible under the cate on all issues brought before it,
Constitution. The Court must always have the including imposition of an
alternative sanction upon the
discretion to determine what punishment a accused found guilty of any offence
transgressor deserves and to fix the appropriate under any law.
sentence for the crime he is alleged to have
committed. The Court may not be degraded to the position of simply rubberstamping the
only punishment which the legislature prescribed. The Court expressed the view that if the
discretion of the Court is taken away then the right of the citizen is denied.
Expressing the view that the mandatory provision of death penalty given in any statute cannot
be in conformity with the right accruing to the citizen under the Constitution, the Court found
that section 6(2) of the Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 is ultra vires the
Constitution. The Court went further to say that, any provision of law which provides a
mandatory death penalty cannot be in accordance with the Constitution as it curtails the
Courts discretion to adjudicate on all issues brought before it, including imposition of an
alternative sanction upon the accused found guilty of any offence under any law.
123
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House No. CWN (A) 35, Road No. 43
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Justice For Children in Bangladesh

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Justice for Children in Bangladesh

An Analysis of Recent Cases

Najrana Imaan, Barrister-at-Law

Coordination: Laila Karim, Child Protection, Save the Children

Text Editor: Farheen Khan/Insight Initiatives Ltd.

Design & Layout: Masuma Pia/Matri

Cover Photo: Shafiqul Alam Kiron/Map Photo Agency

Published by: Save the Children

Copyright: Save the Children in Bangladesh

First Published: December 2012

ISBN NO: 978-984-33-8055-5

VOLUME ONE: CASE HEADNOTES 7

VOLUME TWO: CASE SUMMARIES 55

Hon Justice Muhammad Imman Ali

Abdul Munem Chowdhury @ Momen vs. State, 47 DLR (AD) 96

Laws governing issues related to children in Bangladesh

Status of implementation of existing laws

Incorporation of international instruments into national laws

Whether or not the Court has jurisdiction to try the accused:

Philosophy behind separate justice system for juveniles:

Point in time when age of accused is relevant:

which provides as follows:

(State Vs Md. Roushan Mondal @ Hashem,

2.To inform the Probation Officer:

3.To consider bail of the child accused:

Duty of the Public Prosecutor:

Duty of Probation Officers: