1. Short Facts
2. On 12.02.2010 at around 5 PM, Saikat went out of his home to play and never came back. Finding no trace, Saikat’s father Siddikur Rahman filed a general diary (GD) on the next day. The kidnappers repeatedly called up Saikat’s father on phone demanding a ransom of Tk 1 lakh. On the evening of 15.02.2010, the kidnappers instructed the informant to bring the ransom money to the eastern bank of river Vogai. The kidnappers received the money and informed Siddikur that Saikat had been kept at an abandoned homestead near his house. Upon going there, Siddikur found the dead body of his son with the neck tightly wrung by a nylon cord, facial bruises and eye injuries as well as burn marks. Around 20 days before the incident, accused Oli demanded Tk 1 lakh to contest a student union election. Siddikur refused and faced repeated threats. On 10.02.2010, Oli threatened Siddikur to comply within 12 hours or face dire consequences.
3. Subsequently, the informant, Md. Siddikur Rahman lodged an FIR on 16.02.2010 with Kalmakanda Police Station, Netrokona against Oli, Sabuz Miah, Tapash Chandra Saha, Feroz Miah, Rafiqul, Emdadul and Farid Miah, alleging kidnapping and murder of his minor son Saikat.

 

21. Police investigation implicated the appellant, Md. Anis Miah, a juvenile offender and cousin of the victim. He was arrested on 21.02.2010 and made a confessional statement under section 164 of the Code of Criminal Procedure (CrPC). The Tribunal framed charges under sections 7, 8, and 30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000, read with sections 302, 201, and 34 of the Penal Code. Anis Miah filed an application to be tried by a Juvenile Court, but the Druto Bichar Tribunal assumed jurisdiction suo motu and registered the case as Juvenile Case No. 01 of 2011.

 

1. On conclusion of trial, the Tribunal convicted the appellant under the sections 8 and 30 of the Ain, 2000 (hereinafter referred to the Ain, 2000) read with section 52 of the Children Act, 1974 (hereinafter referred to the Act, 1974) and awarding him punishment of detention and imprisonment for 10 (ten) years in total, out of which he would be detained in a certified institute till attainment of 18 years of age and thereafter suffer imprisonment for the remaining period

 

1. Submissions of the Counsels

 

Mr. SM Shajahan for the appellant

 

1. The impugned judgment and order of conviction are without jurisdiction inasmuch as the appellant was a child under the age of 16 years at the time of commission of the occurrence, and he could only be tried by a Juvenile Court constituted under the Children Act, 1974, that was in force at the material time. The Druto Bichar Tribunal had no jurisdiction to try the appellant.

 

2. The confessional statement of a child under section 164 CrPC is not admissible in evidence.

 

DAG Moniruzzaman for the State

 

1. A Sessions Judge is competent to exercise the power of a Juvenile Court in view of sub-sections (2) and (5) of section 5 of the Act, 1974. Learned Judge of the Tribunal, being a Judicial Officer equivalent to a Sessions Judge, is quite competent to assume the jurisdiction of the Juvenile Court.

 

2. A child is competent to record evidence, and as such, there is no reason for being incompetent on his part to make a confessional statement and use it against him as well as against the co-accused within the scope of section 30 of the Evidence Act. In State vs. Shukur Ali, 9 BLC 239, the High Court Division confirmed the death sentence of a child awarded on the basis of his confession. The said decision was also upheld by the Appellate Division.

 

3. Learned Tribunal did not commit any illegality in passing the impugned order of conviction, as the Appellate Division in Mona alias Zillur Rahman vs The State, 23 BLD (AD) 187 held that a child can be punished for more than ten years in cases of offences punishable with death or life imprisonment.

 

III. Submission of the Amicus Curiae

 

Khandaker Mahbub Hossain

 

1. That a confessional statement of a child can be recorded under section 164 of the CrPC by virtue of section 18 of the Act, 1974, but extra care and caution should be given in recording confessional statements of the children, including the presence of their parents, guardians, or custodians.

 

2. That only a Juvenile Court established under the provisions of the Act, 1974, shall have the jurisdiction to try the juvenile cases. A Tribunal constituted under any special law for the special purpose of trial of a particular type of cases is not a Court within the scope of section 4 of the Act. The Druto Bichar Tribunal constituted under the Ain, 2002, does not fall within the definition of Juvenile Court, nor can it assume the jurisdiction on its own motion.

 

3. Attaining majority during trial does not bear any relevance to the alleged offence, and also with the imposition of punishment.

MI Farooqi

 

1. In view of the development and spirit of the law, the purposive interpretation would require a child to be absolved of the ordeal of the process of confessional statement under section 164 of the CrPC.

 

2. No Court or Tribunal other than a Juvenile Court can try any case where a child is charged with a criminal offence, and hence, it was incumbent upon the Druto Bichar Tribunal to transfer the case to the Juvenile Court for trial.

 

Shahdeen Malik

 

1. Juvenile Courts are established for the explicit purpose of creating a non-adversarial and friendly setting for trying the children in conflict with law, and therefore, a child cannot be subjected to the rigors of a formal and adversarial justice system in the settings of regular Court or Tribunal other than the Children Act, 1974.

 

2. A confessional statement under section 164 of the CrPC and its use against an accused, being part of the formal and adversarial structure of our criminal justice system, is quite non-applicable for a child in conflict with law. The legally recognized immaturity and lack of proper understanding of the consequences of his purported confession cannot be taken into consideration in adjudicating his act or omission.

 

1. Issues and Findings of the Courts

 

1. The Assumption Of Jurisdiction By The Druto Bichar Tribunal.

 

The Children Act, 1974, vests exclusive jurisdiction in Juvenile Courts, and the Druto Bichar Tribunal cannot assume such jurisdiction in any manner. No Tribunal or court other than the juvenile courts has jurisdiction to try any case where a child is charged.

 

1. Maximum Term Of Punishment For Children In Conflict With Law.

 

In imposing punishment for offences punishable with death or imprisonment for life, the maximum term of imprisonment against a juvenile offender or a person who crossed childhood during trial or detention cannot be more than 10 years

 

III. Admissibility Of The Confessional Statement Of A Child Recorded Under Section 164 Crpc.

 

Children lack the maturity to comprehend the consequences of making confessional statements and such confessional statements are often involuntary and induced. Legislative omission in Shishu Ain, 2013 (Children Act 2013), further confirms that children are not expected to make confessional statements against themselves. The Confession of a child in conflict with law recorded under section 164 of the Code of Criminal Procedure has no legal evidentiary value and therefore such a confession cannot form the basis of a finding of guilt against him.

 

1. Decision

 

The High Court Division allowed the appeal and set aside the judgment and order of conviction passed against the appellant.