Involvement of Juvenile in Criminal Offence
Chapter One
01. Introduction
Juvenile delinquency is an inextricable problem for any human society. It is a problem that persists in our society and also all over the world to a perceptible degree. A child is born innocent and it nourished with tender case and attention he or she will be a person of statute and excellence. To understand the problem is real perspective it is necessary to understand the meaning of delinquency and its significance is the social background of our society[1]. On the other hand, noxious surroundings, neglect of basic needs bad company and other abuser and temptations would spoil the child and likely to turn him a delinquent.
“We are guilty of many errors and many faults, but our worst crime is abandoning the children, neglecting the foundation of life. Many of the things we need can wait, the child can not, night now is the time his bourse are being formed, his blood is being mode and his senses are being developed. To him, we can not answer tomorrow. His name is “Today”[2].
Thus children being are important asset, every effort should be made to provide them equal opportunities for development so that they become robust citizens physically fit, mentally alert and morally healthy endowed with the skills and motivations need the society[3]. The Neglected children and juveniles fall an easy prey to criminality. The adolescents claim the highest share in violence due to dashing nature, lack of foresight, uncritical enthusiasm, physical strength, endurance and desire for adventure.
02. Aims and Objects of the Study
The society of Bangladesh is passing a transition from 1950s. The large number of population are burdened to the country and because of having the unemployment largely, the proper development of the country are not increasing day by day. Moreover, political stability as well as other problems are also responsible for the under developing situation of the country. Crimes are increasing day by day for various reasons and juvenile crimes are one of the results of the failure conducting. So the aims and objects of this study may consider the following demands:
An agro-based village oriented society may be started to transform into an urban society causing the emergence of single parents’ family.
To remove the urban life with its anonymity, complicacy and material infrastructure this is liable for more opportunity for criminal activities. That is identified as one of the major causes for high rate of criminality including extensive juvenile delinquency.
Continuous famine in some regions, unemployment, bringing down banks of rivers and increasing poverty caused large-scale migration of people from village to city.
The migrated people with their family members took shelter in slum areas and remain deprived of basic civic amenities.
Criminal activities are taking strong hold by taking advantage of unemployment, deprivation and vulnerable economic condition of slum people.
Absence of strong parental control and lack of opportunity to get education are pressing the juveniles of slums to have more involvement with criminal activities.
Extensive satellite culture has some impact on the mindset of the young folk in no way that is always functioning positively. All these social conditions are contributing heavily for increasing delinquency rate among the juveniles.
03. Methodology
The purpose of juvenile justice system is not to penalize the juveniles, but to make them understand their mistakes and afford them an opportunity to rectify themselves. Any confinement or detention in a remand home, place of safety or correction centre is a major barrier for the rectification of juveniles. Because detention within an institute creates guilty feelings among the juveniles and people also treat them as offender. Considering this attitude of society the Children Act, 1974 gives power to the officer-in-charge of the police stations to forward the juveniles on bail and to the magistrates to order the juveniles to be released on probation of good conduct and committed to the care of the parents or any other relative even after the conviction of the juveniles. But unfortunately these alternative measures remain unexhausted due to lack of motivation, ignorance of magistrates and unavailability of parents or reluctance of parents. Deprivation of liberty of juveniles by sending them to the correction centre should be the last resort and should be used in the rarest of the rare cases. But deprivation of liberty is extensively used which is frustrating the purpose of juvenile justice.
The provisions to treat the children separately after arrest, to submit separate charge-sheet and to conduct separate trial in a homely atmosphere are not maintained due to ignorance of law, proper motivation and an attitude to avoid extra burden by the police officers and magistrates.
The transition of society, complicacy of urban life, absence of parental control and care, impact of satellite culture and overall malfunctioning of society cause to develop deviant juvenile subculture in Bangladesh. Implementation of law by the main actors, exploitation of alternative measures, and all out efforts of societal people of different strata are required to combat this problem.
04. Definition
The concept of “Juvenile delinquency” has been vaguely and imprecisely defined in many countries; a clear definition would be most useful in the formulation of workable programmers for the prevention of juvenile delinquency. In finding out a working definition, it should be remarked that juvenile delinquency is not mere legalistic concept as it is some times taken to be. It may be construed as a specific behavior pattern. It is only when this behavior pattern is of an aggressive nature and handful to the public that the boy or girl concern come juvenile deliquescence may be defined in simple words as antisocial tendencies in the young & youthful. It spells the loss of control of family and society over a portion of the growing generation. An offender is considered juvenile or criminal on the basis of his age at the time of conviction not at the time of commission of offence.
“It is a phenomenon which has engaged the attention of society in particular the law since the birth of civilization.”
According to Burt, “a child is to be regarded as technically a delinquent when his anti-social tendencies appear so grave that becomes subject of official action. “Irrespective of legal definition, a child might be regarded as delinquent when his anti-social conduct inflicts suffering upon others or when his family finds him difficult to control[4].
In a broad generic sense, Juvenile delinquency refers to “ a variety of anti-social be heavier of a child and is defined some what differently by different societies, though a common cornering tendency may be noted in those forms, namely, socially unacceptable tendency of the child at any given time[5].”
By Paul W. Tappan, Euphemistic terminology such as “heaving” instead of trial or instead of “sentence” should not conceal from us the fact that the nature of entire procedure may be little different from that of a criminal court.
05. Problem of definition of child
The United Nations Convention on the Rights of the Child (CRC) defined child as any person under the age of 18 years unless under the law applicable to the child, maturity is attained earlier. Bangladesh ratified the Convention on the Rights of the Child in November 1989[6]. In Bangladesh there are a number of laws which defined a child. These laws are conflicting regarding the age of children. Some described a child as a person below 12 years, others state below 14 years and some defined them as a person below 18 years of age. But the Children Act, 1974 defined a child as a person under the age of 16 years. Article 2(f) provides that, “Child” means a person under the age of 16 years, and when used with reference to a child sent to a certified institute or approved home or committed by a Court to the custody of a relative or other fit person means that child during the whole period of his detention notwithstanding that he may have attained the age of 16 years during that period[7].
06. Juvenile justice system in Bangladesh
The Children Act, 1974 is the substantive law for juvenile offenders and their treatment. The law was made to consolidate and amend the laws relating to the custody, protection and treatment of children and trial and punishment of youthful offenders.
07. High court Order
According to international save the children U.K.’S report in daily Prothom Alo on 4th January, 2003 that there are about 400 children is central jail. After this information High Court Division issues a suo-moto, order no-248/2003 on 9 April 2003 for the redemption of the Juvenile[8].
Order of High Court Division regarding this matter: The High Court Division of the Supreme Court of Bangladesh provides the following orders –
Juvenile justice administration shall be preceded by the juvenile court.
The Govt. wills application to the court for the acquitted of the children from the case.
The existence legal aid committee will arrange the bail.
No child shall be changed with or tried for, any affiance together with an adult.
The children have to send to remand home on correction centre.
Chapter Two
Juvenile Justice Administration and the International Views
It is accepted that children who are criminally culpable under the State’s penal codes are in conflict with the Law. Historically, in matters of criminal justice, the violation of law was of greater significance than the age or the immaturity of the offender. This stemmed from the ideology those children, who were regarded as miniature adults at that time, did not merit special treatment. However, over the past century and a half changing perceptions and sustained efforts by specific groups within the civil society, have led to the development of a criminal justice system with a more child-friendly orientation. The rationale was that since children are not fully aware of the implications of their acts they are required, to be treated with sensitivity and care.
The administration of justice for minors who are accused of, or alleged as having breached the penal laws of the country essentially constitutes the juvenile justice system. Juvenile justice, in the strict sense of the term, denotes the right of children to have the support at all levels, i.e., the State, the family and the community, in realizing their rights of survival, protection, development and participation[9]. The present exercise is an attempt at reviewing the administration of juvenile justice in Bangladesh and assessing the impact of correctional services on juveniles and children.
01. Administration of Juvenile Justice: (International Perspectives)
The international approach to administration of juvenile justice recognizes the necessity to have the rights of children redefined and developed in concrete ways simply because they are a special category of human beings. Accordingly, the United Nations have taken significant steps mat have contributed to the development of standards for treatment of children who come into conflict with the law. The initiatives are described below in brief for an understanding and appreciation of the standard setting role of the United Nations.
02. Standard Minimum Rules for the Administration of Juvenile Justice (Hie Beijing Rules) 1985
The Beijing Rules provide minimum conditions for the treatment of juveniles who come into conflict with law. The Rules explicitly provide for a separate and specialized system of juvenile justice and underscore that detention of children should be used as a last resort and that too, for the shortest possible time. The Rules discourage capital and corpora! Punishment for children
Under the Rules children should be allowed to participate in the legal proceedings. Moreover, care and education of children must be ensured during the period of detention. At all stages of the proceedings discretion should be exercised in the best interests of the child.
In terms of treatment the Rules require that children should be treated fairly and humanely. Measures adopted should be proportionate to the nature of the offender and the offence. The Beijing Rules however, refrain from prescribing approaches beyond setting forth the basic principles of proportionality and the limited use of deprivation of liberty, a shortcoming that has been resolved substantially by the Convention on the Rights of the Child.
02. The Convention on the Rights of the Child 1959
The Convention on the Rights of the Child (CRC) 1989 in Articles 37 and 40 spell out the rights of children in conflict with the law and ensure basic guarantees and legal and other assistance for their defense. Article 37 of the CRC ensures that no child shall be subjected to arbitrary arrest detention, torture or other cruel. In human and degrading treatment including capital punishment and life sentence. The arrest or detention c f a child must be in conformity with law during which the child shall be treated with humanity and dignity[10].
Many of the essential principles of the 19S5 Beijing Rules find expression in Article 40 of the CRC and lend them a binding effect. Article 40 of the CRC provides that every child alleged as, accused of, or recognized as having violated the penal law must be treated in a manner consistent with the child’s human rights, fundamental freedoms, sense of worth and dignity. Regard must be had to the age of the child and the need to promote its reintegration into society- Accordingly, a child must be presumed innocent until proven guilty, be informed of charges promptly and cannot be compelled to give testimony or confess to guilt and muse rave access to legal representation. Articles 37 and 40 are qualified by Article 3 of the CRC which states that in all actions, whether undertaker by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration[11].
The Convention on the Rights of the Child is complemented by two other major documents, which set standards and guidelines for the protection of children in conflict with the law.
03. UN Guidelines for the Protection of Juveniles Deprived of their Liberty 1990
These Guidelines apply to all institutions, which detain any person under the age of 18 years. These include institutions for health, welfare or juvenile justice. The Guidelines advocate the least possible use of deprivation of liberty and discourages detention in prisons and other closed institutions. Moreover, the Guidelines advise that children, when detained, should be kept separate from adults in order to protect them from negative influences. Rather, facilities must promote health of juveniles and instill in them self respect and a sense of responsibility to enable them to make a smooth return to society. Access to parents during the period of detention is essential.
04. UN Guidelines for the Prevention of Juvenile Delinquency (Hie Riyadh Guidelines) 1990
The Riyadh Guidelines emphases on the need for integrated and comprehensive plans for preventing crimes by children and young people. They advocate for formal mechanisms of crime control as a last resort. The Guidelines also underline the need for having due regard to the human rights and fundamental freedoms of children, particularly of those who are at ‘social risk’, such as children who are homeless, destitute, abused and so on. Accordingly, laws and procedures should promote, protect and uphold children’s rights. The Guidelines further recommend that children should be encouraged to participate in policy formulation and implementation of prevention programmers as active and equal partners.
An examination of the international standards on the administration c: juvenile justice reveals two broad principles that are of particular significance to children in conflict with the law. Firstly, that the well being of children who come in conflict with the law must be ensured and secondly, the children who come in conflict with the law must be treated in a manner commensurate to their circumstances and nature of the offence. In other words, the rights of children in conflict with the law must be protected in ways that will facilitate their reintegration into the; societies and assumption of responsibilities therein. Therefore, it is essential to weigh the considerations adequately before committing children to formal institutions. In this context, diversion from formal legal procedures is always an acceptable alternative.
Endorsement of international standards, however, does not automatically guarantee their practical enforcement in domestic context of states-While international standards are meant to apply objectively, they essentially lack binding force. Therefore, while international Conventions may engender certain responsibilities for ratifying states, they carry no formal obligations in terms of practical implementation. In the circumstances, it is crucial to develop enabling mechanisms within the domestic legal system for utilization of international standards in realistic ways.
Chapter Three
Administration of Juvenile Justice in Bangladesh
The legal provisions relating to the administration of juvenile justice in Bangladesh have their roots in colonial laws. The Bengal Code and Prisons Act of 1S94 required separate trials for children and adults. Guidelines for reformation were contained in the Reformatory Schools Act 1897. The Code of Criminal Procedure of 1898 provides for the trial of children in juvenile courts, which was also later recommended by The Bengal Children’s Act 1922. These various laws and provisions relating to custody, protection, trial and treatment of children were eventually consolidated to produce The Children Act 1974, to be read together with The Children Rules ‘1976, a mechanism conceived to protect the child’s best interest during all kinds of legal processes.
The Children Act 1974 contains both procedural as well as substantive components. The procedural component, supplemented by The Code of Criminal Procedure 1898, sets out special procedures for juvenile courts and for committing children to the protection and care of state facilities. The substantive part, on the other hand, describes offences done to children and prescribes penalties for them.
The Children Act 1974 lays down protections for children in conflict with the law as well as those who are at social risks. The Act requires that Courts must have regard to the age and character of the child and other related factors before passing any order. It provides for separate juvenile courts and forbids the joint trial of child offenders with adults, even where the offence has been committed jointly. The Act also lays down measures for the care and protection of destitute and neglected children including children whose parents /guardians are either alcoholic or who habitually neglect, abuse or ill-treat children by engaging them in begging or other purposes.
01. Delineating the Age of Criminal Responsibility
There is often no uniform standard regarding the age at which a person is necessarily considered a child. This is primarily because the age premise is likely to vary across cultures, values and social systems. Article I of The Convention on the Rights of the Child denotes that a child is a person under the age of 18 years unless, under the law applicable to the child, majority is attained earlier. In other words, the Convention permits member states to set the age of majority in conformity with national laws[12]. This creates problems when, as is the case in Bangladesh, states have domestic legislation’s that define a child varyingly to suit specific contexts.
Having said that, it is difficult to find a clear-cut definition of a child in international standards as well. Whereas The Convention on the Rights of the Child regards all persons under the age of 18 years as children, none of the Rules and Guidelines relating to administration of juvenile justice., i.e., The Beijing Rules, the UN Rules for the Protection of Juveniles Deprived of their Liberty or The Riyadh Guidelines (as discussed later) contains any explicit indication as to who is a child. Rather, the Guidelines often use the terms ‘child’ and “young person’ in tandem and apply the term “juvenile’ to signify the form of justice system or the type of delinquency[13]. It appears therefore, that in the context of juvenile justice “it is the manner in which a child is treated for an offence which dictates whether a child is also a juvenile’[14].
Just as the age of a child is a controversial issue, the age of criminal responsibility, though seemingly straightforward and elementary as a concept, presents concrete problems in the administration of juvenile justice. While there is no distinct international standard on the subject, the CRC and the Beijing Rules enjoin State Parties to establish a minimum age below which children will be presumed as not having the capacity to infringe the penal law. In so doing, the beginning of the age should not be set too low, having due regard to the child s emotional, mental and intellectual maturity.
The penal law in Bangladesh reflects these considerations to a certain extent. The Penal Code of I860, which sets the age of criminal responsibility states that nothing is an offence, which is done by person under the age of 9 years (Section 82) and that full criminal responsibility commences only after the age of 12 years[15]. Section 83 of The Penal Code provide that an act of a child above 9 years and below 12 years, who has not attained sufficient maturity of understanding to judge the nature and the consequences of his conduct, is no offence. It follows therefore, those children under 9 years lacks the capacity for crime and incur liability after the age of 12 years; in between these two ages, criminal responsibility depends on the state of mind. It is to be noted that apart from The Penal Code, immunity of children below 9 years of age from criminal responsibility also extends to offences under any other special or local law of Bangladesh.
The Children Act 1974 which is the principal law relating to the administration of juvenile justice states that a child means a person under the age of 16 years, and a youthful offender means a child who has been found to have committed an offence[16]. When used with reference to a child sent to a certified home or committed by Court to the custody of a relative or other fit person means that child during the whole period of his detention notwithstanding that he may have attained the age of 16 years during this period[17]. In other words, a child who is below 16 years at the time of his committal will still be considered a child until the end of his detention period even if he reaches the age of 16 years during this period.
Unless the age of a child is ascertained properly there is every possibility of misapplication of laws and missed mini strait on of justice. The virtual absence of birth registration in Bangladesh raises serious difficulties in computing the correct age of a child in Bangladesh. This problem is of particular significance where children are brought before the courts and the ma gastritis have to rely on information furnished by the police who, in the majority of cases, misrepresent the age of the apprehended child. Although there are provisions in the law that requires a medical examination to ascertain the age of the child this is hardly conducted in routine time. Consequently, the child remains in custody like an adult until the conclusion of the medical verification[18].
02. Setting the Law into Motion: Procedural Aspects
Although The Children Act 1974 and The Children Rules 1976 are premised on the best interests of children who come in conflict with the law and who are destitute, their enforcement in practical terms is rather ineffective and often detrimental the children. Children traverse through different stages in the criminal justice system from the moment they come into contact with the law. This section attempts to examine the procedural aspects of the juvenile justice system and explore the implications they have for children who come under its jurisdiction.
Chapter Four
Negligence of authorities hinders the very purpose of juvenile justice system in Bangladesh
01. Problem of determining criminal responsibility
As per section 82 of the penal code, the age of criminal responsibility in Bangladesh is above seven years of age. But the Children Act defines a child as a person under the age of 16 years of age. Section 52 of the Act provides that, 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 certified institute for detention for 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. Penal Code and the Children Act, 1974 are contradictory. The age of criminal responsibility is not clear from the above mentioned laws. The minimum age of criminal responsibility requires clarity.
Assuming above seven years as the age of criminal responsibility in Bangladesh the government functionaries are dispensing their activities. When any child of above seven years commits any punishable offence then they are arrested by the police. The police do not consider street children, child prostitute or delinquent juvenile as children and are treated them like adult offenders.
02. Arrest, bail, detention and discharge
Where a person apparently under the age of sixteen years is arrested on a charge of 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 reputed criminal or expose him to moral danger or where his release would defeat the ends of justice[19].Where such a person 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 the court. A court, on remanding for a trial a child who is not released on bail, shall order him to be detained in (i) a remand home or (ii) a place of safety. [Section 49, the Children Act]
Immediately after the arrest of a child, the officer-in-charge shall inform to the Probation Officer of such arrest to enable the said probation officer to proceed forthwith in the matter of the juvenile. No child shall be charged with, or tried for, any offence together with an adult. Police officer has to submit separate charge sheet and concerned magistrate has to conduct separate trial when a juvenile has been charged with any offence[20].
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 authorized 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 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.
03.Alternative measures
A court may, if it thinks fit, instead of directing any youthful offender to be detained in a certified institute under section 52 order him to be (a) discharged after due admonition, or (b) released on probation of good conduct and committed to the care of his parent or guardian or other adult relative or other fit person on such parent, guardian, relative or person executing a bond, with or without sureties, as the court may require, to be responsible for the good behaviour of the youthful offender for any period not exceeding three years and the court may also order that the youthful offender be placed under the supervision of a Probation Officer[21]. If it appears to the court on receiving a report from the probation officer or otherwise that the youthful offender has not been of good behaviour during the period of his probation, it may, after making such inquiry as it deems fit, order the youthful offender to be detained in a certified institute for the unexpired period of probation.
04. Juvenile prisoners’ plight
On September 16, 2003 eight inmates were reportedly attempted to commit suicide by way of causing dent and mutilating their own body using sharp blades and broken bottle at National Juvenile Correction Centre in Tongi, Dhaka. Juvenile delinquents have alleged that the centre authorities do not provide enough food. They hardly get opportunity to play as well as watch TV. Furthermore, in most time their hands are fastened by handcuffs. When they raise their voice against irregularities of the authority, they have to sustain severe physical torture. Finally, the torture and denial of total recreation persuaded them to attempt to commit suicide. On the same day, we learnt from a press release of Bangladesh Legal Aid and Services Trust (BLAST) published in The Daily Star that a boy named Jamal(14) continues to languish in the Juvenile Correction Centre at Tongi even though the court acquitted him of charge about 10 months ago. These two incidents are clear evidences of how much the authority are negligent about child rights[22].
In fact, juveniles have been treated so badly that they aren’t reformed or corrected rather they transform into recidivist. It should be mentioned that the prime objective of juvenile justice system is to protect the children from recidivism and to ensure their rehabilitation as well as to smooth reintegration with society. When a juvenile opt to commit suicide in sheer depression, we can easily say that the end of juvenile justice system is totally frustrated from all respects.
In this context, we can reiterate that we have huge good laws such as the Probation of Offenders Ordinance’1960 and The Children Act, 1974, but we have seen hardly implementation of those laws. In lieu of sending into correction centre, we can set free juvenile in the society on condition of good behaviour under the Probation Order. Of course, we may get some results from it as it is proved by statistics.
05. Forgive the child
Being born within the four walls of jail Nasrin, a five year child of Parvin, an accused of Shajnin murder case, does not have any idea of living in an open and a free environment. That is why the little innocent girl asked its mother to go back in the jail while its mother standing before the Judge in the court. The most unfortunate news for that unlucky child is that its mother was rewarded the death sentence. Needless to say no one should raise question regarding the judgement. But the conscious citizens definitely can raise question of the life of a five year child whose mother is to die within very short time or as soon as all proceedings of judgement is completed. It is not known whether the judge considered the maternity of said Parvin who gave birth a female child after being imprisonment. In the history of near past of the judiciary this case is a unique where a mother with having a minor child given death penalty.
Here the judgement of Indian Prime Minister Rajiv Gandi murder case can be mentioned where a woman accused having a minor child was sentenced to death. Sinia Gandi, wife of Rajiv Gandi, forgave the accused woman who was unfortunately a mother of a child, in thinking the future life of that child. And it’s definitely a good instance. With this I am not appealing to Mr & Mrs Latifur Rahman who lost their beloved daughter to forgive the said woman. I am just requesting them to think for a while about the instance made by Sonia Gandi and side by side that innocent girl to whom her mother is also beloved one.
It is needed to say that before final judgement the question of the life of said minor girl (whose father left her mother) must be settled.
Chapter Five
About Different Measures
01. Arrest and Remand
Generally, a child may be arrested for breaching the penal laws of the land or under suspicion of committing an offence. However, there are other laws, such as The Bengal Vagrancy Act 1 943, Section 54 of The Criminal Procedure Code, The Special Powers Act 1974, The Arms Act 1878, that are often utilized to arrest children. Children also fall prey to police raids in the wake of political unrest or criminal hunts.
Policemen on the beat identify vagrant children and pick them up from the streets, railway and bus stations, shopping centers, parks and so on. . The recognition of status offences, as where a child runs away from home! or is deemed disobedient or destitute, also presents a paradox The practice of taking vagrant and street children into custody essentially criminalizes acts which are otherwise not offences in the strict sense of the term.
Consequently, a neglected and homeless child becomes the victim of a legal system, which, under the best of conditions, tends to be unjust. Although the right to be heard is fundamental in the human: rights discourse the child arrested under The Vagrancy Act 1943 is devoid of this right, either directly or through appropriate representation in judicial proceedings. The child’s right to privacy is virtually non-existent; during the process. The right not to be deprived of liberty and only to be detained in conformity with law is also not ensured under The Vagrancy Act 1943. This is evident from the fact that children arrested under this Act are often detained for unspecified periods in prisons. Thus, while The Vagrancy Act 1943 concentrates on maintaining public order, it overlooks children’s interests by ignoring their special needs.
Section 54 of The Criminal Procedure Code 1896 is yet another device that i serves to oppress, amongst others, children. The police are empowered under this section to arrest any person on mere suspicion without a ‘ warrant of arrest. It is common for law enforcing agencies to indiscriminately arrest and incarcerate street children under the cover of this law on the slightest of pretexts. Apart from Section 54 of The Criminal Procedure Code, children’s rights and freedom are also compromised by The Special Powers Act 1974. Which empowers the police to arrest people on suspicion of anti-state activities? The Special Powers Act 1974 is frequently used to pick up children who, either happen to be loitering on the streets, or are engaged in political agitation by political parties during political demonstrations and hurtles (strikes). Street children in such situations, become victims of circumstances and have their rights seriously jeopardized. Children arrested under The Arms Act 1873 for possessing and carrying illegal arms is another instance of victimization of children by adults and an insensitive legal system.
When it comes to arresting girls the scenario is even more perplexing. Girl children reportedly make up a much less percentage of juvenile of fenders. It is not be so much that girls breach the law less but more, that, the specific! Ties of their con tact with the law are not adequately addressed. Classic examples are prostitution and rape where it is more common for girls to be arrested rather than the perpetrators. In other words, girls come into conflict with the law more as victims of prostitution and sexual offences, even if they have actually breached other penal Saws, Since there are no separate provisions for housing girl offenders, they are customarily branded as prostitutes and victims of rape in order to acquire for them a place in shelter homes.
Normally, a child may be arrested without a warrant for a cognizable offence9 under The Criminal Procedure Code 1896 but s/he cannot be detained in custody for more than 24 hours. Moreover, if a child under 16 has been charged with a non-bilabial offence, the officer in charge of the police station may release her/him on bail and arrange for the child to be placed in a remand home or a safe place until s/he is brought before the court[23].
There is virtually no separation between inmates who are here for correction and those who live here in remand. The resultant is a free mixing between boys with perpetrating and non-perpetrating nature. The consequence is pernicious as children with less or occasional criminal are compelled to mix with the more hardened types.” The current situation raises serious questions about the places of safety ordained by law.
Immediately after the arrest of a child, it shall be the duty of the police officer affecting the arrest to inform the Probation Officer of such arrest in order to enable the Probation Officer to proceed to obtain necessary information about the child’s family and other material circumstances likely to assist the Court in making its order[24]. At the same time the officer in charge of the police station to which the arrested child is brought shall inform the parents/guardian of the arrest, if found, and specifying the date, direct them to attend the court before which the child will appear[25].
The situation on the ground is, however, quite different. Charge sheets are virtually non-existent and children arrested and detained are not shown the grounds for arrest nor are their parents duly informed.
The police allege that it is frequently difficult to trace parents and in the absence of adequate facilities they are compelled to detain children in jails until they are brought before the Magistrate[26]. Consequently, children are interned with adult criminals who collude with the police officials to abuse and mistreat the children. Although The Bengal Jail Code under Section 499 expressly provides that none shall be admitted into any jail without a writ, warrant or order signed by a competent authority, the reality is quite different as children are frequently locked up with adult criminals without proper authorization[27].
It is during arrest and interrogation that children are more likely to suffer police brutality as is evident from a number of studies in the area. Children are allegedly subjected to various forms of maltreatment ranging from transportation to the police stations and jails in handcuffs to detention over 24 hours. Physical abuse and torture are also reported. The practice of placing girl children who are victims of rape or trafficking in the so-called safe custody increases their vulnerability to victimization and abuse by the police and other inmates.
02. Trial
The Children Act 1974 provides that child offenders may only be tried by juvenile courts or other courts duly empowered[28]. Under the Children Act 1974 the powers conferred on a juvenile court can be exercised by:
The High Court Division of the Supreme Court;
A Court of Session;
A court of an Additional Sessions Judge and of an Assistant Sessions Judge;
A Sub-Divisional Magistrate; and
A Magistrate of the First Class[29];
It is evident from the above that although the establishment of separate courts for juveniles is prescribed by law, the above-mentioned courts are permitted by law to try child offenders provided that they apply the same rules and procedures as followed by a juvenile court. These courts sit as juvenile courts only when the offender is under 16 years of age. When a Juvenile Court has been set up for any local area such court shall try all cases in which a child is charged with the commission of an offence[30]. The concurrent jurisdiction of the Magistrate and Sessions Court is to a large extent responsible for the failure to establish an independent juvenile justice system. The inability of providing a separate trial system for juveniles stems from the criminal justice system that is largely traditional in its approach and jurisdiction that is limited in terms of subject matter[31].
Although the law requires the establishment of separate courts for juvenile offenders to date there are only two juvenile courts in Bangladesh, one in Tongi and the other in Jess ore. Moreover, despite existing concessions in the exercise of jurisdiction by other courts it is found that very few of them in fact sit as juvenile courts. Most Magistrates, being unaware of the procedures under The Children Act, 1974 choose instead to try children in accordance with The Code of Criminal Procedure. According to Section 7 of The Children Act 1974 and Rule 3 of The Children Rules 1976, the Juvenile Court should sit at least once a week or as often as may be necessary. Moreover, the Court should, as far as practicable, sit in a place separate from that where ordinary sittings of the Court are held. If need be a different date or time should be chosen for the court to sit. Where a child and adult are charged together, a separate trial must be conducted for the child[32].
Thus, it is provided in Section 3 of The Children Act that when a child is a co-accused with an adult in any offence and it appears to the Court that the case is fit for committal to the Court of Session, such Court shall, after separating the case in respect of the child from that of the adult, direct that the adult may be committed to the Court of Session alone. This measure is prescribed strictly in the best interests of the child. In practice, however, the child is often tried together with the adult in the same court without any regard for the law in this context or the child’s right to privacy.
The Children Act 1974 also provides for confidentiality in respect of court proceedings against a juvenile offender. To this end Section 9 of The Children Act lays down that no person shall be present at any sitting of a Juvenile Court, except
• The members and officers of the Court;
• The parties to the case or proceeding and other persons directly concerned with the case/proceeding including police officers;
• The parents or guardians of the child; and
• Such other person as the Court specially authorizes to be present;
Confidentiality often entails the withdrawal of certain people from the hearing of the case. If at any stage during the hearing of a case or proceeding the Court considers it necessary in the interest of the child to direct any person, including the parent/guardian or the spouse of the child or even the child himself/herself to withdraw, the Court may make such order whereupon the person concerned shall withdraw[33]. In the same fashion if at any stage of the hearing of the case or proceeding the Court is satisfied that the presence of the child is not essential, the Court may dispense with the attendance of the child[34].
The provision on confidentiality must also be invoked during examination of a child witness. Section 12 of The Children Act provides that if at any stage of the hearing of a case or proceeding in relation to an offence against or any conduct contrary to morality or decency, a child is summoned as a witness, the Court may direct such persons as it thinks fit, not being parties to the case/proceeding and their legal advisers and court officials, to withdraw. In any event no report in any newspaper, magazine or any news agency shall be permitted to disclose any details of the Court proceedings in which a child is involved. Similarly, no photograph of the child shall be published which directly or indirectly leads to the identification of such a child unless the Court deems it essential in the interest of the child[35]. The requirement of confidentiality also extends to reports of Probation Officers and other reports impinging on a child offender[36].
During trial of a juvenile there are certain salient aspects that require special consideration. Section 15 of The Children Act 7974 states that for the purpose of any order, which the Court has to pass, the following factors shall be taken into consideration:
• The age and character of the child;
• The circumstances in which the child is living;
• The reports made by the Probation Officer;
• Such other matters as may be required to be taken into consideration in the interest of the child;
In practice however, there is evidence that reports by Probation Officers are not sought, the Magistrates preferring to rely on charge sheets or the final reports in police cases. Whatever little merit is attached to reports of Probation Officers is evident only in guardian-referred cases.
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, that 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[37]. In reality, however, the police and jail authorities make no mention of children’s age when they send them to the correctional centers. Consequently, there areinstances when children over the acceptable age are also detained with younger children.
Although it is essential that at every phase of criminal proceedings the child’s age, identity and other necessary information be treated as classified in order that the child is protected from the effects of labeling, the reality is quite different. Although a medical examination is legally required to specify a child’s age, the usual practice is to put down an age on pure guesswork. The special treatment of children during trial includes the expeditious disposal of the case by a competent and impartial authority in a congenial and a child friendly environment. However, children are frequently denied this privilege, as our courtrooms are chaotic, daunting and far from child-friendly.
Rule 4 of The Children Rules 1976 states that the hearing of all cases and proceedings shall be conducted in a simple manner without formality. In other words, the proceedings must be conducted in a congenial and homely environment so as to put the child at ease. As such, the Court shall ensure that a child brought before it is not kept under police guard; rather, it must be ensured that the child is in the company of a close relative, friend or the Probation Officer. This is hardly the case on the ground. To begin with the children arrive in the court premises in prison vans along with adult offenders. They are often shackled. As they are ushered into the courtroom they are pushed on to the dock with the other adults. In the circumstances, proximity is more in terms with other adult criminals rather than their relatives, friends of even their Probation Officers.
Rule 4 further lays down that in examining a child and recording his statement the Court shall freely interact with the child during which the Court can elicit information about the offence the child is accused of, as well as other attending factors, like his family, home, physical and mental conditions and so on. Where a child offender pleads guilt or is found guilty the Court shall not forthwith make an order upon such finding. Rather, it shall direct the Probation Officer or such other person as may be deemed fit by the Court to furnish it with a report containing inter alia information on family background of the child, his character and antecedents, his physical and mental conditions and the circumstances in which the offence was committed or any such information considered significant in the interest of the child.
In reality however, the attitude and demeanor of judges demonstrate a general apathy towards children’s well-being. While the accused are rarely segregated in terms of age, the fact that a large number of accused are brought before the court at the same time makes it difficult for the judge to single out the child offenders from amongst the teeming adults. Contrary to legal requirements the en tire courtroom atmosphere is such as to generate fear in children and intimidate them into silence and submission. This seriously compromises the spirit of the juvenile justice laws.
During the trial stage, the accused reserves the right to cross-examine witnesses and to produce his/her own witnesses thereby placing the burden of proof on the prosecution. Children are never able to exercise this option, as Magistrates summarily decide their cases. Children, like adults, have the right to benefit from the principle of equality before the law and equal protection of law.
If any of these rights are infringed the trial itself cannot be deemed ‘fair’[38]. There is a general lack of due process resulting in arbitrary actions. The attitude of courts towards young offenders is often biased and not based on considerations of the gravity of the offence. Individual circumstances and the offence often have no bearing on the sentence, which is frequently disproportionate.
03. Sentencing Verdict of the Court
The mode of punishment for children is restricted to detention and institutionalization in a certified home. In fact, Section 71 of The Children Act 1974 prohibits the use of the words ‘conviction’ and sentenced’ in relation to children. Alternatively, the words may be read found guilty of an offence.
After the hearing the Court can exercise three options:
• commit the child to a certified home;
• release him on probation; and
• discharge him after admonition;
Section 51 of The Children Act 1974 lays down that no child shall be sentenced to death, transportation or imprisonment. However, if the Court is of the opinion that the crime committed is of so serious a nature or the child is so unruly or depraved that he cannot be committed to a certified institute; the child can be sentenced to imprisonment. Nevertheless, a child offender so committed shall not be allowed to associate with adult offenders. However, there is no clear indication of what constitutes “unruly behaviour. Moreover, once children have been it is not clear where they should be kept.
Where the Court finds a child guilty of an offence punishable with death, transportation or imprisonment, it may, if it thinks so expedient, order him to be committed to a certified institute for detention. In such cases the period of detention shall not be less than two years and not more than 10 years, and in any case shall not extend beyond the time when the child will attain the age of 18 years[39].
However, during one of the visits to the Tongi Correctional Centre a 15-year old boy who was fined Tk. 10,000 and sentenced to 7 years detention. It is evident that there exists neither mechanism for specifying time periods for detention nor any guideline on the course of action once a detainee reaches 18 years[40]. In the absence of birth registration the possibility of children outstaying their time in certified institutes cannot be ruled out. According officials of Correctional Institutes children are sent off to the central jail to complete their unfinished sentences once they attain the age of 18 years. This presents a paradox—if these children are sent to jail then what is the purpose of correctional treatment.
The Court may also, instead of committing him to a certified institute, discharge young of fender after due admonition and advice. “Contrarily, the young offender may be released on probation for good behaviour for a period not exceeding three years. In this context, the child may be released into the care of his parent/guardian or any other fit person executing a bond, with or without surety, as the Court may require.
The Court may also order that the child may be placed under the supervision of a Probation Officer[41]. However, if it appears to the Court from reports of the Probation Officer that the youthful offender has not been behaving well during the probation period, it may, after due inquiries, order the young offender to be detained in a certified home for the remaining period of his probation[42].
04. Detention Measures
Children may be detained either for having been found guilty {as discussed above) or for reasons of safety.
Section 55 of The Children Act provides that any Probation Officer or police officer not below the rank of Assistant Sub-Inspector or any other person authorized by the Government for this purpose may take any child to a place of safety in respect of whom there is reason to believe that An offence has been or is likely to be committed. A child so taken to a place of safety or a child seeking such refuge may be detained until he can appear before the Court. However, this detention shall not, in any event, exceed 24 hours exclusively of the time required to commute from the detention centre to the Court.
According to Section 29(j) of The Children Act “place of safety’ includes a remand home or any other suitable place or institution, the occupier or manager of which is willing to receive the child temporarily. Where such suitable places are not available, the Act permits only male children to be kept in police stations or in custody separate from adult offenders. The Act is silent about alternative arrangements for girls. A remand home is a place that is used for the purposes of detention, diagnosis and classification of children committed to custody by any Court or police[43].
If the Court is convinced that there is reason to believe that an offence has or is likely to be committed against a child who is brought before it, it may make an order for the care and detention of the child until a reasonable time has elapsed for proceedings to be initiated against the person for having committed the offence or such other lawful action as may be expedient[44].
In case of children who are victims of an offence, the Court trying the perpetrator shall direct such child to be produced before the Juvenile Court for appropriate orders[45]. Upon appearance before it the Court may exercise two options:
Commit the child to a certified institute or an approved home until he attains the age of 18. In exceptional cases the period may be shorter, in which case the reason for such shorter period is to be recorded in writing.
Commit the child to the care of a relative or other fit person on such bond, with or without surety, as the Court may require provided that such relative or person is willing and capable of exercising proper care, control and protection subject to the conditions the Court may impose in the interests of the child for a period not exceeding three years[46].
Where a child is committed to the care of a relative or any other fit person, the Court may, if it thinks fit, withdraw the child from such care any time before the expiry of the period for which he was so committed. In such cases the Court may commit the child to a certified institute or an approved home for the remainder of the time[47]. In this context it is difficult to understand why a victimized child should be kept in remand.
Under Rule 12 of The Children Rules a youthful offender or child may be permitted by license to live with a trustworthy or respectable person provided that—–
He shall obey the person to whom he is licensed to live;
He shall stay away from bad company and refrain from taking intoxicants;
He shall not leave the place of his residence without permission of the person under whose care he has been placed;
However, if the child has a parent or guardian, who is fit and capable and in the opinion of the Court, capable of exercising proper care, control and protection, the Court may allow the child to remain in his custody or commit the child to his care on bond, with or without surety as the Court may require, subject to the conditions the Court may impose in the interests of the child[48].
A child committed to a parent, guardian or any other fit person may, in addition, be placed under supervision of a Probation Officer[49]. Similar provisions are available for children who are homeless, destitute, neglected and ill-treated by parents/guardians, in bad company and involved in immoral activities[50].
The Children Act 1974 makes special provisions for uncontrollable children. Section 33 of the Act provides that where the parent /guardian of a child complains to a Juvenile Court or a Court duly empowered that he is u