Abdul Kader Gazi Vs. The State and another 2017 (2) LNJ 187

Case No: Criminal Revision No. 1050 of 2017

Judge: M. Enayetur Rahim. J.

Court: High Court Division,

Advocate: Mr. Md. Sorwar Hossain, Mr. S.M. Reazul Karim,

Citation: 2017 (2) LNJ 187

Case Year: 2017

Appellant: Abdul Kader Gazi

Respondent: The State and another

Subject: Criminal Law

Delivery Date: 2017-10-18

HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION)

M. Enayetur Rahim, J

And

Shahidul Karim, J.

Judgment on

19.07.2017

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Abdul Kader Gazi

. . . Petitioner

-Versus-

The State and another

...Opposite parties

Shishu Ain (XXIV of 2013)

Section 17(1)

Upon a plain reading of the above provision of law it is clear that the said provision relates to trial only. This provision confers jurisdiction to the Shishu Adalat to hold trial of a case wherein a child comes in conflict with the law (AvB‡bi mv‡_ msNv‡Z RwoZ wkï) or comes in contact with the law (AvB‡bi ms¯ú‡k© Avmv wkï). The proceedings of a criminal case get commenced in a Special Court, Tribunal or even Court of sessions after submission of the police report when the record is transmitted to the concerned Court or Tribunal, as the case may be, and it takes cognizance of the offence against an accused and the trial starts with the framing of charge.       . . .(13)

Code of Criminal Procedure (V of 1898)

Sections 496 and 497

Since no specific provision has been made in the Shishu Ain, 2013 with regard to dealing with the bail application of an adult accused when the case is under investigation the provision of sections 496 and 497 of the Code of Criminal Procedure will be applicable. . . . (17)

Code of Criminal Procedure (V of 1898)

Chapter XV

It is the mandate of law that at the inquiry or investigation stage of a criminal case an accused is to surrender before the court of the first instance where the case record is lying.           . . .(18)

Interpretation of Statute

Shishu Ain, 2013 has been enacted for the protection of children’s right pursuant to the United Nations Convention on the Rights of the Child (CRC).   . . . (21)

Mr. Md. Sorwar Hossain, Advocate with

Mr. Md. Shaharia Kabir, Advocate

     --- For the Petitioner

Mr. S.M. Rezaul Karim, Advocate with

Mr. Abdur Razzak, Advocate 

---For the Opposite Party No.2

JUDGMENT

M. Enayetur Rahim, J: On an application under section 41(2) of the Shishu Ain, 2013 this Rule was issued calling upon the opposite parties to show cause as to why the order dated 29.03.2017 passed by the Shishu Adalat, Chandpur granting bail to the accused opposite party No.2 in Haimchar Police Station Case No.1 dated 01.02.2017 corresponding to G.R. No.2 of 2017 corresponding to G.R. No.2 of 2017 (Haimchar) under section 70 of the Shishu Ain,2013 should not be set aside and/or pass such other or further order or orders as this Court may seem fit and proper.

2.            At the instance of the present petitioner Haimchar Police Station Case No.01 dated 01.02.2017 under section 70 of the Shishu Ain,2013 is started against the present opposite party Nos.2 and 04(four) others.

3.            In the FIR it is alleged that Maria Sultana, daughter of the informant and Ferdous, son of the FIR named witness No.2, are the students of Neel Kamal High School. On 30.01.2017 annual sports competition ceremony of the school was held and in that programme accused Noor Hossain Patwary, Chairman of Upazilla Parishad, Haimchar, was the Chief Guest. In the event of the award ceremony 50/60 students of Class IX and X were forced to build a human bridge on the instruction of the FIR named accused persons. The accused opposite party no.2 along with FIR named other accused persons trod on the shoulder of the students who formed a human bridge in the ceremony as a result they sustained injury in their back bone. This incident was reported in the electronic media namely, ATN Bangla and widely circulated in national daily newspapers as well as through face book. The incident came to light after its video footage and photo went viral on social media along with special coverage on mass media leading to growing criticism. 

4.            The case is still under investigation.

5.            The accused opposite party No.2 having failed to obtain anticipatory bail from different Benches of this Court on varies occasions, eventually, surrendered before the Shishu Adalat, Chandpur on 29.03.2017 with a prayer for bail and the learned judge of the Sishu Aalat admitted him to bail.

6.            Being aggrieved by the said order, the informant has preferred this revisional application.

7.            The main contention of the learned Advocate for the informant petitioner is that the Shishu Adalat acted illegally in accepting surrender of the accused opposite party No.2 and granting bail to him as it had no jurisdiction to deal with the application for bail of an adult accused.

8.            Mr. S.M. Reazaul Karim, the learned Advocate appearing for the accused opposite party No.2 referring to the provision of section 17(1) of the Shishu Ain,2013 submits that in entertaining an application for bail of opposite party No.2 and enlarging him on bail the learned Judge of the Shishu Adalat has lawfully and rightly exercised his discretion and as such, the Rule is liable to be discharged.

9.            At the time of issuance of the Rule this Court directed the learned Judge of Shishu Adalat, Chandpur to explain in writing within a period of 2(two) weeks under what authority he dealt with the application for bail of the accused opposite party No.2. 

10.        In compliance of the said order the learned judge of Shishu Adalat, Chandpur has furnished a written explanation in which he stated to the effect:

ÒwR.Avi-02/2017 (nvBgPi) bs gvgjvwU iæRy nq wkï AvBb-2013 Gi 70 avivi Aax‡b| wkï AvBb-2013 evsjv fvlvq cÖYxZ AvBb Ges GB AvB‡bi 99(2) avivq AvBbwUi evsjv cvV‡K cÖvavb¨ †`Iqv nBqv‡Q| D³ AvB‡bi 17 avivi 1 bs Dcavivq ejv nBqv‡Q, ÒAvB‡bi mwnZ msNv‡Z RwoZ wkï ev AvB‡bi ms¯ú‡k© Avmv wkï †Kvb gvgjvq RwoZ _vwK‡j †h †Kvb AvB‡bi Aax‡bB †nvK bv †Kb D³ gvgjv wePv‡ii GLwZqvi †Kej wkï Av`vj‡Zi _vwK‡e|Ó

wkï AvBb 2013 Gi 2 avivq ÔwePviÕ kãwUi †Kvb mywbw`©ó msÁv bv _vKvq GB AvB‡bi 17 avivi 1bs Dcavivi Dc‡iv³ e³‡e¨i †cÖwÿ‡Z Avwg wek^vm Kwi wkï AvB‡bi Aax‡b iæRyK…Z gvgjvq, †h †Kvb wel‡q wm×všÍ MÖn‡bi cÖv_wgK GLwZqvi †KejgvÎ wkï Av`vj‡Zi; Ab¨ †Kvb Av`vj‡Zi bq| D‡jøL¨ wkï AvBb-2013 Gi aviv 2 Abyhvqx AvB‡bi mwnZ msNv‡Z RwoZ wkï A_© Ggb †Kvb wkï †h `Ûwewai aviv 82 I 83 G weavb mv‡c‡ÿ we`¨gvb †Kvb AvB‡bi Aaxb †Kvb Aciv‡ai `v‡q Awfhy³ A_ev wePv‡i †`vlx mve¨¯’ Ges AvB‡bi ms¯ú‡k© Avmv wkï A_© Ggb †Kvb wkï †h we`¨gvb †Kvb AvB‡bi Aax‡b †Kvb Aciv‡ai wkKvi ev mvÿx| . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .|

2013 m‡bi wkï AvB‡bi 42 avivi 1 Dcavivq ejv nBqv‡Q ÒGB AvBb ev Bnvi Aaxb cÖYxZ wewa‡Z my®úó I wfbœiæc †Kvb weavb bv _vwK‡j, GB AvB‡bi Aaxb gvgjvi wePvi Ges Kvh©aviv MÖn‡Yi †ÿ‡Î, †dŠR`vwi Kvh©wewai weavbvewj, hZ`~i m¤¢e, cÖ‡hvR¨ I AbymiY Kwi‡Z nB‡e|Ó

wkï AvB‡bi Dc‡iv³ 17 avivi 1bs Dcaviv, 18 avivi ÔKÕ Dcaviv I 42 Gi 1 Dcaviv Ges †dŠR`vix Kvh©wewai 5 avivi 2 Dcaviv wgwj‡q Avwg wm×v‡šÍ DcbxZ nB †h, wkï AvBb-2013 Gi Aaxb iæRyK…Z gvgjvi Avmvgx cÖvß eq¯‹ nB‡j Zvnvi msµv‡šÍ wm×všÍ MÖn‡bi GLwZqviI †dŠR`vix Kvh©wewai Aax‡b `vqiv Av`vj‡Zi b¨vq wkï Av`vj‡Zi iwnqv‡Q| . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |

‡dŠR`vix Kvh©wewai 497 avivi 2 Dcavivi Dc‡iv³iæc weav‡bi †cÖwÿ‡Z wkï AvB‡bi 52 avivi 4 I 5 Dcaviv Ges GKB AvB‡bi 17 avivi 1bs Dcaviv, 18(K) Dcaviv, 42 avivi 1 Dcaviv Ges †dŠR`vix Kvh©wewai 5 Gi 2 Dcavivi weavb wgwj‡q Avwg wbwðZ nB †h, Z`šÍ ch©v‡q wkï AvB‡bi Aax‡b iæRyK…Z gvgjvq cÖvß eq¯‹ Avmvgxi Rvwgb ïbvbxi GLwZqvi †KejgvÎ wkï Av`vj‡Zi|Ó

11.        In the instant Rule the moot question is whether the learned Judge of the Shishu Adalat has got the jurisdiction to entertain an application for bail of an adult accused on surrender where the victim and witness are minors, (Children in contact with the law) before commencement of the trial.

12.        Before deciding the above issue it is pertinent to quote section 17(1) of the Shishu Ain,2013 which reads as follows:

Ò17| wkï-Av`vj‡Zi Awa‡ekb I ÿgZv|-1| AvB‡bi mwnZ msNv‡Z RwoZ wkï ev AvB‡bi ms¯ú‡k© Avmv wkï †Kvb gvgjvq RwoZ _vwK‡j, †h‡Kvb AvB‡bi Aax‡bB nDK bv †Kb, D³ gvgjv wePv‡ii GLwZqvi †Kej wkï-Av`vj‡Zi _vwK‡e|Ó

13.        Upon a plain reading of the above provision of law it is clear that the said provision relates to trial only. This provision confers jurisdiction to the Shishu Adalat to hold trial of a case wherein a child comes in conflict with the law (AvB‡bi mv‡_ msNv‡Z RwoZ wkï) or comes in contact with the law (AvB‡bi ms¯ú‡k© Avmv wkï). The proceedings of a criminal case get commenced in a Special Court, Tribunal or even Court of sessions after submission of the police report when the record is transmitted to the concerned Court or Tribunal, as the case may be, and it takes cognizance of the offence against an accused and the trial starts with the framing of charge.

14.        The learned judge of the Shishu Adalat, Chandpur totally misread and miss construed the provision of section 17(1) of the Shishu Ain,2013 as well as section 5(2) of the Code of Criminal Procedure. Moreover, section 18 of the Shishu Ain, 2013 will come into play after the case record is transmitted to the Shishu Adalat for trial, not before that.

15.        Section 29 of the Shishu Ain, 2013 has given power to the Shishu Adalat to deal with the bail application of children in conflict with the law (accused) only.

16.        Section 42 of the Shishu Ain, 2013 runs as follows:

Ò42| †dŠR`vix Kvh©wewai weavbvejxi cÖ‡hvR¨Zv|- (1) GB AvBb ev Bnvi Aaxb cÖYxZ wewa‡Z my®ú÷ I wfbœiƒc †Kvb weavb bv _vwK‡j, GB AvB‡bi Aaxb gvgjvi wePvi Ges Kvh©aviv MÖn‡Yi †ÿ‡Î, †dŠR`vix Kvh©wewai weavbvejx, hZ`~i m¤¢e, cÖ‡hvR¨ I AbymiY Kwi‡Z nB‡e|

(2) Dc-aviv (1) G hvnv wKQzB _vKzK bv †Kb, GB AvB‡bi Aaxb K…Z mKj Aciva Avgj‡hvM¨ nB‡e Ges GB AvBb ev Bnvi Aaxb cÖYxZ wewa‡Z my®úó weavb _vwK‡j mswkøó †ÿ‡Î D³ weavb AbymiY Kwi‡Z nB‡e|Ó

17.        In view of the above, since no specific provision has been made in the Shishu Ain, 2013 with regard to dealing with the bail application of an adult accused when the case is under investigation the provision of sections 496 and 497 of the Code of Criminal Procedure will be applicable.

18.        It is the mandate of law that at the inquiry or investigation stage of a criminal case an accused is to surrender before the court of the first instance where the case record is lying.

19.        In view of the above, we have no hesitation to hold that the learned judge of the Shishu Adalat, Chandpur acted illegally in entertaining the application for bail of the accused opposite party No.2 who is an adult person and enlarging him on bail when the case is under investigation and the record lies in the Court of Chief Judicial Magistrate, Chandpur. In the facts and circumstances of the present case the accused opposite party no.2 ought to have surrendered before the Court where the case is pending and the record thereof is lying i.e, before the Court of Chief Judicial Magistrate, Chandpur.

20.        The learned Judge of the Shishu Adalat, Chandpur committed serious error of law and exceeded its jurisdiction while dealing with the application for bail of an adult accused and that too without having the case record for trial in due course.

21.        It is to be borne in mind that the Shishu Ain,2013 has been enacted for the protection of children’s right pursuant to the United Nations Convention on the Rights of the Child (CRC). Thus, the learned Judge of the Shishu Adalat, Chandpur has failed to understand the whole purpose, object and scheme of the law.

22.        Thus, we find merit in the Rule.

23.        Accordingly, the Rule is made absolute.

24.        The order dated 29.03.2017 passed by the learned Shishu Adalat, Chandpur granting bail to the accused opposite party No.2 in Haimchar Police Station Case No.1 dated 01.02.2017 corresponding to G.R. No.2 of 2017 (Haimchar) under section 70 of the Shishu Ain,2013 is hereby set aside.

25.        The opposite party No.2 is directed to surrender before the Chief Judicial Magistrate, Chandpur within a period of 04(four) weeks from the date of receipt of this order, positively. The learned Chief Judicial Magistrate, Chandpur is at liberty to consider the prayer for bail of the accused on merit if he surrenders in compliance with the Court’s order.

         Communicate a copy of this judgment and order at once.

Ed.



Criminal Revision No. 1050 of 2017