Human Rights Advocacy
State of Juvenile Justice
Debate over date to determine age
Anisur Rahman
In the previous issue (12 May 2007) I just tried to highlight some important issues of the Children Act 1974. Before going to search for the reasons for failure to realise the objectives of the very Act I would like to share an important judicial debate over the relevant date in order to determine who is a child.
There is no doubt that children are the ultimate beneficiary of the scheme of juvenile justice. The question who is child in the eye of law has overriding importance before the court. We have a host of laws dealing with children. Consequently, the age of the child has been mentioned differently in these various laws, i.e. in the labour laws, in the penal laws, in the Majority Act etc. Therefore, the question may arise to our mind which law we will have to take into consideration to determine the age of an accused demanding juvenile trial. The answer is obviously the Children Act 1974. Child has been defined in the Children Act 1974 as a person under the sixteen years of age. It also reveals that an accused child who has been sent to a certified institute or approved home or custody of a relative or other fit person will be considered as child during the whole period of his detention. For example, if an accused child at the age of 15 years has been sent to the approved home will still be considered a child though it crossed the limit of sixteen years during this detention period.
Court -- the ultimate authority
There are two ways children might come to the court, i.e. as a victim of crime and as an accused in commission of an offence. It is worth mentioning that the advantage of the juvenile trial is only for the accused child. The first act which the court will have to undertake is to determine the age of the particular accused demanding trial in the juvenile court. More clearly the court is under an obligation to determine the age of the accused in order to be confirmed whether he is a child or not. The very act of the court might be hampered due to absence of (a) birth registration and (b) negligence on the part of the police mentioning the date of birth properly. It is mentionable that we don't have any registration of birth which is central to dispose of a lot of cases by the court.
On the other hand police always try to present a child as major before the court in order to avoid some duties afterwards. For example police has to take special care for the child, he has to attend the court on due date etc. It is also noticeable that lack of proper infrastructure of the police stations, lack of space, lack of separate lockup for women and children have led them to do so. Resultantly, court is being the ultimate authority to determine the age of the child in most of the cases. In absence of availability of medical tests the court depends solely on its visual discretionary power to determine the age of the child.
Date of occurrence or date of charge sheet?
Which date i.e. the date of commission of the offence or the date of submission of the charge sheet the court will take into consideration in the way to determine the age of an accused? There is a judicial debate on the issue. In the case of Mona @ Zillur Rahman Vs State {23 (2003), BLD, AD, p-187} the Appellate Division of the Supreme Court took the time in framing the charge or holding the trial as deciding the relevant date to determine whether the accused is a child or adult took time. The Court held that “The counsel for the petitioner fails to convince us by presenting any material on date from the evidence on record, or from the judgments of the courts that the petitioner was below 16 years at the time of framing of charges and holding of trial and as such the trial could not be held legally as being barred under section 6(1) of the Children Act 1974.”
However, much earlier in the case of Bablu Vs State {1 (1981) BLD, HCD, p-454}the High Court Division took an opposite view that the date of commission of the offence will be the relevant date to determine whether an accused is a child or adult.
The decision of the Appellate Division might not go against the interest of the accused child who has been in the child home or custody. It is mentioned here that a child accused who has been in the custody or approved home will remain child though he crossed the 16 years limit. But what will happen to an accused child who is absconding? Suppose a child has been absconding after commission of an offence at the age of 15 years. Submission of charge sheet by the police after six months is not enough to begin the trial for him. There are some other procedures for the court to be exhausted, i.e. publishing of notification to attend the court, fixing of the same in a conspicuous place of the house of the child etc. The court will need at least one year to finish these procedure before beginning trial in absentia. If by the time the accused child surrenders before the court he will not get the benefit of the juvenile trial if we take the date of trial or charge sheet as relevant date to determine the age of the child. From the submission of the charge sheet to the beginning of the trial there is a great possibility for the child to be an adult.
Concluding remarks
The authoritative decision of the Appellate Division must go against the interest of the child offender as well as the very objective of the Children Act 1974. If we take the date of framing of the charge to determine the age; a host of children will be deprived of the benefit of the juvenile trial. For example, if a child commits an offence at the age of 15 and half years he will be an adult if the charge is framed by the court six months later. Framing of the charge mostly depends on the police and in a country like ours it would be an ambitious thinking to get police report within six months. Hence it would be better for the children if the honourable court reviews its own decision in the light of the spirit of the Children Act 1974.
The writer is lecturer of law, Stamford University Bangladesh.
