Bangladesh is a densely populated country in south east asia

Bangladesh is a densely populated country in South-East Asia

CHAPTER ONE INTRODUCTION 1.1 Background Bangladesh lies in the north-eastern part of South Asia. India borders the country on the west, north and northeast, Myanmar, on the southeast, and the Bay of Bengal on the south. Except the hilly regions in the north-east and the south-east, there are some areas of high land in the north and north-western parts. The country consists of low, flat and fertile land crisscrossed by seven major rivers and over two hundred minor ones. The country is divided into 6 divisions, 64 districts and 460 upazilas. Bangladesh has an area of only 148, 393 square kilometers.

The present miserable scenario of Bangladesh is characterized by poverty, unemployment, illiteracy, degradation of law and order, political instability, gender discrimination, delinquency and violence against women. Besides these, natural disasters like flood, river bank erosion, storms, cyclones and draught are also frequent in Bangladesh, and these are causing extensive damage to crops, lives, and property. On the other hand, high rate of population growth of Bangladesh has reduced land-man ratio.

Bangladesh is a densely populated country in South-East Asia. The total population in Bangladesh is about 150 million. Out of the total population, about 51.5 percent are males and 48.5 are females. 40 percent of the total population is under the age of 16 years, considered as children. About 5.4 million children work in the formal sectors which constitutes 11.3 percent of the total labor force. On the other hand, many children are working in informal sectors, but their statistics is still inadequate (Sarker et al, 1999). It

should be noted that many children are being abused by their parents and community-people in different perspectives, and as a result, they get involved in crimes.

Throughout the colonial times, till independence of the sovereign State of the People's Republic of Bangladesh, there have been occasional and random enactments of law related to the children in respect of welfare, juvenile offence and transformation of the social milieu. It is to be noted that none of the so-called children-oriented enactments is consistent, coherent and complete on the perspective of juvenile justice except The Probation of Offenders Act (Bangladesh Amendment) Act, 1964, The Children Rules, 1976, and The Children Act, 1974.

The researcher has ventured to discuss and highlighted some of the provisions of the aforesaid enactments for evaluation and a comparative study that vividly tells about exposition of myopic, outdated and worn-out enactments not compatible to the time and socio-cultural backdrop of a developing nation. It is to be noted that enactments as titled characteristically procedural or substantive form of law where juvenile justice management issue comes as a minor component incorporated into a number of enactments in relevance to the main theme of the given law. The Penal Code, 1860 under section 82 specifies that nothing is an offence which is done by a child under nine years of age, while section 83 provides that 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 consequences of his conduct on that occasion (Ministry of Law, Justice and Affairs, 2007: 89).

In another provision under section 89 of the Penal Code, 1860, it maintains that nothing which is done in good faith for the benefit of a person under twelve years of age by a guardian is an offence by reason of any harm which it may cause to a child (ibid). The crucial fact is that an enactment as giant as the Code itself is silent and incomplete to other areas pertinent to dispensation of justice to a juvenile offender within the scope and jurisdiction of the penal Code.

The Code of Criminal Procedure, 1898, under section 199(a), lays down that when in any case falling under section 198 or section 199, the person on whose behalf the complaint is sought to be made is under the age of eighteen years or is a lunatic and the person applying for leave has not been appointed to be the guardian of the person of the said minor or lunatic, in that case the court shall issue notice upon such guardian and, before granting the application, give him a reasonable opportunity to the granting there of and also as provided under section 497, in the case of non-bailable offence, the court may direct a person under the age of sixteen years accused of such an offence be released on bail (ibid). Besides the specified provisions of the Criminal Procedure Code, 1898, there are few other sections of the

Code attributed to juvenile offences, but they do not support any consistent procedure in line with the ideology and universally acceptable norms for child-welfare-oriented enactment; these suffer from multiple flaws and are incongruent with so far as welfare and dispensation of justice to an offending child are concerned.

It is pertinent in this context to discuss briefly about justice to children which is incorporated with reference to the Majority Act, 1875, that brings within its umbrella the following matters namely marriage, dowry, divorce and adoption based upon religious faith (Ministry of Law, Justice and Parliamentary Affairs, 2007) .

Section three of the Majority Act provides that every minor of whose person or property or both a guardian other than a guardian for a suit within the meaning (Schedule no. xxxii of the Code of Civil Procedure (1908) has been declared by any court of Justice before the minor has attained the age of 18 years and every minor of whose property the superintendent has been or shall be appointed or declared by any court of words before the minor has attained that age of eighteen years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age shall, notwithstanding anything contained in (Succession Act, 1925 ) or any other enactment, be deemed to have attainted his majority when he shall have completed the age of twenty-one years and not before (ibid). The provision further provides that every other person domiciled in Bangladesh shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before.

It is the humble opinion of this researcher that the above-mentioned enactments and Law as discussed do not make out a coherent, consistent and comprehensive law for proper execution of the procedure for dispensation of juvenile trial and punishment with an objective of reflection of the sacred spirit of legislation for juvenile offenders regarding rehabilitation of an offending child to the main stream of society which is reformative, compassionate, human and a time-tested demand of humanity and in line with time-compatible and universal urge of the day. Tomorrow belongs to a child of today.

Despite lacuna of multiple flaws and insufficiencies about the enactments and laws as discussed above, there have been remarkable developments consistent with the trial and procedure at a Juvenile Court of Juvenile Offenders which show light at the end of the tunnel.

This is true particularly for the Probation of Offenders Act (Bangladesh Amendment, Act, (1964) read with the Children Rules, 1976 which have tenable procedures for implementing Children Act, 1974. Rule 21 of the Children Rules, 1976 enjoins powers and duties of a Probation Officer subject to the provision of sub-section (3) of section 31 that the Probation Officer will meet the child frequently and enquire about his home and school condition,

conduct, mode of life, character, health, environment, and also explain to the child the conditions of his probation. It is also the duty of the Probation Officer to attend court regularly and submit report, maintain diary, case files and such registers as may be specified by the Director or Court from time to time. The probation officer will also meet the guardian and other relations of the child frequently in the process of correction, reformation and rehabilitation of the child. His other duties include issuance of warning to the person under whose care the child is placed if such person is found to have committed any breach of the terms of the bond, visit regularly the child placed under his supervision and also places of employment or school attended by such child and to submit regular monthly reports to the Director in form G, encourage the child to make use of any opportunity that might be made available from any social welfare organization or agency, advise the child to disassociate himself from a society which in the opinion of the Probation Officer may spoil the character of the child and also endeavor to find suitable employment for the child if such child be out of employment and strive to improve his conduct and general conditions of living and perform such other functions as may be assigned to him by the Director or by the court from time to time.

The Probation of Offenders Ordinance 1960 has been provided with procedure for granting probation to the offenders. Section 5 of this Ordinance provides power of court to make probation order in certain cases: (1) Where a court by which(a) any male person is convicted of an offence not being an offence under Chapter VI or Chapter VII of the Penal Code, or under sections 261(A), 328, 382, 386, 387, 388, 389, 392, 393, 397, 398, 399, 401, 402, 455, or 458 of that Code, or an offence punishable with death or (b) any female person is convicted of any offence other than an offence punishable with death, is of opinion that, having regard to the circumstances including the nature of the offence, and the character of the offender, it is expedient to do so, the court may, for reasons to be recorded in writing, instead of sentencing the person at once, make a probation order, that is to say, an order requiring him or her to be under the supervision of a Probation Officer for such period, not being less than one year or more than three years, as may be specified in the order: Provided that the court shall not pass a probation order unless the offenders enters into a bond, with or without sureties, to commit no offence and to keep to peace and be of good

behavior during the period of bond and to appear and receive sentence if called upon to do so during that period: Provided further that the court shall not pass a probation order under this section unless it is satisfied that the offender or one of his sureties, if any, has a fixed place of abode or a regular occupation within the local limits or of its jurisdiction and is likely to continue in such place of abode or such occupation, during the period of the bond.

2) While making a probation order, the court may also direct that the bond shall contain such conditions as in the opinion of the court may be necessary for securing supervision of the offender by the probation officer and also such additional conditions with respect to residence, environment, abstention from intoxicants and any other matter which the court may, having regard to the particular circumstances of the case, consider necessary for preventing a repetition of the same offence or a commission of the other offences by the offender and for his rehabilitation as an honest, industrious and law- abiding citizen.

3) When an offender is sentenced for the offence in respect of which a probation order was made, that probation order shall cease to have effect. (Ministry of Law, Justice and Parliamentary Affairs, 2007:345-346).

The discussion and observations made so far on the above-mentioned enactments and laws and some other prevalent laws not specifically discussed here make out that the enactments and laws as referred to do not exercise and administer any comprehensive law exclusively aimed at the desired welfare of the children in adjudication, trial procedure and disposition of criminal justice for the juvenile offenders, and are not imbued with the spirit of children welfare in line with the universally accepted norms and practices for taking offending child back to the main stream of society for healthy growth into responsible and law-abiding citizens which is the conscience of the nation. Welfare of children is a global aspiration, and Bangladesh, as a developing nation, cannot lag behind the millennium-awakening of the children welfare oriented partnership.

Withstanding trial and tribulation of gross irregularity and miscarriage of justice perpetrated to the offending children throughout ages has led to emergence of a comprehensive, consistent, coherent and epoch-making legislation exclusively about criminal justice, disposition, rehabilitation and administration of an offending child who is recalcitrant to the order of society and who, after serving time and penitence, may return to the main stream of society, thanks to The Children Act, 1974 (Ministry of Law, Justice and Parliamentary Affairs,2007).

While discussing contents of the provisions of children Act, 1974, the core objectives of this research with regard to the moot point center round trial and punishment of juvenile offenders in the light of the express provisions, spirit and implementation of The Children Act for an offending child.

On an in-depth study of all previous enactments and provisions of law related to children the researcher has found those blatantly inconsistent, vague, incongruous and apparently nonbeneficial to the welfare of Children at large. The lack of comprehensive and consistent provisions has made the laws confusing, dysfunctional and incommensurate with welfare of children. A strong urge for dispensation of juvenile justice has led to the enactment of a comprehensive and exclusive law for the offending children which was promulgated and ordained in The Children Act, 1974. The Children Act, 1974 is a comprehensive law consistent with the spirit of emergence of a new nation in the world-atlas and in line with the existing character of the United Nations and other international laws related to children in all perspectives, barring a few exceptions.

Hence, the present study focuses and keenly aims at the dispensation of justice to child offenders, and ascertains the mandated implementation of the Act for the welfare of the offending children within the ambit of The Children Act, 1974 Bangladesh, since the post-independence era, has walked through the rugged terrains, upheavals and vicissitudes over the last few decades. The spirit and aspirations of a thriving nation are far behind and still far from expectation and lagging way behind the arena of contemporary global assimilation. It is found upon keen observation and research that most of the juvenile offenders have not been adjudicated properly through application of judicial mind and exercise of the spirit and interpretation of the law in line with the spirit of The Children Act, 1974.

1.2 Proposition of the Study Before analysis of laws related to children in Bangladesh, it is pertinent to discuss the trend and development of child-related laws in historical perspective. In British India, during Pakistani rule and then in Bangladesh, many children-related laws have been enacted randomly, appended to different statutes not composite for a complete and comprehensive law exclusively meant for children.

1.3 Child Related Laws in British India During the British rule in India many laws were enacted, such as The Penal Code, 1860, The Evidence Act, 1872, The Christian Marriage Act, 1872, The Marriage Act, 1872, The Court of Wards Act, 1879, The Births, Deaths and Marriage Registration Act, 1886, The Small Causes Courts Act, 1887, The Civil Courts Act, 1887, The Code of Criminal Procedure, 1897, The Whipping Act, 1909, The Juvenile Smoking Act, 1919, The Borstal school Act, 1928, The Child Marriage Restrains Act, 1929, The Suppression of Immoral Traffic Act, 1933, The Bengal Jail Code 1937, The Vagrancy Act, 1943, The Orphanages and Widows Homes Act, 1944.

The Penal Code, 1860 provides that nothing is an offence which is done by a child under (nine) years of age (section-82). The Code also provides that nothing is an offence which is done by child above (nine) years of age and under twelve (section-83).

The Evidence Act, 1872 provides that the children that are not able to give the answer by understanding the issues of cases (section-118) are not testified by the court.

The Christian Marriage Act, 1872 provides that minor means a person who has not completed the age of twenty-one years, and who is not a widower or a widow, The Marriage Act, 1872 provides that marriages may be celebrated by the man who must have completed his age of eighteen years, and the woman, her age of fourteen years according to the Gregorian calendar (Section-2(2), and this Act also provides that s/he is a minor who has not attained eighteen years of age (section-3).

The Court of Wards Act, 1879 provides that “minor� means a person who has not completed his age of (eighteen years) (Section-3).

The Births, Deaths and Marriage Registration Act, 1886 provides for voluntary registration of births and death.

The Small Causes Courts Act, 1887 provides for a suit for the restitution of conjugal rights, for the custody of a minor, or for a divorce (Section-15). The Civil Courts Act, 1887 provides that in any suit or other proceeding it is necessary for a civil court to decide any question regarding succession, inheritance, marriage or caste, or any religious usage or institution (section-37(1)).

The Code of Criminal Procedure, 1897 provides a person who is below sixteen years of age be released on bail (section 497); the Code provides also the power of court to release certain convicted offenders on probation of good conduct, instead of sentencing them to punishment.

The Whipping Act, 1909 provides that any Juvenile offender who abets, or attempts to commita) any offence punishable under the Penal Code, except offences specified in chapter VI and in sections 153A and 505 of that Code and offences punishable with death, or b) any offence punishable under any other law with imprisonment which the government may, by notification in the official Gazette, specify in this behalf may be punished with whipping in lieu of any other punishment to which may for such offence, abetment or attempt be liable.

The Juvenile Smoking Act, 1919 provides power of police-officers and others to seize and destroy tobacco, etc. in the possession of a young person in certain places who is apparently under the age of sixteen years.

The Bengal Children Act, 1922 is an act of child welfare as well as an act of social security.

It was enacted in undivided Bengal during the British Regime for the correction, welfare and security of the juvenile offenders. During this period many acts had been enacted for the welfare of the offenders, but those acts were not comprehensive or substantial. This act had been given emphasis of their welfare and security as they are the wealth of the society. To eliminate the weakness and incompleteness of The Reformatory Act 1897, The Bengal Act, 1922 was enacted.

The important provisions of The Bengal Children Act, 1922 (a)

In accordance with the provision of this act he is a juvenile who is under the 14 years and not above the 16 years.

(b)

This Act established Juvenile court, Industrial School & Remand Home for the correction and rehabilitation of the Juvenile offenders.

(c)

The court can allow to be free or to allow to the custody to a responsible guardian or to send in a workmanship school or Industrial School if any child is found begging, no parent, is under the disable parent or guardian, or to be cruel treated and to be found in the gang of criminal or prostitute.

(d)

There is a another important provision of this act if any child is found to be cruel treated, to be oppressed, to be provoked or used by a prostitute for the purpose of prostitution by anybody who will be convicted for 2 years imprisonment.

(e)

Another provision of this act is that if a child is mortgaged or to be used as mortgaged by anybody fine will be imposed on him.

(f)

In accordance with this law if a complaint is lodged against any juvenile who is under the 16 years in that respect the parents of that juvenile offenders is summoned or to pass an order of warrant against the guardian of that juvenile offenders.

This act was an epoch-making act of that period for the welfare and rehabilitation of the Juvenile offenders but now this law is not enforcing in Bangladesh. Presently The Children Act 1974 is enforcing in Bangladesh by taking some theme of The Bengal Act, 1922.

The aim and objectives of The Brostal School is to correct the behavior and character of the juvenile offenders by providing training. Education, vocational training and psychotherapy have been given to the juvenile offenders to build their personality, to adjust and rehabilitate to them with the societies who are attained age 15 to 20 years by admitting them in the Brostal School.

The Borstal Schools Act, 1928 provides that the adolescent offender means any person who has been convicted of any offence punishable with imprisonment (Section-2 (1)).

This Act also provides that “Borstal School� means a school established by the Government under section 3 (Section 2(2)). Section 3(1) of the said Act provides that The Government may establish Borstal Schools at such places as it may think fit wherein adolescent offenders may be detained and given such industrial training and other instruction and be subjected to such disciplinary measures and moral influences as in the opinion of the Government will conduce to their reformation and the prevention of crime.

Section 3(2) also provides for every Borstal school, a Visiting Committee shall be appointed in such manner as may be prescribed and the names of the members of the Visiting Committee or, when a member is appointed ex-officio, the office by virtue of which he has been appointed shall be published in the official Gazette. The Act also provides that the provisions of the Prisons Act, 1984, and the Prisoners Act, 1900, shall apply to a Borstal school established under this Act as if it were a prison and an inmate thereof a prisoner. (Section 4),

If it appears to the High Court Division, a Court of Session or the Court of District Magistrate, a Sub-divisional Magistrate or any Magistrate of the first class specially empowered by the Government in this behalf in any case that comes before such Court originally, on appeal or in revision that an Adolescent offender convicted by such Court or any Court subordinate to it or failing to obey an order made by such Court or any Court subordinate to it to give security under section 106 or section 118 or to enter into a bond or find security under section 562 or section 126A of the Code of Criminal Procedure, 1898, should be detained in a Borstal school, the Court may, in lieu of passing a sentence of imprisonment, make an order for the detention of the adolescent offender in a Borstal school for a term which shall not be less than two and shall not exceed three years.

(2)

Before making an order under sub-section (1) the Court shall(a) inquire into the age of offender and, after taking such evidence (if any) as may be deemed necessary, shall record a finding thereon stating his approximate age; (b) After considering any report or representation which may be made to it as to the desirability of the detention of the adolescent offender in a Borstal School, satisfy it self that the character, state of health and mental condition of the offender and the other circumstances of the case are such that the offender is likely to profit by such detention. (Section 5 (1), 5(2a and 2b),

The Act also provides the procedure where the Court is not empowered to pass on order of detention in a Borstal school (Section 6), Appeal (Section 7), Procedure after making order under section 5 (Section 8), Limitation powers conferred by section 5 (Section 9), Powers of Inspector General to transfer adolescent prisoners to Borstal school (Section 10), Removal from one school to another (Section 11), Power to release on license (Section 12), Revocation of license (Section 13), Powers of arrest of police (Section 14), Transfer of incorrigibles, etc., to prisons (Section 15), Rules (Section 16).

The Child Marriage Restraint Act, 1929 provides that a child means a person who, if a male, is under twenty-one years of age, and if a female, is less than eighteen years of age (section 2(b). The Act also provides for punishment for solemnizing a child marriage (section-5), punishment for parent or guardian concerned in a child marriage (Section-6) and power to issue injunction prohibiting marriage in contravention of this Act (Section12(1)).

The Suppression of Immoral Traffic Act, 1933 provides that brothel means any house, part of a house, room or place in which two or more females carry on prostitution, or in which any girl under the age of eighteen years is kept with intent that she shall at any age be employed or used for any immoral purpose (section-3(1)).

The Bengal Jail Code, 1937 defined that he is a juvenile who is a person under 21 years.

The vagrancy Act, 1943 provides that child means a person under the age of fourteen years (section-2(3)).

The Orphanages and Widows Homes Act, 1944 provides that orphan means a boy or girl less than eighteen years of age who has lost his or her father or has been abandoned by his or her parents or guardians (section-2(3), (Ministry of Law 2007).

1.4 Child Related Laws in Pakistan Regime During the period of Pakistan, many laws were enacted for the welfare of the children, such as The Prisons Act, 1894, The Probation of Offenders Ordinance, 1960, The Muslim Family Laws Ordinance, 1961.

The Prisons Act, 1894, provides that in a prisons where male prisoners under the age of twenty one are confined, means shall be provided for separating them altogether from the other prisoners and for separating those of them who have arrived at the age of puberty from those who have not; The Probation of Offenders Ordinance, 1960 provides that where a Court by which a person, not proved to have been previously convicted, is convicted of an offence punishable with imprisonment for not more than two years is of opinion, having regard to the age, character, antecedents or physical or mental condition of the offender, and the nature of the offence or any extenuating circumstances attending the commission of the offence, that it is inexpedient to inflict punishment and that a probation order is not appropriate (Section 4 (1)) and noncustodial sentences are provided for (Discharge on due admonition, release on probation, etc).

The Muslim Family Laws Ordinance, 1961 provides that in the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or

daughter, if any, living at the time the succession opens, shall per stirpes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive (Section-4).

1.5 Child Related Law in Bangladesh After independence in 1971 and emergence of a new nation, Bangladesh Government became more careful for the welfare of the children, and as a result, Bangladesh Government enacted a number of laws and acts such as The Constitution of the People’s Republic of Bangladesh, 1972, The Children Act, 1974, The Children Rules, 1976, The Bangladesh Sihshu Academy Ordinance, 1976, The Breast-Milk Substitutes (Regulation of Marketing) Ordinance, 1984, The Family Courts Ordinance, 1985, Primary Education (compulsory) Act, 1990, Suppression of violence Against women and Children Act, 2000 (as amended 2003), The Bangladesh Shrama Ain, 2006.

The basic needs of children and the duties of the state towards them are enshrined in the Constitution of the People’s Republic of Bangladesh, 1972. Article 14 of the Constitution prohibits all sorts of exploitations and Article 15 of the same ensures the right to social security, that is to say, to public assistance in cases of undeserved wants arising from unemployment, illness or disablement, or suffered by orphans. Article 17 of the Constitution provides for adopting effective measures for the purpose of establishing a uniform, massoriented and universal system of education and extending free and compulsory education to all children to such stage as may be determined by law. Article 18 of the Constitution provides that the state shall regard the raising of the level of nutrition and the improvement of public health as among its primary duties. Although discrimination has been prohibited, Article 28 of the Constitution provides that the state shall not be prevented from making special provision in favour of children. Forced labour is also prohibited under Article 34 of the constitution.

The Children Act, 1974 provides that a child is one person below 16 years of age (Section2(f)), parents and guardians should be informed of the arrest of a child, and should attend court proceedings (Section-13). The Court may proceed without the parents (Section-13); Probation officer should be informed of arrest of a child (Section-15); Officer-in-charge of police station may grant bail after hours (Section-48); if the child is not granted bail, he/she should not be kept at the police station, but taken to a certified institute (Section-49); a separate Juvenile Court is provided for; however, where one is not available, various other courts are empowered to act as juvenile court (Section-4-5); juvenile court should sit in a

building or room which is different from that of an adult court (Section-7); only people directly concerned with the case can attend the court (Section-9); the court is empowered to proceed without the child (Section-11); there should be no joint trial of adults and children (Section-6); the words “conviction” and “sentenced” should not be used in relation to children--the words “person found guilty of an offence” and “order made upon such a finding” should rather be used (Section-71); courts need to consider the age of the child, the character of the child, the circumstances in which the child is living, and the interests of the child (Section-15); Probation Officer’s reports are to be treated as confidential; the identity of children involved in cases cannot be disclosed; s/he may be brought before a juvenile court, the court may hold an inquiry; the court may commit them to a certified institute; and the court may place the child under the supervision of a probation officer (Section-32).

Children Rules, 1976 provides that education should be provided (Section-18), regular exercise programmes should be provided (Section-25), medical care should be provided to inmates (Section-15), inspection of these facilities is promoted, managers of certified institutes are empowered to release children to serve the remainder of their time at the facility in the care of a trustworthy or respectable person (Section-12), and that there should be a child-friendly atmosphere in court, (Section-04).

The Bangladesh Sihshu Academy Ordinance, 1976 provides for the establishment of the Bangladesh Shishu Acedemy for promotion of cultural, scientific and recreational activities for children.

The Breast-Milk Substitutes (Regulation of Marketing) Ordinance, 1984 provides for promotion of breast-feeding by regulating the marketing of breast-milk substitutes.

The Family Courts Ordinance, 1985 provides that subject to the provisions of the Muslim Family Laws Ordinance, 1961 (VIII of 1961), a Family Court shall have exclusive jurisdiction to entertain, try and dispose of any suit relating to, or arising out of, all or any of the following matters, namely dissolution of marriage, restitution of conjugal rights, dower, maintenance, guardianship and custody of children.

Primary Education (compulsory) Act, 1990 provides that one person is a child if s/he is not under the age of six and not above ten years (Section-2). Suppression of Violence against Women and Children Act, 2000 (as amended 2003), provides the definition of child that he is a child he is not under the age of 16 years. (Section-2(K). The Bangladesh Shrama Ain, 2006 provides the definition of child that he is a Juvenile who has attained the age of 14 years but not completed 18 years of age.

To propose the present research, the researcher has discussed the Acts and Ordinances of different earlier periods and Bangladesh-era so that it is possible to review important features, success and limitations of laws related to the welfare of the children in Bangladesh. But it should be mentioned that the above review of Acts and Ordinances is not comprehensive, and consistent with the totality of a full-fledged enactments that ensure exclusively the requirements of a complete law related to juvenile justice and its management except The Children Act, 1974. The other enactments that have been discussed only manifest piecemeal and random features of some provisions pertinent to children in dispensation of child welfare oriented procedure of the related law in point.

1.6 Objectives of the Study The main objective of the study is to examine the existing child-related laws and their impact on welfare of the children. The specific objectives of this study are given below: 1. To explore the nature of non-implementation of law (The Children Act, 1974) in dealing with the juvenile offenders by the police.

2. To find out the nature of non-implementation of laws (The Children Act, 1974) in dealing with the juvenile offenders by the court during trial.

3. To examine the errors that vitiates the judgments of the Juvenile Courts acting under The Children Act, 1974.

4. To identify the problems faced by the Law-Enforcement Agencies, Judicial Magistrates, Metropolitan Magistrates, Judges, public prosecutors, defence lawyers and probation officers.

5. To examine the impact of the child-related laws on the welfare of the juvenile offenders.

1.7 Scope and Importance of the Study The situation of juvenile offences now prevalent in Bangladesh is alarming. amongst the juvenile population in the country, a section of whom are found to be incriminated with murder cases(18.1), rape cases(o.7), theft cases (22.1), suspicious movement cases (1.4) kidnapping cases (0.7), and hijacking (3.5) (Prowab,2008:38). Besides, juvenile offenders are found to commit many other penal and cognizable offences including offences under special

laws. The astronomical number of offences is increasing rapidly resulting in grave concern among the social leaders, statesmen and general masses of the country.

So, there is urgent scope and necessity of conducting the proposed research on laws related with juvenile offenders and welfare of children in Bangladesh. This research work will be able to fill up the gap left behind by previous research-works on this issue conducted by the researchers. This research will find out new directions to establish the rights of the children.

It is the expectation of the researcher that this research work will contribute to the knowledge of the practitioners, lawyers, policy-makers, planners, administrators, law enforcing agencies, and academics to chalk out an appropriate policy to maintain justice for the children and their wellbeing.

1.8 Methodology of the Study 1.8.1 Selection of the Study Area The area of this study is wide so far as the population taken into consideration is concerned.

The population under this research has been divided keeping in view the main objectives of this study. These are juvenile offenders, parents of the juvenile offenders, police, probation officers, judicial magistrates, metropolitan magistrates, judges, defence lawyers and public prosecutors. This study covers Kishore Unnayan Kendra (Child Development Centre for Boys), Tongi, Gazipur, Kishori Unnayan Kendra (Child Development Centre for Girls), Konabari, Gazipur, Sutrapur Police Station, Kotwali Police Station, Ramna Police Station in Dhaka Metropolitan area. Judicial Magistrate, One GRO and one Probation Officer are selected from Juvenile Court in Kishor Unnayan Kendra, Tongi, Gazipur. Probations Officers are also selected from Chief Metropolitan Magistrate Court and Judicial Magistrate Court, Dhaka. Defence Lawyers, public prosecutors and Judges have been selected from Sessions Judge's Court Dhaka and Metropolitan Sessions Judge's Court Dhaka.

1.8.2 Selection of Sample To conduct this research 62 informants of cross section of professional groups and occupational groups have been selected using the purposive sample method out of which about 8 female juvenile offenders from Kishori Unnayan Kendra, Konabari, Gazipur and 8 male juvenile offenders from Kishor Unnayan Kendra, Tongi, Gazipur, 8 parents of the female Juvenile Offenders and 8 parents of male juvenile offenders of the above mentioned institutions were interviewed using the method of FGD keeping in view the main objectives

of the study in order to get in-depth information. To collect information, the researcher has interviewed 9 law enforcing personnel, viz. 4 Police Constables, 2 Sub-Inspectors of Police, 1 Inspector of Police of Dhaka Metropolitan Police and 1 GRO (police) from Juvenile Court in Kishor Unnayan Kendra, Tongi, Gazipur and another 1 GRO (police)

from Chief

Metropolitan Magistrates Court, Dhaka, 12 lawyers were selected from Dhaka Judge’s and Metropolitan Session’s Judge Courts, Dhaka for Interview; among them, 7 were defence lawyers and 5 were public prosecutors (Government Lawyers). Moreover, 5 judges were interviewed; among them, 3 are Additional District Sessions Judges of Dhaka Judge’s Court, 1 Judge is from Jana Nirapatta Bighno Aparadh Daman Tribunal, Dhaka and another 1 judge is from Nari-O- Shishu Nirjatan Daman Tribunal, Dhaka. Both of them bear the status of District Judge. It should be noted that 1 judicial magistrate was interviewed from the Juvenile Court in Kishor Unnayan Kendra, Tongi, Gazipur, Besides, 3 Probation Officers, among them, 1 Probation Officer from juvenile court in Kishor Unnayan Kendra, Tongi, Gazipur and another 2 Probation Officers, among them, 1 from the Chief Metropolitan Magistrates court, Dhaka and 1 Chief Judicial Magistrates Court, Dhaka are also interviewed in order to collect information about the correction of the juvenile offenders.

1.8.3 Methods of Data Collection In conducting this research project, several methods and techniques have been applied; case study, observation, interviewing, use of key informants, documents investigation and reviewing of past judgments is among them. However, each and every method has been used in terms of need and situation of the study in order to collect authentic and accurate information from cross-section of people. The application of specific methods for this research project has been explained.

To conduct this research project, both primary and secondary sources of information have been tapped. The researcher has given emphasis on secondary data based on published and unpublished materials, viz. Dhaka Law reports, Bangladesh Codes, Bangladesh Gazettes, Mainstream Law Reports, The

Law Guardian, Bangladesh Legal Decisions, and case

records. More over, the researcher has critically reviewed the relevant research works conducted by other scholars.

The researcher has also used primary data to supplement secondary information. The methods applied to collect primary data are case study, observation, Focus Group Discussion (FGDs), and use of key informants (Raj, 1981).

To collect information in applying case study method, age and gender- specific cases have been selected from Kishore Unnayan Kendra, Tongi, Gazipur and Kishori Unnayan Kendra, Konabari, Gazipur. The researcher spent hours together to get in-depth information from the informants.

Observation method has been used at the time of interviewing with the juvenile offenders in order to collect accurate information. Interviewing was administered with the key informants, such as Judicial Magistrates, Metropolitan Magistrates, judges, lawyers, public prosecutors, police, probation officers, juvenile offenders and guardians to collect primary information. In addition to observation, the researcher has applied the method of participant observation in order to collect reliable information. It should be noted that the researcher himself is a lawyer, and he has been involved with legal practice for the last sixteen years, and as a result, he knows how to collect reliable and authentic information for this research project.

The FGD method has been applied in order to collect information from cross-section of people (William and Hatt, 1952). It should be mentioned that the FGD is an in-depth discussion in which a small number of informants (usually 6 to 8) from among the studypopulation were selected to collect information in holistic perspective. The group dynamics technique is applied in FGD method to make the informants easy and enthusiastic in providing information. The FGD method of data collection takes place in a setting that is comfortable, private and familiar to participants and where there are few scopes of interruptions A guideline of a set of question has been applied for interviewing key informants as well as cross-section of people. Qualitative data has been collected using these different methods and techniques.

Data have been analyzed with the help of qualitative method and techniques. It does not mean that quantitative data have not been used in this research work. In order to supplement qualitative data, quantitative data have been incorporated.

1.8.4 Reliability and Validity of Data The researcher has taken utmost care to collect data from cross-sections of informants.

Observation method was applied at the time of interviewing. Gesture and posture were observed to collect authentic information. Moreover, the researcher established rapport especially with the key informants to collect desired information. It should be clear that the informants felt comfortable and sincere in expressing their views especially at the time of

data collection using the FGD method. It is the expectation of the researcher that the data that have already been collected is reliable, authentic and valuable.

The data have been processed after necessary checking and editing. The processed data were analyzed both quantitatively and qualitatively. The qualitative analysis was made through systematic and analytical description of the collected facts to supplement the qualitative ones.

1.8.5 Guidelines for Primary Data Collection To conduct the study, the Researcher has used some guideline and checklist, instead of a questionnaire, for interviewing the sample of the study. The guideline and checklist have facilitated interviewing informants through open-ended questions. The guideline was prepared keeping in view objectives of this study. The main objective of using guideline instead of any questionnaire is that the interview can thus made be flexible without missing important questions.

Moreover, it can be helpful at the time of interview in telling stories related to the topic so that informants feel easy in participating in the interview. The use of open question is another important technique of collecting qualitative data. There comes a scope of making dyadic contact between the interviewer and the interviewee at the time of interviewing.

1.9 Limitation of the Study The main limitation of this study is the small sample size from which primary data have been collected. The researcher could not be able, despite all-out efforts to select a large-size of sample and to collect in-depth information due to paucity of time and constraint of required resources. It may be a problem to generalize the data in micro perspective for policy-making issues. However, the researcher has collected data from the juvenile offenders who were under trial of the Metropolitan Session judge’s Court, Dhaka Sessions Judge’s Court and Chief Metropolitan Magistrate Court, Dhaka and the juvenile court in Kishore Unnayan Kendro, Tongi, Gazipur and Kishori Unnayan Kendro, Konabari, Gazipur. Juvenile offenders have been picked from the above noted judicial institutions for data collection and gleaning of information because of easy access and vicinity to expedite the study.

CHAPTER TWO CONCEPTUAL FRAME WORK

An attempt has been made to develop a conceptual framework for the present study. In this respect the working definitions of child law, juvenile offender and child welfare have been explained. It is very difficult to develop a uniform concept of child law, juvenile offender and child welfare. Because, society is not static; rather it is dynamic in nature, and as a result, concepts of child law and child welfare vary from one society to another or even among different segments of the same society. Consequently, definitions of child law, juvenile offender and child welfare are relative. The concepts of child law, juvenile offender and child welfare largely depend upon the nature of the society, culture of the people in terms of customs, beliefs and value system.

2.1 Concept of Law The definition of law is given here from the Black’s Laws Dictionary (1990) as follows: “The regime orders human activities and relations through systematic applications of the force of politically organized society, or through social pressure, backed by force, in such a society; the legal system which respect and obey the law.” According to that Dictionary, law is the “aggregate of legislation, judicial precedents and accepted legal principles; the body of authoritative grounds of judicial and administrative action; esp., the body of rules, standards, and principles that the courts of a particular jurisdiction apply in deciding controversies brought before them.” The concept of child laws upheld in this thesis is that child-related laws are a set of rules which have already been enacted by the state for ensuring legal rights of the children. It should be noted that there are many laws for the children, but these laws are not exclusively for the children, because there are many fabrications of these laws associated with different perspectives of the people including children. Consequently, The Children Act, 1974 is selected here exclusively for the juvenile offenders.

2.2 Juvenile Offender A Juvenile offender is some one who is considered to be of a tender age especially under the age of 16 years within the meaning and interpretation of the Children Act, 1974. The juvenile offenders are deviant children irrespective of gender, religion, caste, sect and ethnicity (Clifford and Mckay, 1942. Gibbons, 1965) and who are under the age of 16.

2.3 Juvenile Court Juvenile Court means a court for juvenile offenders established under section 3 of the Children Act, 1974. Section 3 of this act provides that notwithstanding anything contained in

the Code, the Government may, by notification in the official Gazette, establish one or more Juvenile Courts for any local area (Ministry of Law, Justice and Parliamentary Affairs, 2007).

The salient features of function in a Juvenile Court envisage that there shall not be any joint trial of child and adult and that the sitting of Juvenile Court in which a child is charged with an offence the Court shall sit in a building or room different from that in which the ordinary sittings of the Court are held.

The Act also prescribes restriction upon presence of persons in Juvenile Court along with the inherent Jurisdiction of the Court for withdrawal of persons from court. It is also provided that at any stage during the hearing of a case if the court is satisfied that the attendance of a child is not essential for the purpose of the hearing of the case, they can dispense with the attendance of the child.

The Juvenile Court can require parent of the Juvenile offender to attend the court for the purpose of any order which a Juvenile Court has to pass under this act. The court shall take into consideration the character and age of the child, the circumstances in which the child is living together with the reports made by the Probation Officer. The Court shall treat reports of Probation Officers and other reports as confidential.

The Children Act 1974 expressly forbids publication of report disclosing identity of the child involved in a case. The Act also provides for procedure of trial to come under the ambit of the provisions of Criminal Procedure Code 1898 to apply unless excluded which expressly provided in the Act. The Act provides, under section 46, about penalty for publication of report or picture related to the child in contravention of the provisions of section which is punishable with imprisonment for terms which may extend to two months or with fine which, may extend to take two hundred or with both.

The Children Act 1974 expressly places restriction on punishment of the offending child under section 51 which forbids that no child shall be sentenced to death transportation or imprisonment in respect of a child who 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 and or of so depraved character that he can not be committed to a certified institute and that none of the other methods in which the case may legally be dealt which is suitable (ibid). The court may sentence the child to imprisonment or order him to be detained in such place on such conditions as it thinks fit. It also provides that no period of detention so ordered shall exceed the maximum period of punishment to which the child could have been

sentenced for offence committed. It is also provided that at any time during the period of such detention, the Court may in its discretion direct that in lieu of such detention the youthful offender be kept in a Certified Institute until he has attained the age of 18 (eighteen) years and a youthful offender sentenced to imprisonment shall not be allowed to associate with adult prisoners.

The Act provides under section 52 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 a Certified Institute for detention for a period which shall be not less than two years 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 is empowered under section 53 of the Act that, instead of directing any youthful offender to be detained in a certified institute under section 52, the court may discharge the Juvenile Offender after due admonition or 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 behavior of the youthful offender for any period not exceeding three years and the Court may order the youthful offender to be placed under the supervision of a Probation Officer.

Section 56 of the Act provides that when there is reason to believe that an offence as stated in section 55 has been committed or is likely to be committed in respect of any child which has been brought before it and that it is expedient in the interest of the child that action should be taken under this act, the Court may make such order as circumstances may admit and require for the care and detention of the child until a reasonable time has elapsed for the institution or proceedings against the person for having committed the offence in respect of the child or for the purpose of taking such other lawful action as may be necessary.

Section 61 of the Act provides for issue of warrant to search for a child when there is reasonable cause to suspect that an offence has been committed or is being committed. In that case, the Court may issue a warrant authorizing any Police Officer named therein to search for such child and detain him in a place of safety until he can be brought before it and the Court shall remand him in the prescribed manner to a place of safety. And, in the event of remanding a child to a place of safety, the Act provides that the government may establish and maintain Remand Homes for the purpose of detention, diagnosis and classification of children committed to custody by any court or police.

2.4 Role of Police in Assistance of a Juvenile Court Police plays a very important role in the process of dispensation of judicial procedure in a Juvenile Court. In The Children Act, 1974, vital role of police has been incorporated in multiple aspects into the gamut of an Act which has been clouded in obscurity by sheer negligence and lack of knowledge, proper training and reluctance coupled with the legacy of colonial attitude in an independent nation of ours. Section 48 of the Act provides for bail of a child arrested when he is apparently under the age of sixteen and on a charge of non-bailable offence. When he cannot be brought forthwith before a Court, the Officer in Charge of a police station may release him on bail if sufficient security is furnished with. But, as provided under section 49, it is mandated that in the case of a child below the age of sixteen years having been arrested but 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.

Section 50 of the Act provides for submission of information to the Probation officer by Police after an arrest has been made to the effect that immediately after arrest of the Child it is mandatory upon the arresting Police officer to inform the Probation officer of such arrest which will enable the Probation officer to proceed forthwith in obtaining information regarding his antecedents and family history together with other material circumstances for consideration of the Court in making its order.

In the Act, it has been dealt about measures for detention of children and youthful offenders as contemplated under section 55 of The Children Act, 1974, which provides for detention of a child in place of safety where a Probation Officer or Police Officer not below the rank of Assistant Sub-Inspector or a person authorized by the Government in this behalf may take the 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 and also if any child who seeks refuge in a place of safety may be detained until he can be brought before a Court and in that case such detention shall not, in the absence of a special order of the Court, exceed a period of twenty-four hours exclusive of the time for journey from the place of detention to the Court.

It is also a mandatory provision of the Act as provided under sub-section (2) of section 13 that where the offending 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 direct the parent to attend the Court before which the child will appear and shall specify the date of such appearance and, in an exception to the section, it is

provided that the parent must have actual control over the child but the section shall not be deemed to require the attendance of the mother or female guardian of the Child, but any such mother or female guardian may appear before the Court by a Lawyer (Ministry of Law, Justice and Parliamentary, 2007).

2.5 Concept of Child Welfare The concept of child welfare is associated with the services provided for the care of disadvantaged children. Foundling institutions for orphans and abandoned children were the earliest attempts at child care, usually under religious auspices. At first, the goal was to provide minimum physical subsistence, but services have been expanded to include social and psychological help. In the late 18th century, a movement developed around the idea that children should not simply be regarded as small adults, and such educators as Rousseau, Pestalozzi, and Froebel were discussing children's special needs at the same time that the Industrial Revolution intensified the non-agricultural exploitation of child labor, use of the young as workers in factories, farms, and mines. Child labor was first recognized as a social problem with the introduction of the factory system in late 18th-century in Great Britain (Koening,1991).

In the 19th century many religious and private institutions were organized to take care of children who were orphans, destitute or handicapped. In child-welfare legislation, the British Children's Charter Act of 1908 and the Ohio Children's Code Commission of 1911 marked a new era. The idea came that it was the responsibility of the community to provide children with the advantages that their parents could not. Included in this category are free school lunches; medical, dental and psychiatric services and child guidance clinics in schools; playgrounds; children's courts; special schools for handicapped children; and care in foster families for children of broken homes. Infant and child clinics are often provided by municipalities. It has been found from above discussion that the concept of child welfare is an umbrella concept which indicates over-all well-being and quality of life of the disadvantaged children. But, the definition of child welfare is confined here in narrower perspective e.g., welfare is related to legal aspects of the children. It should be noted that law is enacted for the well-being and improvement of quality of life of the people. The same is the truth for childrelated laws, but their implementation is the challenging issue for the state as well as for civil

society. Under the circumstances, if the implementation of child laws is not effective, then the children are being deprived from the legal rights and become vulnerable. Consequently, the impact of existing child related laws for the welfare of the children is in question.

CHAPTER THREE REVIEW OF LITERATURE Relevant literatures have been reviewed in order to establish the main concepts and to find out gaps for this study compared to other research works conducted by scholars. The main issues have been reviewed to get idea about the trend of juvenile offenders and nonimplementation of law (The Children Act, 1974) dealing with juvenile offenders by the police, probation officers, judicial magistrates, metropolitan magistrates,

judges, defence

lawyers and pubic prosecutors.

Fatema, et. al. (1996), in their research ‘Children in Conflict with Law: Dhaka City’, examines society’s attitudes towards and treatment of children whose behavior deviates from social norms. The sample of this study consists of 90 children, 40 of whom continued to reside at TCC and 50 had been released. The findings of this study is that most of the families were not able to provide the emotional support required by a child, acute poverty and tendency to migration is loosening the community-tie that affects the children towards deviation from norms and values of the community, and the police officers do not have adequate knowledge of The Children’s Act, 1974. Even the magistrates are not aware about The Children’s Act, 1974, and as a result, juvenile offenders are deprived from proper justice; and facilities for correction of the offenders are very limited due to the paucity of institutional support. Moreover, the juvenile offenders sometimes are being abused by law- Enforcement Agencies.

Save the Children and Odhikar (2001), in the research report, “Our Children in Jail: Year Book on the State of Juvenile Justice and Violence against Children in Bangladesh,” discuss violence against children in connection with physical punishment at home and in educational institutions, reason for punishment by parents and teachers, violence at the work-place,

violence in the street, violence in the institutions, using children for political activities and for trafficking arms and drugs. Besides, the report explain prison management system, types of prison in Bangladesh, structure of prisons, capacity of prisons, jail-reform initiatives, provision for legal support along with how children end up in jail, and why jails are overcrowded and the instruments are used for punishment and abuse. This report also discusses the impact of jail culture on imprisoned children.

The “Children and Justice Workshop Report” of Save the Children U.K. (2000) has revealed juvenile justice for protection of the rights of children especially who are in difficult circumstances. The report reveals that the practice of keeping children and young people in custody, often for indefinite periods, has increased in Bangladesh. The inertia within the justice system and lack of appropriate monitoring mechanisms related to arrest and detention of children and young people allows the miscarriage of justice. Every year hundreds of children are picked up by the police for vagrancy or alleged crimes, and many are kept in jails with adults. Despite the legal provision for separate trial of children, they are often tried with adults, and the role of juvenile courts is nominal. The legal system is corrupt, extremely slow and insensitive to the needs of the children.

Ministry of Women and Children Affairs, Government of People's Republic of Bangladesh, Department of Women Affairs, in partnership with UNICEF, Bangladesh, (n. d.) reported Ò An Assessment of the Training Needs of Police, Magistrates and Judges and the Capacity of Bangladesh Training Facilities in the areas of Juvenile Justice and Protection from Violence, Abuse and Discrimination” which discloses that the independent studies and evolution have highlighted the situation of children who come in contact with the law in Bangladesh and have demonstrated how they were deprived of many of their rights.

Sarker (2001), in his book, Juvenile Delinquency: Dhaka City Experience, explains that the main objective of this study was to make an in-depth inquiry into socio-economic factors associated with the juvenile delinquent offences in Dhaka city. The offenders were selected from among those who were under correction after adjudication through the juvenile court procedures. Experience highlighted the juvenile delinquency problem in the context of socioeconomic and ecological perspective of Dhaka city. The book examines the effectiveness of justice system in controlling juvenile delinquency, reviews legislation and court ruling on the rights of the youthful offenders.

Bangladesh National Women Lawyers Association (N.D.) conducted a study focusing on the conditions of the detainees, mainly women prisoners. The study depicts the sufferings of the

women and children due to the bureaucratic process and negligence of the concerned authorities. This study indicates that the jail staffs are mostly uneducated and misfit to bear the responsibilities. They do not have any training, even human rights awareness. Their ignorance reflects badly on the prisoners’ plight. The prisons lack not only minimum international standards of living for the prisoners but also the basic guarantees contained in the Bangladesh Constitution.

Canadian International Development Agency (2005), in Children come into Contact with Juvenile Justice System: Bench book for Judges, has explained about the youthful offenders who were under the management of justice. It is a key book for the people involved in juvenile justice. This book has highlighted the protection of rights of the youthful offenders through proper justice.

Rahman (1981), in his book, Laws Relating to Children in Bangladesh, has tried to collect such (Acts, Ordinances, etc.) as have direct application on children in Bangladesh. He has highlighted the basic needs of children, and the duties of the State towards them enshrined in the Constitution.

Save the Children UK (2000), in a research report, entitled “Juvenile Justice in Uganda: A Situation Analysis,” reveals that the majority of offences for which children are charged are cases in which village local council courts are courts of first instance. In practice, LC refers such cases to police, therefore ending up in the formal court system. Consequently, children end up being remanded when they should have been avoided in the first place. There was also a general lack of awareness by local councils regarding their roles and jurisdiction under the statute. The pattern of referral of trivial cases by the lower courts (LCs), to the police confirms this observation by the lower courts. This lack of awareness contributes to the local councils’ hasty reference of children to the police, even those cases where the initial jurisdiction lies with them. As much as this study was done in Kampala, there is evidence from practice that the same situation exists in all the other Districts of Uganda.

Ministry of Social Welfare, Department of Social Services (2002) depicted in the document, Juvenile Justice Administration and Correctional Services in Bangladesh that “The United Nations Convention on the Rights of the Child was the first International Instrument to adopt coherent child rights approach to international legal regulation of the deprivation of liberty for children.” The significance is that its operation is as an umbrella for a set of three rules concerning Juvenile Justice, namely, the UN Guidelines for the Administration of Juvenile Delinquency (The Riyadh Guidelines), the UN Standard Minimum Rules for the

Administration of Juvenile Justice (The Beijing Rules) and the UN Rules for the Protection of the Juvenile Deprived of their Liberty. “These three sets of Rules may be seen as guidance for a three-stage process: (1) related to social policies to be applied to prevent and protect young people for offending (Riyadh Guide Lines); (2) establishing a progressive Justice system for young Juvenile persons in conflict with the Law (The Beijing Rule) and (3) safeguarding fundamental rights and establishing measures for social re-integration of young people once deprived of their liberty whether in prison or other institutions. (The JDL Rules)”.

The situation in relation to the administration of juvenile justice and its incompatibility with Articles 37, 39 and 40 of the convention and other relevant international standards has been a matter of concern to the Committee on Rights of the Child: Bangladesh (Concluding Observations of the Committee: 18/6/1997). The committee is specifically concerned about the young age of criminal responsibility (7 years), lack of adequate protection for children aged 16-18, grounds for arrest and detention of children that can include prostitution, "vagrancy" or "uncontrollable behavior", the possibility of imposing heavy sentences on children and solitary confinement and ill-treatment of the children by the police.

The United Nations Convention on the Rights of the Child (UNCRC) adopted the following principles: 

Non-Discrimination;



Best Interest of the Child;



The Right to Survival and Development; and



The Views of the Child.

It is worth mentioning here that the CRC is a comprehensive document covering all aspects of children's survival, their development, protection and participation in the life of the society. Articles 37, 39 and 40 of UNCRC are very relevant international standards for guaranteeing appropriate and speedy disposal of the cases of juveniles. The Government of Bangladesh ratified the UNCRC in the year 1990, and it is fully committed to implement each of its provisions.

The Report of the Ministry of law (1997) has been reviewed, and the researcher thinks that there should not be any action by the administration which violates interests of the Child; rather, all actions should be aimed at and based on the Universal Principle of Proportionality

signifying suitable, necessary and appropriate welfare for the child. The Report also says that the age of child should be taken into consideration by the Law-Enforcement Officials, prosecutors and Judges.

A review of “Juvenile Justice in Africa, South Asia and the Caribbean prepared for Penal Reform International (1999) reports that Bangladesh ratified the CRC in 1990, but till 1995, no report on the implementation of the provisions of the CRC had been submitted. Half of the population of 122 million is below the age of 18; up to 3 million people live in the slums of Dhaka where children spend most of their time on the streets. The report further deplores that there are no official figures of the number of homeless children, as the Government has not conducted any survey. UNICEF estimates that some 2 million children are homeless (1992).

No authority or government department is charged with keeping records or statistics on the number of children in prison.

Agnes Rohfritsch (1995), in his research, “A Critical Review of Judicial Institutions in Relation to the Rights of the Child,” has explained The Children Act, 1974, created in order to replace The Children Act, 1922, is the only piece of legislation in Bangladesh that specially deals with children. He has also highlighted the definition of child, procedure applied for trial of the juvenile offenders including their sentencing. Besides, he has pointed out the legal powers of the police, recruitment and training of police, procedure of arresting juvenile offenders, and investigation of the case of the juvenile offenders. The role of court, prison, rehabilitation procedures of the offenders, status of the obligation made by the convention, conciliation considerations on the causes and consequences of nonimplementation of the law have been critically discussed in their research report.

Khan (2000), in her research report Herds and Shepherds: The Issue of Safe Custody of Children in Bangladesh, depicted the outcome of a participatory research on remand in custody of children, a judicial prerogative with apparently little legal coverage, in Bangladesh by the SC UK in partnership with BLAST. The study attempts to generate a set of achievable recommendations on the issue as well as to identify oppressive laws, analyze the environment of corruption and consider the role of different stake-holders on resisting children’s abuse while in protective custody. It has been observed in this research that the term ‘safe custody’ or equivalent ones are specifically used only in two Acts of Bangladesh, although the magistrates and judges have been traditionally passing detention orders against children for various reasons like accusations of vagrancy and in cases of victims of sexual assault. This study has brought together detailed findings and recommendations by some major stakeholders like legislators, lawyers, civil servants, media personalities and NGO workers on the

issue. This research particularly focuses on the views of the children about the various stages of their internment. The research has identified a list of long, mid and short-term advocacy issues including immediate implementation of measures to alter the inhuman conditions of children already in custody with all available means.

Tappon (1949) has critically discussed in his book, Juvenile Delinquency, that juvenile delinquency was a very important phase of the subject- matter of criminology. At the same time, he has recommended development of new facilities for the preventive and curative handling of the deviant youngster. He has pointed out that delinquency is a matter of statutory definition and court determination.

Khan and Rahman (2008) have described in their book, Protection of Children in Conflict with Law in Bangladesh historical background of the international standards on children in conflict with the law, major international instruments dealing with children in conflict with law, convention on the rights of the children, United Nations Standard Minimum Rules for the Administration of Juvenile Justice, United Nations Guidelines for the Prevention of Juvenile Delinquency, United Nations Rules for the Protection of Juvenile Deprived of their Liberty, background of The Children Act, 1974, major provisions of The Children Act, 1974 and The Children Rules, 1976. They have also discussed the children in conflict with law in consideration of selected thematic issues, such as minimum age of penal responsibility, right of a child in conflict with law to separate trial, arrest, bail, and detention pending trial, trial procedure, punishment, and post-trial institutionalization. Besides these crucial issues, the researchers highlighted the progress and challenges in juvenile justice system.

Malik (2004) has presented in his book, The Children Act, 1974: A Critical Commentary, the history of childhood of the children in Bangladesh, The Children Act, 1974 and origins of juvenile justice, legal construction of childhood, juvenile justice in international perspective, and concept of the child in judicial pronouncement. He has further explained in appendix about the Probation of Offenders Ordinance, 1960.

Shefina Begum (2007), in her book, Children Acts and Procedure of Justice, has discussed aims and objectives of the Children Act, definition of the child in court-judgment, types of juvenile offences, causes of juvenile offences, when children come in contact with law, management of juvenile court, Remand Home, Kishore Unnayan Kendro, probation officer, Social Case Workers, types of juvenile court and jurisdiction, procedure of juvenile court, guardian case, procedure of filing the guardian case, procedure of instituting police case,

characteristics of social inquiry report under section 33 of The Children Act. She has also distinguished between SIR and PSR along with the concept of probation, and its objectives.

Hoque et al (2008) have analyzed in their research report, Under-Aged Prison Inmates in Bangladesh: A Sample Situation of Youthful Offenders in Greater Dhaka, socio-economic and demographic background of the inmates which include age, religion, education, familysize, kinship relations, occupations, living conditions, occupation of the parents, family income, peer group, and so on. Has also discussed the complaints for imprisonment, background of the criminal activities of the family- members and response of the inmates.

It is clear from the review of the above literatures that nobody has so far discussed the constraints of police, judicial magistrates, metropolitan magistrates, judges, public prosecutors, defence lawyers and probation officers for non-implementation of laws related to the juvenile justice system of Bangladesh. Nobody has incorporated in his or her research the nature of non-implementation of laws during trial, and examined the errors that vitiate the judgments leading to miscarriage of justice. There is no such visible initiative to identify the problems faced by the police, judicial magistrates, metropolitan magistrates, judges, public prosecutors, defence lawyers and probation officers which is vital to explore the impacts on the welfare of the juvenile offenders in this part of the world, Bangladesh. Therefore, a study is badly needed in this respect.

CHAPTER FOUR FINDINGS OF THE STUDY 4.1 Findings in the FGD, Discussions and Case Studies.

The existing child-related laws and their impact on welfare of the children are critical issues in developing countries across the world including Bangladesh. There is a network involvement of different sections of the professionals including civil society for the implementation of laws especially for the deviant children who are identified as juvenile offenders. These professionals are police, Probation Officers, Lawyers, Public Prosecutors, Judicial Magistrates, Metropolitan Magistrates, and Judges. This chapter is based on information collected from the above professionals along with the juvenile offenders and their parents using the methods and techniques of interview, Focus Group Discussion (FGD) and Case Study. It should be noted that the data have been collected form the juvenile offenders and their parents using the FGD method only. The main focus of this chapter is to

examine to what extent the child- related laws impact the welfare of the children, especially the juvenile offenders in Bangladesh. To get a clear idea about this issue, the data that are based on individual case study from the different segments of professional groups, juvenile offenders and their parents have been analyzed below. The impact of the present child-related laws have on child welfare will become clear to professionals, planners, leaders and future researchers from this.

4.1.1 Focus Group Discussions with Female Juvenile Offenders of Kishori Unnayan Kendra Focus group discussion was held with eight (08) female juvenile offenders on 07-10-2009.

Four (04) juvenile offenders out of eight (08) stated that the police did not inform their parents of their arrest, remaining four (04) opined that the information of their arrest was sent by the police to their parents. They informed that they were not granted bail by the Officerin-charge; they are not even sent to the remand home or a place of safety.

They opined that their parents were not directed to go the court when they would appear there.

One (01) of the juvenile offenders, out of eight (08), observed that her case was conducted by the Judicial Magistrate at the Juvenile court of Kishori Unnayan Kendra, Konabari, Gazipur.

Remaining juvenile offenders stated that their cases were conducted at the ordinary court as their cases were session’s case.

Four (04) parents out of eight (08) opined that separate trials were conducted by the judges for their children; remaining four (04) opined that the trials of their children were conducted by the judges jointly.

Juvenile offenders informed that outsiders were allowed by the judges. The Age of the six (06) juvenile offenders out of eight (08) were determined by the judges, and the age of the rest two were not determined by the judges.

Many problems were faced by the juvenile offenders from the part of police, public prosecutors, defense lawyers and probation officers, Metropolitan Magistrates, Judicial Magistrates and Judges in course of their dealing with the cases of their children at court premises and also in the Kishori Unnanyan Kendra, Konabari, Gazipur.

It was opined by the juvenile offenders that the actual ages had not been mentioned by the police in their police forwarding as well as in the Charge Sheets. Juvenile offenders opined that the police did not enquire about their age when they were arrested. Police arbitrarily mentioned their age in their police forwarding as well as in Charge Sheet.

In police custody as well as in the court-custody, separate rooms were arranged for them, but they were detained there with the other female adult criminals. They opined that they were in custody for a long time and that the police mentioned their over-age in their forwarding as well as charge sheet was accepted by the Judicial Magistrates, Metropolitan Magistrates and Judges. They also conducted joint trial and sat at any ordinary court and did not separate the case from that of the adult criminals In open court their cases were presided over by the Judicial Magistrates, Metropolitan Magistrates and Judges, so that the privacy of them as female were not maintained by the judges.

They opined that the public prosecutors were not interested at all in helping them, as they did not give any extra money to them.

The female juvenile offenders stated that now they are in safe position as they are in Kishori Unnayan Kendra, Konabari, Gazipur. When they are outside then we are eve-teased by the wicked boys. Sometimes they were abused by them. They also opined that trade education is provided by the Kishori Unnayan Kendra, Konabari, Gazipur. But they opined that the trial system is going on very slowly. Thus, they did not get proper welfare for the development of life.

From the above discussion it is clear that the police, Metropolitan Magistrates, Judicial Magistrates and Judges, Public Prosecutors and Defence Lawyers were not fully aware of The Children Act, 1974. So the implementation of that act is meager in all respects; it is found that the police did not inform the parents of the arrest of their children, and the police did not either grant bail to the juvenile offenders. They did not even send them to the remand home or a place of safety, and that was violation of the sections 13, 48, 49 and 50 respectively of The Children Act, 1974. It is also found that the police did not mention the age of the Children in police forwarding as well as in Charge Sheet. They did not even investigate into the cases of Juvenile offenders properly. As a result, proper execution of the juvenile justice system faced various problems which hindered the welfare of the children.

On the other hand, Judicial Magistrates, Chief Judicial Magistrates and Judges also are not fully aware of the Children Act, 1974. They conduct the case for want of jurisdiction, conduct joint trial of child and adult, sit at an ordinary court, did not separate the case, did not require

the guardian of the juvenile, did not impose prohibition of report disclosing identity, etc., of children involved in cases, did not appoint probation officer, even determined age of the juvenile offenders by violating the requirements of the sections 3, 5, 6, 7, 8, 9, 13, 15, 17 and 31 respectively.

Defence lawyers and public prosecutors did not play proper role for conducting the cases of the juvenile offenders.

4.1.2 Focus Group Discussion with Male Juvenile Offenders of Kishor Unnayan Kendra Focus group discussion was held on 22-10-2009 at Kishor Unnayan Kendra, Tongi, Gazipur.

8(eight) juvenile offenders participated in the meeting. Two of the juvenile offenders out of 8(eight) stated that the police did not inform their parents of their arrest.

Juvenile offenders opined that they were not granted bail and were not sent to remand home or a place of safety by the Officer-in-charge Even their parents were not directed when they would be made by the police to appear at the court.

They opined that joint trial with the adult was conducted by the Metropolitan Magistrates, Judicial Magistrates and Judges. The Metropolitan Magistrates, Judicial Magistrates and Judges sit at an ordinary court.

One (01) juvenile offender out of 8(eight) stated that his case was not separated from that of the adult, and remaining 7(seven) opined that the cases of them were separated by the Metropolitan Magistrates, Judicial Magistrates and Judges. Juvenile offenders stated that outsiders were allowed by the Metropolitan Magistrates, Judicial Magistrates and Judges at the time of trial. Juvenile offenders opined that the probation officers visited their house to collect information about them.

Juvenile offenders observed that their ages were not determined by the Metropolitan Magistrates, Judicial Magistrates and Judges.

Juvenile offenders held that many problems were faced by them from the part of police, public prosecutors, defense lawyers and probation officers, Metropolitan Magistrates, Judicial Magistrates and Judges.

The juvenile offenders informed that neither nor their parents had been asked by the police to tell them their age. The police even arbitrarily mentioned their age in the police forwarding as well as charge sheet.

It was opined by the juvenile offenders that when they were arrested by the police, they were handcuffed, were detained with an adult, and were not provided good food by the police.

They also stated that they were sent to the court by the police in the same van of adult and juvenile.

It was opined by three (03) juvenile offenders out of eight (08) that they had faced problem at the initial stage of the case, and till the transfer of the case to Janonirapatta Bignokari Aporadh Dhaman Tribunal, Dhaka. They were not treated as juvenile offenders; and lastly, at the time of charge-framing, they were treated as such. They also opined that only after charge-framing, they were treated as juvenile offenders like the other co-accused, namely Shamim.

Some juvenile offenders opined that their cases were not separated by the judges from those of the adults.

Juvenile offenders opined that when they were in court-custody, always they were with the adult criminals; they even stood at the same dock in the court. Sometimes the adult accused forcefully took away the food at court-custody given by their parents.

Juvenile offenders stated that their cases were seriously opposed by the public prosecutors, as they are poor. The PP’s gave less opposition to the cases of rich persons. They opined that their lawyers did not talk with them about their cases.

The juvenile offenders further stated that they were not getting proper justice from the court.

No special attention had been given to them as they were children. The professionals involved with their cases treated them as criminals, and not as children. They opined that the over-all situations like food, boarding, clothing, education as well as treatment of the staff of the Kishor Unnayan Kendra, Tongi, and Gazipur are not good. So, the impact of laws does not work properly in respect of them.

It is also found by the present researcher that the problems faced by the female juvenile offenders were fewer than those of the juvenile offenders of Kishor Unnayan Kendra, Tongi, Gazipur. They are happy to reside in the Kishori Unnayan Kendra, Konabari, Gazipur. On the other hand the juvenile offenders of the Kishor Unnayan Kendra Tongi, Gazipur are facing various problems by residing there as well as at the court premises.

4.1.3 Focus Group Discussion with the Parents of the Juvenile Offenders of Kishori Unnayan Kendra Focus group discussion was held with eight (08) parents of the female juvenile offenders on 07-10-2009. Four (04) parents out of eight (08) opined that the police did not inform them of the arrest of their children; remaining four (04) opined that they were informed by the police about their children’s arrest. Parents opined that the officer in charge did not grant bail; the police even did not send their children to the remand home or a place of safety.

Parents stated that they were not directed by the police to attend the court when their children would appear at the court.

One (01) parent out of eight (08) opined that the Judicial Magistrate had conducted the case of their child at Juvenile Court, rest of the parents opined that the judges had sat in ordinary court to try the cases of their children.

One (01) parent out of eight (08) opined that the trial of their child was conducted by the judge at juvenile court; remaining seven stated that joint trial of their children was conducted by the judges.

Four (04) parents out of eight (08) stated that separate trials were conducted by the judges of their children, remaining four (04) informed that the trial of their children were conducted by the judges jointly.

Parents opined that the judges allowed outsiders at the time of trial of their children. Parents also opined that the probation officers visited their houses to collect information of their children. Six (06) parents out of eight (08) opined that the Judicial Magistrate, Metropolitan Magistrate and judges determined the age of their children, rest of the two (02) parents opined that the judges did not determine the age of their children.

Many problems were faced by parents at court premises and also in the Kishori Unnanyan Kendra, Konabari, Gazipur from the part of police, public prosecutors, defense lawyers and probation officers, Metropolitan Magistrates, Judicial Magistrates and Judges in dealing with the cases of their children.

It was opined by the parents that the actual ages had not been mentioned by the police in their police forwarding as well as in the Charge Sheet. The information of the ages of their children was not collected by the police properly from the guardians. It was written by the police arbitrarily to avoid the hassles of the cases. Investigations of the cases were not done by the police properly. Place of occurrences of the cases were not visited by the police. They

did not visit the house of the witnesses. They used to call the witnesses at the police station to pressurize them to give the statements against their children.

Separate custody was arranged for their girl children both at the police station and at the court custody, but they were with the other female adult criminals. It is the common practice of the Judicial Magistrates, Metropolitan Magistrates and Judges that they accepted information of age of their children given by the police. Then it is very difficult for the parents to prove the age of their children before the Judicial Magistrates, Metropolitan Magistrates and Judges.

Thus, their children were detained for a long time. They opined that sometimes joint trials of their children were conducted by the Judicial Magistrates, Metropolitan Magistrates and Judges. Sometimes cases of the Children were not separated by them. Outsiders were allowed when trials of their children were conducted.

They opined that the cases of their children were conducted by the lawyers who were engaged by the Non-Government Organization. Proper attention was not given by the lawyers. As a result, their children remained unprotected. Public prosecutors take no interest in the cases of their children as they are not able to get any extra advantages from them.

The parents stated that the execution of The Children Act, 1974 is yet not enshrined in our country. The people who are involved with juvenile justice are not aware of The Children Act, 1974 and other related laws in force in our country; as a result, the laws do not have any impact on the lives of the juvenile. However, girl children are benefited by the education of the Kishori Unnayan Kendra, Konabari, and Gazipur slowly. May be the sun of their luck will rise in future.

From the above discussion, it is clear that the police, Metropolitan Magistrates, Judicial Magistrates and Judges, Public Prosecutors and Defence Lawyers are not fully aware of The Children Act, 1974. So the execution of that act is meager in all respects. It is found that the police did not inform the parents of the arrest of their children; neither did they grant bail to the juvenile offenders. They did not send them to the remand home or a place of safety, and that was violation of the requirements of the sections 13, 48, 49 and 50 respectively of The Children Act, 1974. It is also found that the police did not mention the age of the Children in police forwarding as well as in Charge Sheet. They do not even investigate into the cases of juvenile offenders properly; as a result, the proper execution of the juvenile justice system faces various problems which hinder the welfare of the children.

On the other hand Judicial Magistrates, Chief Judicial Magistrates and Judges also are not fully aware of the Children Act, 1974. They conduct the cases for want of jurisdiction, conduct joint trial of child and adult offenders, sit at an ordinary court, did not separate the cases, did not require the guardian of the juvenile offenders, did not impose prohibition of

report disclosing identity, etc., of child involved in cases, did not appoint probation officer, even determined of age of the juvenile offenders by violating the requirements of the sections 3, 5, 6, 7, 8, 9, 13, 15, 17 and 31 respectively.

Defense lawyers and public prosecutors did not play proper roles for conducting the cases of the juvenile offenders.

4.1.4 Focus Group Discussions with the Parents of the Juvenile Offenders of Kishor Unnayan Kendra Focus group discussion was held on 22-10-2009 at Kishor Unnayan Kendra, Tongi, Gazipur.

8(eight) parents participated in the meeting. Two (02) parents out of 8(eight) opined that the police did inform them of the arrest of their child; remaining six (06) opined that the police did not inform.

Parents opined that the Officer-in-charge did not grant bail for their children; police did not even send their children to Remand Home or a place of safety.

Parents opined that the police did not direct them to attend the court when their children would appear at the court.

Parents observed that the Metropolitan Magistrates, Judicial Magistrates and Judges conducted joint trial of juvenile offenders with the adult criminals, and they also opined that the Metropolitan Magistrates, Judicial Magistrates and Judges sit in an ordinary court.

One (01) parent out of eight (08) opined that the case of his child was not separated from that of the adult, and remaining seven (07) opined that the Metropolitan Magistrates, Judicial Magistrates and Judges did separate their cases. And the parents stated that the Judge allowed the outsiders at the time of their trial. Parents opined that the probation officers visited their houses to collect information of their children.

Four (04) Parents out of eight (08) opined that the Metropolitan Magistrates, Judicial Magistrates and Judges did determine their children’s age and the remaining four (04) opined that the Metropolitan Magistrates, Judicial Magistrates and Judges did not determine their children’s age.

Parents informed that they had faced a lot of problems from the side of police, public prosecutors, defense lawyers and probation officers, Metropolitan Magistrates, Judicial Magistrates and Judges.

They observed that police did not mention the actual age in the forwarding; they did not even contact with them to know the real age of their children. Police arbitrarily mention the age of their children in the police forwarding as well as charge sheet.

They stated also that police did not investigate the cases of their children properly. They are biased towards opposite parties instead of their children. The police always protect the interest of the power- structure; they do not protect the interest of their children. The parents opined that the attitude of the police towards their children is not positive. Police treat them as criminal, and not as children. They do not take the attitude of guardians, but of oppressors.

The parents stated also that when their children were arrested, they were not provided good food. The parents stated that when their children were in court custody, they were made to stay with adult criminals. Police did not arrange for any separate room for their children; did not provide any food in court-custody. The parents informed that they provided food to their children in the court-custody in lieu of money.

It was learned further that police always handcuffed their children who affected their minds.

Police always used the same van for the adult and juveniles. Thus criminal attitudes were transmitted to the juvenile minds. Parents informed that when their children were in police custody, they were with the adult criminals. When they went to the police station to see their children, police took bribe from them.

The parents opined that Metropolitan Magistrates, Judicial Magistrates and Judges accepted the information of age which is given by the police. As a result, Metropolitan Magistrates, Judicial Magistrates and Judges think that their children are adults; as a result, they are not enlarged on bail. So, their children are detained for a long time in custody. Four (04) parents opined that the Metropolitan Magistrates, Judicial Magistrates and Judges did not determine the age of their children correctly; so, their children were treated as adults.

They opined that sometimes the cases of juvenile are not separated from the adult. Sometimes joint trial is conducted by the Metropolitan Magistrates, Judicial Magistrates and Judges even they do not maintain any privacy for their children. Because they conducted trial in the ordinary court even Metropolitan Magistrates, Judicial Magistrates and Judges allow the outsiders as well as journalists in the court. Sometimes they take photograph of their children

and published in the daily paper without any prior permission of the Metropolitan Magistrates, Judicial Magistrates and Judges.

They opined that the defence lawyers want more money for bail purpose for their children which are beyond their capacity. They are not interest to conduct the trial of the juvenile case as they need more attention for that purpose. Defence lawyer could not give any proper suggestion to us how we prove the age of our children even they do not attend the court regularly at the time of trial rather they are busy with other cases. They opined that as the parents are poor so they are not always welcomed to their chamber.

They opined that public prosecutors always opposed the cases of their children. They did not apply the spirit of the Law that the Children should get special attention. They held that public prosecutors should place proper truth before the honorable judges.

The parents stated that the non-implementation of The Children Act, 1974 is one of the constraints for juvenile justice in Bangladesh. Due to non-implementation of the said Act, proper welfare of their children was affected. As a result, the aims and objectives of The Children Act were at risks. Some other laws also are in force in Bangladesh; these relate to juvenile welfare like The Children Act, 1974; but the execution of those laws is still less and that makes the fate of the children still uncertain. However, parents opined that there is a hope of light that a few professionals involved with juvenile justice are aware of the juvenile justice system in Bangladesh. They opined that if the professionals who are involved with the Juvenile justice system in Bangladesh are more aware of the Children Act, 1974 then the present darkness will go, and children will see flowers of a good morning.

It is found by the present researcher that the problems faced by the guardians of the juvenile offenders of Keshori Unnayan Kendra, Konabari, Gazipur and Kishor Unnayan Kendra, Tongi, Gazipur are more or less the same; but the guardians of the children of Keshori Unnayan Kendra, Konabari, Gazipur opined that they were in better position in handling the cases of their girl children than the guardians of the Juvenile Offenders of Kishor Unnayan Kendra, Tongi, Gazipur.

4.2 Discussion with the Police.

The police are the law enforcement agency from grass root to national level. The police are involved directly with the juvenile offenders from the very beginning of a case filed against them. It has been informed by the police that the witnesses are very important for dealing with a case, but the witnesses are found unwilling to attend, because they are not provided

any money for attending the court and they want to avoid the hassles of the case also. As a result, most of the time the witnesses remain absent, and it creates long delay in disposing the case of a juvenile offender. Under such circumstances, the court issues warrant against the witnesses and they are then bound to appear before the court. Coming to the court after a long time, the witnesses cannot recall the statements which were given before the Investigation Officer at the time of investigation of the case.

According to the police, if the juvenile offenders and the adult criminals are involved in the same case, then the judges should separate the cases in respect of juvenile and adult criminal.

If it is not done by the Judge then the judgment of that case will be vitiated. The police further state that when the cases are instituted against juvenile offenders at the police station then the cases need to be forwarded to the jurisdiction of the local Magistrate court. The local Magistrate transfers the case other than the session case to the juvenile court. After transfer, this type of case is registered with the juvenile court in the Kishor Unnayan Kendra, or Kishori Unnayan Kendra. Then the juvenile court issues production warrant against that juvenile offender who is detained in the district jail. On getting production warrant from the juvenile court, district jail authority sends him/her to the juvenile court as well as to the remand home. As a result, often there is delay in trial of cases of juvenile offenders.

Sometimes juvenile offenders are enlarged on bail by the local Magistrate on the grounds that he is a juvenile on condition that the juvenile offenders will attend the court on the fixed date.

In such situations, cases are transferred to the juvenile courts but the juvenile offenders do not attend the case, as juvenile court is very far way from that local area. On the other hand, sometimes they do not know where their cases have already been transferred.

It has been informed by the police that the juvenile court has no logistic support to send juvenile offenders to the Session Court which is one of the constraints in dealing with the juvenile cases. The police have reported also that police can grant bail to juvenile offenders in cases of bailable sections, but in case of non-bailable sections, especially in heinous cases, they do no grant bail. They reported that the police maintain register of the juvenile offenders. Besides, the police investigate among the parents, relatives, neighbors and peer groups of juvenile offenders, and they collect information also from cross-sections of people to determine the actual age of juvenile offenders and other relevant information through applying the anthropometric technique. Sometimes they could not report to the probation officers as they are not available in their stations. They further reported that there is no separate prison van for the juvenile offenders from police station to court, and as a result, police has no alternative but to send a juvenile accused to the court with the help of the same

van of the adult criminals. Though this may create problems of transmission of criminal knowledge from adult criminals to juvenile offenders.

Sometimes police are not able to find out the addresses of juvenile offenders for misinformation and frequent migration of their parents in search of employment and due to natural calamities which are regular in Bangladesh. They find that many of the personnel with jurisdiction for judgment of juvenile offenders do not have adequate knowledge about The Children Act, 1974. Under the circumstances, the judges give importance on the opinion of the probation officers. It should be noted that some of the Judicial Magistrates are found efficient in dealing with the cases of juvenile offenders. It has been reported that probation officers are reluctant in many cases to report to the judicial Magistrates.

It has been reported by the police that they do not have adequate training in dealing with juvenile offenders from legal points of view. They are provided some theoretical knowledge about crime and criminology, but no practical knowledge. They are not even trained up how to motivate juvenile offenders not to be involved in criminal activities.

From the above opinions of the police, it is clear that there is no network, coordination or cooperation in dealing with the cases of juvenile offenders in different perspectives. Even the logistic support is meager to organize the case and at the same time in dealing with the case at schedule time. Police do not get enthusiastic support from the civil society in dealing with the cases. Consequently, the court faces problem in getting proper witnesses to finalize cases within a short period of time. So, juvenile offenders are not benefited under the existing laws which are meant for their development. As a result, they are not able to assimilate with the main stream of society. Laws are there, but the fates of the juvenile offenders are as before their coming into contact with the law.

4.3 Discussion with the Probation Officers It has been reported by probation officers that it was a difficult task for them to find out addresses of juvenile offenders to contact with their parents in order to get information about their involvement in criminal activities. The probation officers do not even have adequate logistic support viz. transport facilities, computer, and office assistant and so on. The probation officers also reported that the personnel involved in providing juvenile justice do not have sufficient knowledge and training in The Children Act, 1974. Consequently, The Children Act, 1974 is not being implemented properly in Bangladesh. They further reported that the judges give importance to the reports about juvenile offenders given by probation

officers at the times of judgment. They find that the existing numbers of judicial magistrates are insufficient for dealing with cases of juvenile offenders.

The probation officers reported that they are very much interested in visiting residence of juvenile offenders to meet with their parents, peer groups and cross-sections of community people for getting authentic information about juvenile offenders. But, the residences are very scattered in different districts under their jurisdiction. They reported also that most of the cases are pending for a long time and juvenile offenders have been absent from the court.

They reported that in the sessions court the judges do not take the reports of the probation officers for judgment and as a result, juvenile offenders remain unprotected.

It is very interesting that the probation officers do not get support from the civil society at the time of home visit of the juvenile offenders which is one of the constraints in getting accurate information about juvenile offenders. The main reason behind it is the speculation that they might be involved with the case and litigation. Under the circumstances, the spirit of homevisit becomes weak, and ultimately, it goes against the juvenile offenders. It has been reported by the probation officers that the investigation officers e.g. police have not provided accurate age of the juvenile offenders. They do this to avoid procedural complications. It has been observed that the Metropolitan Magistrates take into consideration the age given by the investigation officers in the forwarding as well as in the Charge Sheet. As a result, real juvenile offenders face problems in getting bail from the court. They stated that the judges could not determine the age of the offenders according to Section 66 of The Children Act, 1974; instead, they have given priority to the age- information placed by the police.

Sometimes judges are confused about the age of the juvenile offenders. Under the circumstances, the judges seek help for getting actual age from the Department of Forensic Medicine.

Probation officer stated that sometimes some parents directly contact with them to get help to send their Children to Kishore Unnayan Kendro or Kishori Unnayan Kendro. The main interest behind that is the hope that juvenile offenders will get better treatment as well as scope for their correction from the institutional initiative. They reported that the pre-sentence report is very helpful for passing judgment in respect of cases of juvenile offenders. They stated that they are not allowed to place the pre-sentence report before the honorable judges of the session courts.

The major constraint of probation officers is that many of them do not have professional training. For example, many probation officers are trained in Islamic History, Bengali

Literature and other disciplines than Social Work or Social Welfare. Even they are not provided enough professional training; as a result, they are not in a position to provide proper services to juvenile offenders. They further informed that they are working in this arena because of their experience and personal interest. They also recommended that knowledge of The Children Act 1974 is very much important for people dealing with juvenile offenders.

4.4 Discussion with the Judges.

It has been reported by the judges that no child should be charged with any offence along with adult offenders in accordance with the section 6(1) of The Children Act, 1974.

According to the judges, they usually do not conduct any joint trial in their courts. They also suggested that the juvenile offenders and the adult criminals always should be separated in respected of trial in accordance with section 8 of The Children Act, 1974. They also reported that they conducted separate trials; they prepared separate case dockets also. It has been reported at the time of trial of the cases in which the child is charged with an offence that s/he does not sit in a building or room different from that in which ordinary sitting of his court is held.

The judges do not conduct any case-trial of the juvenile offenders along with the adults. They also mentioned that sometimes they were compelled to do this because of insufficient logistic support and space-problem in conducting of cases. They did not allow any probation officers at the time of trial of the juvenile offenders. It might create problem in delivering proper justice because of the intervention of probation officers. They further reported that they did not send juvenile offenders to certified institutions after judgment. They claimed that the investigation officers did not provide the actual age of the juvenile offenders, and it creates another problem for the judges in determining the actual age of the juvenile offenders. Under the circumstances, sometimes, they sought help from the civil surgeon for finding out the actual age of the juvenile offenders if controversial situation arises. They pointed out that in a heinous case they did not pass any order for bail, although there is a provision to grant bail in section 497(1) of Code of Criminal Procedure.

From the above statements of the judges, it is clear that the judges were always in favor of justice and welfare of the juvenile offenders. But, judges were not fully aware of the sprit of The Children Act, 1974. Sometimes judges are not giving proper attention to the execution of The Children Act 1974. They always hold that a juvenile offender is an offender like other criminal offenders. They conducted the case-trials of the juvenile offenders like any other case of adult offenders without giving any special attention to juvenile offenders who are

children. They did not act as the guardians of the juvenile offenders; rather they seemed to be mere judges. Thus, the welfare of the juvenile offenders becomes partially uncertain.

4.5 Discussion with the Public Prosecutors Like the judges and magistrates at the time of trial, the public prosecutors face the same problem of determination of actual age of juvenile offenders. They also stated that separate trial should be organized in case of juvenile and adult offenders involved in the same case, and the dockets should be separated. They further observed that punishment of 2-10 years imprisonment can be given by the judge to the juvenile offenders according to gravity of cases. It has been reported by the public prosecutors that the judges are not in a position to provide adequate time in dealing with the cases of juvenile offenders because of huge number of other cases. Even they do not apply their judicial mind in dealing with the cases of juvenile offenders. According to public prosecutors, the lawyers are not well-conversant with The Children Act, 1974. Consequently, they do not place proper hearing in light of The Children Act, 1974. So, juvenile offenders do not get proper relief form the side of judges. They further reported that the police are not able to bring juvenile offenders before the court at schedule times as because Kishor Unnayan Kendra, Tongi, Gazipur and Kishori Unnayan Kendra are very far way form the Dhaka judge court. They also reported that the police show their colonial attitude against juvenile offenders, as the police do not hold any welfareoriented attitude towards juvenile offenders.

4.6 Discussion with the Defence Lawyers The defence lawyers also reported that many of the police do not inform the parents about arrest of their child; nor do they inform the probation officers of arrest in order to enable the probation officer. Even the police do not give importance to find out the accurate age of the juvenile offenders to avoid hassles. They also reported that the police did not improve their professional attitude because of their interest in illegal money e.g. to get bribe. It has been found that the police are always directed by the persons involved in power structure. So, the social acceptance of the police is significantly low compared to that of other professionals.

They reported that the police always want to show their authoritarian attitude, in stead of welfare attitude, to juvenile offenders. The police do not even have any idea of human rights instruments related to juvenile offenders. On the other hand, the judges do not give importance to the pleas of the defence lawyers in relation to the case of juvenile offenders.

Sometimes they treat the juvenile offenders as adult criminal, and, as a result, they conduct

their cases in ordinary court. The public prosecutors do not have experience in cases of juvenile offenders because of very insignificant number of cases being dealt by them.

It is very clear from the above discussion that The Children Act, 1974 is not being properly executed in favour of juvenile offenders. Because the personnel involved in Law Enforcement Agencies have inadequate knowledge about this law. There should be an opportunity for them to gather knowledge of The Children Act, 1974 to enrich their total knowledge. Moreover, if the dream of the government is the welfare of the children and youths then the police, Judicial Magistrates, Judges, defence lawyers, along with the civil society need to develop a team spirit in order to get justice and welfare for juvenile offenders.

4.7 Case Study of Juvenile Offenders 4.7.1 Case One Rina is a teen-aged orphan girl living in Jamtoli village of Kishoreganj police station. After the death of her parents, she was in big crisis regarding basic necessities and other civic facilities. To overcome this situation, she left for Chittagong, and met a women beggar. She was motivated to be involved in begging by Aasmini (woman beggar) and she did.

Rina was physically abused by Aasmini when she was not sharing alms with her. During the Ramadan, she proposed Rina for begging with her two year-old daughter, Salma, keeping in view the advantage of drawing sympathy for getting alms. Rina was dissatisfied, and ultimately she left Chittagong for Dhaka with Salma.

She came to Shahabag Overbridge with this child and was begging there. At that time the child was crying, and it was beyond the control of Rina to make her stop crying. Rina was angry with this child and was trying to stop crying. For this, she pressed the body of Salma hard with her two hands, and, as a result, the child Salma died.

In these circumstances, Rina reached Paribag with this dead body, and this dead body was thrown out into the dustbin there.

Rina went back to Chittagong and met Aasmini, and honestly informed her of the whole situation that has developed. Under the circumstances, Aasmini came to Dhaka with Rina and handed over Rina to the police of Ramna police station.

Rina was shown arrested by the Ramna Police in connection with the Ramna Police station case no- 154(1)9, under section 302 of Bangladesh Penal Code. When Rina was arrested, police failed to inform the child’s parents, as required by section 13, and did not inform any probation officer, which is a violation of the mandatory requirement of section 50 of The Children Act, 1974.

On 22-02-1999, Police produced her at the Chief Metropolitan Magistrate’s court, Dhaka for her confessional statement under section 164 of Code of Criminal procedure. Confessional statements were made by Rina before the Metropolitan Magistrate Dhaka. It is evident from the confessional statements that the accused at the time of the alleged crime was 14 years of age, and yet the police did not consider her bail as required by section 48 of the Act. On the same day, she was sent to the Kishori Unnayan Kendra, Konabari Gazipur.

On 13-5-1999, a charge sheet was submitted against Rina before the Chief Metropolitan Magistrate’s court, Dhaka, and it was accepted by the Magistrate. In the charge sheet, it was not stated by the Investigation officer that Rina is a minor which is a violation of the sprit of The Children Act, 1974.

This case was transferred to the court of Metropolitan Session Judge, Dhaka for trial. This case was registered as Sessions case no. 3699/1999. It was not registered as juvenile case as Rina was treated as an adult accused. There has been an express contravention of Section 5 of The Children Act for want of jurisdiction.

This case was transferred to the 5th additional Metropolitan sessions Judge, Dhaka for trial.

On 19-08-1999, charge was framed against Rina as an adult accused. Trial of Rina was being conducted by the honorable judge for want of jurisdiction which is an express contravention of Section 5 of The Children Act, 1974.

This case was again transferred to the Janonirapatta Bighnakari Aporadh Dhaman Tribunal, Dhaka for speedy trial, and it was registered as the session cases no. 02/2005. Trial was being conducted by the above mentioned judge for want of jurisdiction which is violation of the section 5th of The Children Act, 1974.

On 26-6-2007, one witness, namely Mr. Md. Matiar Rahman, Inspector of Police, was examined by the prosecution. Cross examination was not conducted by any lawyer on behalf of Rina. A state defence lawyer was appointed by the honorable judge on that day by giving findings that this case is a case of death sentence; so, one state defence lawyer needed to be

appointed by which it is presumed that the judge is not aware about section 51 of The Children Act which provides that no child shall be sentenced to death, transportation or imprisonment.

On 23-07-08, Rina was examined under section 342 Code of Criminal procedure. Judgment was fixed by the honorable judge. When Judgment was being drafted by the honorable judge, it was found that cross examination of the witness, Md. Matiar Rahman had not been completed. In this way time did fly way from the life of Rina. Judgment was sifted for trial again for requirement of the law.

On 04-02-2009, it was found by the Judge that the proceeding of this case was totally wrong.

An order was passed by the judge, by giving findings that this case was not under the jurisdiction of this court. And that it is a case fit for the Juvenile court according to the section of The Children Act 1974.

The case was again sent to the Metropolitan Sessions judge, Dhaka, and this case was renumbered as juvenile case no 01/2009 which is under the jurisdiction of section 5 of The Children Act, 1974.

On 01-06-2009, charge was framed under section 304 of the Bangladesh Penal Code. On that day, Rina confessed that she had murdered Salma. The honorable judge did not enable the accused to explain any circumstances in the evidence against her which is violation of section 342 of Code of Criminal Procedure.

It is found that the judge could not take into consideration that Rina is not matured in thought and cannot be expected to have the same level of understanding of legal provisions and appreciation of the gravity of situation in which she finds herself.

Judgment was pronounced by the honorable judge on the same day. The accused Rina found guilty under Part-II of section 304 of the penal code, and accordingly she was convicted and sentenced there under to suffer imprisonment for 10(ten) years with a fine of Tk-10,000/-(ten thousand) in default to suffering 6 months more. The sentence and punishment will run from the date of arrest of this accused on 21-02-2009. It is a good sign that the judgment was an order of 01-06-2009 pronounced in accordance with section 51 of The Children Act, 1974.

4.7.2 Case Two Rahima is a teen-aged girl of 15 years. Her father was a taxi driver, and her step-mother was a house-wife. Rahima had two brothers and they were van-pullers. She was physically

disabled, and was a street beggar. Her daily income was Tk-200-250. She was living with one of her brothers at Jatrabari, Dhaka.

Rahima was arrested along with her brother namely Billal by the Dhaka Railway Police in connection with Case No 5(5)2006, under section 7 of Nari O Shishu Nirjaton Daman (Amended) 2003.

Prosecution story, in short, is that one Md. Borhan Uddin was waiting in the room of Railway station master of Jatrabari station at 2.00 pm on 11-05-06, and found that one 10-month old girl was taken to that room by some of the local people, because her left leg was cut by train and alienated from her body up to knee. Under the circumstances, the complainant admitted this girl into Narshindi General Hospital because of the absence of her parents. When the complainant along with his brother next time went to the hospital to know the situation of the wounded girl, she found that Rahima and her brother Billal attempted to take away the girl, but they were caught. The story behind this scenario is that the baby was stolen by Rahima and Billal from Tongi railway station on her way to Bhairab and the baby fell from the train at Jatrabari station and cut her left leg.

In connection with the above-mentioned case, a remand prayer was placed before the chief Judicial Magistrate’s court, Dhaka.

Remand petition was heard by the honorable judicial magistrate and he was pleased to grant 3 days’ police remand. They were taken to Dhaka Railway Police Station for interrogation.

When they were in custody of Dhaka Railway Police Station, they were not provided any good food. After interrogation, they were produced at the Chief Judicial Magistrate’s court Dhaka.

Railway police did not inform the guardian of Rahima about her arrest, and police also did not inform any probation officer in accordance with section 13 of The Children Act, 1974.

The Officer in Charge did not grant bail as required by section 48 of The Children Act, 1974.

On 08-06-06, a Confessional Statement was made by Rahima before the honorable magistrate. In her confessional statement, Rahima strongly denied that she was in any way connected with the alleged offence.

It is found that the honorable Judicial Magistrate recorded her confessional statement as an adult criminal. He did not take into consideration the philosophy and sprit of The Children Act that by nature, a child is not mature in thought and cannot be expected to have the same level of understanding of legal provisions and appreciation of the gravity of situation.

On 11-06-2006, a Charge Sheet was submitted by the Investigation officer before the Chief Judicial Magistrate’s Court, Dhaka. In the Charge Sheet, the age of Rahima was mentioned to be 19 years. No single word was written in the Charge Sheet indicating that Rahima was a minor one. It was done by the Investigation officer to avoid the complicacy of the case.

It is found that the age of Rahima written in the First Information Report is 18 years and 15 years is written in the register of Kisori Unnayan Kendro, Konabari, and Gazipur.

Charge Sheet was accepted by the Chief Judicial Magistrate, Dhaka, and it was sent to the Nari-O-Shishu Nirjaton Damon Tribunal No-5, Dhaka, and this case was registered as NariO-Shishu Case No. 174/2006.

On 17-04-2008, a charge was framed against Rahima under section 6(2) of Nari-O-Shishu Nirjaton Dhamon Ain, 2000 as adult which is a violation of section 5 of the Children Act, 1974.

Trial was conducted by the honorable judge. 15 dates were fixed for trial. No witness was presented before the honorable court by the prosecution. This trial was also conducted by the judge out of Jurisdiction which is violation of section 5 of The Children Act, 1974.

The case of Rahima was not separated from the case of Billal as Rahima is minor, which is violation of section 8 of The Children Act, 1974.

The honorable judge presided over her case in ordinary court. Joint trial of Rahima was conducted with her brother, Billal which is a violation of Section 6 of The Children Act, 1974. Probation officer was not appointed by the honorable judge in this case.

4.7.3 Case Three Arman Hossain was living in Pallobi, Dhaka, and was a garment worker. His father is a day laborer, and mother is a house-wife.

A case was filed being no. Shah Ali police station case no 12(2)2007, under sections 302/34 Bangladesh Penal Code against Arman and Sohag, alleging that on 15-02-2007, victim Amin was taken by them on the Ring Embankment of Shahali police station and thrown into the water, and he died over there.

On 16-02-2007, Arman was arrested by the Shahali police station police. He was locked up under their custody. Arman was produced before the Chief Metropolitan court on the same day with a prayer for a remand. Remand petition was heard by the honorable Metropolitan

Magistrate. Two days’ remand was granted. Arman was taken to the Shahali police station for interrogation. He was again produced to the Chief Magistrate court on 19-02-2007.

While in custody of Shahali police station, Arman resided with other adult criminals. He was sexually abused by the adult criminals. Was not provided with good food. Parents were not informed by the police in accordance with section 13, and the probation officer was not informed also. This was violation of section 50 of The Children Act, 1974.

On 27-02-2007, a remand petition for 7(seven) days was submitted by the Shahali police station to the Chief Metropolitan Magistrate’s Court. It was heard by the Metropolitan Magistrate. Two days’ remand was granted by the Metropolitan Magistrate.

He was taken to Shahali police station on the same day for interrogation. After interrogation, he was produced before the Chief Metropolitan Magistrate’s Court again.

A prayer for 7(seven) days’ police remand was placed before the chief Metropolitan Magistrate on 05-06-2007 for Arman. It was heard by the honorable Metropolitan Magistrate.

4 (four) days’ police remand was granted. He was sent to the Shahali police station. He resided with adult criminals. Special arrangement was not made by the Shahali police. He was not provided food.

After interrogation, he was produced before the Chief Metropolitan Magistrate’s court. He was sent to Dhaka Center Jail.

He was residing there with adult criminals. Jail authority did not follow Paragraph 962 of the Jail Code that provides that a prisoner under 21 is considered as juvenile, and such a prisoner should be separated from other prisoners.

On 20-06-2007, an order was passed by the Metropolitan Magistrate to send Arman to Tongi Kishor Unnanyan Kendro, Gazipur, as he was a minor. It is a matter of sorrow that the age of Arman was mentioned as 18 (eighteen) years, which indicated that he was not a minor. This is the lapses of police.

A charge sheet being no. 109 dated 08-07-2007 was submitted by the Investigation officer on 22-07-2007 against Arman Hossain and Sohag. It is found that the age of Arman was mentioned to be 18 (eighteen) years, though he is in Tongi Kishor Unnanyan Kendro, Gazipur. No single word has been inserted in the charge sheet that Arman was a minor. It is one of the faults of the police that they did not collect the actual age of Arman from Tongi Kishor Unnanyan Kendro, Gazipur or from his parents.

On 24-07-2007, the case of Arman was sent to the honorable Metro session judge, Dhaka by the honorable Chief Metropolitan Magistrate for trial. This case was registered as session case no. 1863/2007. Cognizance was taken against Arman and others. The honorable judge took cognizance for want of jurisdiction which is violation of section 5 of The Children Act, 1974. The case of Arman was not separated from the case of other accused though Arman was in Tongi Kishor Unnanyan Kendro, Gazipur in accordance with the section 8 of The Children Act, 1974.

This case was transferred by the Metropolitan Sessions judge to Jananirapatta Bighnokari Aporadh Damon Tribunal, Dhaka for speedy trial on 12-09-2007. It was registered as session case no. 32/2007.

Charge was framed against Arman and others under section 302/34 Bangladesh Panel Code, as they were treated as adult criminals. This is out of Jurisdiction in accordance with section 5 of The Children Act, 1974. This case was also not separated from that of the other accused.

This is the violation of section 8 (eight) of The Children Act, 1974.

Trial was conducted by the Judge out of Jurisdiction. 6 dates were fixed for trial. Joint trial was being conducted by the judge. It was violation of section 6 of the Children Act 1974.

On 29-01-2009, attention was drawn by the public prosecutor that the previous charge framed, dated 23-10-2007, was wrong as Arman is a minor.

On 10-02-2009, this case was separated from that of the other accused, and it was registered as juvenile session case no. 01/2009 for Arman. This case came to the right jurisdiction under the Juvenile Court under section 5 of The Children Act, 1974.

Several bail petitions were presented by the learned Advocate on behalf of Arman, but those were rejected by the honorable judge. The judge did not take into consideration that Arman was a minor.

The learned Advocate failed to understand that this case should be the case of juvenile case.

It was his prime duty to cite the matter before the honorable judge that Arman was a minor.

Then it would have been very easy to judge to correct the same. But, because of all these, much time did fly away from the life of Arman.

4.7.4 Case Four

Arif was working as a servant in the house of a person engaged in the illegal trading of phensydle in Jurain, Dhaka. He had migrated with his parents of Matlab, Chandpur District.

Arif was involved in phensydle selling, and he was getting Tk.300.00 daily. And, it was helpful for maintenance of his family. About 25-year-aged Khokon Gazi was also involved in phensydle business with Arif.

Arif and Khokon Gazi were arrested by the Rapid action Battalion (RAB)-10 on 15-02-2008 from the place of occurrence, Baganbari Chourasta, in front of the house of Kibria, at 11.45 p.m., and 40 purias of Heroin were recovered from the possession of Md. Arif and 20 (twenty) purias from the possession of Khokon Gazi.

A case was filed by RAB-10 being no 14(12) 2008, under section 19(1) 1(b) of Narcotic Control Act, 1990. In the First Information Report, the age of Arif was mentioned 18 years.

When they were locked up in the police station, minor Arif was with the adult criminals, which is against the sprit of the law. Arif was not provided any good food. The parents of Arif were not informed by the police according to section 13 of The Children Act, 1974.

Police also failed to inform the probation officer. This is the violation of section 50 of The Children Act, 1974. The officer in charge did not grant Arif any bail; but he deserved that according to section 48 of The Children Act, 1974.

On 16-12-2008, Arif, along with Khokon Gazi, was sent to the Chief Metropolitan Magistrate’s court, Dhaka with a forwarding report. In that forwarding, the age of Arif was arbitrarily mentioned to be 18 (eighteen) years, which was against the sprit of Children Act 1974.

On the same day, a bail petition was placed before the honorable Metropolitan Magistrate The honorable Judge was pleased to reject the same. The honorable Magistrate could not consider that Arif was a minor. The learned Advocate did not tell that Arif was a minor.

On 25-01-2009, a charge sheet was submitted being no. 06 dated 20-07-2009, under section 19(1) 1(B) of Narcotic Control Act, 1990 against Arif and Khokon Gazi.

The age of Arif was mentioned to be 18 (Eighteen) in the Charge Sheet which was arbitrary.

It was done without any proper investigation. No word has been mentioned in the Charge Sheet that Arif was a minor.

On 29-01-2009, the honorable Chief Metropolitan Magistrate sent this case to the Metropolitan Sessions judge, Dhaka. This case was registered as Metro session Case No.

910/2009. This was for want of jurisdiction, contravention of section 5 of The Children Act, 1974.

Cognizance was taken against Md. Arif and Khokon Gazi on 12-02-2009 by the honorable Metropolitan Sessions judge, Dhaka. He did not consider that Arif Gazi was a minor one; this is not just and proper, and contravention of section 5 of The Children Act, 1974.

On 08-04-2009, an order was passed by the honorable Metropolitan Session judge asking the Central Jail Authority to send Md. Arif to Tongi Kishor Unnanyan Kendro, Gazipur, Dhaka.

When he was residing in the Central Jail, he was with the adult criminals. He was sexually abused.

It is noted that since arrest till date, Arif has been in Dhaka Central Jail. It reveals that there has been deliberate and deplorable violation of section 27(2) of the Prison Act, 1894 and also of the provisions of Jail Code, wherein, unfortunately, paragraph 1962 of the Jail Code provides that a prisoner under 21 is considered as juvenile, and such a prisoner should be separated from other prisoners.

It is also noted that the learned Advocate on behalf of Arif as well as the public prosecutor failed to understand that Arif was a minor. They failed to speak out that Arif was a minor. It was their duty to mention before the honorable judge that Arif is a minor.

On 25-05-2009, this case was separated from the case of Khokon Gazi in accordance with section 8 of The Children Act, 1974. This case was registered as juvenile case no 02/2009 under section 19(1) 1(B) of the Narcotic Control Act, 1990.

On 15-06-2009, the learned Metropolitan Sessions Judge sent this case to Jananirapatta Bighnokari Aporadh Damon Tribunal, Dhaka for speedy trail.

On 22-06-2009, this case was registered as Juvenile case no 105/2009. Till today, charge against Md. Arif has not been farmed.

4.7.5 Case Five Sabuj was a garment worker and son of a step-father. He was a rickshaw puller. Sabuj was living with love and affection with his step-father and mother from his childhood. His stepfather, Dulal Chistia was treating him as his own son, though he had other four children.

Md. Sabuj was arrested on 20-12-2006 in connection with Pallabi Police Station case no 12(12)06, under section 302/34 of Bangladesh penal code, and he was sent to the Chief

Metropolitan Magistrate’s court, Dhaka with a prayer for confessional statements of Sabuj under section 164 of the Code of Criminal Procedure. Confessional statements were made by Sabuj that Salim, Amir Chan and Shamim also were involved in the murder of Md. Alamin Sheik for snatching away money of that deceased in the above mentioned murder case. It is found that the honorable Metropolitan Magistrate did not take into consideration that Sabuj was a minor; that he has not the same level of understanding of legal provisions and appreciation of the gravity of situation in which he finds himself.

When he disclosed the name of that above mentioned co-accused then they were arrested by police, and were taken to remand for 5 days. In remand petition, the age of the Md. Sabuj, Salim, Amir Chan were mentioned 20 years, 20 years and 18 years respectively. It is found that the Investigation officers arbitrarily mentioned the age of the above-mentioned accused.

It is noted that the age of Shamim was not mentioned in the remand petition. It is also the negligence of the Investigation officer not to mention the age of Shamim.

On 01-02-2007 Shamim was sent to the Kishor Unayan Kendro, Tongi by the honorable judge which is the good sign of the judge who determined the age of Shamim in accordance with section 66 of The Children Act, 1974.

Charge Sheet was submitted by the Investigation officer on 26-05-07 by the Investigation officer to the Chief Metropolitan Magistrate, Dhaka in the same manner in respect of the age of the above-mentioned accused.

Charge Sheet was accepted by the Chief Metropolitan Magistrate, Dhaka, and it was sent to the Metropolitan Sessions judge, Dhaka. The above-mentioned case was renumbered as session case no. 1983 of 2007. Cognizance was taken against them which were done by the Metropolitan Sessions judge for want of jurisdiction which is violation of section 5 of The Children Act, 1974.

The honorable Metropolitan Sessions Judge transferred the case to Jananirapatta Bighnokari Aporadh Damon Tribunal, Dhaka on

18-09-2007, and it was renumbered as session

case 33 of 2007. Charge was framed against the above-mentioned accused by the Jananirapatta Bignokari Aporad Dhoman Tribunal, Dhaka on 15-04-2008. It is found that the judge did it rightly by exercising powers of juvenile court under section 4 of The Children Act, 1974.

It is also found that from the institution of the above-mentioned case to the cognizance, this case was out of jurisdiction of the juvenile court. But the police, Metropolitan Magistrate,

Metropolitan session judge, defence lawyers on behalf of the above-mentioned accused, and the public prosecutor also was not aware of the implementation of The Children Act, 1974.

So, the above-mentioned accused suffers irreparable loss which will not be compensated by anything in the world. The times which have gone from their lives will never come again.

Bail petitions were placed before the honorable judge for the above-mentioned accused, but the honorable judge was pleased to reject those bail petitions which again is against the sprit of The Children Act, 1974.

4.8 Nature of Non-Implementation of Laws by the Police In criminal justice system for the juvenile offenders, police play a vital role in respect of implementation of child laws in Bangladesh. The responsibilities of the police start right after the lodging of a First Information Report by anybody at the police station.

The police record the case on the basis of the FIR. The Officer-in-Charge of the police-station assigns the duty for investigation. Every investigation shall be completed without unnecessary delay, and, when completed the Officer-in-Charge of police station shall forward it to a Magistrate empowered to take cognizance of the offence on a police-report, a report in the form prescribed by the government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on bond, and, if so, whether with or without sureties, and communicate, in such manner as may be prescribed by the government, the action taken about him, to the person, if any, by whom the information relating to the commission of the offence was first given (Ministry of Law, Justice and Parliamentary Affairs,2007). The magistrate critically examines the report and accepts for preparing the case for trial. When the case is ready for trial, it is simultaneously regulated by the procedural laws primarily by the Code of Criminal Procedure and The Children Act, 1974. In view of the role of police found throughout the process of trial and on keen observation, it has been made out that the police are not yet apt and sincere in performance of obligations mandated in this regard which result in constraints and unwarranted and indiscriminate exercise in the proper adjudication and dispensation of juvenile justice.

However the above mentioned information such as procedure of case filing and what way the form of First Information Report is filled up by the police, procedure of arrest of the juvenile offenders, bail procedure of the juvenile offenders and trial procedure of the juvenile offenders have been gathered by the Researcher by interviewing the police personal and other professional persons are involved with the juvenile justice system in Bangladesh as well as from the Law books and following information such as, constraints of the role of police, constraints of police for non-implementation of laws, recruitment and training of police, constraints of efficiency of police, problems of application of law, problems of deviation of law, culture of traditional attitude, problems of inability of interpretation of law, colonial attitude of the police, constraints of advocacy of the rights of the juvenile offenders, constraints of upgrading of knowledge, constraints of the required capability in dealing with the offenders, constraints of the knowledge of investigation, constraints of age determination, constraints of knowledge in arresting offenders, how to arrest in conformity with law, constraint of knowledge in dealing with offenders in police custody, procrastination in the service of court process, undue pressure by bigwigs on inquest of juvenile justice, noncompliance of police regulations have been gathered by interviewing police personnel as well as by reviewing literature relating with the juvenile offenders in Bangladesh.

4.8.1 Constraints of the Role of Police It has been reported by the police that before instituting the case against the juvenile offenders, usually they conduct pre-investigation to ascertain the prima facie facts supporting the allegation. The police may grant bail to the juvenile offenders in case of bailable offence, but in case of non-bailable offence e.g., in warrant case usually does not grant bail. It has been found that the police maintain register of the offenders, but they do not observe it meticulously in order to understand the trend of the juvenile offenders. To determine the accurate age of the juvenile offenders, police interrogate the parents, relatives, neighbors and cross-section of people, if necessary. The police also observe the physical appearance of the offenders to find out the actual age. In case of forwarding of the case to the court against the offenders, police strictly mention age of the offenders. Police also mention actual age of the juvenile offenders in the prescribed column of the accused in charge sheet.

It has been reported by the police that if in any case adult criminals and juvenile offenders are found jointly involved in an offence, under the circumstances, they forward their names in the same Charge Sheet, but they mention the adult criminals and the juvenile offenders separately. In that Charge Sheet, police pray for separate trial of the juvenile offenders.

Sometimes, police forward separate Charge Sheet to the court. Confusing information is

found about arrest of the offenders. Some of the police do not care to inform the parents and the probation officers when they arrest the juvenile offenders. It has been reported by the police that the probation officers are not available at the station when they want to inform about the case especially in Dhaka city. There is a separate arrangement for the temporary custody of the adult criminals and juvenile offenders at the police station to avoid the possible transmission of crime. Police does not behave with the juvenile offenders as guardians, but they take special care for them. It has been found that in many police stations there are special staffs designated to take care of the juvenile offenders. It has been reported by the police that sometimes, juvenile offenders are arrested by the police at the place of occurrence while committing offence. There is no separate prison-van assigned for the juvenile offenders to send them to the court. Consequently, they send the all criminals together to the court. But some of the police stations in Dhaka city have separate vans for juvenile offenders to send them to the court. It indicates that there is no uniform service policy and support for the juvenile offenders. It depends upon the sincere approach and performance of the police and attitude towards the juvenile offenders. The Government of Bangladesh does not provide separate van for the juvenile offenders.

Contradictory opinions as to the section of Remand on par with requirement for further investigative information vitiates the process of juvenile justice which is an abuse of the entire system due to lack of knowledge of the procedural law smeared with parochial attitude throughout ages. It has been found through personal interview with police that they try to submit Charge Sheet as early as possible. But it is not always possible due to lack of sufficient time, man-power, and other logistical supports, they confided.

There is little scope for formal and special training of the police about juvenile offenders, and, as a result, the police have no uniform orientation and knowledge about methodical and systematic implementation of the mandated provisions of the Act to deal with juvenile offenders. They have little scope to acquire knowledge about juvenile offenders through workshop, conference, seminar, etc. “We don’t have enough training facilities to acquire hands on and To quote a police: practical knowledge about the juvenile offenders but during the training period, idea is given about crime and criminology in general.

Under this course, we acquire knowledge about juvenile offenders and as police what we should do to prevent about as well as correct the juvenile offenders. Consequently, we motivate the people in the vicinity and area of the police station as to prevent juvenile delinquency.�

4.8.2 Constraints of Police for Non-Implementation of Laws It is clear from this research that the consciousness and attitude of police for the implementation of laws against the juvenile offenders vary from one person to another. Only a few of them try to follow the provisions of The Children Act, 1974. But many of them are not sincere and keen about their duties; for example, they do not inform the parents properly and the probation officer at the right time. But these are mandatory for police to do so within the provisions of the Act. Even they do not register the actual age of the offenders because of negligence and lack of enthusiastic attitude.

4.8.3 Recruitment and Training of Police Hierarchy of police is divided into different categories, viz. at the top, there is the Inspector General, followed by a number of ranks including Additional Inspector Generals, Deputy Inspector Generals, and other officers down to the Constable. The recruitment of the superior group is made on the basis of a competitive examination with high academic qualifications.

The academic qualification of a Sub-Inspector must be graduation. Agnes Rohfritsch (1995) has found in his research that during the last ten years, recruitment was based on bribe, political affiliation, kinship relations and so on, and as a result, many disqualified persons have been recruited that has weakened the Law Enforcing Organization. This flow of recruitment of corruption is continuing. The academic qualification for the constable has been raised from primary education to Secondary School Certificate (SSC). But, flow of the culture of corruption has increased at an alarming rate. Under the circumstances, sometimes the juvenile offenders are being abused by the police. “AAgirl brought to the police station by her employer who accused casewas is cited: her of theft. The girl was 12 years aged. Actually the girl was not accused of committing crime, but the family she was working for as a domestic servant did not want to keep her any longer, as they have got a better one. The police on duty threatened the girl with breaking her legs and recommended to send her to a Vagrant Home".

If we explain the above mentioned situation then we can understand easily that many disqualified person had been appointed in the police department by giving bribe and on the basis of political affiliation, and kinship relations. Under this circumstance the police are always engaged to earn illegal money rather than the professional aspiration so the police have not been playing a vital role for the juvenile justice system in Bangladesh consequences bad impact, which is not welfare for the children, have been fallen on the welfare of the children.

4.8.4 Constraints of Efficiency of Police This section presents constraints of efficiency of police dealing with the juvenile offenders.

The Section 54 of the Code of Criminal Procedure, which sets out the conditions for arrest without a warrant, is often and randomly used and misused as the basis for these arrests.

Juvenile offenders may, however, also be detained under the Special Powers Act, 1974, which empowers police to arrest people on suspicion of anti-state activities.

The Government has ensured that police in Bangladesh have an understanding of the following conventions and International Instruments, their implications for the Government and most importantly, their implications for their work with juvenile offenders: -

The United Nations Convention on the Rights of the Child;

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The United Nations Convention for Elimination of all Forms of Discrimination against Women;

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United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (Beijing Rules);

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The United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990 (JDLs);

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The United Nations Guidelines for the Prevention of Juvenile Delinquency, 1990 (Riyadh Guidelines); and

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Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

The reality for the implementation of the international instruments is that there is very limited knowledge of their content, their implications for the Government or their implications for practice. On national level, the police need an understanding primarily of the following legislations: 

The Children Act, 1974;



The Children Rules, 1976;



Code of Criminal Procedure, 1898;



Constitution of the People’s Republic of Bangladesh, 1972;



The Probation of Offenders Ordinance, 1960;



The Bengal Vagrancy Act, 1943;



Suppression of Violence against Children and Women Act, 2000;



The Special Powers Act 1974;



Bengal Jail Code; and



The Penal Code, 1860.

There is general confusion on the part of police how to piece all the above legislations together. Their knowledge is also extremely limited with regard to the detailed content of the legislation.

-

Police often arrest children under Section 54 of the Code of Criminal Procedure prior to a hartal as preventive detention. Section 54, however, clearly states that to arrest without a warrant, there must be a reasonable complaint, credible information or a reasonable suspicion that a person has committed an offence.

These deviations indicate that there is a lack of knowledge about what the law specifically says concerning how children should be dealt with when they come into contact with law.

One can not rule out, however, that these infringements may be a result of problems with attitudes towards children in contact with the law or as a result of macro factors which impact upon the work which police do.

4.8.5 Problems of Application of Law The general confusion on the part of the police, judicial magistrates, metropolitan magistrates and judges how to piece all the legislations together has already been mentioned. It has been

observed that knowledge is limited with regard to the detailed content of the legislations.

Consequently, they cannot deal with the juvenile offenders in proper manner. It has been found that no one is able to demonstrate how to apply the national law in a manner which serves and promotes the interest of the juvenile offenders.

4.8.6 Problems of Deviation of Law Problem of deviation of the law is one of the constraints for implementation of law. These are from legislation which may indicate that there is a lack of knowledge about what the law specifically says concerning how juvenile offenders should be dealt with when they come in contact with law.

4.8.7 Culture of Traditional Attitude This section deals with the problem of the culture of traditional attitude to implementation of law. The police, judicial magistrates, metropolitan magistrates and judges do not consider the juvenile offenders as innocent which is not consistent with the universal principle of justice that a person shall be presumed innocent until proven guilty.

They are considered as criminals, and as a result, the offenders do not get proper justice as mandated in the law.

4.8.8 Problems of Inability of Interpretation of Law Attention needs to be given to both creating an understanding of the legal framework relating to juvenile offenders, and to the detail of the provisions of legislation. Police, judicial magistrates, metropolitan magistrates and judges need to know how to interpret the law in a manner that is consistent with the convention of the ‘Rights of the juvenile offenders.’ 4.8.9 Colonial Attitude of the Police Police is unable to find out the facts of the juvenile offenders due to non-involvement of the local leaders from the civil society, because of their colonial attitude. Without the participation of civil society, local level stakeholders and resources, it is impossible for the implementation of laws to establish rights of the juvenile offenders.

4.8.10 Constraints of Advocacy of the Rights of the Juvenile Offenders It is also important that the police, judicial magistrates, metropolitan magistrates and judges as advocates of the rights of the juvenile offenders should have a good understanding of the situation that is involved with the offence, but they lag behind in this knowledge. These are: 

Vulnerability of the juvenile offenders;,



Child development including the theory of moral development;



Psychological protection; and



Issues affecting special groups of children which include - Children migrated from rural to urban areas, - Children affected by HIV/AIDS, - Children from minority groups, and - Gender issues

4.8.11 Constraints of Upgrading of Knowledge The problems of juvenile offenders are not static; rather, it is dynamic in nature. Under the circumstances, improvement of the services to the juvenile offenders requires refreshment training of police, judicial magistrates, metropolitan magistrates and judges for upgrading their knowledge, skill and attitude to the juvenile offenders.

4.8.12 Constraints of the Required Capability in Dealing with the Offenders There are several capacity building areas in which police, judicial magistrates, metropolitan magistrates and judges need to develop their capability in their work with juvenile offenders.

These are: 

General skills relating to work with offenders,



Proper way to reporting of crime or problems,



Proper investigation,



Age determination of juvenile offenders,



Procedures of arrest,



Detention system,



Process of trial,



system of hearing,



Sentencing/ findings



Diversion, and



Monitoring and coordination

It has been found in this research work that police, judicial magistrates, metropolitan magistrates and judges do not have opportunity and required resources for upgrading the above-mentioned knowledge. Moreover, they do not have knowledge how to communicate with juvenile offenders, knowledge of interpersonal communication skills, knowledge of working manner in gender perspective and constraint to promote positive child development.

4.8.13 Constraints of the Knowledge of Investigation The Law Enforcement Agency like police has inadequate knowledge for proper investigation of juvenile offence in terms of expertise of maintaining international standards that may influence practice, application of national law in conformity with international standard of listening and communication skills, interrogation, skill of interviewing and record keeping.

4.8.14 Constraints of Age Determination Birth registration is instrumental for determination of age of the juvenile offenders.

Documenting proof of age by a birth registration is vital to the differentiation of a child from that of an adult. Police, judicial magistrates, metropolitan magistrates and judges face difficulties in deciding how to deal with a child if the age of the child is confusing or not clear. The Act which governs birth registration in Bangladesh is the Births and Deaths Registration Act, 1873 Recommendations will need to be made to police on how to conduct an investigation into age determination. This should include the different sources of information, namely evidence by parents, medical evidence etc. Judicial magistrates, metropolitan magistrates and judges will then need to understand the role in determining the age of children and making findings and orders to this regard.

It transpires on careful probation into the prevailing situation of age- determination is that it is apparently one of the three major problems that hinder the proper dispensation of juvenile justice. It is also an important instrument to protect the juvenile from harmful or illegal practices, such as child labor, entry into prostitution, marriage at early age, where proof of a juvenile offender’s age can ensure protection of offenders in general.

4.8.15 Constraints of Knowledge in Arresting Offenders Police do not have sufficient knowledge how to apply the national law in conformity with international standards, how to keep proper records, how and when to use alternatives to

arrest, how and when to use the possibility of release on bail, as permitted in Children Act, 1974. Basic skills in mediation, how to prepare a diversion plan, knowledge of the process that needs to be followed during the arrest includes but is not limited to:-

4.8.16 How to arrest in conformity with law The police do not abide by the provision of the 54(1) of The Code of Criminal procedure 1898 and cannot maintain the 9 ingredients of the above mentioned section and they used to arrest the juvenile offenders as well as any offenders without warrant which is inconformity with law. But in our country it is the common practice the of the Police they used to arrest juvenile offenders as well as any offenders on suspicion when any un wanted political situation or any un wanted situation arises. So the children become victims of that circumstance.

4.8.17 Constraint of knowledge in dealing with Offenders in Police Custody Police keeps both the juvenile offenders and adult criminals in the same custody at the same police station. Same procedures have been complied with by O.C. of Court Hazat which is a temporary custody for offenders to be brought before a judicial magistrates, metropolitan magistrates and judges for judicial process. It has been reported that there is no separate space to keep the juvenile offenders and the adult criminals individually and separately.

4.8.18 Procrastination in the Service of Court Process Police is accustomed to deliberately delay in the process of serving of court orders to compel appearance of prosecution witnesses. Even it is randomly observed that in the case of adjudication of juvenile offence where members of law enforcement are witnesses in the said case and after issue of process to the concerned law enforcement personnel to appear before Who to confides modus operandi respect todelay the rugged terrainin in the the court testify,about they usually resort to with unnecessary and indulge negligence at the process of serving of summons to the prosecution witnesses which is amazingly cost of proper adjudication of juvenile justice coupled with aggravated misery of the flawedjuvenile. with multiple constraints that hinder bringing the prosecution witnesses to offending the court. The usual method is that a court summons are sent to the office of Publica Prosecutor which registers the summons with unnecessary delay as is the To quote court police: common practice since colonial times. After hibernation, the summons reaches the office of the D.C. prosecution for disposal to the specified police station for the service of the summons. Here comes the crux of passage of the summons to reach its destination which is unfortunately clogged with constraint of police station resources, man-power, lack of logistic and vehicular support, habitual with less attention of the designated responsible officer at the police station combined with change of address of witnesses and in some cases use of fake address and name of witnesses where service of summons is not possible. The facts and circumstances as discussed take a heavy toll hindering proper adjudication in the process of juvenile justice as well as rule of law.

4.8.19 Undue Pressure by Bigwigs on Inquest of Juvenile Justice Sometimes police force is being used and manipulated by the bigwigs which is a common practice in our rural economy as well as society subjugated by feudal lords, and political opportunists have been instrumental in shaping the destiny and fate of a worn-out society where the down-trodden masses suffer miserably on multiple counts of which use of police as menial force by bigwigs and social giants are privy to the disarray and misalliance to the dispensation of juvenile justice.

4.8.20 Non-Compliance of Police Regulations It has been observed that police is not in compliance with handling the cases of the juvenile offenders because of their hasty submission of stage- managed report without proper investigation which is not in conformity with mandated provisions of Police Regulations.

4.9 Nature of Non-Implementation of Laws during Trial Non-implementation of the Children Act is one of the problems in the judiciary in Bangladesh. It is found that the Judges, Metropolitan Magistrates, Judicial Magistrates, police, Public Prosecutors, Lawyers, Probation Officers are not aware of this act as well as they are not aware other procedural laws which govern the juvenile justice system in Bangladesh as a result the trial of juvenile offenders are vitiated. Why trial is vitiated that information is covered from the law journals such as Dhaka Law reports, Bangladesh Codes, Bangladesh Gazettes, Mainstream Law Reports, The Law Guardian, Bangladesh Legal Decisions, and from the case records. Moreover, the researcher has critically reviewed the relevant research works conducted by other scholars.

However the researcher discusses one of the most important features of The Children Act, 1974 is that it provides for the establishment of a separate court for dispensation of juvenile justice. Since a juvenile court is entrusted with the task of custody, protection and treatment of children found in special circumstances, the specialized court has multiple functions entrusted to it. There are numerous functions of a Juvenile Court other than the functions

enumerated in Part V11 of the Act regarding youthful offenders. But in practice, it is observed that a Juvenile Court is rarely functional to perform these functions and usually only youthful offenders are brought before them for trial (Malik, 2004).

Part 11 of the Act lays down the power and functions as well as the procedure to be followed by the Juvenile Courts. It is crystal clear that a Juvenile Court must follow the mandated procedure as laid down in the Part 11 of the Act which includes sitting of the court in a building or room different, as far as possible, from that in which the ordinary sittings are held (section7); presence of persons are restricted (sections 9-10 and 12); attendance of parents of the youthful offender charged with an offence is required (section 13).

While courts are ordinarily open to the public in general, a Juvenile Court imposes certain conditions with restricted presence of persons deemed to be interested in the welfare of the child involved with the proceeding. This part also provides that except these and other provisions laid down in the Act, the Code of Criminal Procedure, 1898 shall be applicable for trial of youthful offenders (ibid).

The trial is conceptualized here as it appears in the court criminal procedure, 1898 section 5 (1) of which enumerates that all offences under the Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provision here in after contained.

In case of other laws both general and special, these enumerate as under section 5(2) that all offences under any other laws shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

4.9.1 No Joint Trial of Child and Adult The Children Act, 1974 contemplates that there shall not be a joint trial of a child with an adult. The reflection behind this prohibitory provision is that a tender-aged child should not end up being in close contact with an adult and hard-core criminal down the road. Rather the spirit behind the provision is that an offending child after certain jail-time should mix and socialize with the main stream of society as a rectified person, for a better tomorrow. But, in reality, this prohibitory prescription is randomly violated by the institutions responsible for implementing and overseeing the mandated provisions which take a heavy toll upon the offending child as well as society.

However, there are a few exceptions incongruous with the spirit of The Children Act, 1974 while section 239 of the Code of Criminal Procedure, 1898 provides for instances and circumstances in which persons who are accused of the same offence, committed in the course of the same transaction, are to be tried jointly (Malik,2004,54). The section elaborates instances and also specifies certain crimes (e.g. section 411 and 414 and Chapter X11 of the penal Code 1860) where all involved in the criminal act are to be tried jointly. However, the Children Act, 1974 makes an exception to section 239 where adults and children are involved in committing the same offence in the course of the same transaction. In other words, the crime, which an adult and a child are alleged to have committed jointly, will not make them liable to be tried jointly under section 239 of the Code of Criminal Procedure, 1898 and they must be tried separately.

This issue of joint trial of adults and children has been agitated in a number of cases. For example, the case of Shiplu and another vs. State. Shiplu, a child, and Moazzem Hossain, an adult, was charged together with the killing of Rabeha Begum in 1997. It was argued that Shiplu was a minor boy of 14 at the time of trial, according to the definition of child under section 2(f) of The Children Act, 1974, and section 6 forbids any joint trial of child and adult.

The Court held that: The trial court failed to apply its judicial mind as to the age of appellant Shiplu, who appears under the age of 16 years at the time of trial. This makes the order of conviction and sentence passed by the trial court upon appellant Shiplu illegal, and the impugned judgment and order are liable to be set aside for want of jurisdiction.

4.9.2 Sittings etc. of Juvenile Courts According to section 7 of The Children Act 1974, a juvenile court shall hold its sittings at such places, on such days and in such manner as may be prescribed. In the trial section 7 of The Children Act, 1974, a juvenile court shall hold its sittings at such places, on such days and in such manner as may be prescribed. In the trial of a case in which a child is charged with offence, a Court shall, as far as 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.

It is clear from this and other sections in this part of the Act that there should be distinct proceeding of a juvenile Court from other judicial proceedings by providing for a number of exceptions and special requirements. The legislative intent is unambiguous--a juvenile court is not a court in the conventional sense of the term as it not only tries offences committed by

youthful offenders but it is also responsible for other measures for custody, protection and treatment of children. By providing for a separate physical location, as far as practicable, and other provisions in the following sections, the difference between proceedings of a juvenile Court and other courts are clearly demarcated (Malik, 2004).

An example is cited here to supplement the above content of the information. In Munna and others vs. State, it was contended that since the trial was not held in terms of section 7, the trial for murder of the two minors were vitiated by illegality. The State, however, appeared in support of the conviction and came up with the noble submission that since there is no penal provision for violation of section 7, the trial would not be vitiated by any violation of section 7(ibid). The provisions of section 7 are only directory and not mandatory. Moreover, the Court held: Even if it is presumed that there was non-compliance of the provisions of section 7 of the Act then also the trial cannot be vitiated unless it is shown that there was either miscarriage of justice or failure of justice or serious prejudices were caused to the appellants by alleged noncompliance as we already noticed earlier. Therefore, the objection raised in such regard by the appellant cannot be upheld.

It has been found that the court is wrong on two counts: the first one is the absence of a penal provision in a procedural norm that does not make such a norm directory in nature only, and secondly, procedural norms themselves provide the instances in which, in addition to the violation, a miscarriage or failure of justice or prejudice also needs to be shown to vitiate any trial and procedure. Shahdeen Malik (2004) critically analyzed these issues in the same point of view to find out the shortcomings for implementation of juvenile laws for the welfare of juvenile offenders.

To quote a sitting judge of Dhaka Judge court: Spacing for separate trial of the juvenile offenders is one of the moot problems to provide proper justice for the juvenile offenders due to poor methodical and bad building plan design at the court premises.

It has been observed by the researcher that the number of case of juvenile offences is meager compared to that of adult criminals. Under the circumstances, if the judges are willing to arrange for separate courts for the juvenile offenders with the limited infrastructure facilities, they can do this either in the morning before the court starts or in the evening after day’s work at the court; but the problem is whether they go by a proper sense of importance of any such arrangement. Even the judges do not consider the juvenile offenders in a separate manner.

4.9.3 Involvement of Probation Officers The Code of Criminal Procedure, 1898 does not contain ‘penal’ provisions. In other words, similar to The Children Act, 1974, the consequences of not following any of the provisions of the Code is not specially spelled out in the Code itself. However, the consequence of not following the procedure is that a criminal trial becomes illegal, or is subsequently declared illegal when the procedural lapses are pointed out or brought to the notice of an appeal court.

To cite the most obvious example, the Code of Criminal Procedure, 1898 mandates which crimes are to be tried by which court. A Magistrate, second class can only try cases punishable with imprisonment of upto three years. Now if an accused is tried by such a Magistrate for an offence punishable convicts and sentences such an accused to imprisonment for 10 years, would such a trial, conviction and sentence be valid and legal because the relevant section of the Code does not provide for any penal measure? Obviously, not.

And as for miscarriage of justice or prejudice, procedural norms such as sections 229, 535, etc. of the Code of Criminal Procedure, 1898 do provide for instances in which, in addition to the violation of sections concerned, failure of justice would have to be shown or proved.

For other sections where these requirements are not specified, violations of procedural requirements do make a proceeding illegal and ineffective.

4.9.4 Adult to be committed to sessions in a case to be committed to sessions.- (1) When a child is accused along with an adult of having committed an offence and it appears to the Court taking cognizance 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, direct that the adult alone be committed to the court of session for trial.

This sub-section (1) of section 8, to an extent, seemingly overlaps with section 66 of the Act. However, these two sections clearly address two different situations. When a child is accused along with an adult is the focus of this sub-section, while where only a child (ren) (if it so appears) is brought to the Court is the subject matter of section 66.

Under this sub-section (1) if more than one person is brought before the court as accused in the same crime; and (b) that the case is a fit one for committal to the Court of Session, the cognizance court shall direct the adult to be committed to the Court of Sessions for trial. The procedure in respect of the child involved in such a case is enumerated in the following subsection.

Under section 66, any person who is brought before a 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 shall take evidence for determining the age.

However, it seems that in a case coming under sub-section (1) of section (8), no such inquiry for determining the age is mandated.

Sub-section (1) of section (8) follows from the mandatory provision of section 6 that no child shall be tried along with an adult and this sub-section empowers the court in a session case to take immediate action to separate the trial of the adult and the child by providing for the committal of the adult to the Court of Session.

(2) The case in respect of the child shall then be transferred to a juvenile Court if there is one or to a Court empowered under section 4, if there is no Juvenile Court for the local area, and the Court taking cognizance of the offence is not so empowered; Provided that the case in respect of the child shall be transferred to the Court of Session under section 5(3) if it is exclusively triable by the Court of Session in accordance with the Second Schedule of the Code.

The anxiety of the legislator to separate accused- children from adults seems to have led to this broad power of the cognizance court to direct the transfer of the child to a Juvenile Court, or to a Court empowered under section 4. In such a transfer the inquiry under section 66 to determine the age to ensure that the person accused is actually a child seems unnecessary.

The only reported case under the Children Act, 1974 which referred to section 8 was the State vs Deputy Commissioner, Satkhira. In this case, the High Court Division re-iterated that under section 8, only the adult can be committed to Court of Session and the Juvenile Court will take cognizance of the juvenile offender. How the trial court failed in its duty to separate and transfer the case of Nazrul Islam is evident from the observations of the Court: It is seen that the detenue allegedly committed the offence of the dacoity and keeping unauthorized firearms starting from the year 1976 till 1980. It means since his milk feeding age at 8 the detenue became associated with the gang of veteran dacoits and started committing dacoities in different Police Stations of the greater Khulna district running from one place to another in quick succession and thereby he became a veteran child dacoit which required him to be a prisoner with chains (danda beri) on his two legs and thereby he passed his days in jail with danda beri for long 11 years.

4.9.5 Unwarranted Intrusion of Persons Present in the Juvenile Court The Children Act, 1974 does not permit any one except officers of the court, the parties to the case or proceeding before the court and other persons directly concerned in the case or proceeding, the police officers, parents or guardians, and such other persons as the court specifically authorizes to be present. But in reality it is different, because, many persons are seen at the time of sitting of the court in trying the juvenile case which is a violation of The Children Act, 1974 (section 9).

To quote a Judge of Dhaka Judge’s Court: The judge states that there is a mandated restriction upon the presiding officer to ensure that while trying a juvenile case at any stage, the persons present at the court room must come under scrutiny and prescription of the presiding officers that the persons present are necessarily connected either with the case or with the offending child. But in reality as the judge confides that this prohibitive provision is hardly complied with, laments the judge.

4.9.6 Confusing Principle of Judicial Procedure The general rule of the trial is that trial must be public and open as provided in the constitution of Bangladesh in Article 35 (3). Besides, the Universal Declaration of Human Rights, 1948 and the International Covenant on Civil and Political Rights, 1966 also enshrine the principle of open judicial proceeding which must be held in open court where the public has free access. The objective of this rule is to ensure that the judges are impartial and that disputes are resolved in a transparent manner. It should be noted that the openness of judicial proceedings also provides access to the media, which is another important element in securing impartial justice. If we review section 9 of The Children Act, 1974, then we can easily find that the inherent interpretation of the section is against the general rule of the trial as enshrined in the Constitution of Bangladesh as well as universally accepted norms, standard and practice.

4.9.7 Conflict of Criminal Procedural Law and The Children Act, 1974

Section 11 of The Children Act, 1974 provides that if at any stage during the hearing of case or proceedings, the Court is satisfied that the attendance of a child is not essential for the purpose of hearing of the case or proceeding, the Court may dispense with his attendance and proceed with the hearing of the case or of the proceedings in the absence of the child.

It has been found that there is an anomaly amongst sections 9, 10 and 11 of The Children Act, 1974. Section 11 is typically replete with ambiguity and conjecture. The section in point does not specify any guideline or prescription according to which the judge is to decide if attendance of a child is essential or not. It is the discretion of a judge proceeding under this section to dispense with the attendance of a child in dispensation of a criminal proceeding depending upon the fact and circumstances of the concerned case.

In universal practice of a criminal proceeding the presence of the accused is essential and mandatory to ensure that the accused is aware of all allegations, proof and evidence brought against him, so that he can defend himself properly and adequately for the ends of justice unless the accused is absconding. In the event of an accused fugitive from justice special measures have been incorporated in the Code of Criminal Procedure 1898 when a judge is empowered to proceed with absentia trial.

In the light of the procedural law of criminal jurisprudence, section 11 of The Children Act, 1974 is in confrontation with universally accepted standard of criminal practice.

4.9.8 Prohibition of Disclosing Identity Prohibition on publication of report disclosing identity of the offender is one of the constraints for proper justice of the juvenile offenders. But in reality, if the court is not aware about this issue and, as a result, if the journalists and others cannot take judicial report and photograph which they may publish in the newspaper or any media, it is a violation of the law. To quote a judge of Dhaka Judge’s Court: The judge does not impose any restriction on the journalists and media reporters in getting photograph of the juvenile offenders in the court premises. Even, he is not aware whether there exists any restriction or rule to be imposed on getting photograph of the juvenile offenders in the court premises.

4.9.9 Constraints of Role of the Public Prosecutors

The role of the public prosecutor is to help the sitting judges to handle the juvenile cases properly and in accordance with The Children Act, 1974 as well as other procedural laws which are relevant to the juvenile justice system of Bangladesh. In fact, the public prosecutors do not usually help the court in this respect. Consequently, the court cannot deal with the juvenile case in proper way because of lack of knowledge about The Children Act, 1974.

It should be pointed out that public prosecutors are appointed by the government according to their political affiliations. Under the circumstances, many disqualified lawyers are appointed as public prosecutors, and, as a result, they are not able to demonstrate their real performance.

To quote a public prosecutor: The Children Act, 1974 is not widely practiced because of paucity of juvenile cases, and for this reason, the public prosecutors are not serious about the law. He pointed out that when they conduct any case of the juvenile offenders, only then they take the help of the law book.

It has been observed that the honorarium for the public prosecutors is small in amount, and, as a result, they do not show keen interest about laws of the juvenile offenders. Besides, abrupt discontinuation of the responsibility of the public prosecutors due to change of government is one of the factors that hinders the normal speed of trial of a juvenile case.

It has also been found that a public prosecutor needs to deal with many cases within the stipulated period of time. Consequently, he is not able to provide enough time to deal with the cases. It should be noted that the judges do not exert much importance to the public prosecutors as officers of the court due to the parochial colonial attitude that plague the management of juvenile justice.

4.9.10 Constraints of the Role of the Defence Lawyers The knowledge of defence lawyers in dealing with the case is meager. The number of juvenile offenders is insignificant, and as a result, they are not able to develop the required skills to deal with the trial of juvenile offenders. Even they lose their interest in trial due to non-cooperation of the parents or guardians of the juvenile offenders in respect of fees including other incentives.

Lack of sublime professionalism in law is one of the constraints of the defence lawyers for conducting trial. It indicates that the defence lawyers to conduct trial.

4.9.11 Constraints of the Role of the Probation Officers It has been found that the probation officers are trained from other disciplines than social work or social welfare and, as a result, they don’t have professional goals and skills.

Moreover, there is no required cooperation and coordination in dealing with the cases of juvenile offenders by judicial magistrates, metropolitan magistrates, judges, public prosecutors and defence lawyers. It has been reported by a probation officer who confided that he could not find out about his specific role to do with juvenile offenders.

In conclusion it is evident that the no joint trial of child and adult, sittings, etc. of juvenile courts, involvement of probation officers, adult to be committed to sessions in a case to be committed to sessions, unwarranted intrusion of persons present in the juvenile court, confusing principle of judicial procedure, conflict of criminal procedural law and the children act, 1974, prohibition of disclosing identity, constraints of role of the public prosecutors, constraints of the role of the defence lawyers, constraints of the role of the probation officers are the subject matters by which nature of non-implementation of laws during trial have been occurred by which judgments of the juvenile offenders passed by the judges are vitiated which fell direct impact in the life of juvenile offenders and their right could not be established as a result welfare of the juvenile offenders could not come infavour of them.

Under the circumstances the aim and objectives of The Children Act, 1974 is not executed at all.

4.10 Errors Responsible for Vitiated Judgment There are many errors which are done by the Judicial Magistrates, Metropolitan Magistrates and Judges to pass the judgment relating to the cases of the Juvenile offenders in Bangladesh as a result most of the Judgments are vitiated in the eye of Law. As a result the right of the juvenile offenders is not established and their life become broke. Why the errors responsible for vitiated judgments of the juvenile offenders that information have been gathered from the Dhaka Law reports, Bangladesh Codes, Bangladesh Gazettes, Mainstream Law Reports, The Law Guardian, Bangladesh Legal Decisions, and from the case records. Moreover, the researcher has critically reviewed the relevant research works conducted by other scholars.

However this chapter is an attempt to identify the errors responsible for vitiating judgments under The Children Act, 1974. Judgment means the expression of opinion of the judge or magistrate arrived at after due consideration of the evidence and of the arguments.

The delivery of judgment and the passing of sentence is an integral part of the original trial and must be done by the judge himself. The judgment must be delivered in open court. It should be noted that the judgment shall be written, signed, dated and pronounced in open court. The accused has to attend in person when judgment is to be pronounced, unless his/her personal attendance during the trial has been waived or disposed by the sentence that the court proposes to pass.

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 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 methods in which the case may legally be dealt which 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.

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 (Section 51 of The Children Act, 1974).

This is the only section of the Act which authorizes the court, subject to the numerous conditions mentioned in this section, to imprison a child. On imprisonment of children, Justice Fortas, holding for the American Supreme Court more than 40 years ago, had expressed concerns in the following terms: There may be grounds of concern that the child receives the worst of both worlds; that he gets neither the protection accorded to adults, and the solicitous care any regenerative treatment postulated for children.

Imprisonment of children is the last resort, not the first. Before ordering imprisonment of a child, the Court has to take into account three conditions, as mandated by the first proviso of this Section. This Section, in its operating and principal part, prohibits imposition of a sentence of death, transportation or imprisonment upon a child. Whether a child is "so unruly or of so depraved character that he cannot be committed to a certified institute" is a decision which shall be arrived at by the Court. However, the Act is silent on how, on what evidence or grounds can the court come to such a finding. Presumably, recourse to the Children Rules, 1976 is the answer. Sub-rules (5), (6) and (7) of Rule 4 of the Children Rules, 1976 lay down further procedures before an order of detention is issued by the Court. The sub-rules are as follows: (5).where a child has pleaded guilty or has been found guilty, the Court, instead of making an order upon such finding, may direct the Probation Officer or such other person as may be deemed fit by the Court in Form A for submission of a report which, among other things, shall contain family background of the child, his character and antecedents, his physical and mental conditions and the circumstances under which the offence was committed or any other information considered important in the interest of the child concerned.

(6). After considering the report submitted under sub-rule (5) and hearing persons referred to in clauses (b), (c) and (d) of section 9, the court may give such direction or order for the detention or otherwise of the child as it considers fit.

(7).While giving the order, the Court shall fixthe amount of contribution, if any, to be made by the parents or other persons liable to maintain the child for his maintenance; and the mode of payment of such contribution.

It is submitted that the requirement of Form A is mandatory and any order of the court to intern a child, upon finding him guilty, must take into account the report by the Probation Officer or “such other person as may be deemed fit by the Court.” Validity of any order of detention or internment passed by the Court may be questioned if passed without such a report. At the least, the Court ought to order for such a report and in case the report is not forthcoming, only then may the Court pass an order of internment.

(2).A youthful offender sentenced to imprisonment shall not be allowed to associate with adult prisoners.

It has been elaborated earlier that ‘punishment’ provided for in The Children Act, 1974 is different from the punishment of the criminal justice system, and the several qualifications

provided by section 51 and Rule 5 of the Children Rules, 1976 further re-iterate these differences.

The initial factors responsible for a vitiated judgment in respect of The Children Act, 1974 have been identified by this researcher which finds support as reported in the most authoritative law journal of the country Dhaka Law Reports (DLR) which stands the test of time of more than half a century about reporting of judgments and interpretations of law. .

In a reported case that appears in 61 DLR, Their Lordships Mr. Justice Md. Imam Ali and Mr. Justice Sheikh Abdul Awal observed in a judgment dated February 11 th, 2009 under section 67 of The Children Act, 1974 that the general intention of the legislature promulgating laws relating to children, that children are to be treated for their behavior rather than punished for it, and whenever it is found that the behavior of the offending children has improved sufficiently for them to be released into the main stream of society, than the question of detaining them further does not arise. They should then be released invoking the provisions of section 67. Their Lordships further observed under Section 52 of the Act that a sentence passed by the judge of the Juvenile Court does not reflect a correct interpretation of the provisions of the Act and the sentence of imprisonment passed in respect of Zahidul Hasan was erroneous. Zahidul Hasan is not liable to be sent to prison upon attaining the age of 18 years, and the impugned order of the Ministry of Social Welfare is erroneous and without lawful authority.

The prosecution story in short is that Zahidul Hasan alias Rony was accused of taking gold jewelry from a young girl and thereafter killed her. He was charged under section 302 of the Penal Code, and tried in session case. Since 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 judgment and order Rony was sentenced in accordance with the provisions of sections 51 and 52 of The Children Act, 1974 to imprisonment for 10 years. In a Writ Petition about the case, it is alleged that there have been serious violations of the provisions of the Act by the police who apprehended the accused and by the learned judges who dealt with him during the course of trial. It is evident from the Charge Sheet that the accused at the time of the alleged crime was 14 years of age, and yet the police did not consider his bail as required by section 48 of the Act. Police also failed to inform the child’s parents, as required by section 13, and did not inform any Probation Officer, which is a violation of the mandatory requirement of section 50 of the Act. It is also patently apparent that Rony was kept in jail custody from the time of his arrest until

he was enlarged on bail. It is to be mentioned that keeping a child in prison is a patent contravention of the provisions of the Act as well as the Constitution which requires that any citizen must be treated in accordance with law. It is apparent from the case as reported in the law journal DLR that in the case of dispensation of juvenile justice, the entire machinery for juvenile justice is negligent, and reluctant to adhere to the mandated provisions of the Act which consequent serious damage to fair justice. This malpractice results in serious vitiation in the judgment of juvenile justice.

In another concurrent judgment of the Honorable High Court Division of Bangladesh Supreme Court, Their Lordships, Mr. Justice Md. Imam Ali and Mr. Justice AFM Abdur Rahman, as reported in 61 DLR, observed that in view of the fact that the trial Judge opined that the accused was not a minor, it can not be said that the provisions of section 66 of The Children Act were contravened. 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. Although there is no law in the country regulating the mode of recording confessional statements of minors, it is traditional and customary in other countries that confessional statements of minors can not be made in absence of their parents or guardians. It is the philosophy and spirit of the Act that by nature, a child is not mature in thought and cannot be expected to have the same level of understanding of legal provisions and appreciation of the gravity of situation in which they find themselves.

In the case, Appellant Jabbar Ali Fakir preferred an appeal against the order of conviction and the judgment dated 23-09-1985 passed by the learned Additional Sessions Judge-in-charge of Sessions Judge’s Court, Joypurhat, convicting the appellant under sections 302/109 of the Penal Code and sentencing him to life imprisonment.

In the instant appeal, the appellant is a minor and it appears that the sole basis of conviction of the appellant was based upon his confessional statement recorded under section 164 of The Code of Criminal Procedure by a Magistrate who was not even examined before the Court.

The appellant claimed to be a minor at the time of trial. From the Order Sheet, it appears that the learned trial judge did not accept that he was a minor, but the record speaks in support of the fact that he was a minor. When examined under section 342 of the Cr.P.C, the age of the accused was stated to be 16 years. Their Lordships observed that while the trial Judge was examining and recording the statement of the appellant under section 342 of the CrPC, the

age of the accused was stated to be 16 years which would certainly mean that he was a minor at the 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. Their Lordships found no tangible evidence connecting the accused-appellant alleged, and set aside conviction and sentence of the appellant allowing the appeal. The Honorable High Court further sent a copy of judgment to the Ministry of Law and Parliamentary Affairs with a recommendation to take steps for incorporating with the law a provision to have a parent, custodian or legal representative of any minor to be present at the time of recording his statement by the police or any Magistrate. From the above discussion, it appears to be clearly a case of malaise of the judicial administration to overlook, disregard and ignore indiscriminately, deliberately and arbitrarily the universally accepted norm, practice and international standard along with the expectation and spirit of the express and mandated provisions of The Children Act, 1974.

In a reported case about the implication of the determination that a person is a child in the context of a trial was dealt by the Suo moto Rule of the Honorable High Court Division upon a newspaper report in the case of State vs. Deputy Commissioner, Satkhira about the pain and misery of one Md. Nazrul Islam, by then a young in his early twenties who had been in detention for more than a decade on charge of various criminal offences which captured the attention of a Division Bench of the High Court which issued the Suo moto Rule.

During the hearing on the rule their Lordships observed that the said Md. Nazrul Islam was arrested when he was a boy of only 11/12 years and has been languishing in jail for more than 11 years. The Honorable Court held that since he was only a child who was arrested, he “shall be set at liberty forth with from custody without any delay for a single moment�.

It has been decided in a number of reported judgments that the age at the time of trial is determining. In the instance case of State vs. Deputy Commissioner Satkhira, the detained person was not a child any more who has been robbed being in jail for more than a decade. At the time of issue of the Suo moto Rule, he was a young man in his early twenties. During the process of hearing, the accused, Md. Nazrul Islam deposed in the court that nine criminal cases were filed against him. It transpired from official report that a total of 12 cases were filed against him. Their Lordships observed wondering that if he were abroad before a trial court for hearing any of these numerous criminal cases in which he was charged, he would not have been a child any more as he was already a young man of 25 years of age. It was further revealed that he was in danda beri for long 11 years which was also a violation of the relevant provision of the jail code.

It is evident from the above discussion that the no child is to be charged with or tried for any offence together with an adult. The child must be tried in the juvenile court and in the ordinary court. Only the adult can be committed to the Court of Sessions, and the Juvenile Court will take cognizance of juvenile offenders (The Children Act, 1974).

The reported case further revealed that a Kayra p.s. Case No. 1(2) of 1983(Session case No.190 of 1986) (Gang Case) the detune was made an accused. He was tried along with other adult accused and convicted under section 400 of the Penal Code to suffer rigorous imprisonment for 7 years.

In the fact and circumstances, this researcher reviewed that there have been gross violation of the mandated provisions of The Children Act under Sections 2 (f), 6 and 8. The analysis as such (1) definition and the determination of the meaning was ignored, (2) contravention of the mandated provision that there shall not be a joint trial of child and adult, 3) contravention of the mandated provision that an adult shall be committed to Sessions in a case to be committed to Sessions after separating the case in respect of the child from that in respect of the adult.

It has been critically reviewed by the researcher that in the case State vs. Deputy Commissioner of Satkhira, there have been deplorable violations of Article 35 (3), (5) and Article 37 of the Constitution of Bangladesh The review further reveals that there have been deliberate and deplorable violations of Section 27(2) of the Prison Act, 1894 and also the provisions of jail code were, unfortunately, not followed. Paragraph 962 of the Jail Code provides that a prisoner under 21 is considered as juvenile, and such a prisoner should be separated from other prisoners. Paragraph 963 of that code provides that confinement of juvenile offenders is objectionable for many reasons.

In Shamim vs. State, the appellant was convicted under section 19(A) of the Arms Act and sentenced to suffer R.I. for 10 (ten) years and fine of Taka 5000/, in default to suffer R.I. for two years more by the learned Judge of the Special Tribunal No. 3, Pirojpur in Special Tribunal case No.11 of 1998. On appeal, the learned Advocate of the appellant submitted that he would not argue the case on merit and would submit some law points about the jurisdiction of the trial court in holding the trial of the case. He further submitted that the accused appellant, Md. Shamim was a boy of tender age, and he was not even 14 years old at the time of commission of the alleged offence.

It transpires that the alleged crime was committed on 1.6.1998 and the judgment of the special tribunal was delivered on 4.2.1999 i.e. within 8 months. The court found that the accused appellant was a regular student of class 1X at the time of occurrence. While the accused was examined under section 342 of the Cr.P.C. by the trial court, the age of the accused was written about 14 years, as the learned judge observed.

When the court found that the appellant was a child his conviction and sentence passed by a Special Tribunal No.3 on 4.2.1999 was set aside, and the case was sent back to the Session Judge, Perojpur for fresh trial by a Juvenile Court in accordance with the provision of the Children Act, 1974. The learned court took observation that the trial is crucial and pertinent in determining the age when it comes to a minor involved in a criminal case.

While reviewing the instant case it was observed also that there has been arbitrary contravention of relevant provision of The Children Act, 1974 along with the Code of Criminal Procedure, 1898.

In the case story, Md. Shamim, the appellant, purported to have been a student of class 1X at the time of the commission of the offence and being at the age of 14 when the court examined him under section 342 of the Code of Criminal Procedure which occasioned miscarriage of justice for the trial being dispensed with, without any jurisdiction which agitates the mischief of Section 2 (f) of the Children Act, 1974. By the same token, the appellant was in jail hajat since 1. 6. 1998 in close association with other adult criminals in flagrant contravention of Section 49(1) of the Act, and as such, in that view of the matter, the prayer for bail deserves consideration.

The above case is an example of a vitiated judgment reviewing which the Honorable High Court Division correctly found that the trial of the appellant was vitiated by want of jurisdiction, as he was tried by special tribunal and not by a juvenile court.

The above discussions clearly reveal irregularity and contraventions of laws: 1) There has been an express contravention of Section 5 of the Children Act for want of jurisdiction.

2) Contravention of 2 (f) of the Children Act for the convicted’s being minor within the meaning of the mandated provision as enshrined in The Children Act, 1974.

3) Contravention of Section 49 (1) of The Children Act, 1974 for not enlarging bail of the appellant as a minor.

4)

Contravention of Section 342 of the Code of Criminal Procedure for lack of jurisdiction of the trial court to examine the minor under CrPC.

It is evident that the judges and magistrates are not aware of The Children Act, 1974 and as a result they have erred in law in passing judgments of the juvenile offenders for want of jurisdiction that is they passed the judgments of the juvenile offenders like the case of the adult criminals.

4.11 Problems Faced in the Implementation of Laws This chapter deals with the problems faced by the police, judicial magistrates, metropolitan magistrates, judges, public prosecutors, defence lawyers, probation officers in the implementation of laws for the juvenile offenders in line with and according to The Children Act, 1974. Theoretically, the police, judicial magistrates, metropolitan magistrates, judges, public prosecutors, and probation officers have played vital role for the implementation of The Children Act, 1974 in order to expedite the juvenile justice system in Bangladesh. The Law Enforcement Agencies are working in a complex network system for the implementation of The Children Act, 1974 for proper justice of the juvenile offenders. The real connotation of proper justice is to make them better citizens as the punishment prescribed is purposely lenient and meant to reform and rehabilitate them for reintegration with the main stream of the society. But, in practice, these tasks are not so easy, and as a result, the Law Enforcement Agencies viz. police, judicial magistrates, metropolitan magistrates, judges, public prosecutors, defence lawyers and the probation officers have faced multiple problems jointly or individually.

4.11.1 Problems Faced by the Police The police make the keystone in finding out juvenile offenders, and they are involved with the budding stage of the juvenile offenders. Police face different problems in dealing with cases of the offenders. The identified problems faced by the police are given below: 4.11.2 Problem of Pre-Investigation of an Alleged Offence One of the problems faced by the police is the pre-investigation to make inquest and ascertain the prima facie case of the allegation if the case is suspected. Because of paucity of time, lack of man-power and volume of work, police cannot maintain the prescribed register in order to observe the trend of juvenile offences.

4.11.3 Problems of Investigation

Police face problem of investigation from cross-section of witnesses in order to find out actual facts. It has been observed that sometimes the witnesses become intriguingly biased in providing information and testifying about juvenile offenders because of personal interest.

This kind of biased attitude is one of the impediments that destroy merit of cases.

4.11.4 Problem of Determination of Actual Age It has been reported by the police that they face a great problem at the time of determination of age of juvenile offenders. Parents, neighbors, peer groups, and even people of crosssections were found less-enthusiastic in co-operating with the police to elicit information, to find out accurate age of the juvenile offenders, etc. Lack of consciousness of the value of birth-registration is also a problem in determining the accurate age of juvenile offenders.

Police sometimes face problem in determining the age of juvenile offenders due to heterogeneous physical growth.

4.11.5 Problem of Separate Arrangement of Juvenile Offenders Police always face problem in keeping juvenile offenders and adult criminals in separate cells at the police stations in order to avoid transmission of criminal attitude from adult to the juvenile offenders due to the constraint of accommodation.

4.11.6 Problem of Using Same and Prescribed Charge Sheet Form The practice of using incriminating report at the court by police in same and prescribed Charge Sheet Form for pressing charges in an offence for adult and juvenile criminals creates problem for the police to write individual statement for the adult and the juvenile offenders. If there would be separate Form to press charge for adult and juvenile offenders then it would be easier for the police to provide separate statement, and this is considered to be a contributing factor for the welfare of juvenile offenders.

4.11.7 Constraint of Substantial Witnesses It is very difficult for police to find out substantial witnesses from the place of occurrence of the case. It has been observed that the witnesses are always unwilling and reluctant to be a witness because of the hassles associated with testifying before the court.

4.11.8 Frequent Migration of the Witnesses Frequent migration of witnesses is one of the constraints of police to find out real addresses of the witnesses at the time of serving summons. As a result, a court cannot conclude trial at the earliest time, and ultimately, trial of case is delayed that affects the welfare of the juvenile offenders.

4.11.9 Undue Influence of Local Politicians There have been random occasions of intercession by local politicians exercising undue influence about an offending child at police station. This manipulation or undue influence leaves behind heavy bearing in a case of juvenile offence.

4.11.10 Problem of Frequent Transfer of Police Personnel Frequent transfer of police personnel is identified as one of the problems attending to deal with the case of juvenile offenders within the stipulated period of time. This trend of random transfer of police personnel without due consideration of continuing litigation of juvenile justice with which a police officer is entrusted while conducting a case, the effect of such transfer takes a toll of interruption in the judicial process. It has been observed that the new entrant has to spend considerable time to be in line with his predecessor wherein a factor of missing link and discretion are often decisive and instrumental to the discharge of duty. Thus, uncalled for and random transfer is at times detrimental to dispensation of fair juvenile justice.

4.11.11 Problems Faced by the Judicial Magistrates, Metropolitan Magistrates and Judges In theory, the sacred role of the judge is to maintain fair justice to every offender. But, reality is different because of various reasons, such as paucity of time due to large number of cases to be completed within the stipulated period of time. The factors identified with the problems of presiding officers are as follows: 4.11.12 Problem of Conducting Volume of Work It has been observed that the judges have to handle a heavy volume of work within the stipulated period of time which creates hindrance and problem in discharging diligently the responsibilities of the Judges.

4.11.13 Inadequate and Non-conversant Lawyers It has been found that Judicial Magistrates, metropolitan magistrates and Judges usually face problems to get proper assistance from lawyers in dealing with case because of the engaged lawyers’ lack of required knowledge of law and understanding of the facts relating to the case.

4.11.14 Constraint of Literature about Juvenile Offenders Lack of availability of law books including relevant books is identified as a major constraint of Judicial Magistrates, Metropolitan Magistrates and Judges dealing with the trial of juvenile offenders. It has been observed that there is no such library equipped with books at Judicial Magistrates courts, Metropolitan Magistrates court and Judges Courts through which learned Judicial Magistrates, Metropolitan Magistrates and Judges can get an opportunity to brainstorm and refresh their knowledge from the library. Although a limited number of books are available in their office, these are not sufficient.

4.11.15 Problems of Implementation of Orders of Judicial Magistrates, Metropolitan Magistrates and Judges The judicial Magistrates, metropolitan magistrates and judges issue warrant or summon based on prima facie ingredients to the witnesses during trial, but on most of the occasions, these warrants or summons do not reach the witnesses in time. It usually happens due to negligence of court staffs as well as police. Consequently, it creates problem in implementation of orders issued by judicial magistrates, metropolitan magistrates and judges.

4.11.16 Problem of Communication among Judicial Magistrates, Metropolitan Magistrates, Judges and Witnesses It has been found that because of use of local languages of different districts, communication is one of the problems among Judicial Magistrate, Metropolitan Magistrates, Judges and witnesses. Sometimes Judicial Magistrate, Metropolitan Magistrates and judges cannot understand dialects of witnesses, and, as a result, this may create problem in recording statement of witnesses which leave behind probability of misconstruction of the text of depositions leading to vitiated judgment occasioning miscarriage of justice.

4.11.17 Problem of Frequent Change of Public Prosecutors The public prosecutors are appointed by the government in power, and as a result, position of the public prosecutors is a continuous process of change according to change of government.

This continuously changing situation is one of the obstacles for case management, because newly appointed public prosecutors deliberately hold up process of cases. Under the circumstances, Judicial Magistrates, Metropolitan Magistrates and Judges become partners in the process of undue delay in dispensation of a case deteriorating the expected fair justice of a civilized society.

4.11.18 Practice of Delay Tactics This kind of malpractice is done by some lawyers because of their paucity of time in dealing with cases, or some times they do it for their personal gains.

4.11.19 Problem of Appearance of Accused at Courts A problem is identified that the accused is not sent to the court on scheduled date and time by the jail authorities because of non-availability of transport, sickness of the accused and political unrest and agitation hindering transportation to the court.

4.11.20 Colonial Attitude of Judicial Magistrates, Metropolitan Magistrates and Judges Often it is found that a judicial magistrate, metropolitan magistrates and judge assume the role of a prosecutor in contravention of the moral and obligatory duty of maintaining neutrality while adjudicating the case. It is apparent that this unwarranted attitude is legacy since colonial time and it is against the spirit of fair justice and rule of law.

4.11.21 Problems Faced by Public Prosecutors A public prosecutor is a law officer to the government who is appointed on temporary basis, and tenure of this service of a public prosecutor is dependent upon any particular or special assignment or pleasure of the government. On the appointment of a new Public Prosecutor, it is found that the predecessor did not perform his proper duty to pass over the trial case dockets with updated information for perusal to his reliever which creates a vacuum in the smooth and regular discharge of progress of on- going trial of the case. This disruption creates confusion and dilemma to the newly assigned Public Prosecutors. This is a recurrent problem plaguing the institution of criminal justice as a whole.

4.11.22 Non-cooperation of Ministerial Staffs It is also observed that the movement of case dockets is often hindered due to negligence and parochial attitude of low-tier ministerial staffs in performing duty within the spirit of the act.

Such unwarranted and unsupervised acts create inordinate delay in dispensation of juvenile justice.

4.11.23 Cold Role of Bench Staffs It is often found that a Bench Clerk at a court is busy indulging in extracting windfall money from defence parties and lawyers for illegal advantage in violation of their assigned service to public prosecutors which result in undesirable misfiling of case dockets.

4.11.24 Timely Non-appearance of Court Exhibits It is also observed that timely production of exhibits by parties which is vital and instrumental to adjudication of a juvenile case is not properly done due to lack of designated management of storage of the court exhibits in the designated room which is known as malkhana, and it appears that the officers responsible for proper maintenance of court exhibits in the malkhana do not properly oversee and supervise, and as a result, the required exhibits connected with a case does not appear at the court room in time when the case is called for hearing. It is a major constraint for fair dispensation in the trial procedure of juvenile justice.

4.11.25 Excessive Volume of Work In practice, a Public Prosecutor has to attend 20 to 25 cases a day which allow very little time for the prosecutor to study thoroughly the case dockets and keep abreast of the prosecution story to conduct the case in a proper manner, which leads to random interruption of prosecution case.

4.11.26 Time Constraint of Judges in Disposal of Number of Cases It is the administrative practice that a judge is to dispose of a prescribed number of cases under the direction of the Supreme Court of Bangladesh. Because of this directive, the judge is eager to dispose of a case despite anomalies, mal-practices and inconsistencies discussed above. On a close analysis, it is observed that despite sincere effort of judge and public prosecutor, the judge is bound under instruction of the authority to dispose of trial cases ignoring the lapses lying in the process and inherent in it.

4.11.27 Problems faced by Defence Lawyers The role of a defence lawyer is to conduct cases in defence of the juvenile offenders. It is incumbent upon the defence lawyers to interpret law as ex-officio of the court. The defence lawyer in discharge of his duties encounters a number of problems which is discussed below: 4.11.28 Paucity of Number of Juvenile Cases Juvenile cases are very few in number. An engaged defence counsel for juvenile trial is usually found to have very little experience and practical knowledge about dealing with juvenile case and relevant provisions of the Children Act. This procedural inexperience on the part of a defence counsel creates deplorable bearings on the integrity and non-application of judicial mind in the dispensation of justice.

4.11.29 Communication Gap among Defence Lawyers, Judicial Metropolitan Magistrates and Judges

Magistrates,

Because of a small number of juvenile cases, concerned defence lawyers, Judicial Magistrates, Metropolitan Magistrates and Judges are not much conversant about the over-all procedure of juvenile cases because of inadequate communication consonant to juvenile justice. Lack of understanding and cooperation between the Bench and the Bar also damage the ultimate expectation of fair justice.

4.11.30 Paucity of Information about Juvenile offenders A defence lawyer in discharge of his duties find it difficult to gather necessary information from parents, guardians, neighbors, relatives and peer groups about the offending child as contemplated within the meaning and spirit of The Children Act, 1974 . So, the defence counsel embarks on a lone journey perilous to the proceeding of juvenile justice.

4.11.31 Problems of Hearing about the Plea of the Defence Lawyers Due to the paucity of time, the judicial magistrates, metropolitan magistrates and judges sometimes cannot provide adequate time to hear plea of the defence lawyers. It happens due to the daily volume of work of judicial magistrates, metropolitan magistrates and judges as a result, they cannot find enough and required time for full hearing, detailing fact and figure of the case.

4.11.32 Problems Faced by Probation Officers The probation officer plays a vital role in the performance of his duties under this Act, in providing supervision and guidance to the Juvenile Court. Moreover, a probation officer shall, subject to the rules made under the Act, and according to the direction of the court, visit or receive visit from the child at reasonable intervals. He is also responsible for providing opportunity to meet the relatives of the juvenile offenders under the condition of bond. The probation officer is responsible for reporting to the court about the behavior of the offenders.

He provides counseling in a friendly atmosphere and to help the offenders for employment.

The probation officer is responsible for the welfare of the offenders in all respects. In performing the above responsibilities, the probation officer has faced a multiple problems which are given below.

4.11.33 Problem of Employment for the Offenders Although the probation officer is also vested with the task of providing employment for the juvenile offenders, in reality it is very difficult to provide employment in relation to the need of the consumers. On the other hand, most of the juvenile offenders are unskilled labor force

to get appropriate employment. There is also vocational training program to train up offenders, but this training is insufficient to get employment.

4.11.34 Problems of Rapport-building with Relatives One of the problems of probation officers is to build up rapport with the relatives due to the negative attitude of community and neighbors towards juvenile offenders. For, it has been observed that most of the times the relatives of juvenile offenders are dissatisfied with them because of the offences they had committed.

4.11.35 Problem of Identification of Locations The socio-economic and cultural background of juvenile offenders is poor. Moreover, many of them are from broken families and working children who live on the street. They do not have definite address and, as a result, probation officers face problem of identification of their locations.

4.11.36 Problem of Insufficient Information in Reporting As it has been mentioned in this dissertation, the socio-economic and cultural background of juvenile offenders is poor and the probation officer is not able to build up a comfortable rapport with parents or relatives to collect adequate information from them. Consequently, the probation officer can not provide adequate and authentic information about juvenile offenders to report to the court.

4.11.37 Problem of Ancillary Acceptance by Judges It has been found that the probation officer does not get accommodated by judges in court. It also hampers proper coordination in reporting about and ascertains information of juvenile offenders to the court. Consequently, the juvenile offenders are deprived of their legitimate rights from the It is evident that the police, legal point of view. This practice results in errors of judgment, leading to miscarriage of justice. judicial magistrates, metropolitan magistrates, judges, public prosecutors, defence lawyers and probation officer are those professional persons who are the vital part of the juvenile justice system in Bangladesh. Without their efforts juvenile justice system in Bangladesh can not be accelerated and the welfare of the Children will be very far away from the expectation of our nation if they faced various kind of problems such as Problem of Pre-Investigation of an Alleged Offence, Problems of Investigation, Problem of Determination of Actual Age, Problem of Separate Arrangement of Juvenile Offenders, Problem of Using Same and Prescribed Charge Sheet Form, Constraint of Substantial

Witnesses, Frequent Migration of the Witnesses, Undue Influence of Local Politicians, Problem of Frequent Transfer of Police Personnel, Problems Faced by the Judicial Magistrates, Metropolitan Magistrates and Judges, Problem of Conducting Volume of Work, Inadequate and Non-conversant Lawyers, Constraint of literature about juvenile offenders, Problems of Implementation of Orders of Judicial Magistrates, Metropolitan Magistrates and Judges, Problem of Communication among Judicial Magistrates, Metropolitan Magistrates, Judges and Witnesses, Problem of Frequent Change of Public Prosecutors, Practice of Delay Tactics, Problem of Appearance of Accused at Courts, Colonial Attitude of Judicial Magistrates, Metropolitan Magistrates and Judges, Problems Faced by Public Prosecutors, Non-cooperation of Ministerial Staffs, Cold Role of Bench Staffs, Timely Non-appearance of Court Exhibits, Excessive Volume of Work, Time Constraint of Judges in Disposal of Number of Cases, Problems faced by Defence Lawyers, Paucity of Number of Juvenile Cases , Communication Gap among defence Lawyers, Judicial Magistrates, Metropolitan Magistrates and Judges, Paucity of Information about Juvenile offenders, Problems of Hearing about the Plea of the Defence Lawyers, Problems Faced by Probation Officers , Problem of Employment for the Offenders, Problems of Rapport-building with Relatives, Problem of Identification of Locations, Problem of Insufficient Information in Reporting and Problem of Ancillary Acceptance by Judges for implementation respectively.

It is the proper time to think over the problems, which cited above, and try to eradicate of those problems otherwise the cry of juvenile offenders, will not be ever ended and their justice system will not be raised in Bangladesh like others country of the world.

4.12 Impacts on the Welfare of Juvenile Offenders Children are assets of every nation across the world. No child is born criminal. It may be attributed to the socio-economic and cultural factors that push the children to be involved in criminal activities and ultimately they are identified as juvenile offenders. Laws are there, but the main problem is its execution in proper manner. Agencies responsible for implementation of laws-- people who are involved with juvenile offenders are police, judicial magistrates, metropolitan magistrates, judges, public prosecutors, defence lawyers and probation officers.

They are to work with juvenile offenders for justice, correction and welfare to reintegrate them with the main stream of society, so that they can lead their normal life like other members of society. But some times the child-related laws do not work properly as expected due to many constraints of Law Enforcement Agencies in different perspectives. The main focus of this chapter is to find out to what extent the existing child-related laws have impact on the welfare of juvenile offenders.

It is found that the child related laws especially The Children Act, 1974 have been enacted by the legislators for the welfare of the juvenile offenders and because juvenile offender is a species by whom our country will be developed in future. If they ruin their life the expectation or dream of our country will be mixed with the dust. So it is the better time to examine the extent of execution of Children Act should be checked.

To fulfill this task the present researcher tried to level best to understand how far the welfare impact of the child related laws have been fallen upon the juvenile offenders. The researcher interviewed with the Metropolitan Magistrates, Judicial Magistrates and judges, lawyers, public prosecutors, probation officer as well as with the stuff of the Kishor Unnayan Kendra, Tongi, Gazipur as well as with the stuff of the Kishori Unnayan Kendra, Konabari, Gazipur and also made discussion with the Juvenile Offenders as well as with their parents and researcher self used observation method to understanding the situation of the juvenile offenders and gathered some knowledge about the following impacts on the welfare of the juvenile offenders.

4.12.1 Impact on Socialization Socialization is a process through which a child gets opportunities for their physical, mental, social, spiritual and intellectual development. But, when he or she becomes victim of juvenile offences, he or she is far away from the mission and dream of socialization and do not get the opportunity to stand on their own feet as a productive member of society. It has been found that juvenile offender under the study of this research project are deprived of socialization.

4.12.2 Impact on Education Education is the only way through which human population can be converted into human resource. Education makes a person conscious to himself or herself, society as well as to the nation. Education is the main source for development of skills for future employment.

Unfortunately, juvenile offenders do not easily get this facility to become active members of society. The Children Act, 1974 is there for welfare of the deviant children, but its proper implementation is meager due to the constraint of law Enforcement Agencies that has been also discussed elsewhere in this dissertation.

4.12.3 Impact on Skill Development Training Juvenile offenders end up being not able to get formal education as prescribed in law during their life. They need to be involved with skill- development training like vocational education compatible with the modern trend. The vocational training programs are found in the

correctional institutions for the offenders, but due to the long and complex path of judicial procedure in the far-fetched journey in a complex situation from the initiation of the case to judgment, they do not get any opportunity or chance for skill-development training because of irregularity, lack of coordination, negligence in training due to conflicting attendance of the court as required in law and practice.

4.12.4 Impact on Proper Justice It has been found that juvenile offenders are deprived of proper justice from the Law Enforcement Agencies as well as the institutions involved for welfare of the juvenile offenders. It has been analyzed in different key chapters of this dissertation that typically the constraint of network- communication among the Agencies dealing with justice for the juvenile offenders is one the obstacles for welfare of juvenile offenders.

4.12.5 Impact on Reintegration into Society The probation officer has played a vital role in the performance of his duties under this Act, in providing supervision and guidance to Juvenile Court. Moreover, a probation officer acts subject to the rules made under the Act and to the direction of the court. He/she visits or receives visit from the child at reasonable intervals and is responsible for providing opportunity to relatives of the juvenile offenders to meet them under the condition of bond.

The probation officer is responsible to report to court about the behavior of the offenders. He provides counseling in a friendly atmosphere and to help the offenders in getting employment. The probation officer is responsible for welfare of offenders in all respects. To perform the above responsibilities, the probation officer has to face a multiple number of problems which are enumerated below: 4.12.6 Problem of Employment of the Offenders The attitude of the general mass towards the juvenile offenders is apparently negative and adverse because of their past offence, and, as a result, juvenile offenders do not get employment, as employers are not comfortable about employment. It is needless to mention that without employment of juvenile offenders, they can not stand on their own feet.

Consequently, there might be a possibility of their committing crime again, resorting to refuge in the drug-area, and, as a result, it affects the wellbeing of the offenders.

4.12.7 Transmission of Criminals’ Attitude It has been found that there is no separate arrangement for detention of child offenders, and, as a result, they live in the same hajat custody with adult criminals. This short cohabitation creates havoc which transmits criminal attitude to juvenile offenders. This lacuna affects correction for the juvenile offenders as well as well-being of juvenile offenders in order to improve the quality of life.

4.12.8 Constraint of Proper Counseling The connotation of juvenile justice is to provide adequate facilities for the correction of juvenile offenders through proper counseling. Keeping with this view, social case workers and probation officers are appointed and involved with correctional services for juvenile offenders. But, it has been found that the role of the social case workers and probation officers are not effective, because their efforts are not appreciated by the court. Consequently, the social case workers and the probation officers lose their interest in this regard, and thus, it affects the welfare of the juvenile offenders.

4.12.9 Impact on Welfare of the Involvement of Nonprofessional Personnel It has been found that many nonprofessional personnel are appointed for the correction and counseling of juvenile offenders especially for the position of social case workers and probation officers. Usually, they should have training in social work or social welfare, so that they can apply their professional skills for the well-being of juvenile offenders. But, in fact, many of the social case workers and probation officers are appointed from other disciplines and they don’t have skills dealing with juvenile offenders, and thus, it may create a problem for the welfare of juvenile offenders.

4.12.10 Impact of Unnecessary Harassment of Juvenile Offenders Some times it has been found that a case is filed against a juvenile offender without preliminary investigation, and as a result, it might happen that this case proves false, frivolous and fabricated after proper investigation. Consequently, the juvenile offender loses valuable time in their lives, and this affects the well-being of the offenders. Delay in the process of investigation and allegation bring whimsical, motivated and groundless cost, inordinate delay. However, the perennial culture of bribing and nepotism coupled with malpractice of corruption furthers worsening of the rotten fabric of society.

4.12.11 Impact on Welfare due to Colonial Attitude of the Police On keen observation and probe of possible flaws that hampers proper functioning and discharge of duties by police, it transpires that police is not updated and duly conversant with procedural laws and provisions of The Children Act, 1974. In addition to that, it is a common practice amongst members of police to manipulate and exercise expression of police excess which is against the spirit and fundamental right of citizens as enshrined in the sacred constitution of Bangladesh. This police excess coupled with lack of professional morale result in systematic victimization of children and adults. The children are not exempted from the scourge of police excess and typically stereotyped attitude and apathy for children. It is reflected even in the process of dispensation of juvenile justice.

4.12.12 Impact on Welfare Due to the Constraint of Knowledge about The Children Act, 1974 It has been observed that the welfare of the juvenile offenders depend upon the adequate knowledge about The Children Act, 1974 among the persons involved in dealing with the juvenile offenders. It has been found that persons who have no adequate knowledge are involved in dealing with the juvenile offenders that create problem of welfare of juvenile offenders.

4.12.13 Impact on Welfare due to Non-communication Police is not found to be sincere and dutiful to discharge mandated provisional obligations of the Act entrusted upon them to inform parents or guardians including the probation officer after the arrest of an offending child. Because of this non-communication, the child suffers from detachment from parental care and necessary action. Parents are deprived of their prompt action to secure release of the child, engagement of Attorney, useful amenities for the child while in detention including many other ancillary measures aimed at the welfare of the child.

From the above discussion it is found that Impact on Socialization, Impact on Education, Impact on Skill Development Training, Impact on Proper Justice, Impact on Reintegration into Society, Problem of Employment of the Offenders, Transmission of Criminals’ Attitude, Constraint of Proper Counseling, Impact on Welfare of the Involvement of Nonprofessional Personnel, Impact of Unnecessary Harassment of Juvenile Offenders, Impact on Welfare due to Colonial Attitude of the Police , Impact on Welfare Due to the Constraint of Knowledge about The Children Act, 1974, Impact on Welfare due to Non-communication are not properly done due to the non-implementation of the child related laws in Bangladesh.

CHAPTER FIVE SUMMARY, CONCLUSIONS AND RECOMMENDATIONS 5. 1 Summary This research work is based on primary and secondary sources of information in order to discuss child-related laws for the welfare of juvenile offenders. Throughout the colonial times, till independence of the sovereign State of the People's Republic of Bangladesh, there have been occasional and random enactments of law related to the children in respect of welfare, juvenile offence and transformation of the social milieu. It is to be noted that none of the so-called children-oriented enactments is consistent, coherent and complete on the perspective of juvenile justice except The Probation of Offenders Act (Bangladesh Amendment) Act, 1964, The Children Rules, 1976, and The Children Act, 1974. It is to be noted that the Children Act, 1974 has taken the theme of the provisions from The Bengal Children Act, 1922 which was an act of child welfare as well as an act of social security. The Bengal Children Act was enacted in undivided Bengal during the British Regime for the correction, welfare and security of the juvenile offenders. During this period many acts have been enacted for the welfare of the offenders, but those acts were not comprehensive or substantial. This act has been given emphasis on the welfare and security of the children as they are the wealth of the society. To eliminate the weakness and incompleteness of The Reformatory Act 1897, The Bengal Act, 1922 was enacted.

It is the humble opinion of the Researcher that the above-mentioned enactments and Law, as discussed do not make out a coherent, consistent and comprehensive law for proper execution of the procedure for dispensation of juvenile trial and punishment with an objective of reflection of the sacred spirit of legislation for juvenile offenders regarding rehabilitation of an offending child to the main stream of society which is reformative, compassionate, human and a time-tested demand of humanity, and in line with time compatible and universal urge of the day. Tomorrow belongs to a child of today.

The Researcher finds that despite lacuna of multiple flaws and insufficiencies about the enactments and laws as discussed above, there has been a remarkable development consistent with the trial and procedure at a Juvenile Court of Juvenile Offenders. Rule 21 of the Children Rules, 1976 enjoins powers and duties of a Probation Officer subject to the provision of sub-section (3) of section 31 that the Probation Officer will meet the child frequently and enquire about his home and school condition, conduct, mode of life, character,

health, environment, and also explain to the child conditions of his probation. It is also the duty of the Probation Officer to attend court regularly and submit report, maintain diary, case files and such registers as may be specified by the Director or Court from time to time. The probation officer will also meet the guardian and other relations of the child frequently in the process of correction, reformation and rehabilitation of the child.

The Children Act 1974 expressly forbids publications of report disclosing identity of the child involved in a case. The Act also provides with procedure of trial to come under the ambit of the provisions of Criminal Procedure Code 1898 to apply unless excluded which is expressly provided in the Act. The Act provides under section 46 about penalty for publication of report or picture relating to the child in contravention of the provisions of section which is punishable with imprisonment for terms which may extend to two months or with fine which, may extend to take two hundred or with both.

In criminal justice system for the juvenile offenders police play a vital role in respect of implementation of child laws in Bangladesh. The responsibilities of the police start after the lodging of First Information Report by any body at a police station. The police record the case on the basis of FIR. The Officer in Charge of the police station assigns duty for investigation. Every investigation shall be completed without unnecessary delay, and, as completed. The Officer- in-Charge of police station shall forward that to a Magistrate empowered to take cognizance of the offence on a police-report, a report, in the form prescribed by the government, setting forth the names of the parties, the nature of the information and the names of the persons who appeared

to be acquainted with the

circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties and communicate, in such manner as may be prescribed by the government, the action taken to the person, if any, by whom the information relating to the commission of the offence was first given .The magistrate critically examines the report and accepts it for preparing the case for trial. When the case is ready for trial, it is regulated by the procedural laws of both the Code of Criminal Procedure and The Children Act, 1974. As it is an active role of police throughout the process of trial and is under keen observation, it has been made out that the police are not yet apt and sincere in performance of obligations mandated in this regard which consequent constraints and unwarranted exercise of indiscriminate exercise in the proper adjudication and dispensation of juvenile justice.

The constraints of the police for implementation of laws are problems of recruitment and training, inefficiency, problems of application of law, deviation from law, traditional attitude,

confusion in interpretation, colonial attitude, constraint of advocacy of the rights of the juvenile offenders, constraint of upgrading knowledge, constraints of required capability in dealing with the offenders, constraint of knowledge of investigation, knowledge of arresting offenders, delay in the service of court process, undue pressure by bigwigs on inquest of juvenile justice, and non-compliance with police regulations.

The problems faced by the police are pre-investigation of an alleged offence, problem of investigation, problem of determination of actual age of the juvenile offenders, problem of separate arrangement for the juvenile offenders, problem of using the same and prescribed charge sheet form, problem of material witnesses and their frequent migration from one place to another, problem of undue influence by local politicians, and frequent transfer of police personnel.

The problems faced by the judicial magistrates, metropolitan magistrates, and judges are conducting volume of work, inadequate and conversant lawyers, constraint of literature about juvenile offenders, problem of implementation of orders of judicial magistrates, metropolitan magistrates and judges, problem of communication among judicial magistrates, metropolitan magistrates, judges and witnesses, problem of frequent change of public prosecutors, practice of delay tactics, problem of appearance of accused at the court, and colonial attitude of judicial magistrates and judges.

The problems faced by the public prosecutors are non-cooperation of Ministerial staffs, cold role of Bench staffs, non-appearance of Court Exhibits at due times, excessive volume of work, and time constraint of judicial magistrates, metropolitan magistrates and judges in disposal of cases.

Problems faced by the defense lawyers are paucity of number of juvenile cases, communication gap among judicial magistrates, metropolitan magistrates and judges, paucity of information about juvenile offenders and problem of hearing of the plea of the defence lawyers.

Problems faced by the probation officers are lack of scope of employment of juvenile offenders, problem of rapport-building, problem of identification of locations of juvenile offenders, insufficient information in reporting and problem of acceptance of judicial magistrates, metropolitan magistrates and judges.

The Law Enforcement Agencies involved with the juvenile offenders are the police, judicial magistrates, metropolitan magistrates, judges, public prosecutors, defence lawyers and

probation officers are working with the juvenile offenders for their justice, correction and welfare to reintegrate them with the mainstream of the population, so that they can lead their normal lives like other members of society. But, sometimes the existing child-related laws do not work properly due to the short comings of the Law Enforcement Agencies in different perspectives. One of the objectives of this research work is to find out to what extent the existing child-related laws have impacts on the welfare of juvenile offenders viz. impact on socialization, impact on education, impact on skill-development training, impact on proper justice, impact on reintegration of society, problem of employment of offenders, transmission of criminals attitude, constraint of proper counseling, impact on welfare for the involvement of non-professional personnel, impact of unnecessary harassment of the juvenile offenders, impact on welfare due to colonial attitude of the police, impact on welfare due to the constraint of knowledge about The Children Act, 1974 and impact on welfare due to noncommunication with the guardian and probation officers.

5.2 Conclusions The Children Act, 1974 is being implemented for the welfare of juvenile offenders. It has been found in this research that the police, judicial magistrates, metropolitan magistrates, judges, probation officer, public prosecutors, and defence lawyers are not well trained and aware about the root causes of juvenile offences, detection of offenders, age-determination, separate stay for the juvenile offenders, especially in custody, pre-investigation and investigation at the time of arrest, involvement of parents, peer group and civil society for proper justice and need-based training for rehabilitation of victims through employment in order to integrate them with the main stream of society, so that they can lead a normal life like other members of society. It has also been found that The Children Act, 1974 is not properly implemented due to paucity of knowledge of the personnel involved with juvenile justice and welfare. It should be noted that the juvenile offenders are not inborn criminals; rather, they are products of socio-economic and cultural conditions of society. The laws are there for correction of juvenile offenders and to provide proper justice, but especially the constraints of proper implementation of The Children Act, 1974 creates impediments for the wellbeing of and improvement of the quality of life of juvenile offenders.

5.3 Recommendations On the basis of the findings of the study, some recommendations may be offered for the welfare of juvenile offenders. The recommendations are as follows: 1. The juvenile offenders are not inborn criminals; rather, they are the products of socioeconomic situations in society. Our dream is to turn them into human resources, and

keeping this view in mind, the police, magistrates and judges should get welfareoriented training.

2. Intensive training should be provided to different sections of the personnel involved in juvenile justice system in Bangladesh. Although there is scope to improve the skill development training for them, it is not adequate in the context of The Children Act, 1974.

3. The trainers of the trainees should have both theoretical and practical knowledge in order to improve the quality of services of the personnel involved in juvenile justice.

4. There should be permanent judges in the juvenile courts along with their logistics supports, so that they can run the courts independently.

5. There should be a uniform definition of child based on the specific age of the child.

There are many concepts of child based on different ages, and that inconsistency creates confusion in judgment for the juvenile offenders.

6. Network coordination needs to be developed among police, magistrates, probation officers, judges, public prosecutors, defense lawyers and the parents/guardians of juvenile offenders in order to provide proper justice in a short period of time, so that juvenile offenders can get enough scope for their correction to reintegrate themselves into their family as well as society.

7. The trial of the juvenile offenders should be concluded in two months’ time. The Children Act, 1974 along with other child-related laws may be amended in the interest of the children.

8. The juvenile offenders should not be sent to jail of/with the adults. There should be a direct order to send them to the Remand Home.

9. Proper and authentic investigation should be made by the Investigation Officer in two weeks’ time to avoid delay in justice.

Finally, The Children Act, 1974 should be included in the curricula of the vocational course of the Bar Council and in the secondary level of education for the greater welfare of the children in Bangladesh.

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Carr, Lowell J. (1942). Delinquency Control. Harper and Brother’s, New York.

Clifford, Shaw and Mckay, D. (1942). Juvenile Delinquency and Urban Areas. University of Chicago Press, Chicago.

Fatema, R. H., Asaduzzaman, M. and Leeza, Sultana (1996). “Children in Conflict with Law: Dhaka City.” UNICEF. Garner, Bryan A, (1997). Black’s Law Dictionary, Eighth Edition. West Publishing Company, United States of America.

GIBBONS, D.C.(1965). Changing the Law-breaker. Prentice Hall, New Jersey.

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Khan, Borhan Uddin and Rahman, M.M.(2008). Protection of Children in Conflict with the Law in Bangladesh. Save the Children U.K., Dhaka.

Khan, Sonia Zaman (2000). Herds and Shepherds: The Issue of Safe Custody of Children in Bangladesh. Save the Children, U.K., Dhaka.

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Unpublished Research Report, Penal Reform International.

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K.H. Kabir, J.U. Ahmed, AM. Tawsiff, and O. F.

Choudhury (1999). A Review of Existing Services Relating to Street Children, an unpublished report, Department of Social Service, Ministry of Social Welfare, Government of Bangladesh and UNDP.

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Save the Children, UK (2000), Juvenile Justice in Uganda: A Situation Analysis, UNICEF. Save the Children UK and Odhikar (2001). Our Children in Jail: Year Book on the State of Juvenile Justice and Violence against Children in Bangladesh. An Unpublished Research Report.

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APPENDICES Appendix-1: Guidelines for Interviewing Juvenile Offenders Basic Information Name of the Offender

------------------------------- Age--------------------

Sex-------------------------Education----------------------------------------------Parental Status--------------------------------Occupation------------------------Address of the Offender Village/ Mahalla-------------------------------------------------------------------Police Station-------------------------------District------------------------------Information about Family -

How many brothers and sisters do you have?—Brother-----------Sister--------

-

What is the occupation of your brothers? -------------------------------

-

What is the occupation of your sisters? ---------------------------------

-

What is the occupation of your father? ---------------------------------

-

What is the occupation of your mother? --------------------------------

-

Who is the main earning member of your family? -------------------

Involvement in Juvenile Offences -

Why did you get involved in juvenile offence?

-

What sorts of offence did you get involved in?

Role of the Police in and after arresting Juvenile Offenders -

Did the police arrest you?

-

Did the police inform your parents and Probation Officer after your arrest?

-

Were you kept in the same custody with the adults?

-

Who supplied you food at the custody?

-

How did the police treat you after arrest?

-

Did the police release you on bail from the police station?

-

Where were you sent after arrest?

-

Explain your experience after arrest.

-

What is your experience in jail custody?

Normative Questions - Do you think that you have done right things?

- Will you commit offence again?

- How do you want to correct yourself?

Appendix-2: Guidelines for Interviewing Parents/Guardians of the Juvenile Offenders Basic Information -

Please introduce yourself.

-

How many children do you have in relation to gender parity?

Role of Parents/Guardians -

What is the role of the parents/guardians for their children?

-

Were you able to perform an active role for your children?

-

What are the main causes of your children’s involvement in juvenile offences?

-

To whom did you go after the arrest of your children?

-

From who have you received cooperation when your son/daughter was in police custody?

-

How did you secure release of your son/daughter?

-

What problems did you face from the very beginning of the case of you son/daughter?

Normative Questions -

What should be the role of ideal parents for their children?

-

What are your recommendations for solving various problems associated with juvenile delinquency?

-

Do you have any suggestion to improve the quality of services provided to juvenile offenders?

-

What is your experience in dealing with the case of your son/daughter?

-

What future plan of action do you have for your son/daughter after release from jail?

Appendix-3: Guidelines for Interviewing Police Basic Information -What is your name?

- What is the name of your police station?

- How long have you been working at this police station?

- What is your designation/professional position?

Information about the Role of Police - How do you institutionalize the case?

- How is bail given by the O.C. at Police Station level?

- How did you determine the accurate age of juvenile offenders?

- How did you inform parents or guardians after arresting offenders?

- Where do you send offenders after arrest?

- Do you maintain separate register book for juvenile offenders?

- Do you take especial care of juvenile offenders?

- Do you have any record of trends of juvenile offenders?

- Do you have investigating officer to collect accurate data?

- Do you maintain separate charge sheet for the juvenile offenders?

- Do you maintain any follow-up about juvenile offenders in monthly meeting?

- Do you have legal knowledge or training for implementation of law?

- Do you maintain coordination with Probation Officers?

Normative Questions - What are your recommendations for the wellbeing of juvenile offenders?

- How can this problem be solved?

- How does it affect human resource development?

Appendix-4: Guidelines for Interviewing Probation Officers Basic Information - What is your name?

- What is the name of your office?

- How long have you been working in this position?

Role of Probation Officer -

May I ask you about the role of Probation Officer?

-

What are the main roles of Probation Officer in dealing with juvenile offenders?

-

How did you perform your roles?

-

Do you get cooperation from parents, civil society, police, judicial magistrates, metropolitan magistrates, lawyers and judges in performing your role?

-

What are the main problems you faced in dealing with juvenile offenders?

-

How did you solve the problems?

-

Do you think The Children Act, 1974 is being implemented properly?

Normative Questions -

What is your recommendation for improvement in providing services to juvenile offenders?

-

What is your future plan of action for improvement of quality of services for juvenile offenders?

Appendix-5: Guidelines for Interviewing Lawyers Basic Questions -

Please introduce yourself.

-

How many years have you been involved in this profession?

-

In how many cases were you involved with juvenile offenders?

Role of Lawyers -

What should be the role of lawyers in dealing with the cases of juvenile offenders?

-

What problems did you face in dealing with cases of juvenile offenders?

-

Did you get all sorts of cooperation from different corners in dealing with cases of juvenile offenders?

-

Do you think that The Children Act, 1974 needs to be modified?

Normative Questions -

What is your over-all impression about the justice system for juvenile offenders?

-

What is your suggestion to improve the quality of judgment for juvenile offenders?

Appendix-6: Guidelines for Interviewing Public Prosecutors Basic Questions -

Please introduce yourself.

-

How many years have you been involved in this profession?

-

In how many cases were you involved with juvenile offenders?

Role of Public Prosecutors -

What should be the role of public prosecutors in dealing with cases of juvenile offenders?

-

What problems did you face in dealing with cases of juvenile offenders?

-

Did you get all sorts of cooperation from different corners in dealing with cases of juvenile offenders?

-

Do you think that The Children Act, 1974 needs to be modified?

Normative Questions -

What is your over-all impression about the justice system for juvenile offenders?

-

What is your suggestion to improve the quality of judgment for juvenile offenders?

Appendix-7: Guidelines for Interviewing Magistrates/Judges Basic Questions - May I ask your name and where you are from?

-

How long have you been involved with this profession?

-

Are you satisfied with your profession?

Role of Judicial Magistrates/Metropolitan Magistrates/Judges -

May I ask you some questions about child-related laws?

-

How do you frame charge in the cases of juvenile offenders if they are involved in crimes along with adult criminals?

-

Do you maintain same dockets while framing such charges?

-

Do you have enough logistic support for joint/separate trial?

-

Do you allow inside the court room any persons who do not directly make a party to the case in point?

-

What are the factors that you take into consideration while passing an order in the cases of juvenile offenders?

-

What restrictions on punishment of juvenile offenders are given by the court?

-

In capital punishment, what kind of steps do you take when it comes to an offence punishable with death, transportation, and jail?

Normative Questions -

What is your suggestion to improve the quality of judgment for juvenile offenders?

-

What do you think about juvenile delinquency?

Appendix-8: Guidelines for Focus Group Discussions of the parents of the juvenile offenders: 1. Did the police inform you of the arrest of your child?

2.

3.

4.

Did the officer-in-charge release your child on bail?

Did the police cause your child to be detained in a remand home or in a place of safety?

Did the police direct you to attend the court when your child would appear?

5.

Did the Judge sit in the ordinary court for trial of your child?

6.

Did the Judge join trial of your child with that of the adult?

7.

Did the judge separate the case of your child from that of the adult?

8.

Did the Judge allow outsiders at the Court when your child was tried?

9.

Did the probation officer visit your home?

10. Did the judge determine the age of your child?

11.

12.

Do you face any problem from the side of police, Public Prosecutors, Defence Lawyer, Probation Officers, Metropolitan Magistrate, Judicial Magistrates and judges in handling of the case of your child?

Did you mark the impact of the child-related laws on the welfare of your children?

Appendix-9: Guidelines for Focus Group Discussions with the two Groups of Juvenile Offenders 1. Did the police inform parents of the arrest of their children?

2. Did the officer-in-charge release him on bail?

3. Did the police send him to the remand home or a place of safety?

4. Did the police direct the guardian of you to attend the court when you appeared at the court?

5. Did the Judge sit at the ordinary court for your trial?

6. Did the Judge hold joint trial of you and accused adults?

7. Did the Judge separate your case from that of adults?

8. Did the Judge allow outsiders at the Court when you were tried?

9. Did the probation officer visit your home?

10. Did the Judge determined your age?

11.

Did you face any problem from the side of police, Public Prosecutors, Defence Lawyer, Probation Officers, Metropolitan Magistrate, Judicial Magistrates and Judges when you were connected with the case?

12.

Did you mark the impact of the child-related laws on your life?

Appendix-10: Focus Group Discussion of the Parents of Juvenile Offenders of Kishori Unnayan Kendra, Konabari, Gazipur Place of FGD: Kishori Unnayan Kendra, Konabari, Gazipur, Dated 7-10-2009 Sl no.

Name

Age

Education

Occupation

1.

Jorina

45

Class-Six

Garment worker

2.

Helana

35

Class-Four

House-wife

3.

Abal Hossain

42

H.S.C

Business

4.

Johora

38

S.S.C

House-wife

5.

Md. Shawkat

50

Class-Five

Business

6.

Momana khatun

40

Class-Five

House-wife

7.

Fulu Miah

45

Class-six

Rickshaw-puller

8.

Mossamadi

35

Class-Three

House wife

Appendix-11: Focus Group Discussion of the Parents of Juvenile Offenders of Kishor Unnayan Kendra, Tongi, Gazipur Place of FGD: Kishor Unnayan Kendra, Tongi, Gazipur, Dated 22-10-2009 Sl no.

Name

Age

Education

Occupation

1.

Dulal chistia

50

Class-Three

Rickshaw Puller

2.

Shahid Ukil

42

Class-Five

Van Puller

3.

Mulluk Chan

45

Class-One

Care taker

4.

Subuj Mullah

38

Class-Eight

Taxi-Driver

5.

Nurjahan Begum

40

Illiterate

Day labour

6.

Salina Begum

42

Illiterate

House wife

7.

Salaha

38

Class-six

House wife

8.

Rokeya Begum

39

S.S.C

House wife

Appendix-12: Focus Group Discussion of the Juvenile offenders of Kishori Unnayan Kendra, Konabari, Gazipur Place of FGD: Kishori Unnayan Kendra, Konabari, Gazipur, Dated 7-10-2009

Sl no.

Name

Age

Education

Occupation

1.

Rina

14

Illiterate

Beggar

2.

Rahima

15

Illiterate

Beggar

3.

Mina Akter

13

Student

Class five

4.

Rawshan Ara

15

Class-Five

Garment worker

5.

Nasima Akter

13

Illiterate

Maid Servant

6.

Snikdha

13

Class-Six

Student

7.

Sumi

10

Class-Three

Student

Appendix-13: Focus Group Discussion of the Juvenile offenders of Kishor Unnayan Kendra, Tongi, Gazipur Place of FGD: Kishor Unnayan Kendra, Tongi, Gazipur, Dated 22-10-2009 Sl no.

Name

Age

Education

Occupation

1.

Sabuj

14

Class-Three

Garment worker

2.

Selim

15

Class-Five

Garment worker

3.

Amir Chan

14

Class-One

Garment worker

4.

Shamim

15

Class-Five

Garment worker

5.

Gobinda

13

Class-Six

Student

6.

Pachal Nath Saha

14

Class-Six

Student

7.

Nahid Islam

14

Class-Seven

Student

8.

Gias Uddin

16

Class-Eight

Student

Appendix-14 THE CHILDREN ACT, 1974 ACT NO. XXXIX OF 1974 [22nd June, 1974]

An Act to consolidate and amend the law relating to the custody, protection and treatment of children and trial and punishment of youthful offenders.

WHEREAS it is expedient to consolidate and amend the law relating to the custody, protection and treatment of children and trial and punishment of youthful offenders; It is hereby enacted as follows:PART-I PRELIMINARY

1. (1) This Act may be called the Children Act, 1974.

(2) It shall come into force in such areas and on such dates as the Government may, by notification in the official Gazette, specify.

2. In this Act, unless there is anything repugnant in the subject or context,(a)

"adult" means a person who is not a child;

(b)

"approved home" means any institution which is established by any association or body of individuals and recognised by the Government for the reception or protection of, or prevention of cruelty to, children and which undertakes to bring up, or give facilities for bringing up, any child entrusted to its care in conformity with the religion of his birth;

(c)

"begging" means-

(i)

soliciting or receiving alms in a public place, whether or not under any pretence such as singing, dancing, fortune-telling, reciting holy verse or performing tricks;

(ii)

entering in any private premises for the purpose of soliciting or receiving alms;

(iii) exposing or exhibiting with the object of obtaining or extorting alms any sore, wound, injury, deformity or disease;

(iv) having no visible means of subsistence and wandering about and remaining in any public place in such condition or manner as makes it likely that the person doing so exists by soliciting or receiving alms; and (v)

Allowing oneself to be used as an exhibit for the purpose of soliciting or receiving alms;

(d)

"Certified institute" means a training institute established or any training institute, industrial school or educational institution certified by the Government under section 19;

(e)

"Chief Inspector" means Chief Inspector of certified institutes appointed under section 30;

(f)

"child" means a person under the age of sixteen 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 sixteen years during that period;

(g) "Code" means the Code of Criminal Procedure, 1898 (V of 1898); (h) "guardian", in relation to a child or youthful offender includes any person who, in the opinion of the Court having cognizance of any proceedings in relation to the child or youthful offender, has for the time being the actual charge of, or control over, the said child or youthful offender; (i)

"Juvenile Court" means a court established under section 3;

(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;

(k) "Prescribed" means prescribed by rules made under this Act; (l)

"Probation Officer" means a Probation Officer appointed under section 31;

(m) "supervision" means the placing of a child under the control of Probation Officer or other person for the purpose of securing proper care and protection of the child by his parent, guardian, relation or any other fit person to whose care the child has been committed; and (n) "youthful offender" means any child who has been found to have committed an offence.

PART II POWERS AND FUNCTIONS OF COURTS HAVING JURISDICTION UNDER THE ACT

3. Notwithstanding anything contained in the Code, the Government may, by notification in the official Gazette, establish one or more Juvenile Courts for any local area.

4. The power conferred on a Juvenile Court by this Act shall also be exercisable by(a) The High Court Division, (b) a Court of Session, (c) a Court of an Additional Sessions Judge and of an Assistant Sessions Judge, (d) a sub-Divisional Magistrate, and (e) a Magistrate of the first class, Whether trying any case originally or on appeal or in revision.

5. (1) When a Juvenile Court has been established for any local area, such Court shall try all cases in which a child is charged with the commission of an offence and shall deal with and dispose of all other proceedings under this Act, but shall not have power to try any case in which an adult is charged with any offence mentioned in Part VI of this Act. (2)

When a Juvenile Court has not been established for any local area, no Court other than a Court empowered under section 4 shall have power to try any case in which a child is charged with the commission of an offence or to deal with or dispose of any other proceeding under this Act.

(3)

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.

6. (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.

(2)

If a child is accused of an offence for which under section 239 of the Code or any other law for the time being in force such child but for the provisions of subsection (1) could have been tried together with an adult, the Court taking cognizance of the offence shall direct separate trials of the child and the adult

7. (1) A Juvenile Court shall hold its sittings at such places, on such days and in such manner as may be prescribed.

(2)

In the trial of a 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 sittings of the Court are held

8. (1) When a child is accused along with an adult of having committed an offence and it appears to the Court taking cognizance 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, direct that the adult alone be committed to the Court of Session for trial.

(2)

The case in respect of the child shall then be transferred to a Juvenile Court if there is one or to a Court empowered under section 4, if there is no Juvenile Court for the local area, and the Court taking cognizance of the offence is not so empowered:

Provided that the case in respect of the child shall be transferred to the Court of Session under section 5 (3) if it is exclusively triable by the Court of Session in accordance with the second Schedule of the Code

9. Save as provided in this Act, no person shall be present at any sitting of a Juvenile Court except(a) The members and officers of the Court; (b) The parties to the case or proceeding before the Court and other persons directly concerned in the case or proceeding including the police officers; (c) Parents or guardians of the child; and (d) Such other persons as the Court specially authorise to be present.

10. If at any stage during the hearing of a case or proceeding, the Court considers it expedient in the interest of the child to direct any person, including the parent, guardian or the spouse of the child, or the child himself to withdraw, the Court may give such direction and thereupon such person shall withdraw.

11. If at any stage during the hearing of a case or proceeding, the Court is satisfied that the attendance of a child is not essential for the purpose of the hearing of the case or proceeding, the Court may dispense with his attendance and proceed with the hearing of the case or of the proceeding in the absence of the child.

12. If at any stage during the hearing of a case or proceeding in relation to an offence against, or any conduct contrary to, decency or morality, a child is summoned as a witness, the Court hearing the case or proceeding may direct such persons as it thinks fit, not being parties to the case or proceeding, their legal advisers and the officers concerned with the case or proceeding, to withdraw and thereupon such persons shall withdraw.

13. (1) Where a child brought before a Court under this Act has a parent or guardian, such parents or guardian may in any case, and shall, if he can be found and if he resides within a reasonable distance, be required to attend the Court before which any proceeding is held under this Act, unless the Court is satisfied that it would be unreasonable to require his attendance.

(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.

(3)

The parent or guardian whose attendance shall be required under this section shall be the parent or guardian having the actual charge of, or control over, the child: Provided that if such parent or guardian is not the father, the attendance of the father may also be required.

(4)

The attendance of the parent of a child shall not be required under this section in any case where the child was, before the institution of the proceedings, removed from the custody or charge of his parent by an order of a Court.

(5)

Nothing in this section shall be deemed to require the attendance of the mother or female guardian of a child, but any such mother or female guardian may appear before the Court by an advocate or agent.

14. (1) When a child, who has been brought before a Court under any of the provisions of this Act, is found to be suffering from a disease requiring prolonged medical treatment, or a physical or mental complaint that is likely to respond to treatment, the Court may send the child to a hospital or to any other place recognised to be an approved place in accordance with the rules made under this Act for such period as it may think necessary for the required treatment.

(2)

Where a Court has taken action under sub-section (1) in the case of child suffering from an infectious or contagious disease, the Court, before restoring the said child to his partner in marriage, if there is one, or to the guardian, as the case may be, shall, where it is satisfied that such action will be in the interest of the said child, call upon his partner in marriage or the guardian, as the case may be, to satisfy the Court by submitting to medical examination that such partner or guardian will not re-infect the child in respect of whom the order has been passed.

15. For the purpose of any order which a Court has to pass under this Act, the Court shall have regard to the following factors :(a) The character and age of the child; (b) The circumstances in which the child is living; (c) The reports made by the Probation Officer; and

(d) such other matters as may, in the opinion of the Court, require to be taken into consideration in the interest of the child: Provided that where a child is found to have committed an offence, the above factors shall be taken into consideration after the Court has recorded a finding against him to that effect.

16. The report of the Probation Officer or any other report considered by the Court under section 15 shall be treated as confidential: Provided that if such report relates to the Character, health or conduct of, or the circumstances in which, the child or the parent or guardian of such child is living, the Court may, if it thinks expedient, communicate the substance thereof to the child, or the parent or guardian concerned and may give the child or the parent or guardian of such child an opportunity to produce evidence as may be relevant to the matters stated in the report.

17. No report in any newspaper, magazine or news-sheet nor any news giving agency shall disclose any particular of any case or proceeding in any Court under this Act in which a child is involved and which leads directly or indirectly to the identification of such child, nor shall any picture of such child be published: Provided that, for reasons to be recorded in writing, the Court trying the case or holding the proceedings may permit the disclosure of any such report, if, in its opinion, such disclosure is in the interest of child welfare and is not likely to affect adversely the interest of the child concerned.

18. Except as expressly provided under this Act or the rules made there under, the procedure to be followed in the trial of cases and the holding of proceedings under this Act shall be in accordance with the provisions of the Code.

PART III CERTIFIED INSTITUTES AND OTHERS INSTITUTIONS

19. (1) The Government may establish and maintain training institute for the reception of children and youthful offenders.

(2)

The Government may certify that any training institute not established under sub-section (1) or any industrial school or other educational institution is fit for the reception of children or youthful offenders.

20. The Government may establish and maintain remand homes for the purposes of detention, diagnosis and classification of children committed to custody by any Court or Police.

21. The Government may prescribe conditions subject to which any training institute, industrial school, and educational institution or approved home shall be certified or recognised, as the case may be, for the purposes of this Act.

22. (1) For the control and management of every training institute established under section 19(1), a superintendent and a committee of visitors shall be appointed by the Government, and such superintendent and committee shall be deemed to be managers of the institute for the purposes of this Act. (2) Every institute, school or institution certified under section 19(2) shall be under the management of its governing body, the members of which shall be deemed to be the managers of the institute, school or institution for the purposes of this Act.

23. The managers of a certified institution shall be consulted by the Court before any child is committed to it.

24. Any registered medical practitioner empowered in this behalf by the Government may visit any certified institute or approved home at any time with or without notice to its managers or other persons in charge thereof in order to report to the Chief Inspector on the health of the inmates and the sanitary condition of the certified institute or approved home.

25. The Government, if dissatisfied with the management of a certified institute, may at any time by notice served on the managers of the institute declare that the certificate of the institute is withdrawn as from a date specified in the notice and on such date the withdrawal of the certificate shall take effect and the institute shall cease to be certified institute: Provided that before the issue of such notice a reasonable opportunity shall be given to the managers of the certified institute to show cause why the certificate shall not be withdrawn.

26. The managers of a certified institute may, on giving six months' notice in writing to the Government through the Chief Inspector of their intention so to do, resign the certificate of the institute and accordingly at the expiration of six months from the date of notice,

unless before that time the notice is withdrawn, the resignation of the certificate shall take effect and the institute shall cease to be a certified institute.

27. A child or youthful offender shall not be received into a certified institute under this Act after the date of receipt by the managers of the institute of a notice of withdrawal of the certificate or after the date of a notice of resignation of the certificate: Provided that the obligation of the managers to teach, train, lodge, cloth and feed any child or youthful offender detained in the institute at the respective dates aforesaid shall, except so far as the Government otherwise directs, continue until the withdrawal or resignation of the certificate takes effect.

28. When an institute ceases to be a certified institute, the children or youthful offenders detained therein shall be either discharged absolutely or on such conditions as the Government may impose or may be transferred by order of the Chief Inspector to some other certified institute in accordance with the provisions of this Act relating to discharge and transfer.

29. Every certified institute and approved home shall be liable to inspection at all times and in all its departments by the Chief Inspector, Inspector or Assistant Inspector of certified institutes and shall be so inspected at least once in every six months: Provided that where any such certified institute is for the reception of girls only and such inspection is not made by the Chief Inspector, the inspection shall, wherever practicable, be made by a woman authorized by the Chief Inspector in that behalf.

PART IV OFFICERS AND THEIR POWERS AND DUTIES

30. (1) The Government may appoint a Chief Inspector of certified institutes and such number of Inspectors and Assistant Inspectors of certified institutes as it thinks fit to assist the Chief Inspector.

(2) The Chief Inspector shall have such powers and duties as this Act specifies and as may be prescribed.

(3) Every Inspector or Assistant Inspector shall have such of the powers and duties of the Chief Inspector as the Government may direct and shall act under the direction of the Chief Inspector.

31. (1) The Government may appoint a Probation officer in each district: Provided that where there is no person so appointed in a district, any other person may be appointed as a Probation Officer from time to time by a Court in that district for any particular case.

(2) A Probation Officer, in the performance of his duties under this Act, shall be under supervision and guidance of the Juvenile Court where such Court exists or, where there is no such Court, the Court of Session.

(3) A Probation Officer shall, subject to the rules made under this Act and to the directions of the Court(a) visit or receive visits from the child at reasonable intervals; (b)see that the relative of the child or the person to whose care such child is committed observes the conditions of the bond; (c) report to the Court as to the behavior of the child; (d)advise, assist and befriend the child and, where necessary, endeavour to find him suitable employment; and (e) perform any other duty which may be prescribed.

PART V MEASURES FOR THE CARE AND PROTECTION OF DESTITUTE AND NEGLECTED CHILDREN

32. (1) A Probation Officer or a Police Officer not below the rank of Sub-Inspector of Police or any other person authorised by the Government in this behalf may bring before a Juvenile Court or a Court empowered under section, 4 any person who, in his opinion, is a child and who

(a)

has no home, settled place of abode or visible means of subsistence, or no parent or guardian exercising regular and proper guardianship; or

(b)

is found begging or is found doing for a consideration any act under circumstances contrary to the well being of the child; or

(c)

is found destitute and his parent or other guardian is undergoing transportation or imprisonment; or

(d)

is under the care of a parent or guardian who habitually neglects or cruelly illtreats the child; or

(e)

is generally found in the company of any reputed criminal or prostitute not being his parent or guardian; or

(f)

is residing in or frequenting a house used by a prostitute for the purpose of prostitution and is not the child of that prostitute; or

(g)

is otherwise likely to fall into bad association or to be exposed to moral danger or to enter upon a life of crime.

(2)

The Court before which a child referred to in sub section (1) is brought shall examine the information and record the substance of such examination, and, if it thinks there are sufficient grounds for making further inquiry, it shall fix a date for the purpose.

(3)

On the date fixed for the inquiry under sub-section (2) or on any subsequent date to which the proceedings may be adjourned, the Court shall hear and record all relevant evidence which may be adduced for and against any action that may be taken under this Act and may make any further inquiry it thinks fit.

(4)

If the Court is satisfied on such inquiry that such person is a child as described in sub-section (1) and that it is expedient so to deal with him, the Court may order him to be sent to a certified institute or approved home or may order him to be committed in the prescribed manner to the care of a relative or other fit person named by the Court and willing to undertake such care, until such child attains the age of eighteen years, or for any shorter period.

(5)

The Court which makes an order committing a child to the care of a relative or other fit person may, when making such order, require such relative or other person to

execute a bond, with or without sureties, as the Court may require, to be responsible for the good behaviour of the child and for the observance of such other conditions as the Court may impose for securing that the child may lead an honest and industrious life.

(6)

The Court which makes an order committing a child to the care of a relative or other fit person under this section may, in addition order that he be placed under the supervision of a Probation Officer or other fit person named by the Court

33. (1) Where the parent or guardian of a child complains to a Juvenile Court or to a Court empowered under section 4 that he is unable to control the child, the Court may, if satisfied on inquiry that it is expedient so to deal with the child, order the child to be committed to a certified institute or an approved home for a period not exceeding three years.

(2)

The Court may also, if satisfied that home conditions are satisfactory and what is needed is supervision, instead of committing the child to a certified institute or approved home, place him under the supervision of a Probation Officer for a period not exceeding three years.

PART VI SPECIAL OFFENCES IN RESPECT OF CHILDREN

34. If any person over the age of sixteen years, who has the custody, charge or care of any child assaults, ill-treats, neglects, abandons or exposes such child or causes such child to be assaulted, ill-treated, neglected, abandoned or exposed in a manner likely to cause such child unnecessary suffering or injury to his health, including loss of sight or hearing or injury to limb or organ of the body and any mental derangement, such person shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to Taka one thousand, or with both.

35. Whoever employs any child for the purpose of begging, or causes any child to beg, or whoever having the custody, charge or care of a child, connives at or encourages his employment for the purpose of begging, or whoever uses a child as an exhibit for the purpose of begging, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to Taka three hundred, or with both.

36. If any person is found drunk in any public place, whether a building or not, while having the charge of a child, and if such person is incapable by reason of his drunkenness of taking due care of the child, such person shall be punishable with fine which may extend to Taka one hundred.

37. Whoever in any public place, whether a building or not, gives or causes to be given to any child any intoxicating liquor or dangerous drug except upon the order of a duly qualified medical practitioner in case of sickness or other urgent cause shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to Taka five hundred, or with both.

38. Whoever takes a child to any place where intoxicating liquor or dangerous drugs are sold, or being the proprietor, owner or a person in charge of such place, permits a child to enter such place, or whoever causes or procures a child to go to such place, shall be punishable with fine which may extend to Taka five hundred.

39. Whoever by words either spoken or written or by signs or otherwise incites or attempts to incite a child to make any bet or wager or to enter into or take any share or interest in any betting or wagering transaction or so incites a child to borrow money or to enter into any transaction involving the borrowing of money shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to Taka two hundred, or with both.

40. whoever takes an article on pledge from a child, whether offered by that child on his own behalf or on behalf of any person, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to Taka five hundred, or with both.

41. Whoever allows or permits a child over the age of four years to reside in or frequently to go to a brothel shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to Taka one thousand, or with both.

42. Whoever having the actual charge of, or control over, a girl under the age of sixteen years causes or encourages the seduction or prostitution of that girl or causes or encourages any person other than her husband to have sexual intercourse with her shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to Taka one thousand, or with both.

Explanation: For the purposes of this section, a person shall be deemed to have caused or encouraged the seduction or prostitution of a girl if he has knowingly allowed the girl to consort with, or to enter or continue in the employment of, any prostitute or person of known immoral character

43. If it appears to a Court on the complaint of any person that a girl under the age of sixteen years is, with or without the knowledge of her parent or guardian, exposed to the risk of seduction or prostitution, the Court may direct the parent or guardian to enter into a recognisance to exercise due care and supervision in respect of such girl.

44. (1) Whoever secures a child ostensibly for the purpose of menial employment or for labour in a factory or other establishment, but in fact exploits the child for his own ends, withholds or lives on his earnings, shall be punishable with fine which may extend to Taka one thousand.

(2) Whoever secures a child ostensibly for any of the purposes mentioned in sub-section (1), but exposes such child to the risk of seduction, sodomy, prostitution or other immoral conditions shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to Taka one thousand, or with both.

(3) Any person who avails himself of the labour of a child exploited in the manner referred to in sub-section (1) or sub-section (2), or for whose immoral gratification such child is used, shall be liable as an abettor.

45. Whoever(a) Knowingly assists or induces, directly or indirectly, a child or youthful offender detained in or placed out on license from a certified institute or approved home to escape from the institute or home or from any person with whom he is placed out on license or any child to escape from the person to whose custody he is committed under this Act; or (b) Knowingly harbours, conceals or prevents from returning to certified institute or approved home or to any person with whom he is placed out on license or to the person to whose custody he is committed under this Act a child or youthful offender who has so escaped, or knowingly assist in so doing.

shall be punishable with imprisonment for a term which may extend to two months, or with fine which may extend to Taka two hundred, or with both.

46. Whoever publishes any report or picture in contravention of the provisions of section 17 shall be punishable with imprisonment for a term which may extend to two months, or with fine which may extend to Taka two hundred, or with both.

47. Notwithstanding anything contained in the Code, all offences under this part shall be cognizable.

PART VII YOUTHFUL OFFENDERS

48. Where a person apparently under the age of sixteen years is arrested on a charge of a nonbailable 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.

49. (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 (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.

50. 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.

51. (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: 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.

(2) A youthful offender sentenced to imprisonment shall not be allowed to associate with adult prisoners.

52. 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.

53. (1) 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 he 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.

(2)

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 of probation.

54. (1) Where a child is convicted of an offence punishable with fine, the Court shall order that the fine be paid by the parent or guardian of the child, unless the Court is satisfied that the parent or guardian cannot be found or that he has not conduced to the commission of the offence by neglecting to exercise due care of the child.

(2)

Where a parent or guardian is directed to pay a fine under sub-section (1), the amount may be recovered in accordance with the provision of the Code.

PART VIII MEASURES FOR DETENTION, ETC, OF CHILDREN AND YOUTHFUL OFFENDERS

55. (1) Any Probation Officer or police officer not below the rank of Assistant Sub-Inspector or a person authorised by the Government in this behalf may take to a place of safety any child in respect of whom there is reason to believe that an offence has been or is likely to be committed.

(2)

A child so taken to a place of safety and also any child who seeks refuge in a place of safety may be detained until he can be brought before a Court: Provided that such detention shall not, in the absence of a special order of the Court, exceed a period of twenty-four hours exclusive of the time necessary for journey from the place of detention to the Court.

(3)

The Court may thereupon make such order as hereinafter provided.

56. (1) Where it appears to the Court that there is reason to believe that an offence as stated in section 55 has been committed or is likely to be committed in respect of any child who is brought before it and that it is expedient in the interest of the child that action should be taken under this Act, the Court may make such order as circumstances may admit and require for the care and detention of the child until a reasonable time has elapsed for the institution of proceedings against the person for having committed the offence in respect of the child or for the purpose of taking such other lawful action as may be necessary.

(2)

The order of detention made under sub-section (1) shall remain in force until such time as the proceedings instituted against any person for an offence referred to in sub section (1) terminate in either conviction, discharge or acquittal.

(3)

An order passed under this section shall be given effect to notwithstanding that any person claims the custody of the child.

57. Any Court by which a person is convicted of having committed an offence in respect of a child or before which a person is brought for trial for any such offence shall direct the child concerned to be produced before a Juvenile Court or, where there is no Juvenile Court, a Court empowered under section 4 for making such orders as it may deem proper.

58. The Court before which a 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

(b)

to be committed to the care of a relative or other fit person 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 a 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.

59. The Court who makes an order committing a child to the care of his parent, guardian or other fit person under the foregoing provisions may, in addition, order that he be placed under supervision.

60. If it appears to the Court on receiving a report from the Probation Officer or otherwise that there has been a breach of the supervision order relating to the child in respect of whom the supervision order had been passed, it may, after making such inquiries as it deems fit, order the child to be detained in a certified institute.

61. (1) If it appears to a Juvenile Court or a Court empowered under section 4 from information on oath or solemn affirmation laid by any person who, in its opinion, is acting in the interest of the child that there is reasonable cause to suspect that an offence has been or is being committed or unless immediate steps be taken will be committed in respect of the child, the Court may issue a warrant authorising any police officer named therein to search for such child and if it is found that he has been or is being willfully ill-treated or neglected in the manner hereinbefore stated or that any offence has been or is being committed in respect of the child, to take him to and detain him in a place of safety until he can be brought before it and the Court before which the child is brought may, in the first instance, remand him in the prescribed manner to a place of safety.

(2)

The Court issuing a warrant under this section may, by the same warrant, direct that any person accused of any offence in respect of the child be apprehended and brought before it or direct that if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court the officer to whom the warrant is directed shall take such security and shall release such person from custody.

(3)

The police officer executing the warrant shall be accompanied by the person laying the information if such person so desires and may also, if the Court by which the warrant is issued so directs, be accompanied by a duly qualified medical practitioner.

(4)

In any information or warrant under this section the name of the child shall be given, if known

PART IX MAINTENANCE AND TREATMENT OF COMMITTED CHILDREN

62. (1) The Court which makes an order for the detention of a child or youthful offender in a certified institute or approved home or for the committal of a child or youthful offender to the care of a relative or fit person may make an order on the parent or

other person liable to maintain the child or youthful offender, to contribute to his maintenance, if able to do so, in the prescribed manner.

(2)

The Court before making any order under sub-section (1) shall enquire into the circumstances of the parent or other person liable to maintain the child or youthful offender and shall record evidence, if any, in the presence of the parent or such other person, as the case may be.

(3)

Any order made under this section may be varied by the Court on an application made to it by the party liable or otherwise.

(4)

The person liable to maintain a child or youthful offender shall, for the purposed of sub-section (1), include in the case of illegitimacy his putative father:

Provided that, where the child or youthful offender is illegitimate and an order for his maintenance has been made under section 488 of the Code, the Court shall not ordinarily make an order for contribution against the putative father but may order the whole or any part of the sums accruing due under the said order for maintenance to be paid to such person as may be named by the Court and such sums shall be applied by him towards the maintenance of the child or youthful offender.

(5)

Any order under this section may be enforced in the same manner as an order under section 488 of the Code.

63. (1) In determining the certified institute, approved home or fit person or other person to whose custody a child is to be committed under this Act, the Court shall ascertain the religious denomination of the child and shall, if possible, in selecting such certified institute, approved home or fit person have regard to the facilities which are afforded for instruction in his religion.

(2)

When a child is committed to the care of a certified institute or approved home in which facilities for instruction in his religion are not afforded, or is entrusted to the care of a fit person who has no special facilities for the bringing up of the child in his religion, the authorities of such certified institute or approved home, or such fit person shall not bring the child up in any religion other than his own.

(3)

Where it is brought to the notice of the Chief Inspector that a breach of sub-section (2) has been committed, the Chief Inspector may transfer the child from the custody

of such certified institute, approved home or fit person to any other certified institute or approved home as he may deem proper.

64. (1) When a youthful offender or child is detained in a certified institute or approved home, the managers of the institute or home may, at any time, with the consent in writing of the Chief Inspector, by licence, permit the youthful offender or child, on such conditions as may be prescribed, to live with any trustworthy and respectable person named in the licence willing to receive and take charge of him with a view to train him for some useful trade or calling.

(2)

Any licence so granted shall be in force until revoked or forfeited for the breach of any of the conditions on which it was granted.

(3)

The managers of the certified institute or approved home may, at any time by order in writing, revoke any such licence and order the youthful offender or child to return to the institute or home, as the case may be, and shall do so at the desire of the person to whom the youthful offender or child is licensed.

(4)

If the youthful offender or child refuses or fails to return to the certified institute or approved home, the managers of the institute, or home, as the case may be, may, if necessary, arrest him, or cause him to be arrested, and may take him, or cause him to be taken, back to the institute or home, as the case may be.

(5)

The time during which a youthful offender or child is absent from a certified institute or approved home in pursuance of a licence under this section shall be deemed to be part of the time of his detention in the institute or home, as the case may be: Provided that, when a youthful offender or child has failed to return to the institute or home, as the case may be, on the licence being revoked or forfeited, the time which elapses after his failure so to return shall be excluded in computing the time during which he is to be detained in the institute or home, as the case may be.

65. (1) Notwithstanding anything to the contrary contained in any law for the time being in force, any police officer may arrest without a warrant a child or youthful offender who has escaped from a certified institute or approved home or from the supervision of a person under whose supervision he was directed to remain, and shall send the child or youthful offender back to the certified institute or approved home or the

person, as the case may be, without registering any offence or prosecuting the child or youthful offender and the said child or youthful offender shall not be deemed to have committed any offence by reason of such escape.

(2)

When a child absconding from a certified institute or approved home has been arrested, he shall be detained in a place of safety pending his removal to the certified institute or approved home, as the case may be.

PART X MISCELLANEOUS

66. (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.

(2)

An order or judgment of the Court shall not be invalidated by any subsequent proof that the age of such person has not been correctly stated by the Court, and the age presumed or declared by the Court to be the age of the person so brought before it shall, for the purposes of this Act be deemed to be true age of that person and, where it appears to the Court that the person so brought before it is of the age of sixteen years or upwards, the person shall, for the purpose of this Act, be deemed not to be a child.

67. (1) The Government may, at any time, order a child or youthful offender to be discharged from a certified institute or approved home, either absolutely or on such condition as the Government may specify.

(2)

The Government may, at any time, discharge a child from the care of any person to whose care he is committed under this Act, either absolutely or on such conditions as the Government may specify.

68. (1) The Government may order any child or youthful offender to be transferred from one certified institute or approved home to another.

(2) The Chief Inspector may order any child to be transferred from one certified institute or approved home to another.

69. (1) If in any case in which information has been laid by any person under the provisions of section 61, the Court after such inquiry as it may deem necessary is of opinion that such information is false and either frivolous or vexatious, the Court may, for reasons to be recorded in writing, direct that compensation to such an amount not exceeding Taka one hundred as it may determine be paid by such informer to the person against whom the information was laid.

(2) Before making any order for the payment of the compensation, the Court shall call upon the informer to show because why he should not pay compensation and shall consider any cause which such informer may show.

(3) The Court may by the order directing payment of the compensation further order that in default of payment the person ordered to pay such compensation shall suffer simple imprisonment for a term not exceeding thirty days.

(4) When any person is imprisoned under sub-section (3), the provisions of sections 68 and 69 of the Panel Code (XLV of 1860), shall, so far as may be, apply.

(5) No person who has been directed to pay compensation under this section shall by reason of such order be exempted from any civil liability in respect of the information but any amount paid as compensation shall be taken into account in any subsequent civil suit relating to such matter.

70. When a child is found to have committed any offence, the fact that he has been so found shall not have any effect under section 75 of the Panel Code (XLV of 1860), or section 565 of the Code or operate as a disqualification for any office, employment or election under any law.

71. Save as provided in this Act, the words `conviction' and "sentenced" shall cease to be used in relation to children or youthful offenders dealt with under this Act, and any reference in any enactment to a person convicted, a conviction or a sentence shall, in the case of a child or youthful offender be construed as a reference to a person found guilty of an offence, a finding of guilty or an order made upon such a finding, as the case may be.

72. Any person to whose care a child is committed under the provisions of this Act shall, while the order is in force, have the like control over the child as if he were his parent, and shall be responsible for his maintenance, and the child shall continue in his care for

the period stated by the Court notwithstanding that he is claimed by his parent or any other person.

73. The provisions of Chapter XLII of the Code shall, so far as may be, apply to bonds taken under this Act.

74. The Chief Inspector, Inspectors Assistant Inspectors, Probation officers and other persons authorised or entitled to act under any of the provisions of this Act shall be deemed to be public servants within the meaning of section 21 of the Penal Code (XLV of 1860).

75. No suit, prosecution or other legal proceedings shall be instituted against any person for anything which is in good faith done or intended to be done under this Act.

76. (1) Notwithstanding anything contained in the Code, an appeal from an order made by a Court under the provisions of this Act shall lie(a) if the order passed by a Juvenile Court or a Magistrate empowered under section 4, to the Court of Session, and (b)

if, the order is passed by a Court of Session or Court of an Additional Sessions

Judge or of an Assistant Sessions Judge, to the High Court

Division.

(2) Nothing in this Act shall affect the powers of the High Court Division to revise any order passed by a Court under this Act

77. (1) The Government may make rules for carrying out the purposes of this Act. (2)

In Particular, and without prejudice to the generality of the foregoing power, such rules may provide for-

(a) the procedure to be followed by Juvenile Courts and other Courts empowered under section 4 in the trial of cases and the hearing of proceedings under this Act; (b) the places at which, dates on which and the manner in which a Juvenile Court shall hold its sittings under section 7 (1); (c) the conditions subject to which institutions, industrial schools or other educational institutions shall be certified or approved home shall be recognised for the purposes of this Act;

(d) the establishment, certification, management, maintenance, records and accounts of certified institutes; (e) the education and training of inmates of certified institutes and the leave of absence of such inmates; (f) the appointment of visitors and their tenure of office; (g) the inspection of certified institutes and approved homes; (h) the internal management and discipline of certified institutes and approved homes; (i) the conditions subject to which institutions shall be recognised as approved places for the purpose of section 14(1); (j) the powers and duties of the Chief Inspector and Probation Officers; (k) the manner of authorizing persons for the purposes of sections 32 and 55; (l) the form of bond under the proviso to section 58; (m)the manner in which a child shall be remanded to a place of safety under section 61 (1); (n) the manner in which contribution for the maintenance of child may be ordered to be paid under section 62(1); (o) the condition under which a child may be released on licence and the form of such licence under section 64; (p) the conditions subject to which a child may be committed to the care of any person under this Act and the obligations of such person towards the child so committed; and (q) The manner of detention of a child under arrest or remanded to police custody or committed for trial.

78. (1) The Bengal Children Act, 1922 (Ben. Act II of 1922), is hereby repealed.

(2) The Reformatory Schools Act, 1897 (VIII of 1897), shall be deemed to be repealed in any area in which this Act is brought into force under section 1 (3) from the date of such enforcement.

(3) The provisions of section 29B and 399 of the Code shall cease to apply to any area in which this Act shall be brought into force.