Gulam Rabbani :
Mobile courts operating across the country continue sentencing the minors defying the High Court ruling that declared actions of executive magistrate-run mobile courts convicting children and sentencing them to imprisonments for different tenures on criminal charges illegal and unconstitutional.
Recently a mobile court in Bhairab upazila under Kishoreganj district sentenced three children for one month. Bhairab Upazila Nirbahi Officer (UNO) and Executive Magistrate Lubna Farzana convicted them under Section 7(2) of the Child Marriage Restraint Act, 2017.
The children were sent to the Juvenile Development Centers in Tongi and Konabari under Gazipur district. However, the children were released later from the juvenile centers.
Section 7(3) of the Child Marriage Restraint Act, 2017 said
that the children will be tried according to Children Act, 2013.
The legal experts say that the mobile courts cannot sentence the children for criminal charges defying the children act.
Barrister Shanjid Siddique, a Supreme Court lawyer, said by section 16(1) of the Children Act, 2013 a child who has been accused of committing a crime, or in other words, a child in conflict with the law, shall be tried by the Shishu Adalat of the concerned district. It is also clear after the verdict of the High Court Division that an Executive Magistrate presiding over a mobile court has no jurisdiction to convict and sentence any juvenile offender.
Therefore, if the mobile court holds trial of a child accused, it will be illegal, contemptuous and contrary to Article 31 of the Constitution, added the lawyer.
A High Court bench on March 11 in 2020 declared the actions of executive magistrate-run mobile courts convicting children and sentencing them to imprisonments for different tenures on criminal charges illegal and unconstitutional. But the Appellate Division stayed the judgment later and the appeal is now pending with the apex court.
The High Court recently ordered the Home Secretary to immediately suspend seven police personnel of Bakerganj Police Station of Barishal district including its Officer-in-Charge and the probation officer and to take departmental action against them after declaring the detention and arrest of four children in connection with a rape case in Barishal in October last year as “illegal and contradictory to fundamental rights”.
On October 7 last year, Bakerganj police arrested the four children and produced them before the court of Barishal’s Senior Judicial Magistrate Md Enayet Ullah the same day. The magistrate rejected their bail petitions and ordered police to send them to the development centre. The children were taken to a development centre at Pulerhat in Jashore.
Delivering a verdict on a Suo Muto (voluntary) rule, the HC bench of Justice Md Mozibur Rahman Miah and Justice Md Kamrul Hossain Mollah also ordered the Law Secretary to immediately withdraw the criminal jurisdiction of Senior Judicial Magistrate for ordering to send the minors to the custody of child development centre without granting them bail.
Earlier in 2007 a child gave confessional statement over a rape and murder. A tribunal on Women and Children Repression Prevention sentenced the minor to death, but the High Court acquitted him from the charge as his sentence was not given by any children court.
Following a news report published on Bangla daily, the HC bench on October 31 in 2019 issued a rule asking authorities to explain as to why the conviction of children by mobile courts should not be declared illegal.
According to the newspaper report, mobile courts illegally jailed 121 children for six months to one year and sent them to juvenile correction centres in Tongi and Jashore.
Barrister Md Abdul Halim and Advocate Ishrat Hasan placed the newspaper report before the HC bench for necessary orders. The same day, the HC bench ordered the government to immediately release children-aged under 12 years-who were convicted by mobile courts at various times and kept in juvenile correction centres across the country.
The court said children [under 12 years] have no understanding of consequences of offences, and therefore cannot be convicted by mobile courts and kept in correction centres. It also granted six months’ bail to children-aged between 12 and 18 — who were convicted by mobile courts and kept in the correction centres.
They will be released subject to the satisfaction of the children’s court concerned, after furnishing bail bond, the HC said. After final hearing on the ruling the High Court delivered its verdict on March 11 in 2020.
In the final verdict the High Court scrapped the convictions and jail sentences handed down by the executive magistrate-run-mobile courts to juveniles across the country. The court observed that the process under which executive magistrates convicted and sentenced 121 children through mobile courts is inhuman and in violation of human rights.
“It has damaged the reputation of our judicial system. The magistrates need proper training,” the HC bench of Justice Sheikh Hassan Arif and Justice Md Mahmud Hasan Talukder said after hearing a Suo Muto rule issued by it.
The court also declared actions of executive magistrate-run mobile courts convicting children and sentencing them to imprisonments for different tenures on criminal charges illegal and unconstitutional. It directed authorities concerned of the government to immediately release any children convicted and sentenced by mobile courts, if there are any in custody.
But the judgment was stayed by the Appellate Division on March 16 in 2020 and the appeal is still pending before the apex court.
Barrister Abdul Halim, another Supreme Court lawyer, said operations of the mobile courts by the Executive Magistrates are violating the fundamental rights of all including the children. Because the mobile court itself takes testimony, investigates and judges the allegations, and punishes the accused which is rare in the world.
