The High Court in a full judgement has prohibited the magistrates from recording confessional statements of juvenile accused under Section 164 of the Code of Criminal Procedure stating that ‘the Children Act does not contain any legal provision for recording child confession’.
A juvenile offender or a person who has crossed childhood during trial or detention cannot be given detention for more than 10 years for offences punishable with death or life term imprisonment, according to the 63-page judgement released on Wednesday.
Earlier, on August 28, 2019, the special HC bench of Justice Md Shawkat Hossain, Justice Md Ruhul Quddus and Justice ASM Abdul Mobin pronounced a brief verdict acquitting a child of the charges of abduction and murder of a seven-year-old boy named Saikat in Netrakona on February 15, 2010.
The HC bench observed that the Dhaka Speedy Trial Tribunal-4, which on October 13, 2011 decided a 10-year detention for the accused, had no jurisdiction to try a juvenile offender as juvenile courts were constituted earlier.
The speedy trial tribunal ordered the detention of the 16-year-old offender in a Juvenile Development Centre until he became 18 years old and then shifting him to jail to serve the remaining part of his punishment.
The police had arrested the juvenile accused on February 21, 2010 and his confessional statement was recorded by a judicial magistrate the following day.
The police pressed charges against him, along with six adult accused, showing him as an 18-year-old person under the Women and Children Repression Prevention Act although the speedy trial tribunal, while framing the charges on February 15, 2011, found him 15 years and seven months old as per his birth-related documents.
The High Court on August 28, 2019 in separate verdict in the same case acquitted the convict, Oli, of the charges that the accused had phoned the victim’s father for ransom after abducting the boy was not proved by the prosecution with evidence.
The High Court in Wednesday’s full verdict issued three directives, saying: ‘The confession of a child in conflict with the law recorded under Section 164 of the Code of Criminal Procedure has no legal evidentiary value and, therefore, such confession cannot form the basis of finding of guilt against him.’
The court added, ‘A Juvenile Court constituted under the Children Act, 1974 as was in force before and now under the Shishu Ain 2013, has got exclusive jurisdiction to try the cases, where children in conflict with the law are charged with criminal offences.’
‘No other court or tribunal constituted under any other special or general law irrespective of its age of legislation has jurisdiction to try such cases unless the jurisdiction of the juvenile court is excluded there. The Druto Bichar Tribunal cannot assume the jurisdiction of a Juvenile Court in any manner whatsoever,’ the verdict said.
The verdict further said, ‘In imposing punishment for offences punishable with death or imprisonment for life, the maximum term of imprisonment against a juvenile offender, or a person who crossed childhood during the trial or detention, cannot be more than 10 years.’
The court also discouraged recording confessional statements of adult accused, stating that the law of confession that was incorporated in the Evidence Act 1872, the Code of Criminal Procedure 1898, the Anti-Terrorism Act 2009 and some other laws in general disclosed the manner of offence and names of the offenders by a repenting accused.
‘This is why recording of confession on allurement, false hope, pressure, coercion, physical torture etcetera are strictly prohibited and have no evidentiary value,’ the court observed.
The court further observed: ‘It is a common attitude of all human beings that they conceal their involvement in any punishable offence. It is equally common that an offender after commission of an offence under whatever circumstances for whatever reasons tries to escape the liability. So, voluntariness of confession is extremely exceptional in human nature. Only in rarest of the rare cases, an accused makes confession out of repentance and guilty feelings.’
‘In our criminal investigation system, investigating agencies appear to be more interested in taking an accused on remand and extract confession from him rather than collecting reliable and scientific evidence regarding his involvement in the alleged occurrence. In such a position, if children are brought within the scope of recording confession, the purpose of punishing the real offender may fail and there is every possibility that innocent children will be victimized,’ it further said.
‘We, therefore, completely disapprove of the making of confession by a child and use of the same against himself in a juvenile case,’ the court concluded.
The HC ruling prohibiting confessional statements of juvenile accused and discouraging recording of confession of adult accused came at a time when several victims appeared alive in trial courts in recent days after police investigators branded them as murderers of the victims referring to confessional statements of the detained persons, Supreme Court lawyer Shishir Manir told New Age.
Shishir said that he had conducted such a case in which the HC bench of Justice M Enayetur Rahim and Justice Md Mostafizur Rahman asked the chief judicial magistrate of Narayanganj to hold a judicial inquiry into the incident of branding by the police a living abducted girl as ‘murdered’ and her return after 51 days.
He said that the magistrate in his inquiry found that the three accused in the abduction case had been tortured in police custody in order to extract the false confessions for making a living person murdered before producing them before the judicial magistrate to record their confessions.
Shishir said that the High Court on Wednesday fixed April 13 for hearing afresh the application he had filed an application seeking guidelines for the police on interrogating detained accused and for the magistrates on recording confessional statements.