1/31/2021

ASSIGNMENT ON
WRITING CASE COMMENT
COURSE NO: EFL 208

Submitted To: Submitted By:

UNIVERSITY OF CHITTAGONG
State v. Secretary, Ministry of Law, Justice
& Parliamentary Affairs and Others
CASE DETAILS:

State
V.
Secretary, Ministry of Law, Justice & Parliamentary Affairs and
Others
……..Respondents

(SUO MOTU RULE NO.5621 OF 2009), 29 BLD 656

Decided on:
September 3, 2009

Court:
High Court Division

Honorable Judges/Coram:
Mr. Justice Md. Imman Ali
And
Mr. Justice Md. Fazlur Rahman

Judgement:
Mr. Justice Md. Imman Ali

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Introduction:
1
Children come into contact with the law for various reasons – as defendants or witnesses in
criminal proceedings; as parties in family proceedings; as victims of physical or psychological
violence, sexual abuse or other crimes or rights violations; and as parties in civil or
administrative proceedings on issues including health care, social security, disability, and
asylum and refugee claims. The outcomes of these cases can be hugely significant for the
children’s lives in both the long term and the short term. They can determine whether the
children go into detention, whom they will live with, what contact they can have with their
parents and siblings, which country they will live in and where they will go to school. Most
children who are in contact with the law find the actual experience of legal proceedings
confusing at best and a source of fear, distress and secondary victimization at worst. It is not
unusual for them to find it difficult to communicate with the adults involved, to mistrust
police and judges, to lack basic information and understanding about processes and
procedures, and to face discrimination because of their age, gender or other characteristics
such as living and working on the street or seeking asylum. Recalling painful events can be
very stressful for child victims and witnesses, and if the legal procedure is not child-sensitive
it may have long-term and harmful consequences for their recovery. However many legal
systems do nothing – or very little – to enable children to participate in proceedings in a
safe, meaningful and dignified manner. One important building block for a child-friendly
justice system is to take into consideration the best interests of the child which is exactly
what was overlooked by a learned Magistrate in this case & a minor girl was deprived of her
right to custody.

Factual_Background:
A minor was allegedly raped by her neighbor and distant relative [identity withheld]. The
parents of the girl, after getting treatment for her from a local clinic, took her for better
treatment to the Osmani Medical College Hospital, Sylhet and, thereafter, took her to the
Osmani Nagar Police Station on 27.03.2009 in order to lodge a First Information Report
(F.I.R.). Police, after recording the case, sent the girl to the Court of the learned Magistrate,
who ordered the girl to be kept in safe custody at the Safe Home in Bagbari, Sylhet, managed
by the Department of Social Welfare.

It is reported that being aggrieved by the occurrence which took place, the parents of the
victim girl took her before the authorities in order to seek justice and the 7 (seven)-year-old
child, who reads in Class III, was sent to safe custody. She is so young that she cannot sleep

1 : Article 1, UN Convention on the Rights of the Child (1989)

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without her mother. The mother posed the question: "what type of law is this?" It further
transpires from the report that the parents are not allowed to visit the girl and the Magistrate
would not give the girl to the Jimma of her father.

Dr. Naim Ahmed, representing Aparajeyo-Bangladesh informed the Court that according to
his information the parents of the girl lodged an F.I.R., which was recorded as Osmani Nagar
Police Station Case No.17 (3)09 dated 27.03.2009 under the Nari-o-Shishu Nirjatan Daman
Ain, 2000. The victim was produced before the learned Chief Judicial Magistrate, Sylhet who,
on 31.03.2009, ordered her to be taken to safe custody.

Finding the above sequence of events to be rather disturbing, especially since it appeared
to us that the little girl was being held in safe custody without lawful authority while her
parents, who were willing and capable of keeping her, the High Court issued a "Suo Motu
Rule" to the government (the Secretary, Ministry of Law, Justice & Parliamentary Affairs and
other responsible departments), forcing them to explain whether and why the girl needed
to be held in the safe home.

Issue and resolution:

1. Separation from parents and State custody of child victims. The Court found that the
Magistrate had acted illegally in ordering the girl to be kept in state custody.

2. The Court also made a number of recommendations, calling for, among other things,

2(A). The establishment of child-specific courts in every district.

2(B). Specialized training for police and other members of the criminal justice system
who deal with children (including training for lawyers and judges on the CRC and
other international instruments)

2(C). New laws implementing Bangladesh's obligations under 2international treaties

2 Article 3, Convention on the Rights of the Child, 1989

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Court’s reasoning:

State custody of a child victim under 3Section 58 of the Children Act, 1974 (the "1974 Act") is
a measure of last resort. Custody should be given to the parent or guardian of the child
victim, provided they are fit and capable of exercising proper care, control and protection.
Where such a parent or guardian exists, there is no need for the courts to even consider the
two alternatives provided under Section 58 of the 1974 Act—namely committing the child
to a certified institute or home or to the care of a relative or other fit person. In addition, the
Magistrate's order was not in the best interests of the child and violated the CRC, which the
judiciary is obliged to follow to the extent its provisions do not conflict with Bangladesh's
domestic law.

The learned Senior Judicial Magistrate in his written explanation sent to this Court stated
that since he did not receive any prayer for releasing the victim girl to the custody of the
parents he ordered for her to be sent to the safe home. Upon a careful reading of the
relevant section of law it appears to us that the proviso has an over-riding effect, inasmuch
as if the child has a parent or guardian fit and capable in the opinion of the Court of
exercising proper care, control and protection, then the custody of the victim girl is to be
given to her parents and that would obviate the need for the Court even to consider the
other two alternatives, namely committing her to a certified institute or approved home or
committing her to care of a relative or other fit person. The court did not find from the
Children Act, 1974 that there is any requirement for an application to be made by the
parents. On the contrary, in view of the age of the victim girl, who was seven years old at
the relevant time, and had been brutally raped, the court felt that the learned Magistrate
should have realized that it would be inhuman to separate such a tender-aged girl from her
parents and send her to a safe home. Moreover, on 07.04.2009 there was a written
application made by the Officer-in-Charge of the police station to allow the mother of the
victim to stay with her in the safe home. At that stage it should have been abundantly clear
to the learned Magistrate that the parents of the girl were eager to have her custody. Even
then the learned Magistrate was not sufficiently moved either by sentiment, compassion or
by requirement of law to release the girl to the custody of her parents

3 Section 58, Children Act, 1974

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Analysis:

In the facts of the instant case, had the best interests of the child been considered then the
learned Senior Judicial Magistrate, Sylhet should have realized that the best interests of a
seven year old girl demands (emphasis added) that she be allowed to remain with her
parents. The learned Magistrate, if he had any sense of common humanity in his dealings
with a child and if he had applied a humane attitude, then he would have searched out the
girl's parents in order to ascertain that they are fit and capable of retaining her custody....
When it is apparent that the girl was crying to be with her mother, that clearly is an
expression of the view of the child to be with her mother and in compliance with 4 Article 12
of the CRC the learned Magistrate should have given effect to it.… There is nothing on record
to suggest that the learned Magistrate at all considered the views of the child which shows
abject ignorance of the international provisions, which are meant to be for the welfare and
wellbeing of children. Moreover, the tearing away of a seven year old female child from the
bosom of her mother can be nothing other than cruel and inhuman treatment which is
contrary to Article 27 of the CRC as well as 5Article 35(5) of our Constitution. The learned
Magistrate has clearly acted in contravention of the provisions of law, the Constitution and
the CRC, to which Bangladesh is a signatory.

I recommend that one Court in each district must be designated as being a Court dedicated
to hear cases involving child offenders so that children’s cases can be heard and disposed
of on priority basis [Art.37(d) CRC]. Legal Aid must be made available in all matters involving
children so that no child remains unrepresented [Art.40(2)(b)(ii)CRC]. Make Probation
Officers available on call round the clock in all parts of the country to enable proper and
effective implementation of 6section 50 of the Children Act, 1974. Similarly, places of safety
must be set up, at least one in every district and local health clinics must be empowered for
the purpose of medical examination of victims so that the need to detain victims in custody
will be considerably reduced.

Conclusion:

I believe this decision is consistent with the Constitution of Bangladesh, Children Act, 1974
& CRC. In general, States should make every effort to ensure that children remain with their
families whenever possible. Children should also be given a voice in proceedings that affect
them, including custody determinations, and the Court should always consider the child's

4 Article 12, Article 27, Article 37(d), Article 40(2)(b)(ii), Convention on the Rights of the Child, 1989
5 Article 35(5), The Constitution of Bangladesh
6 Section 50, Children Act, 1974

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views when making a decision about what might be in his or her best interests. CRIN also
believes that extensive legal reform is necessary to bring laws, policies, and practices in line
with the CRC, and supports this decision's recommendations to the Government of
Bangladesh to better respect children's rights.

Citation:
State v. Secretary, Ministry of Law, Justice & Parliamentary Affairs and Others, Suo-Motu Rule
No.5621 of 2009, High Court Division, Bangladesh (3 Sept. 2009).

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