The full text of the verdict was released on Wednesday night
The High Court, in a full judgement, has observed that the mobile court law has not empowered executive magistrates to conduct trials of children.
"The Mobile Court Act, 2009, has already been declared unconstitutional by the High Court. However, the operation of that judgment has been stayed by the Appellate Division upon grant of a Leave to Appeal, preferred by the government, and the Civil Appeals concerned have been pending before the Appellate Division for a long time. Such long pendency of the said Civil Appeals has, no doubt, created huge confusion amongst the public, particularly when the mobile courts run by the executive magistrates are continuously functioning and sentencing numerous numbers of people every day merely on the strength of the said stay order", the court observed.
This kind of conviction has exposed the appearance of a parallel judicial system that is contrary to conventional law and the constitution of the country, the court further stated in its observation.
The full text of the verdict was released on Wednesday night after the HC bench of Justice Sheikh Hassan Arif and Justice Md Mahmud Hasan Talukder finalized the verdict.
The HC bench said when the Children Act, 2013 has provided special procedures for dealing with and trial of children under the age of 18, the Mobile Court Act cannot confer jurisdiction on the executive magistrates even to deal with children, not to speak of conducting their trials.
Earlier on March 11, the bench in a suo moto order scrapped the convictions and jail sentences handed down by executive magistrate-run-mobile courts to juveniles across the country.
On October 31, last year a national Bangla daily published a report on the conviction of 121 children by mobile courts. Later Barrister Md Abdul Halim and Advocate Ishrat Hasan on behalf of Children’s Charity Bangladesh Foundation (CCBF) placed the newspaper report before the High Court for necessary orders.
In the judgment, the High Court observed that this kind of conviction was not only illegal and unlawful, but also inhumanity to the final dimension.
Considering case records, the High Court found that mobile courts had convicted 23 children in different cases at different places on the same evening, which is an impossible task for any human being, in other words, to be present at two different places at the same time. This impossibility is reflected in each and every case in hand.
The judgment observed that the Children Act 2013, which is a special law, had provided different procedures for dealing with children coming into conflict with the law. Specific procedures have been provided under the Children Act for their trial.
According to Section 16 of the said Act, it is only the Children Court which can conduct trials in respect of the children coming into conflict with the law, and only the senior most judges, equivalent to district judges, who have jurisdiction to try cases under the Nari-O-Shishu Nirjatan Daman Ain, 2000, have been empowered by an amendment in 2018 to conduct trials of such children in compliance with such special procedures.
If the diversion cannot be done, the child may be released on bail by the police (in both bailable and non-bailable offences) even before producing him/her in court. Special procedures have also been provided for the said senior most judges of the district when the child is produced before them. The judge concerned cannot even sit in the formal court to conduct a trial of the child accused and he has been asked to conduct such trials in informal attire. Admittedly, none of the above procedures were followed by the executive magistrates in the cases concerned, it further stated.
The court also observed, since it is the Children Court which can only conduct such trials, trials followed by convictions and sentences imposed by the executive magistrates in the said cases have become null and void in the eye of the law. Besides, the manner in which the said executive magistrates have conducted the said trials, as reflected from the case records sent by them, further reveals that they lacked proper training.