Misnomer in legal field to be resolved!

Repoter : News Room
Published: 26 August, 2021 7:25 pm
Chowdhury Tanbir Ahamed Siddique

Chowdhury Tanbir Ahamed Siddique:

It is pretty much available daily news that children are stolen from medical hospitals after a few hours or days of his/her birth. Most of the time hospital staff are guilty for this offence. Media casts that news as child theft. But, here remains a mistake according to the statutory law. Though minor in nature, once a mistake is always a mistake. So it is high time for corrections.

Let us consider the provisions of the legal arena. According to the section 378 of the Penal Code, 1860, whoever intends to take dishonestly, any movable property, out of the possession of any person, without that person’s consent, moves that property in order to such taking, is said to commit theft. Five grounds are found here to fulfil an offence which is called theft. Human is not covered by the definition of property whether it’s moveable or immovable. Any part of the dead human body like bone used by medical students or doctors may be called property. But, a living human’s body is never a property. As a result, the human body always remains beyond property. It cannot be sold or bought. Therefore, the term, “child theft” is not the correct proposition.

Many experts also claimed that it is better to name “child abduction” replacing “child theft” according to section 362 of Penal Code. But, two grounds need to be fulfilled to say it is abduction. They are: (1) forceful compulsion or inducement by deceitful means and (2) the object of such compulsion or inducement must be the going of a person from any place.  To be noted, there is no option to force a child. Even children do not have any sense to determine whether they are being taken by force or inducement. So, to me, child abduction is also an incorrect scheme.

Section 361 of Penal Code lays down that whoever takes or entices any minor under fourteen (14) years of age if a male or under sixteen (16) years of age if a female or any person of unsound mind, out of the keeping of the legal guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardian. This section enlightens so-called “child theft” as child kidnapping. It is known, all the victims (child) are minors aged 14 & 16 or less and parents or authorized medical staff are legal guardians at that particular moment. Ultimately, any child removed from hospital, clinic, home or any other institution without the consent of his/her legal guardian will amount to child kidnapping, nothing else. That is all about our gross mistake of calling it “child theft”. From now on, it should be called “child kidnapping”, which is valid in law.

On the other hand, very commonly we are hearing and using this word, Bangladesh High Court. But it is a matter of surprise that there is no High Court in Bangladesh. There is an only Supreme Court having two divisions, one is High Court Division and another is Appellate Division. The USA, India, Pakistan or so on have different High Court systems. Those countries have several states and all states have individual High Courts. After the Supreme Court, the High Court is the highest court for those states but in Bangladesh there is no such option for several states as well as High Court. From that sense, there is no existence of the High Court, it is the High Court Division of the Supreme Court for Bangladesh.

From our childhood we are used to hearing Bangladesh Penal Code via Bangla cinema. This is also the wrong word. There is no law named Bangladesh Penal Code. We are using a criminal law named Penal Code 1860. It should be Penal Code only, not Bangladesh Penal Code. India and Pakistan used this act as their own name and that is gradually Indian Penal Code and Pakistani Penal Code.

Apart, generally Judges are named according to their status like- District Judge, Session Judge and so on. But exceptions are found only in the case of the Chief Justice. A Chief Justice does not belong to the Supreme Court,he is the Chief Justice of Bangladesh. But, we are randomly using this wrong word. According to the article 94 of our constitution, the Chief Justice will be called as Chief Justice of Bangladesh. So, we should be aware of the actual word of the law and should use it properly. Media should be highly cautious in this regard.

Chowdhury Tanbir Ahamed Siddique: Writer, Researcher, Land Surveyor