Whether appointment of a lawyer for a fugitive child is mandatory or not?
Rajib Deb :
Before going into depth, it is to necessary to quote section 55 (1) of the শিশু আইন২০১৩ which postulates… “আইনের সহিত সংঘাতে জড়িত শিশু এবং আইনের সংস্পর্শে আসা শিশুর পক্ষে আইনগত প্রতিনিধিত্ব ব্যতীত কোন আদালত কোন মামলার বিচার কার্য পরিচালনা করিবে না”
The easy and short explanation to the question is whether it is mandatory to appoint legal representative or lawyer for the Shishu accused who is absconding. To be added, it is needless to say that due to existence of sec 55 (1) of Shishu Ain question may generally arise as to the appilication of sec 339B of the Code in regard to trial of the absconding. To be mentioned, Shishu Ain isnt either substantive law nor a procedural law nor a complete Code of law rather it just prescribes certain mandatory guidelines for trial (not cognizance) of certain class of accused being Shishu. In other sense, this Ain doesnt prescribe any penal offence nor any procedure rather it is just an ancillary mode of trial to the general procedure as prescribed in the Code. Hence section 55(1) of Shishu Ain doesn’t have any recourse to come into force when the accused Shishu is absconding and in that case sec 339B shall come into force.
Again from sec 16 to 32 specially sec 22 of the Shishu Ain prescribes the mandotory guidelines for holding trial of the accused Shishu who is present or brought before the Shishu adalot but these provisions are not applicable even no provision of the said Ain prescribes any mandatory Guidelines for holding trial of the Shishu accused who is absconding before the Shishu Adalot. In absence of provision in regard to trial of the absconding, obviously sec 339B of the Code shall come into force.
Again the legal representative mentioned in sec 55(1) of the Shishu Ain comes into force only when the Shishu accused is present before the Shishu Adalot but when he is absconding there arises no question as to appointment of legal representative.
Again since legal representative hasn’t been defined in the Ain, it shall mean and indicate appointment of the lawyer in his behalf which is the result of art 35 of the Constitution but where the Shishu accused is absconding, there arises no question of legal representative or lawyer in his behalf where sec 339B of the Code shall come into force.
But since as per ejahar, police report, it has been proved that the accused is Shishu and since as per sec 33(1) of the Ain, the presence of the Shishu accused isn’t necessary on the date judgment though he hasnt been tried under sec 55(1) of the Shishu Ain but tried under sec 339B of the Code, he shall be judged and shall get benefit as Shishu while giving him conviction.
In view of the readons as stated above, I am of the opinion that in all types of cases even if the child in conflict remains fugitive appointment of a lawyer is not mandatory and the Shishu Adalot shall proceed on with the trial in absentia. I am also of the opinion that though sec 55(1) of the Shishu Ain requires no trial without appointment of lawyer but that provision shall not be applicable if the Shishu accused is absconding.
Writer: Judicial Magistrate, Senior Judicial Magistrate Court, Cox’s Bazar.
