The nuances of confessional statement made by a child

In a landmark judgment in Anis Miah v State, Criminal Appeal No. 6799 of 2011, a full bench of the High Court Division (HCD) deliberated on the "legal implication of confession made under section 164 of the Code of Criminal Procedure [CrPC] by a child in conflict with law". 

The judgment was published at a time when the Children Act 2013 was in force repealing the Children Act 1974. The case was about the offence of murder and kidnapping in which the appellant (Anis Miah), a child under 16 at that time (according to the 1974 Act), made a confessional statement under section 164 of the CrPC. Accordingly, the Police submitted a charge sheet against nine persons including the appellant. The Speedy Trial Tribunal as the Juvenile Court found him guilty and awarded him with punishment of detention and imprisonment of 10 (ten) years.

On appeal, the HCD stated that the recording of confessional statement under section 164 of the CrPC is part of adversarial processes. The application of confessional statement by a child against a juvenile offender, however, runs counter to the fundamental tenets of the juvenile justice system as it intersects with human rights principles. The HCD observed that because neither the 2013's Act nor the 1974's Act makes any provision for recording confession of a child and using the same against him/her, it is in fact legally impossible to do so. Hence, the HCD rejected the contention of the Prosecution that by virtue of section 18 of the 1974 Act or section 42 of the 2013 Act, the confession of a child can be recorded under section 164 of the CrPC and used against him. 

The Court noted that the legislature purposefully did not reenact the provisions of the 1974 Act into the 2013 Act, and this omission implies that a child is not supposed to make a confession in the first place. Eventually, the HCD rejected the contention that the evidentiary value of confession made by a child has already been approved by the Appellate Division in Md Shukur Ali v State (Jail Petition No. 8 of 2004) inasmuch as the question of recording confession of a child or its evidentiary value was not at issue in the said decision.

The Court eventually held that confession of a child under section 164 of CrPC has no evidentiary value, and therefore, such confession cannot form the basis of finding a child guilty in any criminal case. Consequently, the Court allowed the appeal and set aside the judgment and order of the trial court.

Here, a crucial question arises as to whether the arguments, observations, and opinions made by the HCD form a binding law prohibiting the magistrate from recording any confessional statement by a child as defined in the 2013 Act or not.

Significantly, the judgment in Ridoy v State (Criminal Appeal No. 7533 of 2019), made by another bench of the HCD, becomes relevant in this regard. 

The HCD in Ridoy case, raised questions of law as regards who will take cognizance of an offence when the accused person is a child under any special law like the Prevention of Oppression against Women and Children Act 2000 or the Special Powers Act 1974 and so on. It also dealt with who is authorised to decide interlocutory matters like petitions for bail or remand to police custody, and determination of age of a child. The Court was of the opinion that the magistrate is empowered to do the routine works and pass any order for the sake of investigation. It made some seven observations-cum-directives. In one of the directives, it said that the magistrate may record the confessional statement of a child who comes in conflict with law. 

This direction is relevant to the present issue as it involves the question of binding status of the HCD's observation that a child's confessional statement must not be recorded. 

One argument is that a magistrate may deny recording a confessional statement only upon two grounds: if the statement appears not to be "true and voluntary", and when the child refuses to make it. The magistrate's such denial takes support from sections 24-28 of the Evidence Act 1872 concerning relevance of confessional statement, the procedure in section 164 and the manner provided in section 364 of the CrPC about recording confessional statement, and the guidelines detailed in Rules 78 and 79 of Criminal Rules and Orders 2009 (Vol. 1) with regard to the compliance about due care and deliberation.

To conclude, both the judgments of the HCD dealt with some legal points that are not covered in the 2013 Act including the issue of legality of confessional statement made by a child. While in Anis Mea case the Court observed that a confessional statement by a child must not be recorded, the Court in Ridoy case held that a magistrate could do so in the interim period. Now, it is logical to conclude that a magistrate may record confessional statement made by a child who is in conflict with law under the 2013 Act.  

The Writer Is Senior Judicial Magistrate, Bangladesh Judicial Service.