The High Court yesterday ordered the government to immediately suspend six police personnel and curtail the criminal jurisdiction of a senior judicial magistrate for acting beyond their authority while handling a rape case involving four children in Barishal.

The confinement of four children in connection with a rape case in October 2020 was illegal and unconstitutional, observed the HC bench of Justice Md Mozibur Rahman Miah and Justice Md Kamrul Hossain Mollah.

The court also ordered the suspension of a probation officer in Bakerganj for failing to discharge duties.

Delivering the verdict on a suo moto rule, the HC observed that Senior Judicial Magistrate Enayet Ullah demonstrated poor acumen about the Children Act 2013 while dealing with the case against the four children.

The bench said the children's court cannot refuse bail to a child accused under section 29 of the Children Act, 2013.

The HC also observed that Enayet Ullah did not have the jurisdiction to deal with the case and ordered the law ministry secretary to immediately withdraw the criminal jurisdiction of Enayet Ullah.

The unconditional apology offered by  Enayet Ullah before this court is unacceptable, because he sent the children to custody although he had no jurisdiction to do that, the HC said.

The law secretary will withdraw Enayet Ullah's criminal jurisdiction and will provide him with only civil jurisdiction in consultation with the Supreme Court, the bench said.

The police personnel ordered to be suspended include Officer-in-charge Abul Kalam and Child Affairs Officer Sub-inspector Bashir Uddin Khan of Bakerganj Police Station. The court ordered departmental action against them for keeping the children confined and taking them to a child development centre.

The HC struck down the rape case filed against the four children, saying police have filed the case in violation of the fundamental rights enshrined under articles 27, 31 and 32 of the constitution and the relevant law.

The government has also been asked to suspend Abu Tahar, the probation officer in Bakerganj, for being negligent in his duty.

Turning down the unconditional apology offered by the police and probation officer, the HC said they would continue violating the fundamental rights if stern action was not taken against them.

The HC bench directed the home secretary to come up with a guideline for dealing with the detained or arrested children and circulate the guideline at every police station across the country.

Lawyer Md Abdul Halim, an intervener to the suo moto rule, told The Daily Star that the judicial magistrate has no jurisdiction to deal with the arrest of or proceeding against children or their bail.

The Children Act, 2013, reserves the task for the children's court, he said.

Lawyer Halim, another intervener of the rule, told The Daily Star that the HC did not mention the names of the four other policemen.

He said the police must determine the ages of children and contact their guardians immediately after they are brought to a police station, and police must grant bail to the accused children if they are arrested in the bailable allegations.

The child affairs police officer at the police station will convey the confinement of children to the probation officer under the social welfare ministry and then the probation officer will look into all affairs including legal issues as per the Children Act 2013, he said, adding that the probation officer of Bakerganj has not discharged his duties in this case.

Assistant Attorney General Golam Sarwar Payel told this correspondent that the HC has kept the suo moto rule as a continuous mandamus so that any aggrieved person involved with such matters can approach this court for necessary directives in future.

On October 7 last year, Barishal's Bakerganj police arrested four boys for raping a six-year-old child and brought them to the court of Senior Judicial Magistrate Md Enayet Ullah. The magistrate rejected their bail petitions and ordered police to send them to a child development centre.

At 9:30pm on October 8, 2020, the two HC judges led by Justice Md Mozibur Rahman Miah virtually operated a bench and directed the Nari o Shishu Nirjaton Daman Tribunal of Barishal to instantly grant bail to the four children and directed the authorities concerned to release the boys aged between 10 and 12 from the custody of a development centre at Pulerhat in Jashore on bail and hand them over to their guardians by that night.

The HC bench came up with the order after a TV channel reported on the arrest of the children and rejection of their bail prayers.

The Nari o Shishu Nirjaton Daman Tribunal of Barishal granted bail to the children immediately after the HC order.

According to a complaint, the four boys raped a six-year-old girl on October 4. The victim disclosed the matter to her mother after fell sick on October 6. Her father filed the case the same day.

Bakerganj police arrested the boys the next day and produced them to the court of the senior judicial magistrate.

On October 9, after they were released, the boys were handed over to their parents.