Recently, the single judge bench of the Jammu and Kashmir High Court held that Section 34 of the Protection of Children from Sexual Offences Act (for short the POCSO Act) vests jurisdiction with the Special Court not only to determine the age of the offender, but it also vests jurisdiction with it to determine the age of the victim.
Brief facts:
The factual matrix of the case is that the prosecutrix lodged a written report in which it was alleged that the Petitioner had committed sexual assault on her. It was alleged that the mother of the prosecutrix is suffering from an ailment and it is not possible for her to take her outside Ladakh. Thereafter, she approached the petitioner, who happens to be the President of Ladakh Buddhists Association (LBA) and narrated to him all her miseries. The Petitioner is stated to have promised her with all help, but at the same time, he started to take undue advantage of the miseries of the prosecutrix and launched sexual assaults upon her at different places.
Furthermore, the FIR was registered for offences under Sections 354, 354-A RPC and 9(l)/10 POCSO Act. The Petitioner while on interim bail moved an application before the learned trial court claiming that the victim was more than 18 years of age at the time of the alleged incident, as such, offences under the POCSO Act are not made out against the petitioner. The learned trial court after holding enquiry with regard to age of the victim passed impugned order dated 12.12.2024, whereby the application of the petitioner was disposed of by holding that that the victim, at the relevant time, was less than 18 years of age.
While passing the said order, the learned trial court passed another order on the same date, whereby the interim bail granted to the petitioner was cancelled and he was sent to custody. This was done by the trial court by observing that because the interim bail granted to the petitioner was subject to the outcome of the inquiry under Section 94 of the Juvenile Justice Care and Protection Act, 2015 (for short the JJ Act) and once the age of the victim was found to be less than 18 years, as such, the interim bail granted to him is required to be withdrawn. Aggrieved by this, the Petitioner challenged the order dated 12.12.2024.
Contentions of the Petitioner:
The Petitioner contended that the learned trial court has failed to follow the mandate of law governing the holding of inquiry as contemplated under the JJ Act. It was furthermore contended that the learned trial court ignored the age of the victim in the vaccination card which was produced in the earlier charge sheet, filed against another accused at the behest of the same victim. Also, the certificate issued by the school authorities depicted the date of birth of the victim as 05.02.2002.
Issue before the Court:
“Whether provisions of the POCSO Act provide for age determination of a victim and if that is so at what stage of the proceedings such as exercise has to be undertaken by the Special Court”?
Observations of the court:
The Hon’ble Court observed that from a perusal of sub section (1) of Section 34 of the POCSO Act, it appears that the question of determination of the age under the POCSO Act is restricted to a child in conflict with law and it does not mention anything about the victim. However in sub section (2), no such restriction is laid down and it make mention about determination of the age of a child without specifying whether such child is a victim or the offender, meaning thereby that Section 34 of the POCSO Act vests jurisdiction with the Special Court to determine the question with regard to the age of a child whether such child is an offender or a victim, whenever such question arises in a proceeding before the Special Court. It is also clear from sub-section (2) that the procedure for determining the age of a child whether victim or the offender is to be governed by the Juvenile Justice (Care and Protection of Children) Act, 2015, and it further appears that such question can be determined by the Special Court whenever it arises in any proceeding before the said Court. The provision does not put any restriction on the Special Court about the stage at which such an inquiry has to be undertaken by the said Court.
The court relied upon the judgments titled P. Yuvaprakash vs. State rep. by Inspector of Police (2023), and Shri Longjam Pinky Singh vs. State of Manipur (2017).
The court noted that the petitioner cannot rely upon what was projected by the prosecution in its challan as regards the age of the victim in the earlier case. Also, the learned trial court, while relying upon the date of birth certificate of the victim issued by the Jawahar Navodaya Vidyalaya, Leh, has not examined the Record Keeper of the School nor has the trial Court perused the record on the basis of which, the particulars of the victim have been recorded in the said certificate. It was incumbent upon the learned trial Court to summon the record relating to the said certificate from the concerned school and to examine the Record Keeper so as to determine the veracity of the certificate in question. It was also incumbent upon the learned trial Court to ascertain as to on what basis the date of birth of the victim has been recorded in the said certificate, particularly when the petitioner had disputed the particulars of the date of birth of the victim mentioned in the said certificate.
Based on these considerations, the court remanded the case to the trial court for conducting the inquiry afresh with regard to the age determination of the victim by summoning the relevant record from the school and allowing the petitioner to cross examine the Record Keeper or the concerned official of the school with regard to the entries made in the said certificate.
The decision of the court:
With the above direction, the court set aside the impugned order and dismissed the bail application.
Case Title: Tsewang Thinles V. U. T. of Ladakh and another
Coram: Hon’ble Mr. Justice Sanjay Dhar
Case No.: Bail App No. 15/2025 c/w CRM(M) No. 39/2025
Advocate for the Petitioner: Mr. Rohit Kohli, Adv.
Advocates for the Respondents: Mr. Vishal Sharma, DSGI for No. 1 Mr. Nisar H. Ladakhi, Adv for No. 2
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