Page No.# 1/8 vs The State Of Assam And Anr
2025 Latest Caselaw 7709 Gua

Gauhati High Court

Page No.# 1/8 vs The State Of Assam And Anr on 8 October, 2025

                                                                        Page No.# 1/8

GAHC010145302025




                                                                 2025:GAU-AS:13584

                         THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : Crl.Rev.P./262/2025

           AJMAL ALI ALIAS AJMOL ALI
           SON OF AMIR HUSSAIN
           VILL- MALEGARH PAHAR
           P.S. JOGIGHOPA
           DIST. BONGAIGAON, ASSAM
           REPRESENTED BY HIS FATHER
           AMIR HUSSAIN, AGED ABOUT 35 YEARS, SON OF MUKTAR HUSSAIN,
           VILL- MALEGARH PAHAR, P.S. JOGIGHOPA, DIST. BONGAIGAON, ASSAM.

           VERSUS

           THE STATE OF ASSAM AND ANR
           REPRESENTED BY THE PP, ASSAM

           2:SAHIDA KHATUN
           W/O KERAMAT ALI
           VILL- DOLAIGAON
            UJANPARA
            P.S. BONGAIGAON
            DIST. BONGAIGAON
           ASSA

Advocate for the Petitioner : MR F HAQUE, MR A ISLAM
Advocate for the Respondent : PP, ASSAM, MS. R CHOUDHURY, AMICUS CURIAE (R-2)

BEFORE HONOURABLE MR. JUSTICE PRANJAL DAS

Date : 08-10-2025 Page No.# 2/8

JUDGMENT & ORDER (CAV)

1. Heard Mr. F. Haque, learned counsel for the petitioner. Also heard Mr. S. H. Bora, learned Additional Public Prosecutor, Assam and Ms. R. Choudhury, learned Amicus Curiae appearing for respondent No.2.

2. This application has been filed under Sections 442/438 of the BNSS, 2023 praying for quashing the order dated 03.06.2025 passed by the learned Special Judge (POCSO), Biswanath, Biswanath Chariali in Spl. (P) Case No. 41/2025.

3. The petitioner claimed to be a child in conflict with law on the day of occurrence. Therefore, he filed an application under section 9(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015. He produced school certificate and other documents. It has been mentioned in those documents that the petitioner was born on 25.01.2009 which shows that on 03.06.2025, he was 16 (sixteen) years 4 (four) months and 19 (nineteen) days old.

4. The trial court refused to accept the plea of the petitioner that the petitioner was child in conflict with law on the day of occurrence on two grounds. The first ground is that the Investigating Officer forwarded the report stating that the age of the petitioner was 19 (nineteen) years and the second ground is that the petitioner himself claimed that he is 19 (nineteen) years old. Moreover, the physical appearance of the petitioner did not suggest that he was a minor under the age of 18 (eighteen) years.

5. The FIR was lodged at Bongaigaon police station on 19.04.2025 by the informant with the allegation that the accused/petitioner, Ajmal Ali had committed sexual assault by way of rape upon the minor daughter of the Page No.# 3/8

informant on the pretext of love relationship and later threatened her also. It is also alleged that the act of the accused led to pregnancy of the girl.

6. Initially, case was registered at Bongaigaon PS zero FIR and thereafter, it was sent to Behali PS whereupon it is registered as Behali PS Case No. 44/2025 under Section 64(2) BNS read with Section 6 of POCSO Act.

7. The investigation of the case resulted in a charge-sheet and presently the Special Court is seized of the proceeding in Special POCSO Case No. 41/2024. As already stated above, the petitioner raised the plea of juvenility before the learned Sessions Court which, however, came to be rejected vide order dated 03.06.2025 as stated above. Before proceeding further, the contents of Section 9(2) and section 94 of The Juvenile Justice (Care And Protection Of Children) Act, 2015(hereinafter referred as JJ Act) may be reproduced herein below:

"9 (2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be:

Provided that such a claim may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made there under even if the person has ceased to be a child on or before the date of commencement of this Act."

94. (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall Page No.# 4/8

record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining --

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person Thus, from the statutory provision, I find that whenever the plea of juvenility is raised before the court then the Court has to enquire into the matter on the basis of evidence and record the finding thereof."

8. In the land mark case of Rishipal Solanki vs State of Uttar Pradesh and Others reported in (2022) 8 SCC 602 the Hon'ble Supreme Court has enunciated some important principles in this regard in para 33 which is reproduced herein below:

"33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:

33.1. A claim of juvenility may be raised at any stage of a Page No.# 5/8

criminal proceeding, even after a final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for rejection of such claim. It can also be raised for the first time before this Court.

33.2. An application claiming juvenility could be made either before the court or the JJ Board.

33.2.1. When the issue of juvenility arises before a court, it would be under sub-sections (2) and (3) of Section 9 of the JJ Act, 2015 but when a person is brought before a committee or JJ Board, Section 94 of the JJ Act, 2015 applies. 33.2.2. If an application is filed before the court claiming juvenility, the provision of sub-section (2) of Section 94 of the JJ Act, 2015 would have to be applied or read along with sub-

section (2) of Section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.

33.2.3. When an application claiming juvenility is made under Section 94 of the JJ Act, 2015 before the JJ Board when the matter regarding the alleged commission of offence is pending before a court, then the procedure contemplated under Section 94 of the JJ Act, 2015 would apply. Under the said provision if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence the degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the criminal court concerned, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide Section 9 of the JJ Act, 2015).

33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the court to discharge the initial burden. However, the documents mentioned in Rules 12(3)

(a)(i), (ii) and (iii) of the JJ Rules, 2007 made under the JJ Act, 2000 or sub-section (2) of Section 94 of the JJ Act, 2015, shall be Page No.# 6/8

sufficient for prima facie satisfaction of the court. On the basis of the aforesaid documents a presumption of juvenility may be raised.

33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.

33.5. That the procedure of an inquiry by a court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the criminal court concerned. In case of an inquiry, the court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of Section 94 of the 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance.

33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case.

33.7. This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences.

33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than Page No.# 7/8

private documents.

33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the court or the JJ Board provided such public document is credible and authentic as per the provisions of the Evidence Act viz. Section 35 and other provisions.

33.11. Ossification test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015."

9. Thus, it is clear that plea of juvenility raised before the court by the petitioner is required to be adjudicated through enquiry and on the basis of evidence.

10. As already stated at the outset that the learned court below while passing the impugned order raised its decision on three factors (i) age was mentioned as 19 years in the forwarding report by the IO (ii) petitioner himself stated that he is 19 years (3) physical appearance did not suggest that he was under 18 years.

11. The age noted by the IO on his own not a sufficient basis to decide the question of juvenility. Secondly, since 18-19 years are border line ages, therefore, mere appearance is not sufficient to record the finding of juvenility on either side (iii) In a border line age (18-19 years) back, mere stating by the accused/CICL is also not sufficient to held that he is not a juvenile, especially if there are other aspects or materials worth enquiring into.

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12. Moreover, the statutory provision as well as the principles laid down in Rishipal Solanki (Supra) clearly indicate that upon raising of such plea of juvenility before the court, enquiry has to be done.

13. Coming back to the instant case again, no such enquiry was done and secondly, the materials/grounds on which the plea of juvenility was rejected are not adequate to record the said finding in my considered view. Accordingly, the impugned order dated 03.06.2025 passed by the learned Special Judge (POCSO), Biswanath, Biswanath Chariali in SPl (p) Case No. 41/2025 is hereby set aside.

14. The case is hereby remanded back to the court of learned Special Judge (POCSO), Biswanath Chariali to make a fresh determination with regard to juvenility in terms of Section 9/94 of the JJ Act, 2015.

15. The criminal revision stands allowed and disposed of on the aforesaid terms.

JUDGE

Comparing Assistant