The petitioner, who is arraigned as an accused in Special Case No.4/2015 on the file of the Principal District and Sessions Judge, Bidar (hereinafter referred to as the ‘Special Judge’ for short), has approached this Court seeking quashing of the order dated 22.04.2015. The Learned Special Judge in the said case has passed an order under Section 34 of the POCSO Act, 2012 holding that the petitioner is aged more than 18 years as on the date of the alleged offence and therefore, he can be tried before the Special Court itself.

2. The records disclose that, earlier, the petitioner has approached this Court in Criminal Petition No.200335/2015 calling in question the order dated 23.02.2015 passed by the Principal Sessions Judge, Bidar, refusing to transfer the Spl. Case No.4/2015 to the Juvenile Justice Board for further proceedings.

3. Throughout the proceedings in the above said case, the petitioner has claimed that, he was a Juvenile in conflict with law as on the date of the alleged offence. The records also disclose that the Hulsoor Police, Basavakalyan Taluk, have laid a charge sheet against the petitioner/accused on the allegations that he has committed rape on a victimgirl aged six years. A serious allegation was made that it was a penetrative sexual assault against the victimgirl. Therefore, the police have laid the charge sheet under Section 376(f) & 506 of IPC and also under Section6 of the POCSO Act, 2012.

4. At the earlier stages ie., vide order dated 11.08.2014, the learned Special Judge after considering the documents and relying upon the evidence of Vice Principal, Government PU College, Mehkar, High School Section, found that the petitioner was a Juvenile aged less than 18 years as on the date of alleged offence and therefore, referred the accused to the Juvenile Justice Board for further proceedings. During the proceedings before the Juvenile Justice Board on 22.02.2013, the Juvenile Justice Board expressing its doubt about the school records and also on the basis of the physic of the accused pertaining to his age, has once again directed the police to obtain one more certificate from the Expert Doctor for the purpose of considering the age of the petitioner. Thereafter, it appears the Investigating Officer subjected the petitioner for medical examination at Victoria Hospital, Bengaluru and PW.18 Dr. Kusuma, the Radiologist of the Victoria Hospital, after examination of the petitioner, sub-mitted a report stating that he was aged more than 20 years. Based on the said report, the Juvenile Justice Board, Bidar, once again referred the case to the Special/Sessions Court for determination of the age of the petitioner.

5. In the order passed in Criminal Petition No.200335/2015, this Court found that there are divergent opinions of the Doctors and also the documents produced along with the charge sheet regarding the age of the petitioner. Therefore, this Court has directed the learned Special Judge that, he has to record the evidence of the necessary witnesses, who are relevant for the purpose of determining the age of the accused and thereafter pass the order under Section 34 of the POCSO Act, 2012. If for any reason, the Trial Court holds that the petitioner is not a Juvenile, then only it can proceed to record the further evidence on merits of the case, otherwise, the learned Special Judge has to refer the petitioner to Juvenile Justice Board for further proceedings.

6. On the basis of the above said direction, the learned Special Judge proceeded to record the evidence of some of the witnesses, who are relevant for the purpose of considering the age of the petitioner and by passing the impugned order, the learned Special Judge has passed the order under Section 34 of the POCSO Act holding that the petitioner was aged more than 18 years as on the date of the alleged offence and ordered him to face the trial before the Special Court itself. In this background, calling in question the said order, the petitioner h