The court emphasized the importance of proper age determination for trial as a juvenile under the Juvenile Justice Act, reiterating that claims of juvenility can be raised at any stage.

ORDER :

The petitioner is before this Court calling in question an order dated 19-01-2017 passed by the Principal Senior Civil Judge and CJM, Ballari in J.C.No.25 of 2016 for offences punishable under Sections 376 and 506 of the IPC r/w Section 4 of the Protection of Children from Sexual Offices Act, 2012 (‘POCSO Act’ for short).

2. Heard Sri R.H. Angadi and Smt.Pooja R. Savadatti, learned counsel appearing for the petitioner and Sri V.S.Kalasurmath, learned High Court Government Pleader appearing for the respondent/State.

3. Facts, in brief, are as follows:-

The petitioner, as averred in the petition, is an uneducated boy and has never attended the school at any point in his life. The school records of the petitioner are, therefore, not available. He gets embroiled in a crime in Crime No.116 of 2016 for offences punishable under Sections 376 and 506 of the IPC r/w Sections 4 and 6 of the POCSO Act. The Police, after investigation, file a charge sheet against the petitioner. The allegation in the charge sheet was that the victim was cleaning verandah in her house and when her grandmother did not find her, she made search in the neighbouring house where she was found with a boy who is the petitioner and the boy was found sexually assaulting the victim. At the time of the incident, both the boy and the girl were less than 15 years of age and therefore, both were minors. On noticing the incident, the grandmother appears to have shouted for help and the neighbours gathered, upon which, the petitioner ran away from the scene. It is then the granddaughter, the victim discloses that she had gone to the terrace on being called and the petitioner sexually assaulted the victim forcibly after calling her to the terrace. These were the broad contours of the charge sheet that was filed against the petitioner by the jurisdictional Police.

4. Since the petitioner did not possess any school records in proof of his date of birth for trying him as an adult or a juvenile, ossification test was done and the ossification test revealed that the petitioner could be between 16 to 18 years of age. Thereafter the Juvenile Justice Board sent the petitioner before the Court for trial. The trial is in progress. At that point in time, the petitioner has filed the subject writ petition on the ground that the act of the Board in sending the petitioner to child Court and not trying him as a juvenile is contrary to Section 25 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘the Act’ for short) and is seeking quashment of entire proceedings, which according to the learned counsel for the petitioner is wholly without jurisdiction.

5. The learned counsel Sri R.H. Angadi and Smt.Pooja R. Savadatti appearing for the petitioner would contend that cognizance of the offence is taken twice and at no point in time, the petitioner was subjected to proceedings under the Juvenile Justice Act as no order is passed under Section 21 of the Act. They would lay emphasis upon the report submitted by the Doctor who conducted ossification test to contend that, if the ossification test depict that the petitioner was between 16 and 18 years of age at the time of commission of the alleged act, his age ought to have been taken note of and the benefit of such age should have been rendered in favour of the petitioner under Section 14 or 36 of the Act. It is the submission of the learned counsel that two years should have been excluded to try the petitioner as juvenile from the age