The main legal point established in the judgment is the need to follow the procedure laid down under the Juvenile Justice Act for determination of the victim's age in POCSO Act cases, and the probative value of the Aadhar Card in such determinations.

SUBHASIS DASGUPTA, J.

1. The impugned order dated 17/09/2018 passed by learned Additional District and Sessions Judge-cum- Special Judge, Kurseong, in connection with Kurseong P.S Case No. 132 dated 20/07/2018 numbered as Special Case No. 10 of 2018 rejecting the prayer of the revisionist/accused soliciting a direction upon I.O to enquire and submit a report with regard to the age of the victim in context with the Aadhar Card of the victim, is the subject of challenge in this revisional application.

2. Learned advocate for the revisionist submitted that evidential value of an Aadhar Card mentioning the date of birth of a person could not be disregarded in application of the provisions of Section 35 of the Evidence Act on the simple ground that the Aadhar Card was prepared by public official in discharge of the public/official duties, and the same should have been treated by the court below superior to the School Certificate collected by the I.O in course of the investigation revealing the date of birth of the victim.

3. Per contra, learned advocate for the State submitted that there was no such illegality committed by the learned Special Judge in rejecting the prayer of the revisionist/accused, which was basically furnished banking upon an Aadhar Card. It was not taken care of under the provisions of the law being not an age proving document, according to legislative intent expressed so far in several legislations operating in this field, meant for determination of age of child. Thus, according to State, Aadhar Card may be a document of proof of identity of holder, but the same can not be regarded as proof of age.

4. The criminal law was set in motion receiving a complaint from de facto complainant on 20/07/2018, wherein it was alleged that the daughter of the de facto complainant was employed in the house of revisionist as a domestic aid. During the performance of the duties, the daughter of the de facto complainant was sexually assaulted by the revisionist and in consequence thereof the present case under the POCSO act came to be filed against the revisionist/accused. The Investigating Officer seized birth certificate issued by the Head Mistress of Sukna High School, wherein the date of birth of the victim girl being the daughter of the de facto complainant was noted as 18/09/2002. Relying upon such school certificate containing the date of birth of the victim, the age of the victim was considered to be less than 18 (eighteen) being a minor at the time of the commission of crime.

5. In course of argument advanced by the learned advocate for the revisionist emphasis was substantially laid on the Aadhar Card of the victim mentioning the date of birth of the victim, as 05/10/1999, in order to establish specific stand that at the time of commission of the offence, the victim was above 18 (eighteen) years old, not covered under the provisions of POCSO Act, 2012.

6. From the order impugned, it appears that learned court below was pleased to observe that Section 34 of the POCSO Act, 2012 could not be made applicable in this case on the simple reason that Section 34 of the Act deals with the procedure for determination of the age committed by the Juvenile accused. Thus, according to learned Special Judge, Section 34 of the Act would be inapplicable in the given context of the case for determination of the age of the victim. Learned Special Judge under POCSO Act was further of the view that the provisions incorporated in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 would be applicable in this case subscribing his view already offered by the learned Public Prosecutor appointed in this case and decided that Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 already recognised the date of birth certificate from the school for being considered in connection with a dispute travelling around the age of the victim.

7. What is gathered in the present context of this case is tha