ORDER :

1. This Criminal Revision is filed under Section 397 r/w Section 401 of CrPC against impugned order dated 08.09.2021 (Annexure A2) passed by the learned Special Judge (POCSO), Balod, district-Balod in Special Criminal Case (POCSO)-13 of 2021 for setting aside the impugned order and to transfer the matter to learned Special Judge (POCSO) to conduct an enquiry regarding age of applicant, in the interest of Justice.

2. Brief facts of the case, as projected by applicant, are that respondent-2/victim lodged a written complaint to the Station House Officer, Ranchirai, district-Balod (CG) alleging that in 2017, when she was studying in Class X, she went to Ranchirai Market and came in acquaintance with applicant. Thereafter, applicant took her to village Bhatagaon and established physical relationship with her from 10.02.2018 till August 2020. In August, 2020, applicant again took the victim to village-Kohin on his motorcycle and married her by way of putting vermilion on her forehead and also took photographs. Finally on 24.11.2020, he took her to Raipur, got a rented house and kept her as wife for some time and dropped her at her maternal aunt in village Khopri and ran away. Her father lodged missing report at Police Station Ranchirai. Police found victim in village Khopri, and she was sent to her parental home. Thereafter, she made a written complaint Annexure A1 on 29.01.2021. Based on report, crime was registered against applicant. Police after investigation filed charge-sheet. Applicant filed an application dated 15.07.2021 seeking transfer of case to Juvenile Justice Board on the ground that on the date of first incident ie on 10.02.2018, applicant was aged about 17 years, which was dismissed by the learned Special Judge, POCSO on 08.09.2021. Hence this revision by the applicant.

3. Learned counsel for applicant submits that applicant’s date of birth is 05.01.2001, in support of this, applicant filed his High School Certificate along with other documents. As per prosecution, first incident of sexual relationship took place on 10.02.2018. As such, on the date, applicant was aged 17 years one month and five days, ie below 18 years, meaning thereby, he was minor on the date as defined in Section 6 of Juvenile Justice Act, 2015. Learned counsel further submits that learned Special Judge committed illegality in not conducting enquiry as provided under Section 7A of Juvenile Justice Act and violated the dictum of Hon’ble Apex court laid down in case of Ashwani Kumar Saxena Vs State of MP reported in (2012) 9 750. He also submits that learned trial Court registered complaint case under POCSO Act on this ground that on the date of first incident prosecutrix/victim was also minor. Thus, applicant’s case is liable to be tried by Juvenile Justice Board.

4. Learned counsel for the State supported the impugned order and submits that learned trial Court has rightly appreciated the evidence on record, relied upon the decision of Hon’ble Supreme Court in case of Vikas Chaudhary Vs State (NCT of Delhi) and another reported in (2010) 8 SCC 508 and found that there is prima facie material available against the accused.

5. No one appears on behalf of complainant/victim though served.

6. Heard learned counsel for the parties and perused material available on record.

7. Learned trial Court in its impugned order says that as per written complaint of victim, at the time of lodging FIR victim was aged about 19 years. As per written complaint, when victim was aged about 17 years, accused established physical relationship with her, initially on 10.02.2018. In applicant’s High School Certificate issued by the Chhattisgarh Board of Secondary Education, Raipur, which is said to be relevant piece of evidence, date of birth of applicant is 05.01.2001 i.e. on the initial date of incident, applicant was below 18 years. But learned trial Court found that applicant ‘continued the offence’ from 20.12.2020 to 27.01.2021, and treated the applicant to be more than