Point of Law: Rule 54 (18)(iv) of Juvenile Justice (Care and Protection of Children) Rule, 2016 provides that for determination of victim, in relation to offences against children under Act, same procedures mandated for Board and Committee under Section 94 of Act to be followed.

ORDER :

1. Heard Mr. Ebo Mili, learned counsel for the applicant namely Shri Pitam Lamnio, representing the accused namely Shri. Thomas Lamnio and also heard Mr. T. Ete, learned Additional PP for the State of Arunachal Pradesh.

2. This is an application challenging the order dated 08.05.2023 passed by the Special Judge (POCSO), Bomdila whereby the application filed on behalf of the accused for determination of the age of the victim in connection with POCSO case no. 11/2022 arising out of Seppa Women PS case no. 12/2022 under section 376(3) IPC, 1860 read with section 6 of POCSO Act.

3. The accused filed an application for determination of age of the victim before the Special Judge on the ground that the certificate relied on by the prosecution regarding the age of the victim is not correct. The school certificate obtained through the RTI from where the victim had pursued her schooling shows that at the time of occurrence of the offence, the victim was major. However, the learned Special Judge, Bomdila has rejected the application by the order dated 08.05.2023 without following the relevant provisions under the POCSO Act, 2012 and the Juvenile Justice (Care and Protection of Children) Act, 2015.

4. Mr. Ebo Mili, learned counsel for the applicant submits that as per section 34(2) of POCSO Act, 2012 read with section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, it is incumbent upon the Special Judge to determine on the question of the age of the victim as and when it is brought before the court. However, the learned Special Judge has refused to determine the age of the victim and rejected the prayer for such determination.

5. Mr. T. Ete, learned Additional PP while referring on the judgment of the Manipur High Court as well as the Division Bench of the Madras High Court and also referring to the provisions of section 34(2) POCSO Act, 2012, section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, and the Juvenile Justice (Care and Protection of Children) Rule, 2016 particularly Rule 54, 18 (iv), submits that it is not only the age of the accused but also the age of the victim to be determined when the question of age is disputed and brought before the Court. Therefore, the learned Additional PP fairly submits that the learned Special Judge could not have rejected the application without determining the age of the victim in terms of the provisions of law referred to above.

6. I have heard the submissions made by the learned counsel for the parties and also perused the provisions referred to herein above.

7. On bare reading of section 34(2) of POCSO Act, 2012, it provides that if any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.

8. Section 42A of POCSO Act, 2012 provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of the Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency.

9. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides that:

“(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 of the Board shall 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