The court held that determining a victim's age is a mandatory statutory obligation for a Special Court, requiring a reasoned order based on evidence. However, the recall of witnesses is discretionary and will not be permitted at an advanced stage of trial without cogent grounds or evidence of prejudice.

JUDGMENT :

BUDI HABUNG, J.

Heard Mr. P. Taffo, learned counsel for the petitioner. Also heard Mr. T. Ete, learned Additional Public Prosecutor for the State respondent No.1 and Mr. M. Toni, learned counsel for the respondent No.2.

2. This criminal revision petition under Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023, has been preferred by the petitioner, assailing the legality, propriety, and correctness of the impugned order dated 01.07.2025 passed by the learned Special Judge (POCSO), Yupia, in Criminal Miscellaneous Application No. 122/2025 in POCSO Case No. 26/2019 arising out of Women P.S. Case No. 17/2019, whereby the learned Trial Court has refused the petitioner’s prayer for determination of the age of the victim.

3. The petitioner has also assailed the order dated 16.09.2025 passed by the learned Special Judge (POCSO), Yupia, in Criminal Miscellaneous Application No. 197/2025 in POCSO Case No. 26/2019 arising out of Women P.S. Case No. 17/2019, whereby the petitioners application under section 348 BNSS (corresponding to section 311 Cr.P.C) seeking a recall and further examination of prosecution witnesses/victim XYZ (PW-4) and Smti Mary Megu (PW-2) and summoning and examination of Shri Ronga Megu, father of the alleged victim was summarily rejected.

4. The contention and grievance of the petitioner is that, despite a specific application under Section 34(2) of the POCSO Act, 2012, the learned Trial Court failed to determine and record a finding with regard to the age of the victim in terms of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, and Rule 54(18)(iv) of the Juvenile Justice Rules, 2016, before proceeding further with the trial. The further contention of the petitioner is that his request for recall of the named prosecution witnesses for re-examination/cross examination has been rejected.

5. The record of the Trial Court has been produced, and perused.

6. From the record, it appears that the learned Trial Court, by an order dated 12.06.2025, had already directed the production of relevant documents for determination of the age of the victim in terms of Section 94 of the JJ Act. Pursuant to the said direction, the father of the victim produced the Class X pass certificate on 01.07.2025, wherein, the age of the victim is reflected. However, despite such production, no determination or finding as to the actual age of the victim was recorded. Instead, the case was posted for final arguments fixing on 22.08.2025 and thereafter proceeded towards judgment.

7. The provision under Section 34(2) of the POCSO Act is reproduced below:

“Procedure in case of commission of offence by child and determination of age by Special Court.

(2) 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. The relevant provision under Section 94 of the JJ Act is reproduced herein below:

“94. Presumption and determination of age-

(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 purpose of giving evidence) that the said person is a child, the Committee or 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)