Point of : law POCSO Act – Determination of age of prosecutrix - in the absence of any specific provision in the POCSO Act and the Rules framed thereunder for determination of the age of victims of sexual offences, it is settled law that the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000(the ‘Juvenile Justice Act’) are applicable.

ORDER :

1. This petition has been filed by the sole accused in SC No. 6/2017 on the file of the Special Judge, Fast Track, Perinthalmanna (Manjeri Sessions Division), challenging an order dated 03.03.2021 in Crl. M.P. No. 33/2021 in that case. Crl. M.P. No. 33/2021 was an application filed by the Special Public Prosecutor under Section 311 of the Code of Criminal Procedure (‘the Code’) praying that the Court may be pleased to summon and examine the Municipal Secretary of Perinthalmanna Municipality for proving the contents of a birth certificate, to prove the age of a victim in the trial of a case, registered under the provisions of Section 376 of the Indian Penal Code and the applicable provisions of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

2. The Learned Sessions Judge considered the application and the objections raised by the learned Counsel for the accused and found that, in the absence of any specific provision in the POCSO Act and the Rules framed thereunder for determination of the age of victims of sexual offences, it is settled law that the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000(the ‘Juvenile Justice Act’) are applicable. The learned Judge relied on Jarnail Singh vs. State of Haryana, 2013 (7) SCC 263, Abhilash vs. State of Kerala, 2019 (3) KHC 1002 and Maju @ Manu vs. State of Kerala, 2020 (3) KLJ 43 to reach that conclusion. The learned Judge thereafter held that going by the Kerala Juvenile Justice (Care and Protection of Children) Rules, 2014 framed under the Juvenile Justice Act, the first preference is to be given to a birth certificate issued by the local authority to prove the age of a child in conflict with the law. In other words, learned Judge concluded that since the provisions of the Juvenile Justice Act and the Rules framed thereunder would apply to determine the age of a victim under the POCSO Act, it would be essential for a just decision in the case to summon and examine the Municipal Secretary of the Municipality concerned to prove the age of the victim in terms of the birth certificate issued to the victim by the competent officer of that Municipality. This order is under challenge before me.

3. I have heard the learned Counsel for the petitioner and learned Public Prosecutor.

4. The learned Counsel for the petitioner would submit that the petition filed by the Special Public Prosecutor under Section 311 of the Code is not maintainable in law. He would submit that, such a petition, if allowed, after commencement of the trial, would be permitting the prosecution to fill up a lacuna, which would adversely affect the accused. He submits that going by the law laid down by this Court in Thundiyil Muhammadali vs. State of Kerala, 2020 (4) KHC 64 considering Sections 173(5) and 207 of the Code, it is clear that the accused is entitled to a copy of all the documents that are relied on by the prosecution the accused is entitled to copies of all documents relied upon by the prosecution at the initial stage. In other words, he contends that no fresh document could be proved by examining witnesses, invoking the power of the Court under Section 311 of the Code.

5. I have considered the contentions raised by either side. Section 311 of Code reads as follows:

“311. Power to summon material witness, or examine person present - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”

6. A bare reading of the provision suggests that the power under Section 311 can be exercised by the Court at any stage of any enquiry, trial or other proceedings under the Code. A reading of the provision suggests that the discretion ei