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HIGH COURT OF MEGHALAYA AT SHILLONG
W. Diengdoh, J.
Anwar Hussain Sheikh - Appellant
Versus
State of Meghalaya & Anr. - Respondents
Crl. A. No. 11 of 2022
Decided On : 23-08-2022
POCSO - Age Determination - POCSO Act, 2012 - Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 - The court emphasized the importance of age determination in cases involving sexual offences against children under the POCSO Act. It highlighted the need for the court to establish foundational facts, including the proof of the victim being a child, before proceeding with the trial. The court referred to the case of Joubansen Tripura to support the principle that the burden of establishing foundational facts lies with the prosecution, and failure to do so may result in adverse inference. It directed the Special Court to determine the age of the victim in accordance with Rule 12 of the Juvenile Justice Rules and set aside the previous judgment and sentence.
Fact of the Case:
An appeal was filed challenging the conviction and sentence of the appellant under Section 7/8 of the POCSO Act, 2012. The appellant raised the issue of age determination of the victim as a preliminary point, contending that the age of the victim was not established by the prosecution before the trial court.
Finding of the Court:
The court found that the determination of the victim's age was crucial and should be decided as a preliminary issue before further proceedings. It emphasized the importance of establishing foundational facts, including the proof of the victim being a child, before initiating the trial under the POCSO Act. The court set aside the previous judgment and remanded the case to the Special Court for age determination of the victim.
Issues: The key issue was whether the age of the victim, a crucial factor in cases under the POCSO Act, was established by the prosecution before the trial court.
Ratio Decidendi: The court held that the determination of the victim's age is vital and should be decided as a preliminary issue before proceeding with the trial. It emphasized the obligation of the prosecution to establish foundational facts, including the proof of the victim being a child, and directed the Special Court to determine the age of the victim in accordance with Rule 12 of the Juvenile Justice Rules.
Final Decision: The court set aside the previous judgment and remanded the case to the Special Court for age determination of the victim. The appellant was granted bail during the pendency of the proceedings for age determination.
The key legal point established in this judgment is the crucial importance of determining the age of the victim in cases under the POCSO Act before proceeding with the trial. The court emphasized that establishing the foundational fact that the victim is a child (below 18 years) is a prerequisite for the court's jurisdiction and for the validity of the proceedings (!) (!) .
The court highlighted that the prosecution bears the primary responsibility to prove the victim's age, especially when the case involves a child as defined under the Act. This involves following the proper procedures, including the application of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, to accurately determine the victim's age through appropriate evidence such as medical or documentary proof (!) (!) .
Furthermore, the court clarified that the issue of age is a fundamental fact that can be raised at any stage of the proceedings, including on appeal, if it was not properly established initially. The failure to establish the victim's age properly can invalidate the trial and subsequent conviction under the POCSO Act (!) .
In this specific case, the court found that the age of the victim was not conclusively established through proper procedures or evidence, and therefore, the trial court's jurisdiction was questionable. As a result, the court directed the trial court to determine the victim's age in accordance with the prescribed rules and procedures, allowing the parties to produce relevant evidence and be heard on this issue (!) .
Ultimately, the judgment set aside the previous conviction and remanded the case to the Special Court for age determination, emphasizing that such foundational facts must be established before further proceedings or judgments are made under the POCSO Act (!) (!) .
JUDGMENT
1. On an FIR dated 19.02.2015 filed by one Standhope Lamare, wherein he has reported to the Officer-in-Charge, Jowai Police Station of an incident which took place on 19.02.2015 itself involving his minor daughter aged about 15 years who had gone for tuition to the residence of the accused/appellant herein and during the time that she was there, the accused/appellant had touched her body inappropriately. Jowai P.S Case No. 26(2) of 2015 under Section 7/8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 was registered and investigation ordered.
2. The Investigating Officer (IO) accordingly conducted the investigation by following due procedure and on conclusion of the same, has found that a prima facie case under Section 7/8 POCSO Act, 2012 is well established against the appellant and he was accordingly sent up for trial before the Court of the learned Special Judge (POCSO), Jowai under Special Session Case No. 3 of 2015.
3. The learned Special Judge taking cognisance of the case has framed charges under Section 7/8 POCSO Act against the appellant and at the trial, 5 (five) prosecution's witnesses were examined and one defence witness was also examined on behalf of the accused/appellant.
4. On appreciation of the evidence and the materials on record, the learned Special Judge, vide Judgment and Order dated 18.04.2022 and sentence of even date, has convicted the appellant and sentenced him to undergo simple imprisonment of three years with fine of ? 5000/- ( rupees five thousand) only, in default thereof, to undergo a further simple imprisonment of one month.
5. Being highly aggrieved and dissatisfied by the findings of the learned Trial Court, the appellant has preferred this appeal on the ground stated therein and has made a prayer before this Court to set aside and quash the impugned judgment and order dated 18.04.2022.
6. Heard Mr. K. Ch. Gautam, learned counsel for the appellant who has submitted that before going in the merits of this appeal, the first and preliminary issue may be taken up by this Court by hearing the appellant on the issue of age determination inasmuch as the proceedings before the POCSO Court is for trial of cases of sexual offences against children or a child below 18 years and as such, it is sine qua non for a POCSO court to decide on this issue even before proceeding for further evidence.
7. Pressing that the issue of determination of age has to be taken up as a preliminary point, Mr. Gautam has submitted that before the POCSO Court can even take cognisance of the case, the foundational fact has to be proved and the age of the victim must be established by the prosecution before the Court can resort to the provision of Section 29 of the POCSO Act which speaks of presumption or reverse burden cast upon the accused who is presumed to be guilty of having committed the offence as alleged and has to prove his innocence to discharge such a burden. In this case, no document was ever exhibited, no medical examination was carried out to determine the age of the victim who is a student of class 10, who according to her, was aged 16 years at the relevant period. In this regard, the case of Sri Joubansen Tripura vs. The State of Tripura: 2021 SCC Online Tri 176, para 13 and 17 was cited by the learned counsel to support his case.
8. In reply to this preliminary argument, Mr. B. Bhattacharjee, learned AAG has submitted that the proposition of the appellant on the issue of age determination cannot be considered by this Court at this juncture, since this question was not raised at the relevant time before the Special Court. Referring to the provision of sub-section 2 of Section 34 of the POCSO Act, the learned AAG has further submitted that the provision speaks of a situation when any question arises before the Special Court as to whether a person is a child or not, then the Special Court shall determine the age of such person after satisfying itself about the same.
9. It is also submitted that
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