The main legal point established in the judgment is that the Special Court (POCSO) should determine the age of the victim before proceeding with the framing of charges under the POCSO Act, 2012, and the petitioner should be allowed to adduce evidence for this purpose.

Heard Mr. Kh. Samarjit, learned counsel appearing for the petitioner and Mr. H. Samarjit, learned G.A. for the respondents.

2. In this writ petition, the petitioner has sought for a direction to be issued to the Special Court (POCSO) first to determine age of the victim before proceeding with framing of charge against the petitioner under the Protection of Children from Sexual Offences (POCSO) Act, 2012(hereafter referred to as the “POCSO Act or Act”).

3. Mr. Kh. Samarjit, learned counsel for the petitioner submits that the criminal proceeding has been initiated before the Special Court (POCSO), Imphal West, Manipur against the petitioner on the premise that the victim is a minor, as only when the victim is a minor, the provisions of the Protection of Children from Sexual Offences (POCSO) Act, 2012 will be attracted. If the victim is not a minor, obviously, the Protection of Children from Sexual Offences (POCSO) Act, 2012 will not be attracted and normal law as provided under the relevant provisions of IPC as well as Cr.P.C. will be attracted.

4. Mr. Kh. Samarjit, learned counsel submits that in the present case, the prosecution claims that the victim is a minor and not a major on the basis of the evidences gathered by the investigating authority. On the other hand, as per the evidences collected by the petitioner in the present case, the victim was not a minor when the alleged crime occurred as, she had crossed 18 years as per the certificate issued by the Department of Forensic Medicine, RIMS, Imphal on 21-12-2011 based on the requisition made by the Sports Authority of India (SAI), in which the age of the victim girl was shown to be about 14 – 16 years. Thus, if the victim was about 14-16 years when the certificate was issued on 21-12-2011, the victim girl would have crossed the age of 18 years when the alleged incident occurred in 2014.

5. Mr. Kh. Samarjit, learned counsel submits that the incident, relating to which, the trial has been initiated, had occurred between 28.06.2014 to 04.10.2015 and he submits that by that time, the victim had crossed the age of minority and accordingly, submits that if the victim was a major when the alleged incident/crime occurred, the Protection of Children from Sexual Offences (POCSO) Act, 2012 will not be attracted and normal law will be applicable. Accordingly, Kh. Samarjit, learned counsel for the petitioner submits that before framing of charge sheet and proceeding with the trial before the Special Court (POCSO), the Special Court ought to first determine and come to the conclusion that the victim was a minor when the alleged crime took place, as only then the Special Court (POCSO) will have jurisdiction to proceed with the trial.

6. In this regard, Mr. Kh. Samarjit, learned counsel for the petitioner submits that Protection of Children from Sexual Offences (POCSO) Act, 2012 as well as the Cr.P.C. 1973 is silent as regards the procedure to be adopted when the issue of determination of age of the victim is raised as in the present case. However, it has been provided under Section 34 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 that,

“34.Procedureincaseofcommissionofofencebychild and determination of age by Special Court–

(1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care an Protection of Children) Act, 2000 (56 of 2000).

(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.

(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person.”

7. Mr. Kh. Samarjit, learned counsel submits that even though reading of S