POCSO Act | Section 34 Empowers Special Courts To Determine Age Of Both Offender & Victim: J&K High Court Remands Case For Fresh Age Inquiry

“Section 34 of the POCSO Act vests jurisdiction with the Special Court not only to determine the age of the offender but it also vests jurisdiction with it to determine the age of the victim,” observed Justice Sanjay Dhar while remanding a case back to the trial court for fresh inquiry into the prosecutrix's age.

The case stemmed from a 2019 FIR registered by a young woman alleging that Tsewang Thinles, the President of Ladakh Buddhist Association (LBA), sexually assaulted her at multiple locations, including her home and his office. The prosecutrix, who claimed to be in a helpless situation caring for her ailing mother, approached the petitioner for assistance, only to be allegedly exploited due to her vulnerable circumstances.

Subsequently an FIR was registered under Sections 354, 354-A RPC and Sections 9(l)/10 of the POCSO Act. Following the allegations, Thinles absconded during the investigation, prompting the court to issue general warrants against him. He later sought anticipatory bail, which was granted initially, but subsequently cancelled by the trial court after it held based on a school certificate that the victim was under 18 at the time of the incident.

Thinles challenged this determination, asserting that the prosecutrix was above 18 based on a prior police charge sheet involving her in 2005, where her age had been listed differently.

Apart from seeking bail, Thinles challenged the age determination asserting that the prosecutrix was above 18 based on a prior police charge sheet involving her in 2005, where her age had been listed differently.

Justice Dhar analyzed Section 34 of the POCSO Act and decisively held that it covers age determination of both offenders and victims. While subsection (1) refers to offences by children and their treatment under the Juvenile Justice (JJ) Act, subsection (2), the Court observed, does not limit itself to offenders and therefore authorizes Special Courts to determine age whenever the question arises at any stage, including bail, inquiry, or trial.

The Court bolstered its reasoning by citing the Manipur High Court's judgment in Longjam Pinky Singh v. State of Manipur (2018 CriLJ 1673), which had also held that Section 34(2) of the POCSO Act includes the power to determine the victim's age. The Manipur High Court had further clarified that such determination can and must happen even before framing of charges if raised, to establish whether the POCSO Act applies.

Referencing the Supreme Court's judgment in P. Yuvaprakash v. State (AIR 2023 SC 3525), which mandates that in disputes concerning the age of a victim, courts must follow the procedure outlined in Section 94 of the JJ Act the bench explained that this section provides a clear hierarchy of documents to be relied upon, starting with school or matriculation certificates, followed by municipal birth certificates, and finally ossification or other medical tests if previous documents are unavailable.

Given this position of law Justice Dhar found fault with the trial court's method in relying solely on a school certificate issued by Jawahar Navodaya Vidyalaya, Leh (showing the date of birth as 05.02.2002) without summoning records or examining school officials to verify the basis of that entry.

In contrast, the petitioner claimed the victim's age was earlier recorded as 5 years in a 2005 case, suggesting her date of birth to be 05.02.2000. However, the trial court dismissed this earlier entry without proper inquiry, noting that POCSO was not in force at the time and hence that certificate lacked probative value.

While Justice Dhar agreed that reliance on prior case entries was misplaced, he emphasized that the trial court still had a duty to verify the authenticity of the school certificate before concluding age.

“.. It was incumbent upon the learned trial Court to summon the record relating to the said certificate from the concerned school and to examine the Record Keeper so as to determine the veracity of the certificate in question. It was also incumbent upon the learned trial Court to ascertain as to on what basis the date of birth of the victim has been recorded in the said certificate”, the court remarked.

Denying the petitioner's bail plea, the Court cited the serious nature of the allegations including repeated sexual assaults, abuse of position, and exploitation of a helpless victim as well as his past conduct of absconding and potential to influence the victim.

“Even if the victim was around 18, the fact remains that the petitioner, aged around 50, allegedly took undue advantage of a desperate situation…. It is not a case of relationship between teenagers which has gone wrong but it appears to be a case of exploitation of a helpless girl by a person holding a high position in the society. In these circumstances, the grant of bail to the petitioner at this stage is likely to thwart the course of justice” the Court opined.

In view of these observations the order determining the victim's age was set aside and the trial court was directed to hold a fresh inquiry, summoning school records and witnesses for a proper age determination.

While dismissing the bail application the petitioner was given the liberty to reapply after the prosecutrix's statement is recorded during trial.

Case Title: Tsewang Thinles Vs UT Of Ladakh

Citation: 2025 LiveLaw (JKL) 166

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