Special Courts under POCSO empowered to determine age of both offender, victim: HC

Excelsior Correspondent
JAMMU, Apr 28: High Court of Jammu & Kashmir and Ladakh, while clarifying the jurisdiction of Special Courts under the Protection of Children from Sexual Offences Act (POCSO), held that the Special Court is empowered not just to determine the age of the accused but also of the victim.
“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 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.
Petitioner 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.
Justice Sanjay Dhar analyzed Section 34 of the POCSO Act and decisively held that it covers age determination of both offenders and victims. While Sub-Section (1) refers to offences by children and their treatment under the Juvenile Justice (JJ) Act, Sub-Section (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.
Given this position of law, Justice Sanjay 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 Sanjay 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.
Denying bail, 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”, High Court said.
“In these circumstances, the grant of bail to the petitioner at this stage is likely to thwart the course of justice” the court opined. The High Court directed the trial court to hold a fresh inquiry, summoning school records and witnesses for a proper age determination.

The post Special Courts under POCSO empowered to determine age of both offender, victim: HC appeared first on Daily Excelsior.

News