Special Court’s Authority to Determine Victim’s Age Under POCSO Act

Introduction

Tsewang Thinles v. Union Territory of Ladakh & Anr. (2025 JKLHC-JMU 984) is a landmark decision of the Jammu & Kashmir High Court delivered on April 24, 2025 by Justice Sanjay Dhar. The appellant, Mr. Tsewang Thinles—President of the Ladakh Buddhist Association—was accused of multiple counts of sexual assault on a young woman who approached him for help. The core issues before the High Court were:

Whether a Special Court under the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) has jurisdiction to determine the age of the victim, not only the accused, under Section 34;
At what stage of proceedings such an age inquiry must occur;
The proper procedure to be followed for age determination under the Juvenile Justice (Care and Protection of Children) Act, 2015 (“JJ Act”); and
Whether the appellant should continue on bail pending trial.

Summary of the Judgment

The High Court held that:

Section 34(2) of the POCSO Act empowers the Special Court to determine the age of any person—victim or offender—whenever the question arises at any stage of proceedings.
Such age determination must follow the procedure in Section 94 of the JJ Act, giving priority to school or matriculation certificates, then municipal birth certificates, and only as a last resort, medical ossification tests.
The trial court’s reliance on a school-issued date-of-birth certificate without summoning the school’s records or examining its custodian was improper. The matter is remanded for fresh inquiry.
Given the gravity of allegations, the appellant’s high social standing, and his prior absconsion, bail was not warranted at this stage.

Analysis

Precedents Cited

P. Yuvaprakash v. State rep. by Inspector of Police, AIR 2023 SC 3525 – The Supreme Court clarified that Section 34 of the POCSO Act applies to victims as well as accused and age disputes must be resolved via Section 94 of the JJ Act.
Abuzar Hussain v. State of West Bengal, (2012) 10 SCC 489 – Holds that juvenility can be raised at any stage in criminal proceedings, whether pre- or post-trial.
Shri Longjam Pinky Singh vs. State of Manipur, 2018 CriLJ 1673 – The Manipur High Court held that Section 34(2) extends to victims and that the Special Court must determine age before framing charges, allowing evidence on both sides.

Legal Reasoning

The Court’s reasoning can be summarized in three steps:

Scope of Section 34(2), POCSO Act: Although Section 34(1) refers to offenders (“child in conflict with law”), subsection (2) speaks broadly of “any person” as a “child.” This language is not limited to offenders and logically includes victims when age is in dispute.
Stage of Inquiry: No textual limit exists on when the age-determination question must be addressed: bail applications, charge framing, trial, or even post-trial. Guided by Abuzar Hussain and Pinky Singh, the Court held that whenever age is contested, the Special Court must pause and decide it first.
Procedure Under JJ Act Section 94: The POCSO Act incorporates the JJ Act’s age-determination scheme. Section 94(2) mandates a graduated approach:
- First: School or matriculation/board certificates;
- Second: Birth certificates issued by municipal or panchayat authorities;
- Finally: Ossification/medical tests (completed within 15 days).
The trial court must summon the record‐keeper and verify original documents before relying on a certificate.

Impact

This decision clarifies and standardizes the approach to age determination in POCSO cases:

Special Courts nationwide must actively verify school and municipal records whenever age is disputed.
Defendants cannot rely on unexamined certificates; courts must permit cross-examination of record-keepers.
Age disputes may be raised at any stage, including bail hearings, ensuring correct jurisdiction (Special Court vs. ordinary court).
Trial procedure becomes more rigorous, reducing the risk of misclassification of cases under POCSO’s protective regime.

Complex Concepts Simplified

POCSO Act: A special law to protect children (under 18) from sexual offences, with dedicated Special Courts.
Section 34, POCSO Act: Governs age determination of “any person” (victim or offender) when the question of being a child arises.
JJ Act Section 94: Lays out a step-by-step method for proving a person’s age, prioritizing documentary evidence over medical tests.
Ossification Test: A medical procedure (e.g., wrist X-rays) to estimate skeletal maturity when documents are lacking.
Challan: The police report or charge sheet placed before a trial court after investigation.

Conclusion

Tsewang Thinles v. UT of Ladakh decisively holds that Special Courts under the POCSO Act have a statutory duty to determine the age of victims as well as accused, at any stage of proceedings, by following the JJ Act’s prescribed procedure. Trial courts must actively verify and test documentary evidence—rather than rely on certificates alone—before proceeding under POCSO. This ruling strengthens procedural safeguards in child-protection cases and ensures that POCSO’s protective umbrella is correctly applied. The remand for fresh inquiry and the denial of bail underscore the Court’s commitment to thorough fact‐finding and the seriousness of sexual offences against minors.