(Oral) 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 andhe 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 victimwasa minorwhen 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 raisedas 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. Procedure in case of commission of offence by child 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 section 34 of the pocso act may indicate that it would be applicable in case of commission of offence by a child and for determination of age by Special Court, the same provision should be applicable for the determination of age of the victim as well. In this regard, he has relied on the judgment rendered by the Honble Supreme Court in Jarnail Singh vs- State of Haryana reported in (2013) 7 SCC 263. The Honble Supreme Court in the aforesaid case of Jarnail Singh (supra) while dealing with the Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 framed under the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) which provides for determination of age of a child in conflict with law stated that even though Rule 12 is applicable for determination of age of a child in conflict with law, will also be equally applicable to determine the age of the victim child. The relevant para No. 23 in the aforesaid case of Jarnail Singh (supra) is reproduced here below;
23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion.
[8] Accordingly, Mr. Kh. Samarjit, learned counsel submits that even though Section 34 under Protection of Children from Sexual Offence (POCSO), Act, 2012 provides for determination of age of the person in case of commission of offences by a child in conflict with law and determination of age of the accused child,the same procedure can be adopted and made applicable while dealing with the issue of determination of age of the victim also. Accordingly, Mr. Kh. Samarjit, learned counsel submits that before proceeding with the framing of charge under Section 34 of the Act, the Special Court ought to first determine the age of the victim and only when the Special Court (POCSO) is satisfied that the victimwas indeed a minor at the relevanttime of occurrence of the crime, the Special Court is toproceed with the trial. For this, he submits that the accused can be permitted to adduce evidences to prove that the victim was not a child when the crime occurred.
[9] As opposed to the submission made by Mr. Kh. Samarjit, learned counsel appearing for the petitioner, Mr. H. Samarjit, learned G.A. for the respondents submits that there is no provision under the Cr.P.C. nor under the POCSO Act, 2012 for consideration of any evidence produced by the petitioner before or at the time of framing of charge and in this regard, the learned G.A. has relied on the decision of the Honble Supreme Court rendered in State of Orissa vs- Debendra Nath Padhi reported in (2005) 1 SCC 568 in which, it was held in paras No. 16, 17 & 18 as follows :
16. All the decisions, when they hold that there can only be limited evaluation of materials and documents on records and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to the accused though has not been specifically so adverted to in stated as it was taken to be a well-settled proposition. This aspect, however, has been adverted to in State Anti- Corruption Bureau v. P. Suryaprakasam where considering the scope of sections 239 and 240 of the code it was held that at the time of framing of charge, what the trial court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being head and nothing beyond that, (emphasis supplied). The judgment of the High Court quashing the proceedings by looking into the documents filed by the accused in support of his claim that no case was made out against him even before the trial had commenced was referred by this Court. It may be noticed here that learned counsel for the parties addressed the arguments on the basis that the principles applicable would be same whether the case be under Sections 227 and 228 or under Section 239 and 240 of the Code.
17. As opposed to the aforesaid legal position, the learned counsel appearing for the accused contended that the procedure which deprives the accused to seek discharge at the initial stage by filing unimpeachable and unsustainable material of sterling quality would be illegal and violative of Article 21 of the Constitution since that would result in the accused having so perusal thereof by the Court. The contention is that such an interpretation of sections 227 and 239 of the code would run the risk of those provisions being declared ultra vires of Articles 14 and 21 of the Constitution and to save the said provisions from being declared ultra vires, the reasonable interpretation to be placed thereupon is the one which gives a right, howsoever limited that right may be, to the accused to produce unimpeachable and unassailable material to show his innocence at the stage of framing charge.
18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced. The scheme of the Code and object with which Section 227 was incorporated and Sections 207 and 207-A omitted have already been noticed. Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The mean permitting the accused to adduce his defence at the stage framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at that stage of framing of charge if the contention of the accused is accepted despite the well- settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression hearing the submissions of the accused cannot mean the settle law. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police. [10] Thus, relying on the above decision in the judgment of Debendra Nath Padhi (supra), Mr. H. Samarjit, learned G.A. submits that at the stage of framing of charge against the petitioner, only the documents/evidences gathered by the prosecution can be taken into consideration and no such evidences which may be produced by the petitioner/accused, even though it is for the purpose of determining the age of the victim can be allowed, since at the stage of framing of charge no such inquiry is contemplated, as held by the Honble Supreme Court. Accordingly, it is submitted that the present claim raised by the petitioner is devoid of merit and is liable to be dismissed. [11] Heard the learned counsel for the parties and considered the materials on record as well as the decisions relied on by the learned counsel for the parties. [12] As regards the submission of Mr. H. Samarjit, learned G.A. that the law does not contemplate holding of any inquiry based on the evidences produced or relied on by the petitioner/accused at the time of framing of charge, there can be no dispute about it in as much as the said exercise being undertaken by the Court at that stage is only for the limited purpose of satisfying as to whether there is aprima-facie case for proceeding with the trial on the basis of the materials gathered bythe Investigating Authority for framing of charge. At that stage, theTrial Court is to consider only the materials or evidences produced by the investigating authority, and the Court does not look into the evidences produced by the accused at that stage, for the purpose of satisfying as to whether there are evidences or materials against the accused to proceed with the trial on the basis of which the charge is to be framed.The Honble Supreme Court took the view that if such plea of the accused is allowed, it would amount to have a mini trial before the actual trial, which law does not contemplate. Accordingly, this bar on adducing any evidence on the part of the accused at the stage of framing of charge is to prevent any undue delay for the trial as the accused will have all the opportunities to defend himself in course of the trial. The exercise of the Court at the stage of framing of charge is confined to examination as to whether there are sufficient materials or evidences before the Court to proceed with the trial and if the Court comes to the conclusion that there is aprima-facie case and there are material evidences to proceed with the trial, the Court will frame the charge and proceed with the trial, and, if the Court is satisfied that there are no materials or evidences to sustain the charge, Court willnot proceed with the trial and discharge the accused. Therefore, the exercise carried out by the Court at the stage of framing of charge is to find out whether there is a prima-facie case against the accused, on the basis of the evidences gathered by the prosecution,to prove the allegation so that trial can be proceeded. In that situation, the evidence collected by the investigation authority will be the basis for arriving at such conclusion and production of any evidence on the part of the accused at this stage of framing of charge has been prohibited as mentioned by the Honble Supreme Court in Debendra Nath Padhi (supra). This bar on production of evidence/material from the side of the accused is with reference to the charge proposed to be framed and proved by the prosecution before proceeding with the trial. [13] On the other hand, the issue raised by the petitioner in this case is about production of evidence for the purpose of proving that the victim was a major and not a minor when the crime took place. It is not for the purpose of disproving the offences or to show his innocence but, only for the limited purpose as to whether the victim was a minor at the relevant time when the alleged crime took place. This Court is of the view that the aforesaid decision of the Honble Supreme Court rendered in Debendra Nath Padhi (supra) may not be strictly applicable with reference to the plea raised by the accused for determining the age of the victim at the initial stage for the reason that the conclusion to be arrived by the Court as to whether the victim is a minor or not, will have a direct bearing on the issue whether to proceed with the trial by invoking the provisions of the POCSO Act, 2012 or under the normal law of the law. The issue raised, as to whether the victim was a minor or not, is only for the purpose of invoking the appropriate law to deal with the charge against the accused. If it is found that the victim was a minor when the alleged crime took place at the relevant time, provisions of the Protection of Children from Sexual Offences (POCSO) Act, 2012 will be automatically attracted and if the victim was not a minor when the crime occurred, the said Act will not be applicable. Accordingly, this Court does not agree with the submission made by Mr. H. Samarjit, learned G.A. that at the stage of consideration of charge, there can be no consideration by the Court for determination of age of the victim. It is provided under Section 31 of the Protection of Children from Sexual Offence (POCSO) Act, 2012 that
31. Application of Code of Criminal Procedure, 1973 to proceedings before a Special Court Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor. This Section would indicate that not only the provisions of Cr.P.C. but also the provisions of POCSO Act will be applicable when crimes have been committed against the children and the accused is tried under the POCSO Act, the provisions of Cr.P.C. will not be exclusively applicable. As already mentioned above, Section 34(1) of the Protection of Children from Sexual Offences (POCSO) Act, 2012 provides for determination of the age of the child when he commits any offence under the Act. However, reading of Section 34(2) would indicate that the scope of examination of the child is not restricted to only the child in conflict with law. Section 34(2) speaks in general term that 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. This Court is of the view that it may not be appropriate to restrict the scope of Section 34(2) only for determining the age of child who is in conflict with law but can be extended to even a child who is a victim of the crime. It may be noted that a statute, particularly a statute which fastens criminal liability may be interpreted in such a manner that when two interpretations are possible, such interpretation which supports the right of the accused may be preferred unless the context otherwise requires. [14] Thus, though the provision of section 34 appears to be applicable for the purpose of determining age of the child who is in conflict with law, when sub-section (2) is referred to, it is not specifically confined to determining the age of the accused only. As already mentioned above, the Protection of Children from Sexual Offences (POCSO) Act, 2012 will be attracted only when the victim of the crime is a minor. Since there is no other specific provision under the Cr.P.C. nor the POCSO Act to deal with the issue raised by the petitioner and since this issue has to be decided before proceeding with the trial by invoking the Protection of Children from Sexual Offences (POCSO) Act, 2012, this Court has no any hesitation to hold that the Court can invoke the provision under Section 34(2) of the Act to determine the age of the victim child also. [15] This Court agrees with the submission of Mr. Kh.Samarjit, learned counsel for the petitioner that even though Section 34 of the Act does not specifically mention for determination of age of the victim, it can be made applicable for determining the age of the victim also,by following the similar reasoning adopted by the Honble Supreme Court in the aforesaid case of Jarnail Singh (supra) where Honble Supreme Court while dealing with Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 which provides the procedure to be followed for determining the age of a child or juvenile in conflict law held that,has been held applicable for determining the age of the child who is the victim. [16] The question still may raise as and when the determination of age of the victims is to be taken. One may say that it can still be considered framing of charge, though the petitioner would insist that since this issue has been raised, it should be done at the earliest and even if necessary before framing of charge as contended in this petition. In this regard, one may refer to decision of the Honble Supreme Court in Abuzar Hossain vs- State of West Bengal, (2012) 10 SCC 489 in which, the Honble Supreme Court held that the claim of juvenility may be raised at any stage irrespective of delay in raising the same. In that case, it was held that a claim of juvenility may be raised even after final disposal of the case. It may be raised for the first time before the Honble Supreme Court as well after the final disposal of the case. The expression any court in Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 has been held to be too wide and comprehensive; and would include the Supreme Court. It was held by the Honble Supreme Court in para No. 39 as follows :
39. Now, we summarise the position which is as under : 39.1. A claim of juvenility may be raised at any stage even after the final disposal of the case. It may be raised for the first time before this Court as well as after the final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed the trial court and can be raised for the first time before this Court though not pressed before the trial Court in the appeal court. 39.2. For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy the court that an inquiry into the claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility. 39.3. As to what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in rules 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12. The statement recorded under Section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the voters list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard-and-fast rule can be prescribed that they must be prima facie accepted or rejected. In Abkar Sheikh and Pawan these documents were not found prima facie credible while in Jitendra Singh the documents viz. school leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry and verification of the appellants age. If sufficient for directing an inquiry and verification of the appellants age. If such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes of Section 7-A and order an inquiry for determination of the age of delinquent. 39.4. An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an inquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the court to order an inquiry into determination of the age of the delinquent. 39.5. The court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in the 2000 Act are not defeated by the hypertechnical approach and the persons who are entitled to get benefits of the 2000 Act such benefits. The courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability. 39.6. Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at the threshold whenever raised. Thus, the Honble Supreme Court in Abuzar Hossain vs- State of West Bengal (supra)has held that the issue relating to the juvenility can be raised at any stage before any Court. From the above, one may adduce that the stage at which the claim of juvenility can be raised, cannot be confined only when the trial is going on or concluded, can be raised even before the trial starts. Thus, it may be stated that the claim of juvenility may be raised even before framing of charge also,in the same way it can be raised at a belated stage. The rationale for such a conclusion is that if the victim is a juvenile, the ordinary Court under the Cr.P.C. would have no jurisdiction to deal with any such juvenile in conflict with law. For the same reason, if the victim is a minor, only the Special Court established under the POCSO Act will have jurisdiction. In that event, whenever the issue is raised about the age of the victim before any Court, the issue of minority or majorityhas to be decided, whether it is pretrial or post trial stage, even before framing of charge. If it is found that the victim is a minor, the Special Court would have jurisdiction to proceed with the matter including framing of charge and if not, the Special Court would have no jurisdiction. Therefore, this Court would hold that if the issue of age of the victim is raised whether the victim was/is a minor or a major, the same has to be decided first and if the victim was/is a minor, the Special Court will have the jurisdiction to proceed with the matter and if the victim is not a minor, the Special Court would have to refer the matter to the normal Court and the Special Court under the POCSO Act will have no jurisdiction. In the present case as the petitioner has raised the issue of age of the victim before framing of charge contending that the victim was not a minor when the alleged crime took place, the Special Court (POCSO) must consider the issue first, even before proceeding with framing of charge. [17] Accordingly, for the reasons discussed above, the petition is allowed by directing the Special Judge (POCSO) to first determine the age of the victim before proceeding with the framing of charge for which the petitioner would be entitled to adduce evidences to prove that the victim girl was indeed a major not a minor when the alleged crime took place for which the petitioner is sought to be charged for committing offences under the POCSO Act. If theSpecial Judge (POCSO) concludes on the basis of the materials/evidences adduced by the petitioner as well as by the prosecution that the victim was a minor, the Special Judge (POCSO) can proceed with the framing of chargesand trial for committing offences under the POCSO Act. On the other hand, if on the inquiry conducted, the Special Judge (POCSO) finds that the victim was not a minor at the relevant time when the alleged crime occurred, provisions of the Protection of Children from Sexual Offences (POCSO) Act, 2012 will not be applicable and in that situation,the petitioner is to be tried in accordance with the normal law and not under the POCSO Act. [18] The petitioner may, accordingly, approach the Special Court (POCSO), Imphal West, Manipur in Special Trial (POCSO) Case No. 19 of 2016, and file appropriate application before the Special Court of POCSO, Imphal West, Manipur preferably within a period of two weeks for determination as to whether the victim was a minor or a major when the alleged crime occurred for which the petitioner is sought to be charge sheeted for committing the offences under the POCSO Act, 2012. [19] The Special Court will accordingly proceed with the trial as directed above. Earlier interim order, if any, stands merged with this final order. ACTING CHIEF JUSTICE Bipin FR/NFR
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