Page No.# 1/5 GAHC010100572025 2025:GAU-AS:6423 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./573/2025 SHAHABUDDIN ALI S/O- HUSSAIN ALI. R/O- TAKIMARI MOTHABARI. P.S.- LAKHIPUR. DIST.- GOALPARA, ASSAM. VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PP, ASSAM 2:TAHER ALI. S/O- SURMAN ALI. R/O- BAPURBHITA PART-II. P.S.- BAGUAN. DIST.- GOALPARA Advocate for the Petitioner : MR H R A CHOUDHURY, MR. I U CHOWDHURY,MR. A AHMED Advocate for the Respondent : PP, ASSAM, Page No.# 2/5 BEFORE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK ORDER 21-05-2025 Heard Mr. HRA Choudhury, learned Senior Counsel assisted by Mr. I. U. Choudhury, learned counsel for the petitioner and Mr. K. K. Das, learned Additional Public Prosecutor, Assam. 2. The petitioner is an accused under Section 376 IPC, read with Section 4 of the POCSO Act, 2012 of committing sexual assault on the minor victim girl by which she was made pregnant. 3. The father of the minor victim girl on 28.04.2021 lodged an FIR before the Baguan Police Station that was registered as Baguan P.S. Case No. 36/2021. 4. After filing of the Charge-Sheet in said Baguan P.S. Case No. 36/2021 on 31.01.2021 vide C.S. No. 28/2021, said Baguan P.S. Case No. 36/2021 was re-registered and re- numbered as Special (POCSO) Case No.35/2021 and the trial of the said Special (POCSO) Case presently going on before the Court of learned Special Judge (POCSO)-cum-Sessions Judge, Goalpara. 5. During the trial of said Special (POCSO) Case No.35/2021, the petitioner raised an issue about the juvenility of his age. 6. After calling for the records and examining the Sub-Divisional Medical and Health Officer of Lakhipur PHC, as Court Witness No.1, by order dated 29.03.2025, passed in said Special (POCSO) Case No.35/2021, the learned Special Judge (POCSO)-cum-Sessions Judge, Goalpara came to the finding that there is a doubt regarding the genuineness of the birth certificate issued by the concerned Registrar as it was found to be issued without verifying the information available in the Register, supposed to be kept for the purpose. 7. Aggrieved with the said rejection order dated 29.03.2025, pertaining to the juvenility of the petitioner, passed by the learned Special Judge (POCSO)-cum-Sessions Judge, Goalpara in said Special (POCSO) Case No.35/2021, the petitioner has preferred this criminal Page No.# 3/5 petition under Section 528 BNSS, 2023 for setting aside the said order dated 29.03.2025 of the learned Special Judge (POCSO), Goalpara. 8. In that regard, Mr. Choudhury, learned Senior Counsel relied on the decision of the Hon’ble Apex Court in the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh and Another reported in (2022) 8 SCC 602. 9. Mr. Choudhury, learned Senior Counsel also relied on the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 pertaining to determination of age. 10. Mr. Choudhury, learned Senior Counsel also submitted that if the case of the petitioner with regard to his juvenility cannot be considered through the relevant records of Birth and Death, then, the age of the petitioner should be determined by medical examination. 11. During the deliberation of the matter, Mr. Choudhury, learned Senior Counsel placed the certified copy of the Petition No.317/2024 filed on behalf of the accused petitioner on 19.02.2024, before the Court of learned Special Judge (POCSO)-cum-Sessions Judge, Goalpara in said Special (POCSO) Case No.35/2021 wherein the accused petitioner claimed that he was a juvenile during the time of the alleged incident pertaining to the said Baguan P.S. Case No. 36/2021 stating that the birth certificate of the petitioner issued on 12.11.2021 determines his age as minor on the date of the lodging of the FIR on 28.04.2021 relating to said Baguan P.S. Case. 12. It is also seen from the impugned order dated 29.03.2025 that while determining the juvenility of the petitioner, the learned Special Judge (POCSO)-cum-Sessions Judge, Goalpara in said Special (POCSO) Case No.35/2021, rejected the claim of the petitioner to be a juvenile in conflict with law on the date of the incident rejecting the birth certificate issued to the petitioner on 12.11.2021, after taking the evidence of the concerned Sub-Divisional Medical and Health Officer of Lakhipur PHC, as Court Witness No.1. 13. 13. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 stipulates the Presumption and determination of age - (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of Page No.# 4/5 the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. 14. Section 94(2) of the said 2015 Act provides that - (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining — (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. 15. 15. After hearing the learned counsels for the parties, the impugned order dated 29.03.2025, passed by the learned Special Judge (POCSO)-cum-Sessions Judge, Goalpara in said Special (POCSO) Case No.35/2021 is set aside and quashed, remanding the matter back to the said Court of learned Special Judge (POCSO)-cum-Sessions Judge, Goalpara to determine the juvenility of the accused petitioner first, after calling for the relevant records of filing of application submitted by the father of the petitioner Hussain Ali on 29.11.2003 and on verification of all the relevant materials with regard to the issuance of Registration No. 950/2003 that is provided in the Birth Certificate issued to the petitioner on 12.11.2021 by the Registrar of Birth and Death, Lakhipur BPHC, District-Goalpara indicating the date of birth of the petitioner as 10.11.2003. 16. In the event, the juvenility of the petitioner could not be determined on the basis of the relevant records of Registration of his date of birth, the Court concerned shall determine the age of the accused petitioner’s during the time of the incident involved in the case, following the relevant provisions of Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015. 17. However, it is made clear that if the petitioner is found to have obtained the Birth Certificate No.0429813 of Book No. 15/21 with Registration No.950/2003 issued on Page No.# 5/5 12.11.2021 by the Registrar of Birth and Death, Lakhipur BPHC, District-Goalpara by fraudulent means, the concerned Court shall be at liberty to take appropriate action in accordance with law as been held by the Hon’ble Apex Court in the case of Rishipal Singh Solanki (supra). 18. The petitioner shall submit a certified copy of this order before the Court of learned Special Judge (POCSO)-cum-Sessions Judge, Goalpara forthwith. 19. With the above observations and directions, this Criminal Petition stands disposed of. JUDGE Comparing Assistant