Page No.# 1/6 GAHC010149672025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./802/2025 MD HARMUJ ALI @ HURMUJ ALI S/O MD. MINUL HOQUE, VILL. 1 NO. JHARGAON/BHOLABARI, P.S. KALAIGAON, DIST. UDALGURI, BTAD, ASSAM. VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PP, ASSAM. 2:KARIM ALI S/O LATE ABDUL SEIKH VILL. 1 NO. JHARGAON P.O. RANIPUKHURI P.S. KALAIGAON DIST. UDALGURI BTAD ASSAM PIN 78419 Advocate for the Petitioner : K RAHMAN, MR. SAIDUL ALOM,MR. N. ISLAM Advocate for the Respondent : PP, ASSAM, MR. L GOGOI (R-2) BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 12.08.2025 1. Heard Mr. K. Rahman, learned counsel for the petitioner. Also heard Mr. K. K. Das, learned Additional Public Prosecutor appearing for the State of Assam Page No.# 2/6 as well as Mr. L. Gogoi, learned counsel for the respondent No. 2. 2. This application under Section 528 of the BNSS, 2023 has been filed by the petitioner, namely, Md. Harmuj Ali @ Hurmuj Ali, impugning the order dated 11.06.2025, passed in Special (POCSO) Case No.55/2019 in Kalaigaon P.S. Case No.73/2018, pending before the Court of learned Special Judge (POCSO), Udalguri. 3. By the impugned order, the Trial Court has rejected the plea of juvenility raised by the petitioner before the Trial Court. 4. The facts relevant for consideration of the instant criminal petition, in brief, are that on 06.07.2018, the maternal uncle of the victim had lodged an FIR before the Officer-in-charge of Kalaigaon Police Station, inter alia, alleging that during the absence of any family members of the victim in her house, the petitioner had committed rape on her. It is also alleged that the victim girl was minor when the alleged offence was committed. After completion of the investigation, charge-sheet was laid against the petitioner and one Julfikar Ali under Sections 448/354B/34 of the Indian Penal Code read with Section 8 of the POCSO Act, 2012. During pendency of the trial, the petitioner had filed a Petition No. 1122/2025 before the Trial Court taking the plea of juvenility. In support of the said plea, the petitioner had produced leaving/transfer certificate of school, wherein his date of birth was shown as 29.03.2002. The Trial Court conducted an enquiry during which the Headmaster of No. 1 Jhargaon Hajichuba L.P. School was examined along with school register. However, the Trial Court declined to rely on the evidence produced by the Headmaster and rejected the plea of juvenility raised by the petitioner. 5. The learned counsel for the petitioner has submitted that the petitioner Page No.# 3/6 was a juvenile when the alleged offence was committed. As the petitioner was born on 29.08.2002 and the alleged offence was committed on 05.07.2018, the learned counsel for the petitioner submits that the petitioner was of 16(sixteen) years of age in the year 2018. 6. The learned counsel for the petitioner has submitted that if the Trial Court was not convinced with the birth certificate produced by the petitioner, it ought to have taken recourse to the procedure prescribed in Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 by directing the ossification test of the petitioner. He submits that as the petitioner has discharged his initial burden of proving the plea of juvenility by producing the school leaving certificate and as he is presently 22 years, even now the ossification test may be directed for finding out his age at the time of commission of alleged offence. 7. On the other hand, the learned Additional Public Prosecutor has opposed the criminal petition filed by the petitioner. He has submitted that the trial has already culminated and the Special (POCSO) Case No.55/2019 is pending for delivery of judgment on 13.08.2025. He submits that at this belated stage when the plea of the juvenility has been rejected by the Trial Court after conducting an enquiry, the impugned order may not be interfered with. He submits that the Trial Court has rightly declined to rely on the school leaving certificate as the date of birth of the petitioner in the said school leaving certificate was inserted merely on the oral version of his parents. No birth certificate was produced by the parents at the time of taking admission in the school. 8. The learned Additional Public Prosecutor has also submitted that the Trial Court has also opined that by observing the petitioner, it can be held that Page No.# 4/6 he was major at the time when the alleged offence was committed. He, therefore, prays for dismissing this criminal petition. 9. Mr. L. Gogoi, learned counsel for the respondent No. 2 has also opposed the criminal petition filed by the petitioner and had made submissions similar to that of learned Additional Public Prosecutor. 10. I have considered the submissions made by the learned counsel for both the sides and have gone through the materials available on record. 11. In the instant case, the petitioner apart from challenging the impugned order has also raised a claim of being juvenile at the time of the alleged commission of the crime (on 05.07.2018). Though, the said plea was dismissed by the Trial Court, however, there is no dispute regarding the proposition of law that the plea of juvenility may be raised at any stage. 12. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides as follows:- “94. 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 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. (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 Page No.# 5/6 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. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. 13. It is clear from the aforementioned provisions that while enquiring into the age of the person/accused, the evidence for the said purpose may be collected by obtaining (a) date of birth certificate from the school, (b) birth certificate by Municipal Authority or Panchayat and (c) in absence of (a) and (b) by an ossification test or other latest medical age determination test. 14. In the instant case, during the enquiry conducted by the Trial Court, the school leaving certificate issued by the Headmaster of the school, where the petitioner claims to have studied, was produced. However, the Trial Court after examining the School Headmaster did not rely on the said evidence as it was found that the date of birth was inserted in the said school leaving certificate on the basis of oral information provided by the parents of the petitioner. The first reasoning given by the Trial Court in the impugned order cannot be faulted with. However, the second reasoning, i.e., by observing the petitioner (in the year 2025) the Trail Court opined that he was a major at the time of commission of offence (in the year 2018) does not appear to be reasonable. If the Trial Court doubted the school leaving certificate produced by the petitioner, and rightly so, the Trial Court ought to have proceeded to the third option provided in Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 i.e., it ought to have ordered the determination of age of the petitioner by an ossification test or other latest medical age determination test. Page No.# 6/6 15. In view of the discussion made in the foregoing paragraphs, the Trial Court is hereby directed to conduct further enquiry to determine the age/date of birth of the petitioner according to the provision contained in 94(2)(iii) of the Juvenile Justice (Care and Protection of Children) Act, 2015 by subjecting the petitioner to an ossification test or other latest medical age determination test. 16. The Trial Court is directed to complete the further enquiry within a month of the date of receipt of a copy of this order. 17. During the pendency of the said enquiry, the further proceeding of Special (POCSO) Case No.55/2019 shall remain suspended. 18. After conclusion of further enquiry as directed by this Court, the Trial Court shall proceed accordingly depending on its finding in the further enquiry regarding ascertainment of age of the above named petitioner. 19. With the above observation, this criminal petition is hereby disposed of. 20. Let a copy of this order be furnished to the Trial Court for doing the needful. JUDGE Comparing Assistant