Page No.# 1/6 GAHC040015602024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : Crl.Rev.P./19/2024 Chikhi James Son of Chikhi Takam, permanent resident of Rubdi Village, PO and PS Yazali, Keyi Panyor District, Arunachal Pradesh. VERSUS The State of AP and Anr represented by the PP of AP 2:Ms XXX Age: 0 Occupation : (Informant/ Victim) Daughter of Nabam Choya permanent resident of Rubdi Village PO and PS Yazali Keyi Panyor District Arunachal Pradesh Advocate for the Petitioner : Taba Topu, Tajoy Eru,Tem Pahi,Arup Bhatttacharjee,Tokdak Tamin,Likha Kagung Advocate for the Respondent : P P of AP, Nabam Taro,Nabam Talin,Kago Taja BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA ORDER Date : 21.01.2025 Heard L. Kagung, learned counsel for the petitioner. Also heard Ms. T. Jini, learned APP appearing for the State respondent no. 1 and Mr. N. Talim, Page No.# 2/6 learned counsel for respondent no.2. 2. By filing this application under Section 438 read with Section 428 of BNSS, 2023, the petitioner who is the accused in the proceeding of POCSO Case (Z) No. 3/2023, arising out of Ziro WPS Case No. 03/2023 under Section 376(3) IPC read with Section 6 of the POCSO Act, has assailed the order dated 22.10.2024, passed by the learned Special Judge (POCSO), Ziro in Crl. Misc. Case No. 9/2024(Z), by which it was held that in the month of June, 2023, the petitioner was above 18 years of age and accordingly, it was held that the petitioner is fit to be tried before the said Court, which will not prejudice his case. 3. The learned counsel for the petitioner has submitted that the alleged offence of sexual assault on the minor victim was allegedly done in the month of July, 2020 when his age would have been between 15 years and 17 years 3 months. To substantiate the said statement, the petitioner is relying on the CBSE Marks Statement-cum- Certificate, issued on 22.07.2022, where his date of birth is recorded as 14.08.2004. Accordingly, for being tried as a juvenile, the petitioner had filed Crl. Misc. Case No. 9/2024(Z) before the learned Special Judge (POCSO), Ziro, purportedly under Section 9(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015. 4. It is projected that on the basis of the said petition, the learned trial Court had passed an order to refer the petitioner to the Medical Board for determination of his age. As per the radiological examination conducted by the Medical Board, it was reported that the age of the petitioner as on 19.09.2024 was 19 years 6 months. 5. In this petition, it is project that as per the statement made Page No.# 3/6 under Section 161 and 164 CrPC, the victim had purportedly left place of offence and started to reside at a different location after 16.09.2022 and accordingly, it is projected that there could not be any physical contact between the petitioner and the alleged victim after 16.09.2022 and therefore, the FIR was lodged 9(nine) months after the alleged incident. Placing reliance on the CBSE Marks Statement-cum- Certificate, it is submitted that the petitioner was 15 years 11 months at the time of commission of the alleged offence. Accordingly, the interference with the impugned order has been prayed for. 6. Per contra, the learned APP has submitted that as per the provision of Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, it was not permissible for the learned trial Judge to order an ossification test so as to re-determine the age of the accused under the POSCO Act. The school certificate issued by the Headmaster of the concerned school was issued on 08.03.2024 (Annexure-4 to this petition). Accordingly, it is submitted that when the document is available on record to show the date of birth of the petitioner, showing that he was not a juvenile at the time when offence was committed, ossification test could not have been ordered or relief upon for any intended purpose. Accordingly, the learned APP opposes the prayer made in this criminal revision petition. 7. Per contra, the learned counsel appearing for respondent no.2 has also made submissions similar to the learned APP. 8. It is best known to the petitioner, as to why the application which was filed by the petitioner before the learned trial Court has not been annexed to this criminal revision petition. From the contents of this criminal revision petition, it is seen that the petitioner has annexed a copy of the School Certificate dated 08.03.2024, issued by the Headmaster of the school, disclosing Page No.# 4/6 therein that the date of birth of the petitioner, as per the School Admission Register (Record), is 03.12.2001. Therefore, correctness and authenticity of the date mentioned in the School Register having not been questioned by the petitioner in an appropriate manner, the said certificate dated 08.03.2024 (Annexure-4) indicates the date of birth of the petitioner, contradicts his age as has been recorded in the CBSE Marks Statement-cum- Certificate issued on 22.07.2022, when his date of birth is recorded as 14.08.2004. It may be mentioned that the petitioner has not been able to show any admissible document based on which his date of birth is projected to be 14.08.2004, as recorded in the said CBSE Marks Statement-cum- Certificate. 9. It would be apposite to quote the provision of Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015. “(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.” 10. As per sub-Section 2(iii) of Section 94, it is only the absence of the birth certificate from the school that age should be determined by an officiation test or any other latest medical age determination test. Page No.# 5/6 11. In this case, it is the petitioner who has moved the learned Special Judge (POCSO), Ziro for the determination of age. Based on the officiation test, so conducted, the petitioner was found to be of an age fit, to be tried before the said learned Court. The petitioner has failed to bring on record any material before this Court to show that the impugned order is vitiated due to any fault with the finding recorded by the learned Special Judge (POCSO), Ziro. 12. The case projected by the petitioner that the alleged offence, if any, has occurred prior to 16.09.2022, cannot be accepted at this stage on the face of the contents of the FIR, which was lodged in this case to initiate the proceedings against the petitioner. However, the Court hastens to add here that any observation made by this Court at this stage concerning the contents of the FIR may cause severe prejudice to the petitioner and therefore, no opinion is expressed on the merit of the accusation that has been made in the FIR lodged on 14.06.2023 as the same is subject matter of trial and cannot be pre-judged at this stage by this Court. 13. Accordingly, in view of the discussions above, the Court does not find any merit in this criminal revision petition filed by the petitioner to assail the impugned order dated 22.10.2024 passed by the learned Special Judge (POCSO), Ziro in Crl. Misc. Case No. 9/2024(Z) as there is no apparent infirmity in the said order and therefore, no interference is warranted against the said order. 14. Accordingly, this criminal revision petition is dismissed. 15. Although there is no order of stay operating. Nonetheless, it is clarified that there would be no impediment for the learned trial Court to Page No.# 6/6 proceed with the trial. 16. The Registry shall transmit a copy of this order to the learned Court of the Special Judge (POCSO), Ziro, to make this order a part of the record. JUDGE Comparing Assistant