Jammu & Kashmir and Ladakh High Court
The Jammu & Kashmir and Ladakh High Court has held that Section 34 of the POCSO Act vests jurisdiction with the Special Court not only to determine the age of the offender but also the age of the victim, at any stage of the proceedings.
The Court was considering whether provisions of the POCSO Act provide for age determination of a victim, and if that is so, at what stage of the proceedings such an exercise has to be undertaken by the Special Court.
The Bench of Justice Sanjay Dhar held, “it is clear that Section 34 of the POCSO Act vests jurisdiction with the Special Court not only to determine the age of the offender but it also vests jurisdiction with it to determine the age of the victim. It is also clear that said question can be determined by the Special Court at any stage whenever such question arises in any proceeding.”
Advocate Rohit Kohli reprsented the Petitioner, while DSGI Vishal Sharma and Advocate Nisar H. Ladakhi represented the Respondents.
Case Brief
An FIR was filed against the Petitioner for offences under Sections 354, 354A of IPC and 9(l)/10 of POCSO at Women Police Station, Leh. It was the case of the Prosecutrix that on the pretext of helping her the Petitioner took undue advantage of her miseries, as her mother was suffering from ailment.
It was the case of the Prosecutrix that the Petitioner touched her inappropriately and sexually assaulted her on multiple occasions, however, due to the Petitioner’s high position (President of Ladakh Buddhists Association) she felt scared to make any complaint against him and she could not muster courage to narrate these incidents to anyone.
The Police after investigating the case found that the said offences were proved against the Petitioner.
The Petitioner contended that the victim was more than 18 years of age at the time of the alleged incident, as such, offences under the POCSO Act are not made out against the Petitioner.
Court’s Reasoning
The issue before the Court was whether provisions of the POCSO Act provide for age determination of a victim and if that is so at what stage of the proceedings such as exercise has to be undertaken by the Special Court.
While referring to Section 34 of POCSO and Section 94 of Juvinile Justice Act (JJ Act), the Court relied upon the decision of Supreme Court in P. Yuvaprakash v State rep. by Inspector of Police (2023), wherein it was observed that whenever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act.
“Thus, the question relating to age determination of a victim can be gone into by a Special Court even before the framing of charges during the inquiry proceedings, so as to determine whether or not the case is eligible to be dealt with in accordance with the provisions of the POCSO Act”, the Court observed.
In the light of the above, the Court remanded to the trial Court for conducting the inquiry afresh with regard to the age determination of the victim.
While deciding the bail application, the Court opined that irrespective of the age of victim, the allegations against the Petitioner are serious in nature and it appears to be a case of exploitation of a helpless girl by a person holding a high position in the society. The Court also noted that the conduct of the Petitioner gives rise to an apprehension that if he is enlarged on bail, he may again abscond.
Accordingly, the Court dismissed the bail application of the Petitioner.
Cause Title: Teswang Thinles V. U.T. Of Ladakh & Anr.
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