Siddu vs State of Karnataka and Others

K.N. Phaneendra, J.—This petition is filed calling in question the order dated 23.02.2015 passed by the Principal Sessions Judge, Bidar, in Spl. Case No. 4/2015 refusing to transfer the Spl. Case No. 4/2015 to the Juvenile Justice Board for further proceedings.

I have heard the arguments of the learned counsel for the petitioner and the learned HCGP for the Respondent-State.

The case of the prosecution in brief is that, the petitioner alleged to have ravished the victim-girl aged six years. The allegation against the accused is a penetrative sexual assault against the victim, therefore, the police have registered a case for the offences-punishable under Sections 376(F), 506 of IPC and also under Section 6 of the POCSO Act, 2012.

During the course of investigation in Crime No. 87/2014, it appears the accused has approached the Sessions Court for grant of bail during investigation, the learned Sessions Judge has referred the accused to Juvenile Justice Board on considering the materials on record by tentatively holding that the accused was aged 17 years and 14 days. Subsequently, it appears the police have submitted the charge sheet before the Juvenile Justice Board on the ground that the accused was a minor. The Juvenile Justice Board has rejected the bail petition at the earlier stages. Further, it is seen from the orders of the Juvenile Justice Board that it suspected the age of the accused, therefore, for the purpose of } determining the age of the accused, the Investigating Officer was directed to obtain the opinion of the Medical Board to that effect. Accordingly, the Investigating Officer secured the opinion of the Medical Authority of Victoria Hospital at Bangalore and after thorough examination, the authority of the Victoria Hospital has issued a certificate that the accused was aged more than 20 years. In view of the above said document, the Juvenile Justice Board again referred the matter to the Principal District and Sessions Judge, requesting to pass appropriate orders with regard to the age of the accused, whether he was a Juvenile or not. At that particular juncture, after going through the entire materials on record, including the charge sheet papers and the opinion of the Victoria Hospital at Bengaluru, the learned Sessions Judge was of the opinion that the age of the accused has to be decided during the course of the trial. The learned Sessions Judge has also observed that Section 34 of POCSO Act, 2012 to be followed for determining the age of the accused during the course of the trial and since the prosecution has placed all the materials at its best, an opportunity has to be given to the prosecution to lead evidence to determine the age of the accused along with the regular trial.

The learned Sessions Judge opined that, since the trial has already been commenced, the accused is also to be given an opportunity to lead evidence with regard to the age of the accused. Therefore, on that ground, the memo filed by the accused seeking transfer of the case to the Juvenile Justice Board was dismissed by the learned Sessions Judge.

On perusal of the entire materials on record, of course, rightly or wrongly, there were two set of materials placed before the Court at the earlier stages. When the learned Sessions Judge has passed the earlier order, complete materials were not available to him. He considered the materials only for the purpose of disposing of the bail petition. The said observation of the learned Sessions Judge, in my opinion, does not debar the learned Sessions Judge from passing appropriate order at relevant point of time after completion of the investigation and even after recording the evidence for the limited extent for the purpose of considering the age of the accused. The main object of considering the age of the accused under Section 34 of the POCSO Act 2012 is to decide which is the proper Court to try the accused and also sentence him. If the accused is held to be less than 18 years and is a Juvenile, the learned Sessions Judge will loose his power to conduct trial and the Juvenile Justice Board alone is competent authority to try and dispose of the case, in accordance with the said special enactment. Therefore, it is incumbent upon the learned Sessions Judge, who is competent, to pass appropriate order under Section 34 of the POCSO Act, 2012 to pass order deciding whether the accused is a Juvenile'' or he has crossed the age of 18 years in order to try him before the Sessions Court. Even, if there is any doubt with regard to the age of the accused and the Court requires some more evidence to resolve the dispute, it can take such evidence and on the basis of that evidence, it has to decide the age of the Juvenile and thereafter only, the Court has to proceed with the merits of the case. This important aspect has to be taken into consideration, because, once the Court is empowered to pass an order on the point of age, whether the accused is Juvenile or not, an order should be passed at the preliminary stages itself on considering the materials on record, if the records are certain and they are sufficient to draw an inference with regard to the age of the accused. If for any reason, the evidence is required, the evidence for the limited purpose has to be recorded and then finding has to be given by the competent Court and thereafter only the case has to be proceeded on merits.

In this particular case, the memo filed by the accused was rejected only on the ground that the trial has already commenced and Section 34 of the POCSO Act can be followed for determining the age of the accused only after considering the evidence. Perhaps, the learned Sessions Judge might have felt that when two set of ) documents are available, one set is in favour of the accused and another set is in favour of the prosecution, the learned Sessions Judge might have required some more evidence by way of clarification in this regard for the purpose of adjudicating the age of the accused. Therefore, I do not find any strong reasons to differ from the said opinion of the learned Sessions Judge. However, I differ from the opinion of the learned Sessions Judge in coming to the conclusion that the said point can also be considered along with the merits of the case. That may not be proper for the simple reason that the merit of the case has to be decided by the Juvenile Justice Board if for any reason the Sessions Court comes to the conclusion that the accused is a ''Juvenile''. Therefore, it is incumbent upon the learned Sessions Judge to record the evidence for the limited purpose of determining the age of the accused and if for any reason, it is held that the accused is not a Juvenile, then the accused has to be tried by the learned Sessions judge and then only he has to record the evidence on merits of the case and proceed with the case in accordance with law. Otherwise, if he holds that the accused was a Juvenile as on the date of offence, then he gets no jurisdiction to proceed with the case on merits and he should refer the matter to the Juvenile Justice Board for further proceedings.

In view of the above discussions, I am of the opinion that the order of the learned Sessions Judge requires to be set aside and a direction in this regard has to be given. Accordingly, the following order is passed:-

ORDER

The petition is allowed. The order dated 23.02.2015 passed by the learned Sessions Judge in Special Case No. 4/2015 is hereby set aside. However, the learned Sessions Judge is hereby directed to record the evidence of the witnesses who are relevant for the purpose of deciding the age of the accused first and then pass orders under Section 34 of the POCSO Act, 2012 and if for any reason, the Trial Court holds that the accused is not a Juvenile, then only it can proceed to record the evidence on merits of the case. Otherwise, the learned Sessions Judge has to refer the matter to the Juvenile Justice Board for further proceedings.

The office is hereby directed to send a copy of this order to the learned Sessions Judge concerned for compliance, forthwith.