Gauhati High Court
Assadul Islam Alias Asadul Islam vs The State Of Assam And Anr on 15 May, 2026
Page No.# 1/26
GAHC010246282025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./459/2025
ASSADUL ISLAM ALIAS ASADUL ISLAM
SON OF ALIM UDDIN
R/O VILL- BISHNUPUR, P.O. HARIBOR NAHARONI, P.S. LALUK DIST.
LAKHIMPUR, ASSAM
PIN- 784160
VERSUS
THE STATE OF ASSAM AND ANR
REP BY THE PP, ASSAM
2:MUSST. HAFIZA KHATUN
W/O SOHUR UDDIN
VILL- BISHJNUPUR
P.O. HARIBOR NAHARONI
P.S. LALUK
DIST. LAKHIMPUR
ASSAM
PIN-78416
Advocate for the Petitioner : ALHAJJ I UDDIN, MRS. ROMA ENGTIPI,MR ROBIUL
HOQUE,MRS. R MOMTAZ
Advocate for the Respondent : PP, ASSAM, MS. C SAIKIA (R-2),MR. B BORGOHAIN (R-2),MR.
B SAIKIA (R-2),MR. S NEOG (R-2),MS. S G BARUAH (R-2) Page No.# 2/26 Date on which Judgment was reserved : 26.02.2026 Date of pronouncement of Judgment : 15.05.2026 Whether the pronouncement is of the operative part of the Judgment ? : NA Whether the full Judgment has been pronounced ? : Yes :::BEFORE:::
HON'BLE MR. JUSTICE ANJAN MONI KALITA JUDGMENT & ORDER (CAV) Dated: 15.05.2026 Heard Mr. A. I. Uddin, learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State of Assam as well as Ms. S. G. Baruah, learned counsel appearing for the respondent/opposite party No. 2.
2. The instant application under Sections 438/442 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, read with Article 227 of the Constitution of India, has been filed assailing the order dated 11.08.2025, passed by the learned Special Judge (POCSO), Lakhimpur, in Special POCSO Case No. 143/2025, arising out of Lakhimpur Police Station Case No. 54/2025, registered under Sections 76/65(1) of the BNS, 2023, read with Section 4 of the POCSO Act, 2012 (hereinafter referred to as POCSO Act), though the charge-sheet was submitted under Sections 75(2)/64(1) of the BNS, 2023, but the learned Special Judge (POCSO), Lakhimpur framed the charge under Sections 76/65(1) of the Page No.# 3/26 BNS, 2023, read with Section 4 of the POCSO Act. The petitioner has also assailed the order dated 26.06.2025, passed by the learned Sessions Judge, Lakhimpur, in Sessions Case No. 93/2025 (corresponding to Special POCSO Case No. 143/2025), whereby the learned Sessions Judge, Lakhimpur, transferred the case to the Court of the learned Special Judge (POCSO) with a direction to register the same as a POCSO case and proceed with the trial after determination of the age of the alleged victim as per law.
3. The facts giving rise to the instant petition, in brief, are that the informant, i.e., the opposite party No. 2, lodged an FIR alleging, inter alia, that on 10.03.2025 at about 6:00 PM, her minor daughter, stated to be about 16 years of age, while returning home from her brother's house was allegedly raped by the petitioner after threatening her with a sharp weapon. It was further alleged that the petitioner threatened the victim with dire consequences in the event of disclosure of the incident.
4. Upon receipt of the FIR, the police registered a case under Sections 76/65(1) of the BNS, 2023, read with Section 4 of the POCSO Act, being Lakhimpur Police Station Case No. 54/2025.
5. During the course of investigation, the police got the victim medically examined and on such medical examination, the age of the victim was found to be above 18 years. Accordingly, the police submitted the charge-sheet, vide Charge-sheet No. 78/2025 dated 08.05.2025 under Sections 75(2)/64(1) of the BNS, 2023. After registration of the case, the police arrested the petitioner on 16.03.2025 and he was produced before the Court of the learned Chief Judicial Magistrate (CJM), Lakhimpur. The learned Chief Judicial Magistrate remanded him to judicial custody, and since then the petitioner is behind the bars.
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6. Upon receipt of the charge-sheet, the learned Special Judge (POCSO), Lakhimpur, vide Order No. 66/2025, remanded the matter to the Court of the learned Chief Judicial Magistrate, Lakhimpur, as the charge-sheet was filed under Sections 75(2)/64(1) of the BNS, 2023 and no offence under the POCSO Act was made out against the petitioner. Since the case was triable by the Sessions Court, the learned Chief Judicial Magistrate, Lakhimpur committed the case to the Court of the learned Sessions Judge, Lakhimpur. Thereafter, the learned Sessions Judge, Lakhimpur, vide order dated 26.06.2025, transferred the case to the Court of the learned Special Judge (POCSO), Lakhimpur with a direction to proceed with the trial after determining the age of the victim girl as per law. The learned Special Judge (POCSO), vide order dated 30.06.2025 accepted the same and took cognizance of the offence and fixed the matter for supply of copy/consideration of charge. The learned Special Judge (POCSO) also directed the opposite party No. 2 to produce the School Certificate or Birth Certificate of the alleged victim girl in order to ascertain her age, and fixed 07.07.2025 for the same. After having found sufficient grounds, the learned Special Judge (POCSO) passed the impugned order dated 11.08.2025 and framed charges against the petitioner. After framing of the charge, the trial proceeded and the case is presently pending at the evidence stage after examination of 4 (four) witnesses at this stage.
7. Mr. A. I. Uddin, learned counsel for the petitioner submits that the learned Special Judge (POCSO), Lakhimpur has erred both in law and on facts in framing charge against the petitioner under Sections 76/65(1) of the BNS, 2023, read with Section 4 of the POCSO Act. He submits that the learned Special Judge (POCSO), Lakhimpur, without first determining the age of the alleged victim girl, framed the charge under the POCSO Act, merely on the basis of the Page No.# 5/26 direction issued by the learned Sessions Judge, Lakhimpur, without applying its independent mind drawing own satisfaction. Therefore, the impugned order dated 11.08.2025 is liable to be set aside, as the same is not sustainable in law.
8. Learned counsel further submits that although the case was initially registered under Sections 76/65(1) of the BNS, 2023, read with Section 4 of the POCSO Act, however, after completion of investigation, the Investigating Officer medically examined the victim girl and also conducted an ossification test and upon finding that the victim a major, the Investigating Officer had submitted the charge-sheet against the petitioner under Sections 75(2)/64(1) of the BNS, 2023. In the charge-sheet, it was categorically mentioned that the age of the alleged victim was above 18 years on the date of the alleged occurrence. Therefore, since the alleged victim girl was found to be a major, no case under Section 4 of the POCSO Act was made out. He submits that the learned Special Judge (POCSO), Lakhimpur overlooked the said aspect and illegally framed charge against the petitioner under Sections 76/65(1) of the BNS, 2023, read with Section 4 of the POCSO Act, despite the charge-sheet being submitted under Sections 75(2)/64(1) of the BNS, 2023, which is totally untenable and liable to be set aside. The learned counsel submits that since the charge-sheet was not filed under any section of the POCSO Act, the learned Special Judge (POCSO), Lakhimpur had framed the aforesaid section erroneously against the petitioner; therefore, the same is liable to be set aside. He submits that since the charge-sheet was not filed under the POCSO Act, the learned Special Judge (POCSO) had no jurisdiction to try the instant case. He submits that the learned Special Judge (POCSO) without examining those aspects and position of law has committed a grave error in framing the aforesaid charges against the petitioner under Sections 76/65(1) of BNS, read with Section 4 of the POCSO Act. He Page No.# 6/26 submits that since the charge-sheet was not filed under any section of the POCSO Act, the learned Special Judge (POCSO), Lakhimpur ought to have been sent back the matter to the competent court for trial as per Section 251(1)(a) of the BNSS.
9. The learned counsel for the petitioner submits that the Special Court under the POCSO Act has been established in terms of Section 28(1) of the POCSO Act, which is not a court subordinate to the Sessions Court. Therefore, the direction issued by the learned Sessions Judge, vide order dated 26.06.2025 to register the case as a POCSO case is beyond its jurisdiction and not sustainable in law. He submits that vide order dated 26.06.2026, the learned Sessions Judge, Lakhimpur directed the learned Special Judge (POCSO) to register a case under the POCSO Act and to proceed with the trial after determining the age of the alleged victim girl. Pursuant thereto, the learned Special Judge (POCSO) registered the instant POCSO case and framed charges under Sections 76/65(1) of the BNS read with Section 4 of the POCSO Act. Therefore, he submits that the entire trial has been vitiated as it has proceeded on the basis of an erroneous direction passed by the learned Sessions Judge, Lakhimpur. He submits that since the Court of the learned Special Judge (POCSO) is not subordinate to the Sessions Judge, such direction issued by the learned Sessions Judge, Lakhimpur, is beyond his jurisdiction, and therefore, the order dated 26.06.2025 as well as the order dated 11.08.2025, whereby charges were framed against the petitioner under the POCSO Act, are liable to be set aside.
10. In support of his submissions regarding the error committed by the learned Special Judge (POCSO) in framing charge under the POCSO Act in view Page No.# 7/26 of the direction issued vide order dated 26.06.2026 by the Sessions Judge, Lakhimpur, the learned counsel for the petitioner referred to the case of Deepak Yadav & Anr. Vs. State of Uttar Pradesh & Anr. (Criminal Appeal No. ___ of 2025 arising out of SLP (Crl.) No. 6904/2025) of the Hon'ble Supreme Court dated 17.09.2025, wherein, the Hon'ble Supreme Court has held that it is incumbent upon the trial court to form its perspective of its own with regard to applicability of a particular section independently, based on the materials produced either by the complainant or by the defence and from the investigating agency or in alternative to conduct the enquiry of its own. The learned counsel's contention is that in the instant case also, the learned Special Judge (POCSO), without applying its own mind and without arriving at an independent satisfaction, has mechanically framed charge against the petitioner under the POCSO Act. Therefore, the order dated 11.08.2025 is unsustainable in law.
11. While referring to the case of State through Central Bureau of Investigation Vs. Hemendhra Reddy & Anr. etc., reported in 2023 0 Supreme (SC) 442, the learned counsel for the petitioner submits that whenever a final report is submitted before a Magistrate, the Magistrate may either: (i) accept the report and take cognizance of the offence and issue process; (ii) may disagree with the report and drop proceeding or may take cognizance on the basis of the report/material submitted by the Investigation Officer; (iii) may direct further investigation under section 156(3) Cr.P.C and require police to make report as per section 173(8)of the Cr.P.C. He submits that since in the instant case, without either accepting the final report or directing further investigation, the charge has been framed against the petitioner, which Page No.# 8/26 could not have been done by the learned Special Judge (POCSO) after filing of the final report by the police.
12. So far as his submission regarding determination of the age of the victim girl and insufficiency of records regarding the age of the victim, he has referred to the decisions in Mannu @ Saddam @ Md. Mannu Saddam Vs. State of Bihar, reported in 2024 0 Supreme (Pat) 1105 and Rishipal Singh Solanki Vs. State of Uttar Pradesh & Ors., reported in (2022) 8 SCC 602, to buttress his submission that that determination of the age of the victim girl is required to be made in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the 'JJ Act, 2015'). He further submits that in the present case, the determination of age was not done as per the provisions of the aforesaid JJ Act, 2015 and no reasons have been recorded by the learned Special Judge (POCSO), Lakhimpur in forming his/her mind to go ahead with framing of the charge against the petitioner under the POCSO Act.
13. Mr. Uddin, the learned counsel further referred to the decision in Saroj & Ors. Vs. IFFCO Tokio General Insurance Co. Ltd. & Ors., reported in 2024 0 Supreme (SC) 969, wherein the Hon'ble Supreme Court has held that Aadhaar Card may not be treated as conclusive proof of age. He submits that the learned Special Judge (POSCO) had framed the charge under the POCSO Act against the petitioner only on the basis of the Aadhaar Card produced by the Opposite Party No. 2.
14. Per contra, Mr. R. J. Baruah, learned Additional Public Prosecutor for the State, submits that there is no infirmity in the order passed by the learned Page No.# 9/26 Sessions Judge, Lakhimpur, inasmuch as, after finding sufficient materials indicating commission of an offence under the POCSO Act, the learned Sessions Judge, not being empowered to take cognizance of the case, has rightly transferred the case to the learned Special Judge (POCSO), vide order dated 26.06.2025. He submits that no wrong has been committed by the learned Special Judge (POCSO) in framing charge against the petitioner under the POCSO Act, as sufficient materials were available before the learned Special Judge (POCSO) for framing charge against the petitioner. Therefore, the petition challenging the aforesaid two orders passed by the learned Sessions Judge and the learned Special Judge (POCSO), respectively, may not be interfered with and accordingly, the instant petition should be dismissed.
15. Ms. S. G. Baruah, learned counsel appearing for the respondent/opposite party No. 2 has supported the submissions made by the learned Additional Public Prosecutor. She submits that there is no illegality in framing the charge against the petitioner. She submits that even if the charge-sheet was filed without including any provision of the POCSO Act, the learned Special Judge (POCSO) is empowered to frame charge under the POCSO Act, if sufficient prima facie materials are available on record. She further submits that the petitioner has not filed any application for discharging him under Section 251 of BNSS, 2023 (Section 228 Cr.PC). She submits that while framing charge, the Court of the learned Special Judge (POCSO) is not required to record detailed reasons. She further submits that after hearing both sides and granting due opportunity, and upon arriving at a prima facie conclusion that sufficient materials had been found against the petitioner to frame the charge under the POCSO Act, the learned Special Judge (POCSO) framed the charge. Therefore, there is no infirmity in the impugned orders dated 11.08.2025 and 26.06.2025, Page No.# 10/26 passed by the learned Special Judge (POCSO) and the learned Sessions Judge, respectively. She submits that since the learned Sessions Judge is not empowered to try such case, the same was transferred to the appropriate Court having jurisdiction, i.e., the learned Special Judge (POCSO), for proceeding with the trial after framing of the charge. In view of the aforesaid submissions, she submits that the instant petition being devoid of any merit is liable to be dismissed.
16. In support of her submission that the learned Special Judge (POCSO) has sufficient powers and it is not precluded from adding certain sections even if the charge-sheet omitted the same, the learned counsel for the respondent/opposite party No.2 relied upon the case of State of Uttar Pradesh Vs. Girish Radhakrishnan Varde, reported in 2013 Supreme (SC) 1070, wherein the Hon'ble Supreme Court held that in a case lodged before the police, the correct stage for addition or subtraction of sections will have to be determined at the stage of framing of charge after taking into account the incriminating material available on record. In the instant case, the section under POCSO Act has been rightly added by the Court of learned Special Judge (POCSO), Lakhimpur at the time of framing of charge after taking into account the available incriminating material against the petitioner. Therefore, there is no wrong in framing of charge under the POCSO Act.
17. In support of her submission regarding non-requirement of detailed reasons while framing charge, the learned counsel referred to the decision in Dinesh Tiwari Vs. State of Uttar Pradesh & Anr., reported in 2014 Supreme (SC) 509, wherein the Hon'ble Supreme Court held that at the stage of framing charge under Section 228 Cr.PC, the Judge is not required to record Page No.# 11/26 detailed reasons as to why such charge is framed and a prima facie satisfaction is sufficient.
18. Trial Court record has been produced before this Court which has been perused. It is seen from the record that the case record was initially put up before the learned Chief Judicial Magistrate, Lakhimpur, North Lakhimpur on 12.03.2025, since the case was registered under Sections 76/65(1) of the BNS, read with Section 4 of the POCSO Act. Since the same is triable by the Court of the learned Special Judge (POCSO), accordingly, the learned Chief Judicial Magistrate forwarded the original case record to the Court of the learned Special Judge (POCSO), vide order dated 12.03.2025. However, as the charge-sheet was submitted under Sections 75(2)/64(1) of the BNS, 2023 before the learned Special Judge (POCSO), Lakhimpur and the same being not triable by the said Court, the case record was sent back to the learned Chief Judicial Magistrate, Lakhimpur, North Lakhimpur. Thereafter, the case record was forwarded to the Court of the learned Sessions Judge, Lakhimpur, as the same was triable by the Sessions Court. Upon receipt of the record, the learned Sessions Judge, on perusal of the materials, found the alleged victim girl to be a minor. Accordingly, vide order dated 26.06.2025, the learned Sessions Judge transmitted the case record to the Court of the learned Special Judge (POCSO), Lakhimpur, for registration of the case under the POCSO Act, with a direction to determine the age of the victim girl as per the provisions of law and to proceed with the case accordingly.
19. Upon receipt of the record transmitted from the Court of the learned Sessions Judge, the learned Special Judge (POCSO), Lakhimpur registered Special POCSO Case No. 143/2025 and thereafter, upon hearing the parties on Page No.# 12/26 11.08.2025, passed the order, wherein it has been recorded that there were sufficient grounds for presuming that the petitioner/accused, namely Assadul Islam @ Asadul Islam (the petitioner), has committed offences punishable under Sections 76/65(1) of the BNS and Section 4 of the POCSO Act. Accordingly, charges under the aforesaid provisions of law were framed against the accused/petitioner. Thereafter, the trial proceeded and as many as 4 (four) witnesses, including the informant and the victim have already been examined. The petitioner in the instant case has challenged the order dated 26.06.2025 passed by the learned Sessions Judge, Lakhimpur and the subsequent order dated 11.08.2025 passed by the learned Special Judge (POCSO), Lakhimpur.
20. An argument has been made by the learned counsel for the petitioner that the Court of the learned Special Judge (POCSO), being an independent Court having special jurisdiction and being at par with the Sessions Court, is not subordinate to the Sessions Court and therefore, the learned Sessions Judge has no jurisdiction to direct the learned Special Judge (POCSO) to register a case under the POCSO Act and to proceed with the trial. Chapter VII & VIII of the POCSO Act, 2012 relates to Special Courts and Section 28 relates to designation of Special Courts. Since the same is relevant to the present case, Section 28 is extracted hereinbelow:
"28. Designation of Special Courts.--(1) For the proposes of providing a speedy trial, the State Government shall, in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, designate for each district, a Court of Session to be a Special Court to try the offences under the Act:
Provided that if a Court of Session is notified as a children's court under Page No.# 13/26 the Commissions for Protection of Child Rights Act, 2005 (4 of 2006) or a Special Court designated for similar purposes under any other law for the time being in force, then, such court shall be deemed to be a Special Court under this section.
(2) While trying an offence under this Act, a Special Court shall also try an offence (other than the offence referred to in sub-section 1), with which the accused may, under the Code of Criminal Procedure, 1973, (2 of 1974) be charged at the same trial.
(3) The Special Court constituted under this Act, notwithstanding anything in the Information Technology Act, 2000, shall have jurisdiction to try offences under section 67B of that Act in so far as it relates to publication or transmission of sexually explicit material depicting children in any act, or conduct or manner, or facilitates abuse of children online."
21. Section 33 of the POCSO Act provides for the procedure and powers of a Special Court. A conjoint reading of Sections 28 and 33 reveals that, subject to the provisions of the POCSO Act, a Special Court shall have all the powers of a Court of Session and shall try offences under the Act as if it were a Court of Session and as far as may be, in accordance with the procedure specified in the Code of Criminal Procedure, 1973 for trial before a Court of Session. Sub-section (1) of Section 33 provides that the Special Court may take cognizance of any offence without the accused being committed to it for trial, upon receiving a complaint of facts constituting such offence, or upon a police report of such facts. Sub-section (9) of Section 33 mandates that, subject to the provisions of the Act, a Special Court shall, for the purpose of trial of any offence under the Act, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session and, as far as may be, in accordance with the Page No.# 14/26 procedure specified in the Code for trial before a Court of Session. Section 33 of the POCSO Act, is reproduced hereinbelow:
"33. Procedure and powers of Special Court.--
(1) A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts.
(2) The Special Public Prosecutor, or as the case may be, the counsel appearing for the accused shall, while recording the examination-in-chief, cross-
examination or re-examination of the child, communicate the questions to be put to the child to the Special Court which shall in turn put those questions to the child.
(3) The Special Court may, if it considers necessary, permit frequent breaks for the child during the trial.
(4) The Special Court shall create a child-friendly atmosphere by allowing a family member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present in the court.
(5) The Special Court shall ensure that the child is not called repeatedly to testify in the court.
(6) The Special Court shall not permit aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times during the trial.
(7) The Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial:
Provided that for reasons to be recorded in writing, the Special Court may Page No.# 15/26 permit such disclosure, if in its opinion such disclosure is in the interest of the child.
Explanation.-- For the purposes of this sub-section, the identity of the child shall include the identity of the child's family, school, relatives, neighbourhood or any other information by which the identity of the child may be revealed.
(8) In appropriate cases, the Special Court may, in addition to the punishment, physical or mental trauma caused to him or for immediate rehabilitation of such child.
(9) Subject to the provisions of this Act, a Special Court shall, for the purpose of the trial of any offence under this Act, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session, and as far as may be, in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974) for trial before a Court of Session."
22. From the above, it is discernible that a Special Court (POCSO) which is designated as a Special Court by the State Government in consultation with the Chief Justice of the High Court, has the same powers as per as the POCSO Act, along with the powers under the Cr.P.C. (BNSS). Therefore, it is evident that a Special Court under the POCSO Act and a Sessions Court are at par and possess similar powers. Accordingly, the Special Court cannot not be termed as an inferior Court to the Sessions Court.
23. Be that as it may, in the instant case, upon perusal of the order dated 26.06.2025 passed by the learned Sessions Judge, Lakhimpur, it is seen that after considering the materials placed before it, the learned Sessions Judge found incriminating materials against the petitioner regarding commission of a sexual offence against the alleged victim girl who is presumed to be a minor girl Page No.# 16/26 as per the available material, transmitted the case to the Court of the learned Special Judge (POCSO), Lakhimpur. The learned Sessions Judge, while doing so, also considered the statements of the alleged victim recorded under Sections 181 and 183 of the BNSS and on the basis of which, the learned Sessions Judge prima facie found the victim girl to be a minor at the time of the alleged incident. In view of the aforesaid materials, the learned Sessions Judge also observed that the charge-sheet was filed without any section under the POCSO Act, as the medical report suggested that the alleged victim girl was above 18 years of age, and came to a prima facie conclusion that in the absence of any High School Certificate, Birth Certificate, or any other proper proof of age, the Ossification Test, which was conducted without any order of the Court, may not be trustworthy and may not be treated as conclusive proof for determining the age of the alleged victim girl.
24. Accordingly, the learned Sessions Judge, Lakhimpur, transmitted the matter to the Court of the learned Special Judge (POCSO), Lakhimpur, with a direction to register the case under the POCSO Actand after determining the age of the alleged victim as per the provisions of law, to proceed with the case. Upon due consideration of the order so passed on 26.06.2025, this Court does not find any infirmity in the transmission of the case to the Court of the learned Special Judge (POCSO), Lakhimpur. However, while transmitting the case, the direction given in the said order appears to be unwarranted, as mere transmission of the case to the competent Court would have sufficed and the learned Special Judge (POCSO), having jurisdiction to take cognizance of the case, would have proceeded in accordance with law. However, in considered view of this Court, the aforesaid direction itself does not render the order untenable in law.
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25. Coming to the next issue, it is seen from the record that after receipt of the case record from the Sessions Court, the learned Special Judge (POCSO), vide order dated 07.07.2025, directed the victim girl to produce her Birth Certificate or School Certificate on the next date fixed and accordingly fixed 16.07.2025 for production of the same/further hearing on the bail petition/CC. However, on 16.07.2025, since notices were not properly served upon the informant and the victim, the matter was refixed for 18.07.2025. Ultimately, on 21.07.2025, upon receipt of notice, the victim girl appeared before the Court. However, from the record of Special POCSO Case No. 143/2025, this Court could not find any material to show as to whether any Birth Certificate or School Certificate was actually produced by the alleged victim girl, or whether any other material was considered by the learned Special Court (POCSO) for determination of the age of the victim girl other than the aforesaid statements under Sections 181 and 183 of the BNSS. It is seen from the impugned order dated 11.08.2025 that after hearing the learned counsel for both parties and upon perusal of the materials available on record, including the Case Diary submitted by the Investigating Officer, the learned Special Court (POCSO) came to a prima facie finding that sufficient grounds were available for presuming that the accused, namely Asadul Islam, has committed offences under Sections 76/65(1) of the BNS and Section 4 of the POCSO Act. Accordingly, charges under the aforesaid provisions of law were framed against the petitioner.
26. Now the question arises as to whether the Court of learned Special Judge (POCSO) committed any error in not determining the age of the alleged victim girl as per the provisions of law. It is seen from the records that no petition was filed by the petitioner at the stage of framing of charge, contending that the age of the victim girl must be determined before framing of charge under the Page No.# 18/26 POCSO Act. It is also pertinent to mention that the petitioner has contended that an Aadhaar card was produced by the alleged victim girl to show her age as a minor at the time of the alleged incident. However, no such document could be found in the records though a copy of the same has been annexed to the instant petition, which has been certified to be a true copy by the Chief Administrative Officer, Office of the District & Sessions Judge, Lakhimpur, North Lakhimpur.
27. Another contention of the petitioner is that only on the basis of the direction passed by the learned Sessions Judge, Lakhimpur, vide order dated 26.06.2026, the learned Special Judge (POCSO) framed charges under the POCSO Act against the petitioner. On perusal of the record and upon consideration of the impugned order dated 11.08.2025, along with the earlier order passed by the learned Special Judge (POCSO), this Court is not in agreement with the contention raised by the petitioner. It is seen that there is no material suggesting that the charges were framed only on the basis of the direction passed by the learned Sessions Judge, Lakhimpur. Rather, it appears that on the basis of the materials available before the learned Special Judge (POCSO) and upon application of an independent mind, having prima facie found incriminating materials, the learned Special Judge (POCSO) framed charges against the petitioner under the POCSO Act. Therefore, the case of Deepak Yadav (Supra) relied upon by the learned counsel for the petitioner is not applicable to the facts of the instant case.
28. However, the question remains as to whether the learned Special Judge (POCSO) was correct in not determining the age of the alleged victim girl and whether the charge framed against the petitioner could be termed as correct. It Page No.# 19/26 is a settled proposition of law that the issue relating to juvenility can be raised at any stage, whether at the pre-trial stage, during trial, or even after completion of trial. The decision of the Hon'ble Supreme Court in Abuzar Hossain v. State of West Bengal, reported in (2012) 10 SCC 489, being relevant, can be referred to, wherein the Hon'ble Supreme Court held that the claim of juvenility may be raised at any stage, irrespective of any delay in raising the same. In that case, it was held that a claim of juvenility may be raised even after final disposal of the case. It may be raised for the first time before the Hon'ble Supreme Court as well as after final disposal of the case. Paragraph 39 of the aforesaid judgment, being relevant, is reproduced hereinbelow:
"39. Now, we summarise the position which is as under:
39.1. A claim of juvenility may be raised at any stage even after the final disposal of the case. It may be raised for the first time before this Court as well as after the final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court in the appeal court.
39.2. For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy the Court that an inquiry into the claim of juvenility is necessary. The initial burden has to be discharged by the person who claims juvenility.
39.3. As to what materials would prima facie satisfy the Court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence Page No.# 20/26 which may be sufficient to raise a presumption of juvenility but the documents referred to in Rules 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the Court about the age of the delinquent necessitating further enquiry under Rule 12. The statement recorded under Section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the voters' list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard-and-
fast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh and Pawan these documents were not found prima facie credible while in Jitendra Singh the documents viz. school leaving certificate, marksheet and the medical report were treated such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes of Section 7-A and order an enquiry for determination of the age of the delinquent.
39.4. An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the court to order an enquiry into determination of the age of the delinquent.
39.5. The court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in the 2000 Act are not defeated by the hypertechnical approach and the persons who are entitled to get benefits of the 2000 Act get such benefits. The courts should not be Page No.# 21/26 unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability.
39.6. Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at the threshold whenever raised."
29. From the aforesaid, it is very clear that the Hon'ble Supreme Court has categorically held that the issue relating to juvenility can be raised at any stage before any Court. Therefore, it can be construed that the issue relating to the age of the alleged victim can also be raised even at a belated stage, including before framing of the charge. The reason behind the same is that the jurisdiction of the POCSO Court is limited to cases where the victim is a minor. Therefore, whenever the issue regarding the age of the victim is raised, the same must be determined irrespective of the stage of the trial. If the victim is found to be a minor, the Special Court will have jurisdiction to proceed with the matter, including framing of charge. In the event the victim is found not to be a minor, the Special Court (POCSO) would lose its jurisdiction to try the case under the POSCO Act. Accordingly, whenever an issue is raised regarding the age of the victim, the question of age has to be decided irrespective of the stage of the trial, even before framing of charge. Therefore, if before framing of the charge, it is found that the victim is a minor, the Special Court (POCSO) will have jurisdiction to proceed with the matter, including framing of charge and if not, the Special Court (POCSO) would have no jurisdiction to try the case under the POCSO Act.
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30. In this connection, the decision of the Hon'ble High Court of Manipur in Sri Longjam Pinky Singh Vs. State of Manipur, represented of its Additional Chief Secretary, Home Department & Ors., reported in 2017 Supreme (Manipur) 11, being relevant is referred to, wherein it was held that if the issue of the age of the victim is raised, i.e., whether the victim was/is a minor or a major, the same has to be decided first. If the victim was/is found to be a minor, the Special Court (POCSO) will have jurisdiction to proceed with the matter. However, if the victim is found not to be a major, the provision of POCSO Act will not be applicable and the petitioner/accused is to be tried in accordance with the normal law applicable.
31. This Court has considered the case laws that have been referred to by the learned counsel appearing for the respective parties.
32. In view of the discussions hereinabove, this Court finds that the impugned order dated 18.05.2025 does not disclose any determination of the age of the victim girl as per law, though the same was a disputed issue. This is more so because although the case was initially registered under the POCSO Act along with other offences under the BNS, 2023, ultimately the charge-sheet was filed without any section under the POCSO Act. It is also seen that the Investigating Officer could not find any document relating to the age of the alleged victim girl as provided under Section 94(2) of the JJ Act, 2015, which provides that the Date of Birth Certificate from the school, or the Matriculation or equivalent Certificate from the concerned examination board, are given priority, and in the event of non-availability of the those documents, a Birth Certificate issued by a Corporation or Municipal Authority or Panchayat can be taken into account. However, in the present case, no such certificate or document could be Page No.# 23/26 produced by the alleged victim girl despite opportunity was given to her. The Investigating Officer also could not locate any such document to determine the age of the alleged victim girl. Therefore, determination of age by the Investigating Officer only on the basis of the Ossification Test, which is not conclusive, cannot conclusively determine the age of the alleged victim girl. Accordingly, it would have been prudent on the part of the learned Special Judge (POCSO) to conduct an inquiry for determination of the age of the alleged victim girl as per the provisions of the JJ Act, 2015. As to the conclusiveness of determination of age by Ossification Test, the case of Rishipal Singh Solanki (Supra) can be referred to, wherein the Hon'ble Apex Court held as follows at paragraph 33.11:
"Ossification test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015."
33. Having discussed as above, it is also a settled position of law that a roving enquiry is not warranted before the framing of charge by a Trial Court. The Trial Court is required to prima facie satisfied about the commission of an offence before framing of the charge. If there are sufficient materials available before the Trial Court for presumption that the victim girl is a minor then Trial Court may not be estopped from framing charges under the POCSO Act, if no such serious dispute is raised about the age of the victim girl prior to framing of the charge. In the instant case, this Court could not find any material to suggest that a serious dispute was raised on behalf of the petitioner about the age of Page No.# 24/26 the victim girl at the time of the framing of the charge as the trial proceeded thereafter.
34. In the case of Dinesh Tiwari (Supra), which has been relied on by the learned counsel appearing for the respondent No. 2, the Hon'ble Supreme Court held as under:
" 11. In this case, it is not alleged that the Sessions Judge has not followed Sections 226 and 227 Cr.P.C before framing the charge. Further, it is not the case of the appellant that the court has not given him hearing at the stage of discharge u/s 227 Cr.P.C. For framing of charge u/s 228, the judge is not required to record detail reasons as to why such charge is framed. On perusal of the record and hearing the parties at the stage of discharge u/s 227 Cr.P.C if the Judge is of the opinion that there is ground for presumi9ng that the accused has committed an offence, he is competent to frame charge for such offence even if not mentioned in the charge sheet. We find no merit in this appeal. The appeal is accordingly dismissed."
35. In the instant case also, it is seen that hearing of the parties occurred before the framing of the charge and upon finding prima facie materials against the petitioner, the charges were framed against the petitioner including the POCSO Act. However, taking into account the fact that the Chargesheet was not filed under the POCSO Act, the Special Judge (POCSO) should have conducted a proper age determination of the victim girl as per the provisions of Section 94 of the JJ Act, 2015. In this connection, this Court is in agreement with the judgment of the Hon'ble Manipur High Court in the case of Shri Longjam Pinky Singh (Supra) wherein it was held that age determination exercise could be carried out by the Special Judge (POCSO) even before the framing of Page No.# 25/26 the charge.
36. In the instant case, though no such serious issue was raised by the petitioner earlier regarding the age of the alleged victim before framing of charge and accordingly, the trial has proceeded by examination of four (4) witnesses. Therefore, at this stage, this Court is not inclined to interfere with the order dated 11.08.2025 whereby charges against the petitioner were framed under Section 76/65(1) of BNS read with Section 4 of the POCSO Act. However, considering the fact that no age determination as per the JJ Act, 2015 was carried out by the learned Special Judge (POCSO), Lakhimpur in terms of the Section 94 of the JJ Act, 2015, the same should be carried out by the learned Special Judge (POCSO), Lakhimpur on an application being filed by the petitioner for such determination. After competition of such determination, the Trial shall proceed as per law.
37. In view of the aforesaid, considering the facts involved in the present case, this Court is of the considered opinion that the Special Court (POCSO), Lakhimpur should first consider and determine the age of the alleged victim girl and thereafter, proceed with the trial under the POCSO Act, if the victim is found to be a minor, or else, proceed with the trial under Section 76/65 (1) BNS as the Special Judge(POCSO) is having the powers of a Sessions Court. Therefore, none of the impugned orders, i.e., 26.06.2025 and 11.08.2025 are interfered with by this Court. The petitioner is directed to approach the Court of learned Special Judge (POCSO), Lakhimpur, in connection with Special POCSO Case No. 143/2025, arising out of Lakhimpur Police Station Case No. 54/2025 and file an appropriate application before the said Court within a period of three (3) weeks from the date of passing of this judgment and order, for determination as to Page No.# 26/26 whether the alleged victim girl was a minor or a major at the time of the alleged occurrence, for which the petitioner is required to be tried under the POCSO Act.
38. On submission of such application, the Court of the learned Special Judge (POCSO), Lakhimpur shall undertake the exercise of determining the age of the alleged victim girl as per the JJ Act, 2015 after providing opportunities to the parties to bring on record the relevant materials and evidence and thereafter, if the victim girl is found to be a minor, the trial shall proceed from the stage it has already reached under the BNSS, 2023 read with the POCSO Act, 2012 and in the event of the victim girl is found to be a major, the Court of the learned Special Judge (POCSO), Lakhimpur shall go ahead with the trial under the BNSS, 2023 for alleged commission of offences under the BNS, 2023.
39. In terms of the aforesaid directions, the instant criminal revision petition stands disposed of. No order as to cost(s).
40. Return the Trial Court Record.
JUDGE Comparing Assistant