Supreme Court: Section 94 Juvenile Justice Act | Ossification Test Has Been Kept At The Last Rung To Determine Age

Section 94(2) of the JJ Act provides for the mode of determination of age. In the order of priorities, the date of birth certificate from the school stands at the highest pedestal whereas ossification test has been kept at the last rung to be considered, only in the absence of the criteria Nos. 1 and 2, i.e. in absence of both certificate from school and birth certificate issued by a Corporation/Municipal Authority/Panchayat. {Para 20}

 IN THE SUPREME COURT OF INDIA

Writ Petition (Crl.) No. 121 of 2022

Decided On: 05.03.2024

Vinod Katara Vs. State of U.P.

Hon'ble Judges/Coram:

B.R. Gavai and Sandeep Mehta, JJ.

Authored By : B.R. Gavai, Sandeep Mehta

Citation:  MANU/SC/0173/2024.

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Whether it is mandatory to determine age of victim in the Pocso Act at the stage of hearing on bail application?

 93. In wake of the preceding narrative, the manner of

consideration of age of a victim in a bail application under the

POCSO Act shall be guided as follows:

I. The procedure for determination of a victim’s age

provided in Section 94 of the JJ Act, 2015 read with JJ

Rules, 2016 shall not apply to bail applications, though the

documents therein are liable to be considered. Age of

victim as per procedure prescribed in Section 94 of the JJ

Act, 2015 is determined conclusively only in the trial.

II. The line of enquiry and relevant factors to assess the age

of the victim in a bail application under the POCSO Act

offences are these. The consideration of the age related

documents mentioned in Section 94 of the JJ Act, 2015 i.e.

school certificate (including matriculation), date of birth

certificate issued by a local body, and medical report for

age determination as produced by the prosecution is a good

start point in the process.

III. The accused has a right to assail the veracity of the age

of the victim as stated in the prosecution case.

IV. The court while deciding the said bail application is

obligated to independently:

A. Examine the challenge laid to the victim’s age by

the accused applicant.

B. Evaluate credible doubts about the age of the

victim.

V. The assessment of age in a bail order is of a tentative

nature, and is based on probative value of documents which

are yet to be proved or statements of witnesses who are still

to be examined in court. Such determination by a court is

not conclusive and is made only for the limited purpose for

deciding the bail application. {Para 93}.

 ALLAHABAD HIGH COURT

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55026 of 2021

 Monish Vs State Of U.P. And 3 Other

 Citation No. - 2023:AHC:32270

Author: Hon'ble Ajay Bhanot,J.

Dated:  09.02.2023.

Read full Judgment here: Click here.

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Whether the presumption of culpable intent U/S 29 of the POCSO Act, 2012 is attracted against the accused at the stage of bail?

 Section 29 of the POCSO Act, 2012 creates a presumption

of culpable intent against the accused person. The provision

cannot be read to mean that the accused shall be presumed to

be guilty at the lodgement of the F.I.R. or criminal complaint

till proven innocent at the trial. The presumption of innocence

which is a fundamental tenet of criminal jurisprudence cannot

be turned on its head by a faulty interpretation of the provision.

The prosecution has to establish primary facts after attaining

the required standards of evidence to trigger the presumption

of culpable intent. {Para 67}

IX. b. Conclusions : Sections 29 and 30 of POCSO

Act & bails under the POCSO Act:

94. The consideration of presumption of culpable intent under

Sections 29 and 30 of the POCSO Act and as contemplated in

Rajballav (supra) at the stage of bail shall be governed by the

principles of evidential law as regard presumptions and the

holdings in Tofan Singh (supra), Joy V.S. (supra), Navin

Dhaniram Baraiye (supra), Dharmander Singh (supra) and

Sahid Hossain Biswas (supra) and shall be made in the

following manner:

1. Presumption of culpable intent under Section 29 of the

POCSO Act, 2012 will be attracted only in the manner and

stage discussed earlier in the judgement.

2. Presumption of culpable intent of the accused under

Sections 29 of the POCSO Act, 2012 shall not apply at the

stage of pretrial bails.

 ALLAHABAD HIGH COURT

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55026 of 2021

 Monish Vs State Of U.P. And 3 Other

 Citation No. - 2023:AHC:32270

Author: Hon'ble Ajay Bhanot,J.

Dated:  09.02.2023.

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