POCSO Age Determination: Victim’s Age Must Be Determined At Trial, Not Bail Stage, Supreme Court Clarifies

AT THE BAIL STAGE: PRIMA FACIE VIEW, NOT MINI TRIAL

The Hon’ble Supreme Court has in State of U.P. versus Anurudh & Another held that the Special Court under the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act) cannot undertake age determination process vis-à-vis the victim, at the stage of bail. At the stage of bail, the Special Court, from a perusal of the documents mentioned in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as JJ Act, 2015) can only form a prima facie view about the age of the victim without going into the question of correctness or otherwise of the documents. The following relevant paragraphs from the judgment are worthy of consideration:

15. There is an additional aspect which, if the proposition as posited by the impugned judgment is upheld, would fall foul of. Such aspect would be that a Court, at the stage of bail cannot conduct a mini trial. This position is trite in law. Reference to the judgments as under would reiterate the same-

15.1. In Union of India v. K.A. Najeeb [(2021) 3 SCC 713] , it was held by a bench of three judges that the High Court could not at the stage of bail conduct a mini trial and adjudicate, for instance, the admissibility of certain evidence.

15.2. In Amlesh Kumar v. State of Bihar [2025 SCC OnLine SC 1326] , this Court observed that when a Court is exercising powers under Section 439CrPC, such power does not permit the ordering of roving enquiries, or in the context of that case, the use of involuntary investigative techniques.

15.3. Let us also understand this by juxtaposition. Section 482 CrPC empowers the High Court to prevent abuse of the process of law and secure the ends of justice, including quashing criminal proceedings or staying investigations. Even under these broad powers, courts are not permitted to re-examine witnesses or conclusively decide disputed factual issues. Section 439, by contrast, is limited to granting bail or anticipatory bail and requires the Court to consider only prima facie evidence, the risk of the accused absconding, tampering with evidence, or other relevant factors. Since Section 439 is narrower in scope, the Court cannot undertake a mini trial at the bail stage.

16. Apropos the above discussion, it is clearly held that determination of age of the victim is a matter of trial and not at the stage of bail. If the age is under question, the bail Court may examine the documents produced to establish age, but it will not enter into the question of those documents being correct or not so.

18. In fine, our conclusions are that the High Court in bail jurisdiction was coram non judice for issuing directions mandating the investigating authorities within the State of Uttar Pradesh to necessarily have a medical examination of the victim conducted, with the particular intent to determine the age of the victim as also holding, that a bail Court would be empowered to entertain challenges to the documents produced to establish the age of the victim…The determination of the age of the victim is a matter for trial, and the presumption which is accorded to the documents enumerated under the Section, has to be rebutted there, for that is the appropriate forum to do so, not the bail Court. If the question of age is raised at the stage of bail, it is only open for the Court to, from the perusal of the documents, take a prima facie view as to the age of the victim, not one on the correctness of the documents since that would amount to a mini trial. It could also not have fused statutory jurisdiction with a constitutional one, lifting one to the other, or downgrading the higher to the lower in order to grant itself the wherewithal, in an otherwise fairly circumscribed jurisdiction, to do what could not be done.

AT THE INCEPTION OF TRIAL VERSUS AT THE STAGE OF JUDGMENT

In terms of Section 94(1) of the JJ Act, 2015, if the Special Court finds on the basis of the appearance of the victim that the victim is a child, it will record its observation, and there will be no need to undertake an age determination process as provided in Section 94(2) of the JJ Act, 2015.

The victim usually appears before the Special Court at the stage of recording of evidence. That is usually the stage when for the first time, the Special Court gets an opportunity to see the victim. From this stage until the culmination of trial and before the pronouncement of the judgment, a considerable amount of time may elapse. Sometimes, years may pass due to a variety of reasons, although trial is expected to be completed within a year from the date of taking cognizance of the offence. Consider a scenario where a victim appears before the Special Court in the year 2026 when he is 10 years old, owing to certain reasons, the trial could not be completed for 10 years. If in 2036, a judgment is passed in the case and it is held therein on the basis of appearance of the victim that the victim was approximately 10 years of age at the time of the commission of the offence, then a difficult situation may arise. The appeal against conviction of the accused may take years to be finally decided. Suppose in 2041, the appeal is decided. At the time of final decision in the appeal, the victim turns 25. Even if the appellate court summons the victim and observes his or her appearance, it may be extremely difficult to determine by the victim’s appearance, his/her age in the year 2026. In order to avoid such an anomaly, it is imperative that age determination on the basis of appearance be conducted not at the stage of judgment, but immediately upon the victim’s appearance before the court for the recording of evidence.

The procedure adopted for trial in a POCSO case is extremely different from trial of any other sexual offence case. In a POCSO case, there are provisions for presumption of certain offences and of culpable mental state of the accused under Sections 29 and 30 respectively. The standard of rebuttal on the accused is that of beyond reasonable doubt under Section 30 of the POCSO Act unlike other reverse burden clauses. The accused or his advocate cannot directly question the victim in the case, the questioning has to be through the Special Court. Evidence of the victim has to be recorded within 30 days and the trial has to be completed within a period of 1 year from the date of taking cognizance of the offence . Punishments prescribed under the POCSO Act are generally harsher in degree when compared to their IPC/BNS counterparts. A Special Court under the POCSO Act has jurisdiction to try a case only if the victim was a child at the time of commission of the offence.

In view of the foregoing, it is essential that the Special Court first determines whether the victim was a child at the relevant time, since the Special Court derives jurisdiction to try the case only if the victim was a child on the date of the offence, and it is only thereafter that the different and stringent provisions of the POCSO Act can apply.

In its 2026 judgment in Anurudh (supra) , the Hon’ble Supreme Court has held as follows and given an imprimatur to the above mentioned procedure in the following words:

As is obvious and as we have observed, the victim being a child is sine qua non for the application of the POCSO Act. If a charge-sheet is filed and it contains charges against a person under the POCSO Act, it is but obvious that such an accused would challenge the same at the first available instance in the Court concerned, or in other words, at the inception of trial, so as to ensure that the foundation of the trial is correctly in place before it proceeds further. The Court would then undertake the exercise as provided for, and in accordance with the result obtained therefrom, proceed further, either under the POCSO Act or under the provisions of the IPC, as the case may be. Should the accused be dissatisfied with the manner in which the result has been drawn by the Trial Court, an appeal from such determination would have to be filed and only when the question of age is set at rest can the trial proceed forward on firm footing.

In view of the reasons stated above and the law laid down by the Hon’ble Supreme Court in the Anurudh case, it is clear that age determination process ought to be conducted at the earliest, immediately after the framing of charges. The evidence of the victim must be recorded within a period of 30 days from the date of taking cognizance. Along with the evidence of the victim, all such evidence that has a bearing on the age of the victim must be recorded. Upon completion of such evidence, the Special Court must first determine whether the victim was below 18 years of age on the date of offence. If so determined, the Court should proceed with the trial under the POCSO Act; if not, the case will have to go for trial before the court of competent jurisdiction.

NO STATUTORY APPEAL? FILLING THE LEGISLATIVE GAP

The Hon’ble Supreme Court in Anurudh case has held that if an accused is aggrieved by age determination by the Special Court, he may file an appeal. It is apposite to mention that the POCSO Act and the rules framed thereunder do not contain any provision for such an appeal from an age determination order passed by the Special Court. The Hon’ble Supreme Court in Ganga Bai versus Vijay Kumar has held as follows:

The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.

A right of appeal cannot be created by a judicial order alone. A right of appeal should have been given by the Legislature in the POCSO Act for orders of age determination passed by the Special Court. Since no right of appeal has been so provided, the only remedies available are a revision petition or a petition under Article 226 or 227 of the Constitution of India before the jurisdictionally competent Hon’ble High Court, or a Special Leave Petition before the Hon’ble Supreme Court. The scope of a revision petition or the other constitutional remedies aforementioned is considerably narrower than that of a statutory appeal. To cure this, the Legislature should make suitable amendments to the POCSO Act by incorporating a provision for appeal from any final order of the Special Court pertaining to age determination, specifying the period of limitation for filing such an appeal and whether the filing thereof would automatically operate as a stay of the trial.

VICTIMS ARE NOT OFFENDERS: WHY JUVENILITY CANNOT BE RAISED AT ANY STAGE

A crucial distinction exists in the scheme of the JJ Act, 2015 and the POCSO Act so far as the treatment of juvenility is concerned. Under the JJ Act, an offender may claim the benefit of juvenility at any point in time, even after the completion of proceedings, given the beneficial and rehabilitative nature of the statute. However, no analogous right exists for the victims in POCSO cases. The plea of juvenility on behalf of the victim cannot be raised at any stage of the proceedings.

In this context, the Hon’ble Supreme Court in Anurudh case (supra) has held as under:

Unlike an offender who can claim benefit of juvenility at any point in time, even after completion of proceedings given the beneficial nature of the JJ Act, a victim of a crime cannot claim to be a juvenile at any point in time, for the charges against which an offender is tried, are intrinsically tied to the age of the victim. If a victim of a sexual offence was allowed to claim juvenility at any stage of the proceedings, in the same manner that an offender can under Section 9 of the JJ Act, it would have serious procedural and substantive consequences. For instance, an accused may have been charged under Section 376IPC which applies when the victim is an adult. However, if the victim is later determined to be below eighteen, the offence would fall under the POCSO Act, where consent is irrelevant and the punishments are more stringent. This would mean that the earlier trial, framing of charges, and recording of evidence were all conducted under an incorrect legal framework. The proceedings would therefore be vitiated, and the trial could be rendered a nullity, necessitating the reframing of charges and a fresh trial under the correct statute.

CONCLUSION

The age determination of victims in POCSO cases is not a mere procedural formality, it is the jurisdictional bedrock upon which the entire edifice of a POCSO trial rests. The law, as it now stands clarified by the Hon’ble Supreme Court in Anurudh case is unambiguous that age determination is not a matter to be deferred until the stage of judgment but must be undertaken at the inception of the trial. The Special Court must therefore be alive to this jurisdictional imperative from the very outset. To act otherwise would be to build the trial on uncertain foundation. It is only when the trial proceeds on the legal and jurisdictional footing from the inception that the final verdict, whether of conviction or acquittal, can withstand the scrutiny of law. Till the Legislature takes note of the existing lacuna in the POCSO Act with respect to the absence of a statutory right of appeal against age determination orders and makes suitable amendments, the accused is left to pursue remedies that are considerably narrower in scope, which is a state of affairs that does not reflect well on the completeness of the statutory scheme of the POCSO Act.