The State Of Uttar Pradesh vs. Anurudh

2026 INSC 47
REPORTABLE


IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO……………………… OF 2026
(@ Petition for Special Leave to Appeal (Crl.) No.10656 of 2025)



THE STATE OF
UTTAR PRADESH … APPELLANT(S)




VERSUS




ANURUDH & ANR … RESPONDENT(S)








J U D G M E N T
Signature Not Verified
Digitally signed by
NAVEEN D
Date: 2026.01.09
18:02:18 IST
Reason:

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For ease of reference, this judgment is divided into the following
parts:
Contents
The Appeal ...................................................................................... 3
Facts And Previous Proceedings ..................................................... 4
The Impugned Judgment ................................................................. 5
Question To Be Determined ............................................................ 8
Analysis And Determination ........................................................... 8
Relevant Provisions ......................................................................... 9
What were the bases for the High Court’s Conclusions and
Directions? ..................................................................................... 12
The Jurisdictional Question ........................................................... 20
Whether the impugned directions rest on sound legal grounds? .. 29
Determination of the age of the victim - At what stage and by
whom ...................................................................................... 31
Mini Trial- Impermissible at the stage of Bail ....................... 50
Medically Determining the Age of the Victim ....................... 51
Summation ..................................................................................... 58
A Necessitated Post-Script ............................................................ 60






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SANJAY KAROL J.,

Leave Granted.

T HE A PPEAL

2. The State of Uttar Pradesh, in this appeal by special leave,
th
challenges the correctness of final judgment and order dated 29
May 2024 in CRMBA No. 4880 of 2024 passed by the High Court
of Judicature at Allahabad, whereby the learned Single Judge
granted bail to Respondent No.1 in connection with the First
1
Information Report No.622 of 2022, PS Kotwali, Orai, District
th
Jalaun, dated 24 November 2022 and issued a number of
directions.

3. The question presented in this appeal, however, is not one of
relative ease as an appeal against grant of bail and instead hinges on
2
the scope of Section 439 of the Code of Criminal Procedure, 1973 .
In the High Court’s own words- “ The question of law which arises
for consideration in this bail application is the nature of the legal
duty cast on the police to draw up a medical report determining the

1
FIR
2
CrPC
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age of a victim while investigating POCSO Act offences. The
jurisdiction of this Court to determine this question will predicate
the discussion on the merits of the bail.”

F ACTS A ND P REVIOUS P ROCEEDINGS

4. The facts, in a nutshell, are that Respondent no. 1 is accused
of having committed offences under Sections 363, 366 of the Indian
3
Penal Code, 1860 and Sections 7 and 8 of the Protection of Children
4
from Sexual Offences Act, 2012 in the subject FIR, lodged at the
instance of the mother of the victim, where the allegation is that her
12-year old girl had been abducted from her home. The Trial Court
th
rejected bail by order dated 29 September 2023. In the proceedings
nd
for bail before the High Court, by order dated 22 April 2024 the
Chief Medical Officer, Jalaun was directed to constitute a medical
th
board for determination of the age of the victim. On 8 May 2024
the Court then released the accused on interim bail, observing that
there was wide inconsistency in the age of the victim as in the school
records, or as stated by her in her statement under Sections 161 and
164 CrPC regarding age/intimacy with the accused among other
factors. In terms of the impugned judgment, the Court confirmed the

3
IPC
4
POCSO Act
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said order, while adjudicating on the issue indicated above.

The Impugned Judgment
5. The observations of the High Court can be summarised thus:
5.1 The Court began by affirming that the jurisdiction
exercised under Section 439 CrPC engages constitutional
protection under Article 21. The right to bail has evolved
beyond a purely statutory entitlement into a constitutionally
safeguarded right. On this basis, the Court reiterated that
when issues affecting personal liberty arise, such as legality
of investigative procedures, they must be addressed directly
within bail adjudication.
5.2 In assessing the age of the victim, the Court evaluated
prior precedents of the High Court which collectively
prescribe that medical determination of age under Section
164-A CrPC read with Section 27 POCSO Act is mandatory
and is often a more reliable indicator than documentary
entries. Reliance on Pradeep Kumar Chauhan & Anr. v.
5
State Of U.P & Ors. ( passed by a learned Single Judge of
that High Court) is rejected as misplaced due to its habeas

5
Habeas Corpus Writ Petition No. - 733 Of 2020
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corpus context and its non-examination of statutory medical-
age provisions.
5.3 The statutory scheme was analysed to conclude that
Sections 164-A CrPC and 27 POCSO Act obligate police to
obtain the victim’s medical age report at the commencement
of investigation. Section 94 of the Juvenile Justice (Care and
6
Protection) Act 2015 supplements this mechanism. Failure to
secure such a report rendered the statutory framework futile
and opens scope for false implication via manipulated age
claims.
5.4 On the factual matrix, the Court noted recurring systemic
lapses wherein the police failed to obtain medical age reports,
Trial Courts ignored scientifically assessed age, and
consensual adolescent relationships were criminalised under
the POCSO Act due to falsified age records. This systemic
malfunction, according to the Court, necessitated corrective
judicial directives.

6
JJ Act
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5.5. Finally, applying law to fact, the Court accepted the
medically determined age of the prosecutrix as above 18 years
and consequently, allowed bail subject to conditions.
5.6 The directions issued are extracted in toto , as under:
“I) The police authorities/investigation officers shall ensure
compliance of the directions rendered by this Court in Aman
(supra) and ensure that the medical report determining the
age of the victim is drawn up by the competent medical
authority at the commencement of the investigations of
POCSO Act offences in accordance with the provisions of
the Section 164-A CrPC read with Section 27 of the POCSO
Act.
II) The medical report of the victim determining her age and
drawn up under Section 164-A CrPC. read with Section 27
of the POCSO Act shall be produced by the police
authorities/investigation officers before the court hearing the
bail application. The learned courts while hearing bail
applications shall make due enquiries about the compliance
of these directions and Aman (supra) during the bail
proceedings.
III) The judgement of this Court rendered in Monish (supra),
Aman (supra) as well as this case have to be read together
and not in isolation. The directions in Aman (supra) as well
as this case will be of little avail, if not examined and
implemented in light of the directions made in Monish
(supra).
IV) The age of the victim in bails arising out of POCSO Act
offences has been determined by a composite reading of
Section 94 of the Juvenile Justice (Care and Protection of
Children) Act and Section 164-A of CrPC. read with Section
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27 of the POCSO Act in light of the judgements rendered in
Monish (supra), Aman (supra) and this case.
V) The court hearing the bail application has to accord full
weight to the medical age determination report of the victim
and also carefully examine all other documents relating to
the victim’s age. The court has to determine the credibility of
the respective age related documents while deciding the bail
application in the facts of the case. In appropriate facts and
circumstances as in the instant case, the age determined by
the competent medical authority under Section 164-A of
CrPC. read with Section 27 of the POCSO Act can prevail
over other agerelated documents (including school records).”

Q UESTION T O B E D ETERMINED

6. The question that this Court is called upon to consider is
whether under Section 439, CrPC the High Court could have issued
directions, mandating age determination test to be conducted in all
cases involving the POCSO Act. This larger question involves twin
considerations, one on the aspect of jurisdiction and the other on the
aspect of law i.e., the postulate of the act regarding determination of
age, and how the directions issued in the impugned judgement
correspond to or are in contravention of the same.


A NALYSIS A ND D ETERMINATION




7. We have heard the learned senior counsel and learned counsel
for the parties.
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Relevant Provisions


8. Before proceeding further, the provisions of law involved in this
appeal must be referred to.
8.1 Section 27 of the POCSO Act
“27. Medical examination of a child.—(1) The medical
examination of a child in respect of whom any offence has
been committed under this Act, shall, notwithstanding that
a First Information Report or complaint has not been
registered for the offences under this Act, be conducted in
accordance with section 164A of the Code of Criminal
Procedure, 1973 (2 of 1973).
(2) In case the victim is a girl child, the medical
examination shall be conducted by a woman doctor.

(3) The medical examination shall be conducted in the
presence of the parent of the child or any other person in
whom the child reposes trust or confidence.

(4) Where, in case the parent of the child or other person
referred to in sub-section (3) cannot be present, for any
reason, during the medical examination of the child, the
medical examination shall be conducted in the presence of
a woman nominated by the head of the medical institution.”
(emphasis supplied)
8.2 Section 164 of the CrPC

“[164A. Medical examination of the victim of rape.—
(1) Where, during the stage when an offence of committing
rape or attempt to commit rape is under investigation, it is
proposed to get the person of the woman with whom rape
is alleged or attempted to have been committed or
attempted, examined by a medical expert, such examination
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shall be conducted by a registered medical practitioner
employed in a hospital run by the Government or a local
authority and in the absence of such a practitioner, by any
other registered medical practitioner, with the consent of
such woman or of a person competent to give such consent
on her behalf and such woman shall be sent to such
registered medical practitioner within twenty-four hours
from the time of receiving the information relating to the
commission of such offence.

(2) The registered medical practitioner, to whom such
woman is sent, shall, without delay, examine her person and
prepare a report of his examination giving the following
particulars, namely:—

(i) the name and address of the woman and of
the person by whom she was brought;
(ii) the age of the woman;
(iii) the description of material taken from the
person of the woman for DNA profiling;
(iv) marks of injury, if any, on the person of
the woman;
(v) general mental condition of the woman;
and
(vi) other material particulars in reasonable
detail.

(3) The report shall state precisely the reasons for each
conclusion arrived at.

(4) The report shall specifically record that the consent of
the woman or of the person competent to give such consent
on her behalf to such examination had been obtained.

(5) The exact time of commencement and completion of the
examination shall also be noted in the report.

(6) The registered medical practitioner shall, without delay
forward the report to the investigating officer who shall
forward it to the Magistrate referred to in section 173 as part
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of the documents referred to in clause (a) of sub-section (5)
of that section.

(7) Nothing in this section shall be construed as rendering
lawful any examination without the consent of the woman
or of any person competent to give such consent on her
behalf. Explanation.—For the purposes of this section,
“examination” and “registered medical practitioner” shall
have the same meanings as in section 53.]”
(emphasis supplied)

8.3 Section 94 of the Juvenile Justice (Care & Protection) Act
2015
“94. (1) Where, it is obvious to the Committee or the Board,
based on the appearance of the person brought before it
under any of the provisions of this Act (other than for the
purpose of giving evidence) that the said person is a child,
the Committee or the Board shall record such observation
stating the age of the child as nearly as may be and proceed
with the inquiry under section 14 or section 36, as the case
may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable
grounds for doubt regarding whether the person brought
before it is a child or not, the Committee or the Board, as
the case may be, shall undertake the process of age
determination, by seeking evidence by obtaining —

(i) the date of birth certificate from the school,
or the matriculation or equivalent
certificate from the concerned examination
Board, if available; and in the absence
thereof;
(ii) the birth certificate given by a corporation
or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii)
above, age shall be determined by an
ossification test or any other latest medical
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age determination test conducted on the
orders of the Committee or the Board:
Provided such age determination test
conducted on the order of the Committee or
the Board shall be completed within fifteen
days from the date of such order.

(3) The age recorded by the Committee or the Board to be
the age of person so brought before it shall, for the purpose
of this Act, be deemed to be the true age of that person.
(emphasis supplied)


8.4 Section 29 of the POCSO Act

“29. Presumption as to certain offences.—Where a person
is prosecuted for committing or abetting or attempting to
commit any offence under sections 3, 5, 7 and section 9 of
this Act, the Special Court shall presume, that such person
has committed or abetted or attempted to commit the
offence, as the case may be unless the contrary is proved.”


What were the bases for the High Court’s Conclusions and
Directions?

9. Although we have, in earlier paragraphs of this judgement,
summarised the reasoning of the High Court, let us now unpack the
same with reference to the earlier judgements of the Court in
7 8
Aman@Vansh v. State of UP and Monish v. State of U.P . Both

7
2024:AHC:62260
8
2023:AHC:32270
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these judgments as also the judgment impugned before us, have
been passed by the very same learned Single Judge. Since Monish
(supra) was earlier in point of time, we will take that up first.
9.1 The learned Single Judge in Monish (supra) held in
substance, as follows:
The Court examined two key questions of law: (i) whether
the age of a victim under the POCSO Act should be determined
as per Section 94 of JJ Act at the stage of bail, and (ii) whether
the presumption of culpable intent under Section 29 of the
POCSO Act applies at that stage. After extensive review, the
Court held that Section 94 of the JJ Act, 2015 which prescribes
a conclusive method for age determination does not apply
strictly to bail proceedings. Instead, the documents enumerated
in Section 94 ( such as school certificates or birth certificates )
may be considered as evidence, but their correctness can be
challenged by the accused at the bail stage. The Court
emphasized that such an assessment of age during bail
proceedings is tentative, meant only for evaluating the prima
facie case and not conclusive for trial purposes.
The High Court had examined and synthesized the leading
authorities of this Court, including Abuzar Hossain @ Gulam
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9
Hossain v. State of West Bengal ; Parag Bhati (Juvenile)
through Legal Guardian–Mother–Rajni Bhati v. State of
10 11
U.P. ; Sanjeev Kumar Gupta v. State of U.P. ; Rishipal
12
Singh Solanki v. State of U.P. ; and Mukarrab v. State of
13
U.P. . The collective import of these judgments is that the
presumption of correctness attached to age-related documents
under Section 94 of JJ Act, is not absolute but rebuttable, and
that a Court may consider other credible materials or order
further inquiry, whenever contradictions or doubts arise about
the recorded age. The Court further observed that accused
persons have the right to question the veracity of age-related
documents relied on by the prosecution. It clarified that bail
courts must independently assess the credibility of such
documents and may consider corroborative materials like
medical reports or other records to resolve doubts regarding the
victim’s age. The Court frowned upon a rigid or formulaic
approach to bail under the POCSO Act, stressing that decisions
must be based on the specific facts and circumstances of each
case .

9
(2012) 10 SCC 489
10
(2016) 12 SCC 744
11
(2019) 12 SCC 370
12
(2022) 8 SCC 602
13
(2017) 2 SCC 210
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Regarding the presumption of culpable intent under
Section 29 of the POCSO Act, the Court held that such
presumption does not apply at the pre-trial bail stage. The
presumption becomes operative only once the trial begins and
foundational facts are established through evidence. The right
of the accused to contest this presumption and present a
defence cannot be curtailed at the bail stage. The Court
reaffirmed that constitutional and evidentiary principles must
govern bail decisions, ensuring fairness and due process.
From a constitutional perspective, the Court reiterated
that grant of bail is the rule and refusal the exception, aligning
with settled principles under Article 21 of the Constitution of
India. It noted that while the POCSO Act is a special statute
aimed at protecting minors, it does not exclude the operation
of standard bail principles under Section 439 CrPC. The Court,
therefore, emphasized judicial discretion, proportionality, and
individual case assessment as central to deciding bail. The
Court held:
“78. The discussion then proceeded to probe the effect of
Article 21 of the Constitution of India on the offending
provisions for grant of bail. This enquiry was overlaid
with a consideration of authorities “on the concept of due
process in our constitutional jurisprudence whenever the
court has to deal with a question affecting life and liberty
of citizens”.
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…
85. In view of the constitutional moorings of the right of
bail, curtailment of the said right cannot be permitted in
absence of an express statutory mandate or contrary to the
constitutional scheme. Nor can restrictions of on right of

bail be readily inferred from a statute if other
interpretations are possible.”

The Court also discussed parameters of bail under the
POCSO Act, holding that the nature and gravity of the offence,
likelihood of conviction, chances of tampering with evidence,
or absconding must be assessed in the light of constitutional
protections. No additional restrictions on bail can be read into
the POCSO Act beyond those under the general law. It was
observed:
“88. Bails under POCSO Act offences have to be
considered under Section 439 Cr.P.C. and in accordance
with the settled parameters of grant of bail which include
nature and gravity of the offences, and the likelihood of an
accused having committed the offence. The possibility of
the accused reoffending, influencing witnesses and
tampering with evidence or being a flight risk are also
relevant factors to be considered while deciding a bail
application.
89. In POCSO Act related offences the age of a victim is
a critical factor which will influence the decision to grant
bail.
90. No provisions circumscribing the right of bail can be
distilled from the scheme of POCSO Act. The existing
norms of bail jurisprudence are sufficient to effectively
implement the POCSO Act and to serve justice. Of course,
the threshold of satisfaction of the Court while granting
bail may vary in the facts and circumstances of each case. ”
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In conclusion, the Court found inconsistencies in the age-
related evidence of the victim and the existence of a prima facie
defence by the accused that the victim was a major. The
prosecution’s reliance on unverified documents could not
justify continued detention, particularly when material
contradictions were apparent. Bail was therefore granted on
legal and constitutional grounds.

9.2 Now, let us examine Aman (supra).
The Court noted a recurring problem in POCSO cases:
frequent contradictions in the recorded age of victims and false
depiction of majority as minority, often leading to the
weaponisation of the legislation against young couples in
consensual relationships. Medical determinations of age,
drawn per the latest scientific protocols, were deemed more
reliable and essential to prevent injustice.
Referring to Sections 164-A CrPC and 27 POCSO Act,
the Court held that a medical report determining the victim’s
age is a mandatory component of investigation in every
POCSO case. Such reports assist Courts in making accurate
findings, preventing false implication, and ensuring fair
application of law.
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Accordingly, the Court issued directions:
“1. The police authorities/investigation officers shall ensure
that in every POCSO Act offence a medical report
determining the victim’s age shall be drawn up at the outset
under Section 164A of the Criminal Procedure Code read
with Section 27 of the Protection of Children from Sexual
Offences Act, 2012. The report may be dispensed with if
medical opinion advises against it in the interests of the
victim’s health.
2. The medical report determining the age of the victim
shall be created as per established procedure of law and in
adherence to latest scientific parameters and medical
protocol.
3. The medical report determining the age of the victim shall
be submitted under Section 164-A of the Code of Criminal
Procedure to the Court without delay.
4. The Director General (Health), Government of Uttar
Pradesh, Lucknow shall also ensure that the doctors who
comprise the Medical Board are duly trained and follow the
established medical protocol and scientific parameters for
determining the age of the victims in such cases. Constant
research shall be done in this field to keep the reports in line
with the latest scientific developments. A copy of this order
be communicated by the learned Government Advocate to
the Director General of Police, Lucknow, Uttar Pradesh for
compliance and Director General (Health), Government of
Uttar Pradesh,”

9.3 Although it did not place reliance on Pradeep Kumar
Chauhan (supra) a significant portion of the judgement was
devoted to answering its application, as contended by the
advocate for the State; hence, it is important to refer thereto.
The Court undertook a detailed examination of the
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applicability of Pradeep Kumar Chauhan (supra) and
ultimately distinguished its ratio. The Court observed that
while Pradeep Kumar Chauhan (supra)had been invoked in
several bail applications to argue that the age recorded in
school certificates is conclusive under Section 94 JJ Act, such
reliance was misplaced. The Court relied almost entirely on an
earlier Full Bench decision Chandrapal Singh v. State of
14
U.P. which had already undertaken a comprehensive analysis
of the governing law on age determination under Section 94 of
the JJ Act.
Relying on the reasoning in Chandrapal Singh (supra)
the learned single Judge reaffirmed that Pradeep Kumar
Chauhan (supra) did not correctly reflect this settled legal
position. That decision had treated documentary proof of age
such as school or matriculation certificates as final and
conclusive, thereby excluding the possibility of further
scrutiny. It held that such a restrictive view was inconsistent
with the this Court’s liberal and contextual interpretation of
Section 94 JJ Act. Accordingly, Pradeep Kumar Chauhan
(supra) was distinguished and held to be inapplicable. The
Court concluded that the determination of age, whether of a

14
2022 SCC OnLine All 934
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victim or an accused - must rest on the totality of credible
evidence, and that the statutory presumptions under Section 94
JJ Act,though significant, are rebuttable and subject to judicial
verification to ensure fairness and prevent miscarriage of
justice.

The Jurisdictional Question

10. The High Court, while exercising bail jurisdiction issued the
directions reproduced supra . One of the issues raised by the
Appellant-State is that the same was beyond the scope of
jurisdiction. The question of jurisdiction to issue these directions
also confronted the learned Single Judge who answered the same
stating that while exercising statutory jurisdiction, the High Court is
not denuded of its constitutional status and, therefore, it is entirely
open, to consider questions of law as in the present case.
Observations in this regard are extracted hereunder:

“10. While sitting in bail determination, this Court is not
denuded of its constitutional status. The High Court is a court
of record and a constitutional court irrespective of the
nomenclature of the jurisdiction it is exercising. Needless to
add that the High Court always exercises its jurisdiction as per
law. While deciding bail applications the High Court exercises
a composite jurisdiction of statutory powers and constitutional
obligations. At times legal issues which directly impinge on
the fair administration of justice arise in bail jurisdiction. The
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High Court cannot neglect consideration of such issues on the
footing that they are beyond the scope of bail jurisdiction. The
High Court always possesses the necessary powers to decide
such issues for dispensing fair justice and to realize the
fundamental rights of an accused in bail jurisdiction. Refusal
to decide the said issues would amount to abdication of
constitutional obligations of this Court. Issues arising in the
instant case (and those referred in the judgment) directly
impact the right of a prisoner to seek bail. They have to be
decided by this Court with clarity in lawful exercise of bail
jurisdiction and in the interests of equal justice. ”

11. Let us now, independently examine this issue.
11.1 Section 439 CrPC reads as under:
“ 439. Special powers of High Court or Court of Session
regarding bail .—(1) A High Court or Court of Session
may direct—
( a ) that any person accused of an offence and in custody be
released on bail, and if the offence is of the nature specified
in sub-section (3) of Section 437, may impose any condition
which it considers necessary for the purposes mentioned in
that sub-section;
( b ) that any condition imposed by a Magistrate when
releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall,
before granting bail to a person who is accused of an
offence which is triable exclusively by the Court of Session
or which, though not so triable, is punishable with
imprisonment for life, give notice of the application for bail
to the Public Prosecutor unless it is, for reasons to be
recorded in writing, of opinion that it is not practicable to
give such notice:
1
[Provided further that the High Court or the Court of
Session shall, before granting bail to a person who is
accused of an offence triable under sub-section (3) of
Section 376 or Section 376-AB or Section 376-DA or
Section 376-DB of the Indian Penal Code (45 of 1860), give
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notice of the application for bail to the Public Prosecutor
within a period of fifteen days from the date of receipt of
the notice of such application.]
2
[(1-A) The presence of the informant or any person
authorised by him shall be obligatory at the time of hearing
of the application for bail to the person under sub-section
(3) of Section 376 or Section 376-AB or Section 376-DA or
Section 376-DB of the Indian Penal Code (45 of 1860).]
(2) A High Court or Court of Session may direct that any
person who has been released on bail under this Chapter be
arrested and commit him to custody.

15
11.1.1 In State of U.P. v. Amarmani Tripathi , it was held:
“18. It is well settled that the matters to be considered in an
application for bail are ( i ) whether there is any prima facie
or reasonable ground to believe that the accused had
committed the offence; ( ii ) nature and gravity of the charge;
( iii ) severity of the punishment in the event of conviction;
( iv ) danger of the accused absconding or fleeing, if released
on bail; ( v ) character, behaviour, means, position and
standing of the accused ; ( vi ) likelihood of the offence being
repeated; ( vii ) reasonable apprehension of the witnesses
being tampered with ; and ( viii ) danger, of course, of justice
being thwarted by grant of bail [see Prahlad Singh
Bhati v. NCT, Delhi [(2001) 4 SCC 280 : 2001 SCC (Cri)
674] and Gurcharan Singh v. State (Delhi Admn.) [(1978)
1 SCC 118 : 1978 SCC (Cri) 41 : AIR 1978 SC 179] ].
While a vague allegation that the accused may tamper with
the evidence or witnesses may not be a ground to refuse
bail, if the accused is of such character that his mere
presence at large would intimidate the witnesses or if there
is material to show that he will use his liberty to subvert
justice or tamper with the evidence, then bail will be
refused…”


15
(2005) 8 SCC 21
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16
11.1.2. Vaman Narain Ghiya v. State of Rajasthan , held
thus :
“11. While considering an application for bail, detailed
discussion of the evidence and elaborate documentation of
the merits is to be avoided. This requirement stems from the
desirability that no party should have the impression that his
case has been pre-judged. Existence of a prima facie case is
only to be considered. Elaborate analysis or exhaustive
exploration of the merits is not required. (See Niranjan
Singh v. Prabhakar Rajaram Kharote [(1980) 2 SCC 559 :
1980 SCC (Cri) 508 : AIR 1980 SC 785] .) Where the
offence is of serious nature the question of grant of bail has
to be decided keeping in view the nature and seriousness of
the offence, character of the evidence and amongst others
the larger interest of the public. (See State of
Maharashtra v. Anand Chintaman Dighe [(1990) 1 SCC
397 : 1990 SCC (Cri) 142 : AIR 1990 SC 625]
and State v. Surendranath Mohanty [(1990) 3 OCR 462] .)”

17
11.1.3 In State v. M. Murugesan , a two Judge bench of this
Court analysed various judgements wherein it was concluded
that the Court had overstepped the bounds of Section 439, viz.,
18
State of Punjab v. Davinder Pal Singh Bhullar wherein the
concerned High Court had continued to pass orders with
respect to offenders not connected with the instant case;
19
Sangitaben Shaileshbhai Datanta v. State of Gujarat
wherein the Court, in a bail application had directed the

16
(2009) 2 SCC 281
17
(2020) 15 SCC 251
18
(2011) 14 SCC 770
19
(2019) 14 SCC 522
Criminal Appeal @SLP (Crl)10656 of 2025 Page 23 of 66


accused and his family to undergo a narco-analysis test and a
brain mapping test; RBI v. Coop. Bank Deposit A/C HR.
20
Sha once again in a bail application, issued directions to the
concerned bank to begin disbursing the amount thus far
recovered from the accused in the case. Having referred to
these judgements, it was held as under:

“ 11. We find that the learned Single Judge [ M.
Murugesan v. State , 2019 SCC OnLine Mad 12414] has
collated data from the State and made it part of the order
after the decision [ M. Murugesan v. State , Criminal
Original Petition No. 1618 of 2019, order dated 18-2-2019
(Mad)] of the bail application, as if the Court had the
inherent jurisdiction to pass any order under the guise of
improving the criminal justice system in the State. The
jurisdiction of the court under Section 439 of the Code is
limited to grant or not to grant bail pending trial. Even
though the object of the Hon'ble Judge was laudable but the
jurisdiction exercised was clearly erroneous. The effort
made by the Hon'ble Judge may be academically proper to
be presented at an appropriate forum but such directions
could not be issued under the colour of office of the court.
(emphasis supplied)

21
11.1.4 In Union of India v. Man Singh Verma , this Court
through one of us, (Sanjay Karol J.,) set aside an order, passed
while exercising bail jurisdiction, granting compensation to the
extent of Rs. 5,00,000/- for wrongful confinement, as being

20
(2010) 15 SCC 85
21
2025 SCC OnLine SC 456
Criminal Appeal @SLP (Crl)10656 of 2025 Page 24 of 66


without the authority of law.

11.2 The upshot of the above discussion is that a Court’s
jurisdiction, i.e., either the Court of Sessions or the High Court
under Section 439 CrPC is limited to adjudicating the question
of the person concerned being released into society pending
trial or whether they should continue to be incarcerated.

11.3 It is unquestionable that High Court is a constitutional
Court. However, in the instant case the error of jurisdiction by
the High Court was in exercise of a statutory power and not
under the Constitution. The powers arising from the
Constitution and those flowing from a statute are distinct and
separate. A constitutional power is the one which emanates
directly from the text and spirit of the Constitution of India, the
supreme and fundamental charter of governance, and inheres
in those institutions or functionaries whose existence and
competence are defined by it. Such powers are self-sustaining;
they are not contingent upon any act of the Legislature, nor can
they be abridged or extinguished except through a formal
amendment under Article 368. For example, the President’s
power to dissolve the Lok Sabha under Article 85(2)(b); the
Governor’s authority to reserve a bill for the consideration of
Criminal Appeal @SLP (Crl)10656 of 2025 Page 25 of 66


the President under Article 200, or the jurisdiction of the
Supreme Court under Article 32 are all in exercise of
constitutional power. These powers represent the apex of the
legal hierarchy, deriving their legitimacy not from the will of
the people as expressed by Parliament, but from the
sovereignty of the Constitution itself.
In contrast, a statutory power is derivative and
conditional, drawing its vitality from a law duly enacted by the
Parliament or a State Legislature. Such power exists only
within the four corners of the enabling statute and is
circumscribed by its language, purpose, and legislative intent.
Illustratively, the powers conferred upon the Central
Government under the Environmental (Protection) Act, 1986,
to frame rules, issue directions, or regulate industrial
operations are purely statutory in nature, as are the regulatory
functions vested in the Securities and Exchange Board of India
under the SEBI Act, 1992, or those entrusted to the
Competition Commission of India under the Competition Act,
2002. The exercise of these powers must conform strictly to the
parameters laid down by the statute; any transgression beyond
its express or implied authority is rendered ultra vires and,
therefore, void in the eyes of law.
Criminal Appeal @SLP (Crl)10656 of 2025 Page 26 of 66


The essential distinction between these two species of
power lies not merely in their origin but also in their
constitutional status and susceptibility to control.
Constitutional powers are sovereign, foundational, and
insulated from the vicissitudes of ordinary legislation; they can
neither be curtailed nor expanded by parliamentary enactment.
Statutory powers, by contrast, are subordinate and mutable,
existing at the pleasure of the Legislature, which may at any
time amend, restrict, or repeal them through the ordinary
legislative process. Judicial review, while applicable to both,
assumes different contours in each case: in relation to
constitutional powers, the Courts examine whether their
exercise conforms to constitutional limitations including the
protection of fundamental rights and the inviolable tenets of the
basic structure whereas, in the case of statutory powers, the
inquiry is confined to whether the authority has acted within
the scope and purpose of the statute from which its power is
drawn.
The constitutional power cannot overshadow the statutory
power, enlarging its scope beyond what has been envisaged by
the statute. In other words, while both powers rest with the
High Court, one power cannot usurp the ambit of another,
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unless otherwise permitted by law.


11.4 Let us understand this by way of an example. Suppose
a dispute arises between the Government of State ‘A’ and the
Government of the Union of India, concerning a statutory
scheme. The State files a suit in the Supreme Court under
Article 131 claiming the Union has over-stepped its power.
Because Article 131 deals with original jurisdiction and
involves questions of fact and law between governments, the
Supreme Court may frame issues, permit evidence, summon
and examine witnesses, and make findings of fact as part of its
adjudication.
In the same case, imagine if a private party ( or even the
State ) tries to approach the Supreme Court under Article 136,
claiming injustice in a judgment of a High Court or Tribunal in
the same matter. While Article 136 gives the Court the power
to grant leave to appeal, the Court cannot treat its jurisdiction
under Article 136 as though it were a suit under Article 131.
If the Court were to proceed under Article 136 but adopt
the full evidentiary/litigation machinery of Article 131
( leading fresh evidence, summoning witnesses, conducting
trial proceedings ), it would step into the turf of Article 131 and
thereby blur the distinction between the two powers. That
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would amount to an improper exercise of jurisdiction.

11.5 On the aspect of jurisdiction, consequent to the discussion
above, we have no hesitation in holding that the High Court
had erred in undertaking such an exercise of issuing directions
and getting the age of the victim examined in an application
seeking grant of bail .

Whether the impugned directions rest on sound legal
grounds?
12. Let us now turn our attention to the provisions of law involved.
The purpose of doing so is to examine whether the directions issued
by the High Court to mandatorily conduct a test for age verification
at the inception of the investigation is sustainable in law, if this
question of law is examined as divorced from the aspect of
jurisdiction.

13. At the outset of this analysis, it is important to delve into the
scope and ambit of the POCSO Act. Pardiwala J, writing for the
22
Court in Just Rights for Children Alliance v. S. Harish , examined

22
2024 SCC OnLine SC 2611


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in detail, the objects, reasons and scope of the legislation. Relevant
paragraphs of the decision are extracted hereinbelow:

“ 43. The Statement of Objects and Reasons for the
enactment of the POCSO makes it abundantly clear that
since the sexual offences against children were not
adequately addressed by the existing laws and a large
number of such offences were neither specifically provided
for nor were they adequately penalized, the POCSO has
been enacted to protect the children from the offences of
sexual assault, sexual harassment and pornography and to
provide for establishment of Special Courts for trial of such
offences and for matters connected therewith and incidental
thereto.
44. It further states that the POCSO is a ‘self-contained
comprehensive legislation’ for the purpose of enforcing the
rights of all children to safety, security and protection from
sexual abuse and exploitation countered through
commensurate penalties as an effective deterrence for
sexual offences and pornography and has been enacted
keeping in mind Articles 15 and 39 of
the Constitution respectively and the United Nations
Convention on the Rights of the Children. …
45. The primary legislative intent behind the enactment of
the POCSO was to create a comprehensive legal framework
that would not only punish offenders but also provide a
child-friendly system for the recording of evidence,
investigation, and trial of offenses. The POCSO was
designed to cover all forms of sexual abuse against children,
including sexual harassment, child pornography, and
aggravated sexual assault, among others. It aimed to ensure
the safety and dignity of child victims during the legal
process, with specific provisions that mandate in-camera
trials, the presence of a trusted adult during the proceedings,
and the prohibition of aggressive questioning of child
victims.

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(emphasis in original)
Determination of the age of the victim - At what stage and
by whom
13.1 Section 2(d)of the POCSO Act defines a child as any
person below eighteen years. So, for the provisions of this Act
to be applied, the person against whom the offence in question
has been perpetrated must necessarily be below 18 years of age.
This is the sine qua non. The natural question which then arises
is how the age of victim is to be determined. Jarnail Singh v.
23
State of Haryana put this question to rest as follows:

“23. Even though Rule 12 is strictly applicable only to
determine the age of a child in conflict with law, we are of
the view that the aforesaid statutory provision should be the
basis for determining age, even of a child who is a victim
of crime. For, in our view, there is hardly any difference
insofar as the issue of minority is concerned, between a
child in conflict with law, and a child who is a victim of
crime. Therefore, in our considered opinion, it would be just
and appropriate to apply Rule 12 of the 2007 Rules, to
determine the age of the prosecutrix VW, PW 6. The
manner of determining age conclusively has been expressed
in sub-rule (3) of Rule 12 extracted above. Under the
aforesaid provision, the age of a child is ascertained by
adopting the first available basis out of a number of options
postulated in Rule 12(3). If, in the scheme of options under
Rule 12(3), an option is expressed in a preceding clause, it
has overriding effect over an option expressed in a
subsequent clause. The highest rated option available would
conclusively determine the age of a minor. In the scheme of

23
(2013) 7 SCC 263
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Rule 12(3), matriculation (or equivalent) certificate of the
child concerned is the highest rated option. In case, the said
certificate is available, no other evidence can be relied
upon. Only in the absence of the said certificate, Rule 12(3)
envisages consideration of the date of birth entered in the
school first attended by the child. In case such an entry of
date of birth is available, the date of birth depicted therein
is liable to be treated as final and conclusive, and no other
material is to be relied upon. Only in the absence of such
entry, Rule 12(3) postulates reliance on a birth certificate
issued by a corporation or a municipal authority or a
panchayat. Yet again, if such a certificate is available, then
no other material whatsoever is to be taken into
consideration for determining the age of the child
concerned, as the said certificate would conclusively
determine the age of the child. It is only in the absence of
any of the aforesaid, that Rule 12(3) postulates the
determination of age of the child concerned, on the basis of
medical opinion.”
(emphasis supplied)

Rule 12 of the Juvenile Justice (Care and Protection of
24
Children) Rules, 2007 it must be noted, provides the same
hierarchy of documents as has been provided by Section 94 of
the JJ Act. The same is reproduced below for felicity of
reference:

24
Rules 2007
Criminal Appeal @SLP (Crl)10656 of 2025 Page 32 of 66


“12. Procedure to be followed in determination of age .—(1)
In every case concerning a child or a juvenile in conflict
with law, the court or the Board or as the case may be, the
Committee referred to in Rule 19 of these Rules shall
determine the age of such juvenile or child or a juvenile in
conflict with law within a period of thirty days from the date
of making of the application for that purpose.
(2) The court or the Board or as the case may be the
Committee shall decide the juvenility or otherwise of the
juvenile or the child or as the case may be the juvenile in
conflict with law, prima facie on the basis of physical
appearance or documents, if available, and send him to the
observation home or in jail.
(3) In every case concerning a child or juvenile in conflict
with law, the age determination inquiry shall be conducted
by the court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining—
( a )( i ) the matriculation or equivalent certificates, if
available; and in the absence whereof;
( ii ) the date of birth certificate from the school (other than a
play school) first attended; and in the absence whereof;
( iii ) the birth certificate given by a corporation or a
municipal authority or a panchayat;
( b ) and only in the absence of either ( i ), ( ii ) or ( iii ) of clause
( a ) above, the medical opinion will be sought from a duly
constituted Medical Board, which will declare the age of the
juvenile or child. In case exact assessment of the age cannot
be done, the court or the Board or, as the case may be, the
Committee, for the reasons to be recorded by them, may, if
considered necessary, give benefit to the child or juvenile
by considering his/her age on lower side within the margin
of one year,and, while passing orders in such case shall,
after taking into consideration such evidence as may be
available, or the medical opinion, as the case may be, record
a finding in respect of his age and either of the evidence
specified in any of the clauses ( a )( i ), ( ii ), ( iii ) or in the
absence whereof, clause ( b ) shall be the conclusive proof of
the age as regards such child or the juvenile in conflict with
law.
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(4) If the age of a juvenile or child or the juvenile in conflict
with law is found to be below 18 years on the date of
offence, on the basis of any of the conclusive proof specified
in sub-rule (3), the court or the Board or as the case may be
the Committee shall in writing pass an order stating the age
and declaring the status of juvenility or otherwise, for the
purpose of the Act and these Rules and a copy of the order
shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is
required, inter alia, in terms of Section 7-A, Section 64 of
the Act and these Rules, no further inquiry shall be
conducted by the court or the Board after examining and
obtaining the certificate or any other documentary proof
referred to in sub-rule (3) of this Rule.
(6) The provisions contained in this Rule shall also apply to
those disposed of cases, where the status of juvenility has
not been determined in accordance with the provisions
contained in sub-rule (3) and the Act, requiring dispensation
of the sentence under the Act for passing appropriate order
in the interest of the juvenile in conflict with law.”

14. The High Court held that since the presumption of correctness
attached to age-related documents under Section 94 JJ Act is
rebuttable, challenge to the same would be open at the stage of bail
and the view taken by the Court in such a challenge, would be
“ tentative ”. Analysis of the judgments referred to by the Court
would be apposite.

14.1 In Abuzar Hossain (supra) a bench of three judges held
as under:

“39.3. As to what materials would prima facie satisfy the
court and/or are sufficient for discharging the initial
Criminal Appeal @SLP (Crl)10656 of 2025 Page 34 of 66


burden cannot be catalogued nor can it be laid down as to
what weight should be given to a specific piece of
evidence which may be sufficient to raise 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 [(2009) 7 SCC 415 : (2009) 3 SCC (Cri)
431] and Pawan [(2009) 15 SCC 259 : (2010) 2 SCC (Cri)
522] these documents were not found prima facie credible
while in Jitendra Singh [(2010) 13 SCC 523 : (2011) 1
SCC (Cri) 857] the documents viz. school leaving
certificate, marksheet and the medical report were treated
sufficient for directing an inquiry and verification of the
appellant’s age. If 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.”

14.2 In Parag Bhati (supra) a co-ordinate bench held as
under:

“34. It is no doubt true that if there is a clear and
unambiguous case in favour of the juvenile accused that
he was a minor below the age of 18 years on the date of
the incident and the documentary evidence at least prima
facie proves the same, he would be entitled to the special
protection under the JJ Act. But when an accused commits
Criminal Appeal @SLP (Crl)10656 of 2025 Page 35 of 66


a grave and heinous offence and thereafter attempts to take
statutory shelter under the guise of being a minor, a casual
or cavalier approach while recording as to whether an
accused is a juvenile or not cannot be permitted as the
courts are enjoined upon to perform their duties with the
object of protecting the confidence of common man in the
institution entrusted with the administration of justice.
35. The benefit of the principle of benevolent legislation
attached to the JJ Act would thus apply to only such cases
wherein the accused is held to be a juvenile on the basis
of at least prima facie evidence regarding his minority as
the benefit of the possibilities of two views in regard to
the age of the alleged accused who is involved in grave
and serious offence which he committed and gave effect
to it in a well-planned manner reflecting his maturity of
mind rather than innocence indicating that his plea of
juvenility is more in the nature of a shield to dodge or dupe
the arms of law, cannot be allowed to come to his rescue.
36. It is settled position of law that if the matriculation or
equivalent certificates are available and there is no other
material to prove the correctness of date of birth, the date
of birth mentioned in the matriculation certificate has to
be treated as a conclusive proof of the date of birth of the
accused. However, if there is any doubt or a contradictory
stand is being taken by the accused which raises a doubt
on the correctness of the date of birth then as laid down by
this Court in Abuzar Hossain [ Abuzar Hossain v. State of
W.B. , (2012) 10 SCC 489 : (2013) 1 SCC (Cri) 83] , an
enquiry for determination of the age of the accused is
permissible which has been done in the present case.”
(emphasis supplied)

14.3 In Sanjeev Kumar Gupta ( supra ) the question was
whether the accused was entitled to claim the benefit of
th
juvenility for an offence committed on 18 August 2015. The
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25
Juvenile Justice Board at first allowed the plea but then on
demand, eventually decided otherwise and rejected the said
having considered evidence in that regard. The High Court
reversed holding that the matriculation certificate issued by the
CBSE would be given precedence over the opinion of the
th
Medical Board. The former recorded his date of birth as 17
th
December 1998 whereas the latter recorded that on 9
November 2016, he was approximately 19 years of age. This
Court set aside the findings of the High Court and restored the
rejection of the plea of juvenility as returned by the JJB, having
considered evidence on affidavit and arriving at the conclusion
th
that his age would be determined as per the date of birth - 17
December 1995.

14.4 In Rishipal Singh Solanki (supra) this Court while
dealing with an appeal filed by the father of the deceased noted
the difference between the Rules 2007 and the JJ Act 2015. It
was observed:
“29. The difference in the procedure under the two
enactments could be discerned as under:
29.1. As per the JJ Act, 2015 in the absence of requisite
documents as mentioned in clauses ( i ) and ( ii ) of Section
94(2), there is provision for determination of the age by an
ossification test or any other medical age related test to be

25
JJB
Criminal Appeal @SLP (Crl)10656 of 2025 Page 37 of 66


conducted on the orders of the Committee or the JJ Board
as per Section 94 of the said Act; whereas, under Rule 12
of the JJ Rules, 2007, in the absence of relevant documents,
a medical opinion had to be sought from a duly constituted
Medical Board which would declare the age of the juvenile
or child.
29.2. With regard to the documents to be provided as
evidence, what was provided under Rule 12 of the JJ Rules,
2007 has been provided under sub-section (2) of Section 94
of the JJ Act, 2015 as a substantive provision.
29.3. Under Section 49 of the JJ Act, 2000, where it
appeared to a competent authority that a person brought
before it was a juvenile or a child, then such authority could,
after making an inquiry and taking such evidence as was
necessary, record a finding as to the juvenility of such
person and state the age of such person as nearly as may be.
Sub-section (2) of Section 49 stated that no order of a
competent authority shall be deemed to have become
invalid merely by any subsequent proof that the person in
respect of whom the order had been made is not a juvenile
and the age recorded by the competent authority to be the
age of person so brought before it, for the purpose of the
Act, be deemed to be the true age of that person.
30. But, under Section 94 of the JJ Act, 2015, which also
deals with presumption and determination of age, the
Committee or the JJ Board has to record such observation
stating the age of the child as nearly as may be and proceed
with the inquiry without waiting for further confirmation of
the age. It is only when the Committee or the JJ Board has
reasonable grounds for doubt regarding whether the person
brought before it is a child or not, it can undertake the
process of age determination, by seeking evidence.
31. Sub-section (3) of Section 94 states that the age
recorded by the Committee or the JJ Board to be the age of
the persons so brought before it shall, for the purpose of the
Act, be deemed to be the true age of that person. Thus, there
is a finality attached to the determination of the age
recorded and it is only in a case where reasonable grounds
exist for doubt as to whether the person brought before the
Criminal Appeal @SLP (Crl)10656 of 2025 Page 38 of 66


Committee or the Board is a child or not, that a process of
age determination by seeking evidence has to be
undertaken.”

Then further, it was held-

“33.1. A claim of juvenility may be raised at any stage of a
criminal proceeding, even after a final disposal of the case.
A delay in raising the claim of juvenility cannot be a ground
for rejection of such claim. It can also be raised for the first
time before this Court.
33.2. An application claiming juvenility could be made
either before the court or the JJ Board.
33.2.1. When the issue of juvenility arises before a court, it
would be under sub-sections (2) and (3) of Section 9 of the
JJ Act, 2015 but when a person is brought before a
committee or JJ Board, Section 94 of the JJ Act, 2015
applies.
33.2.2. If an application is filed before the court claiming
juvenility, the provision of sub-section (2) of Section 94 of
the JJ Act, 2015 would have to be applied or read along with
sub-section (2) of Section 9 so as to seek evidence for the
purpose of recording a finding stating the age of the person
as nearly as may be.
33.2.3. When an application claiming juvenility is made
under Section 94 of the JJ Act, 2015 before the JJ Board
when the matter regarding the alleged commission of
offence is pending before a court, then the procedure
contemplated under Section 94 of the JJ Act, 2015 would
apply. Under the said provision if the JJ Board has
reasonable grounds for doubt regarding whether the person
brought before it is a child or not, the Board shall undertake
the process of age determination by seeking evidence and
the age recorded by the JJ Board to be the age of the person
so brought before it shall, for the purpose of the JJ Act,
2015, be deemed to be true age of that person. Hence the
degree of proof required in such a proceeding before the JJ
Board, when an application is filed seeking a claim of
Criminal Appeal @SLP (Crl)10656 of 2025 Page 39 of 66


juvenility when the trial is before the criminal court
concerned, is higher than when an inquiry is made by a
court before which the case regarding the commission of
the offence is pending (vide Section 9 of the JJ Act, 2015).
33.3. That when a claim for juvenility is raised, the burden
is on the person raising the claim to satisfy the court to
discharge the initial burden. However, the documents
mentioned in Rules 12(3)( a )( i ), ( ii ) and ( iii ) of the JJ Rules,
2007 made under the JJ Act, 2000 or sub-section (2) of
Section 94 of the JJ Act, 2015, shall be sufficient for prima
facie satisfaction of the court. On the basis of the aforesaid
documents a presumption of juvenility may be raised.
33.4. The said presumption is however not conclusive proof
of the age of juvenility and the same may be rebutted by
contra evidence let in by the opposite side.
33.5. That the procedure of an inquiry by a court is not the
same thing as declaring the age of the person as a juvenile
sought before the JJ Board when the case is pending for trial
before the criminal court concerned. In case of an inquiry,
the court records a prima facie conclusion but when there is
a determination of age as per sub-section (2) of Section 94
of the 2015 Act, a declaration is made on the basis of
evidence. Also the age recorded by the JJ Board shall be
deemed to be the true age of the person brought before it.
Thus, the standard of proof in an inquiry is different from
that required in a proceeding where the determination and
declaration of the age of a person has to be made on the
basis of evidence scrutinised and accepted only if worthy of
such acceptance.
33.6. That it is neither feasible nor desirable to lay down an
abstract formula to determine the age of a person. It has to
be on the basis of the material on record and on appreciation
of evidence adduced by the parties in each case.
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
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Section 94(2) of the JJ Act, 2015.”
(emphasis supplied)

14.5 Now we proceed to examine the merits of this argument.
It is clear from the above that all of these cases discuss the
determination of age from the point of view of the offender and
not the victim. Although the process to be followed therefor is
the same as that for an offender as held by Jarnail Singh
(supra), the question involved in the instant lis concerns the
forum and the stage at which the determination of age is to be
made. According to the High Court, the bail Court would, if a
challenge is presented by the offender, entertain such challenge
and take a prima facie view. Here, it becomes important to
appreciate the difference between the JJ Act and the POCSO
Act.
14.5.1 The JJ Act is primarily focused on dealing with
children in conflict with law and children in need of
care and protection , rather than victims of offences who
are minors. The Preamble and Section 1(4) of the Act
expressly state that its purpose is to provide for the care,
protection, treatment, development, and rehabilitation
of such children and for the adjudication of matters
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relating to children in conflict with law. The Act
establishes the JJB (under Sections 4–9) to handle cases
involving juvenile offenders, and the Child Welfare
26
Committee (under Sections 27–30) to deal with
children who require care and protection. Neither of
these bodies are vested with jurisdiction over cases
concerning child victims of crime. The definitions
provided under the Act, of a child in conflict with law
and a child in need of care and protection, also clearly
underscore this. The Act draws a fundamental
distinction between two principal categories of children
– children in conflict with law and children in need of
care and protection each grounded in the philosophy of
welfare, rehabilitation, and reintegration. A child in
conflict with law refers to a person who has not
completed eighteen years of age and is alleged or found
to have committed an offence under any existing law.
To fall under this category, the requirements are, first,
that the person must be below eighteen years of age at
the time of the commission of the alleged offence, and
second, that there is an allegation or finding of

26
CWC
Criminal Appeal @SLP (Crl)10656 of 2025 Page 42 of 66


involvement in an act constituting an offence. The Act
thus rejects the traditional punitive model of criminal
jurisprudence and adopts a reformative, restorative
approach, recognizing that a child’s deviant conduct
often arises from a coming together in an unfortunate
array of circumstances, of structural neglect, social
disadvantage, or exposure to adversity The focus,
therefore, is on correction, guidance, and social
reintegration through child-friendly processes before
the JJB , ensuring that such children are treated not as
offenders but as individuals in need of direction and
support.
14.5.2 Conversely, a child in need of care and
protection denotes a child whose condition of neglect,
abuse, abandonment, or deprivation necessitates
intervention by the State to secure their safety, welfare,
and development. This classification embraces children
who are orphaned or abandoned ; those found begging,
working, or living on the streets; those who are victims
of cruelty, exploitation, or trafficking; those who are
physically or mentally challenged and without
adequate family support; and those at imminent risk of
Criminal Appeal @SLP (Crl)10656 of 2025 Page 43 of 66


early marriage or neglect within the home , (which in a
given case, could also be a victim) . The essence of this
definition lies in the child’s exposure to vulnerability
and the corresponding necessity of care, protection, and
rehabilitation through the mechanisms of the CWC.
The Act’s protective framework thus ensures that
children who are deprived of a nurturing environment
are restored to stability, dignity, and opportunity
through institutional or family-based care.
14.5.3 While these two categories emerge from
different factual matrices, one involving alleged
delinquency and the other deprivation, they converge
upon a shared humanitarian foundation. Both are
guided by the principle that every child is entitled to
protection, dignity, and development, and that the
justice system must operate with sensitivity and
compassion. This Court has many-a-time emphasised
that the administration of juvenile justice must rest on
care and rehabilitation rather than punishment,
highlighting the State’s duty to protect all children from
circumstances that impede their growth and well-being.
Criminal Appeal @SLP (Crl)10656 of 2025 Page 44 of 66


14.5.4 It is, however, imperative to recognise that
neither of these statutory classifications - the child in
conflict with law or the child in need of care and
protection expressly includes within its ambit the
category of child victims. Although both categories are
designed to shield children from neglect and
marginalisation, the Act does not explicitly address the
position of children who are victims of offences, as
those under POCSO Act. Unless such victims
independently satisfy the definitional parameters of
vulnerability or abandonment, they fall outside the
direct purview of these classifications. This reveals a
conceptual gap, as the legislative scheme, while
comprehensive in its welfare orientation, does not
formally integrate the rehabilitative and procedural
rights of child victims within its framework.
Nevertheless, the broader spirit of the Act, anchored in
compassion, protection, and restorative justice
demands that child victims, too, be accorded equivalent
care, support, and rehabilitative attention, ensuring that
every child, irrespective of circumstance, is
empowered to reclaim their dignity and future.
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14.6 Having discussed thus, the two separate fields that these
two legislations govern, we now turn back to the question of
age determination. If the POCSO Act is examined, it can be
found that the Act does not prescribe a manner for
determination of the age of the victim. As we have already
noticed, it is an established position in law that the procedure
under Section 94 of the JJ Act is to be applied.[ See: Section 34
of the Act ] When the question of determination of age of a child
in conflict with the law emerges for the first time before a
Court, the concerned legislation provides the procedure as
housed in its Section 9 of the Act lays down the procedure to
be followed when a person is brought before a Magistrate who
is not empowered under the Act , and there arises a claim or
reasonable doubt that such person is a child . In such cases, the
Magistrate must conduct an inquiry to determine the person’s
age in accordance with Section 94 of the Act, which prescribes
the method for age determination. If, upon inquiry, the
Magistrate finds that the person was a child at the time of
commission of offence , the case must be immediately
forwarded to the JJB having jurisdiction, which will thereafter
deal with the matter as per the provisions of the JJ Act.
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Conversely, if the person is found not to be a child , the
Magistrate proceeds with the case as per the regular criminal
procedure . The object of Section 9 is to ensure that no juvenile
offender is tried as an adult merely due to an initial
misclassification and to safeguard the rehabilitative and
welfare-oriented spirit of the juvenile justice system by
ensuring that every child in conflict with law is tried by the
appropriate forum, i.e., the JJB
14.7 As held in Rishipal Singh , extracted (supra) the
determination of the age when done by a Court stands
differently to that done by the JJB. There are two possibilities
provided for. There is no determination of age by a JJB - like
body when it comes to the victim. If there is a question about
the age, it has to be dealt with by the Court, as per the procedure
of Section 94, JJ Act. It is when the Court is undertaking the
exercise of determination, that the defense of an accused can
challenge the veracity of these documents, since the
presumption under this section is rebuttable.
14.8 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
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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.
14.9 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
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consequences. For instance, an accused may have been charged
under Section 376 IPC 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.
14.10 As can be seen from Mahadeo v. State of
27
Maharashtra , and Sanjeev Kumar Gupta (supra) the
consideration of the documents enumerated in Section 94, JJ
Act is a matter of consideration of evidence since it may
involve the examination of witnesses to prove the veracity of
the documents. That can only be done by the Trial Court.
Contra evidence to challenge the documents, can also be
presented only before the Trial Court. In our considered view,
therefore, the High Court fell in error in holding that a Court in
bail jurisdiction is empowered to entertain a challenge to the

27
(2013) 14 SCC 637
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documents as Section 94 would not apply at the bail stage.

Mini Trial- Impermissible at the stage of Bail
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-

28
15.1 In Union of India v. K.A. Najeeb , 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.

29
15.2 In Amlesh Kumar v. State of Bihar , this Court
observed that when a Court is exercising powers under Section
439 CrPC, such power does not permit the ordering of roving
enquiries, or in the context of that case, the use of involuntary
investigative techniques.


28
(2021) 3 SCC 713
29
2025 SCC OnLine SC 1326
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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.

Medically Determining the Age of the Victim

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.
The mandate of Section 94 JJ Act is clear. The documents provided
therein are to be utilized for determination of the age of the victim,
and only in the absence thereof, will medical evidence be resorted
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30
to. The decisions in P. Yuvaprakash v. State and Rajni v. State of
31
UP make this as evident as can be.
16.1 Yuvaprakash (supra) was a case involving the alleged
kidnapping of one ‘M’, by the appellant, alleged forced
marriage by tying a ‘ thali ’ around her neck, and thereafter,
repeated sexual intercourse over a period of time, before
abandoning her when the accused persons came to know that
M’s loved ones had filed a complaint regarding her being
kidnapped. On appeal from a judgment of conviction returned
by the Madurai Bench of the High Court of Judicature at
Madras, this Court examined the proper method for
determining a victim’s age under Section 94(2) of the JJ Act
The statute established a clear hierarchy of documents: first, a
matriculation or equivalent school certificate showing the date
of birth; second , a birth certificate issued by a municipal
corporation or panchayat; and third only if these were
unavailable could a medical or ossification test be relied upon.
In the present case, the only document produced was a school
th
Transfer Certificate indicating the date of birth as 11

30
2023 SCC OnLine SC 846
31
2025 INSC 737
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July1997. However, this Certificate was not one of the
documents prescribed by the Section. Moreover, the Transfer
Certificate was produced by a court - summoned witness rather
than the prosecution, and the Revenue official confirmed that
official birth records for 1997 were missing. Consequently, the
Transfer Certificate could not establish that the victim was
under 18 years of age at the relevant time.
16.1.1 The Court cited precedents, including Rishipal
Singh Solanki (supra) and Sanjeev Kumar Gupta
(supra), to reaffirm the statutory hierarchy i.e., only in the
absence of matriculation/school certificates or municipal
birth records could medical age-determination be used. In
the facts, it was observed, the headmaster (DW-2)
admitted that the date of birth in the school record was
based on a horoscope rather than an independent
verification, and no official birth register existed to
support it.
16.1.2 Since the documents presented did not fall within
the first two categories under Section 94(2), the Court
held that the prosecution should rely on the medical
ossification test. The doctor (PW-9) conducted such a test,
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concluding that the victim’s age was “more than 18 years
and less than 20 years,” with cross-examination
confirming the possibility of age being 19 years. The
Court below had discounted this medical evidence,
holding that the school record alone could determine age,
but that reasoning was rejected, emphasizing that the
Transfer Certificate did not meet the statutory standard.
16.1.3 Ultimately, the Court concluded that the only
acceptable evidence on age was the medical ossification
report, which indicated that the victim was above 18
years. As a result, the prosecution failed to prove that the
victim was a “ child ” under the POCSO Act, meaning the
statutory age requirement for the offence was not
satisfied. He was, therefore, acquitted.
16.2 In Rajni , the juvenility of her son, Respondent No.2,
was the central question and arose in the context of his being
made an accused in connection with Crime No. 80/2021
registered before the Medical College Police Station, Meerut
under Sections 302/201/34 of the IPC as well as Crime Case
No. 97/ 2021 registered before the same police station under
Sections 3/25/27 of the Arms Act, 1959. Rajni’s application to
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have her son dealt with as a minor was rejected by the JJB, and
the case eventually made its way up the judicial hierarchy, to
this Court.
16.2.1 The respondent produced a School Certificate
from DPS Higher Secondary School, Parvesh Vihar,
th
Meerut, showing his date of birth as 8 September 2003.
th
This Certificate, along with the admission date of 4
 April 2016 and the High School passing year 2018,
suggested that the respondent was about 17 years and 3
months old at the time of the incident. Notably, an earlier
proceeding (Miscellaneous Case No.9/2000) had already
accepted the same date of birth.
16.2.2 However, the JJB was skeptic about these
documents, noting that records from Class 4 to Class 8
had been destroyed in a fire, and the respondent’s mother
could not recall the school’s name. The school principal
confirmed that original records for those classes were
missing. In addition, the JJB rejected the municipal birth
certificate from the concerned municipal corporation,
th
which also indicated 8 September 2003, on the grounds
th
that it had been issued on 8 June 2020 that is, after the
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incident. As a result, a medical examination of the
respondent was ordered to determine his age.
16.2.3 The Court held this approach to be incorrect in
view of the clear stipulation under Section 94(2) of the JJ
Act. Here, both the municipal birth certificate and the
school certificate were available, and both corroborated
the earlier JJB decision. By disregarding these documents
and relying on a medical test, the JJB had erred. The
Additional District & Sessions Judge rightly reversed the
JJB’s decision, giving precedence to the school certificate
and declaring the respondent a juvenile.
16.2.4 The Court also emphasized that the JJB could not
challenge its earlier acceptance of the date of birth simply
because the mother or informant was not a party in the
prior proceeding. The JJB does not have the power to
review its earlier decision under the JJ Act, and the earlier
th
acceptance of 8 September 2003 should be binding.
Consequently, the High Court upheld the Additional
District & Sessions Judge’s ruling and affirmed the date
of birth reflected in the school certificate.
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16.2.5 The Court referred to precedents such as Rishipal
Singh Solanki (supra) which clarified that juvenility can
be claimed at any stage, and that initial burden lies on the
claimant. Documents like school certificates or municipal
birth certificates are prima facie sufficient to establish
juvenility, while medical tests cannot serve as the sole
criterion. When evidence is borderline, Courts are to lean
in favor of juvenility, although misuse must be guarded
against.
16.2.6 The discussion continued by distinguishing prior
cases where medical tests were relied upon when
documentary evidence was unreliable. In contrast, the
present case involved consistent documentary evidence -
the school certificate, municipal certificate, and earlier
JJB decision - all supporting the date of birth as
th
8  September 2003. The JJB’s reasoning that the
informant was not a party in the earlier proceeding was
found to be unsound. The Additional District & Sessions
Judge had correctly reversed the JJB’s approach, and the
High Court had rightly affirmed that the respondent
should be treated as a juvenile at the time of the incident.
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17. The necessary sequitur from the above exposition is that a
medical determination of age of a victim cannot be resorted to as a
matter of course, much less mandated. It can only be employed in a
given circumstance when the other stipulations of Section 94 JJ Act
are not/cannot be met. This direction, therefore, has to be set aside.
S UMMATION

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 importance of medical examination in the harrowing
crimes of sexual assault cannot be overstated, it is not merely a
record of injury or a catalogue of biological traces; it is the voice
of the body, speaking when words falter and memory trembles. In
cases where the victim’s courage may be tested by stigma, shame,
or the weight of societal scrutiny, medical evidence provides an
impartial testament, grounding the pursuit of justice in the certainty
of observable fact. It is, in essence, the bridge that links the personal
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suffering of the victim with the impartial adjudication of the law.
But at the same time, its purpose, which is to gather essential
evidence in a scientifically sound manner, with due regard to the
principles of human dignity on one hand and evidence on the other,
cannot be reduced to a common, matter of course step - especially
when a procedure with a legislative imprimatur has been laid down.
The Court could not have passed directions that go against clearly
stated legislative intent under Section 94 of the JJ Act. 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.


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A N ECESSITATED P OST -S CRIPT

19. As the conclusions drawn above indicate the impugned
judgment and order of the High Court has to be set aside on grounds
of transgression of the jurisdiction present and thereby lacking the
appropriate directions. It is to be set aside also because it goes
against the statutory prescription under the JJ Act. Be that as it may,
this Court has not lost sight of the well-intentioned purport of this
order. The POCSO Act is one of the most solemn articulations of
justice aimed at protecting the children of today and the leaders of
tomorrow. Yet, when an instrument of such noble and one may even
say basic good intent is misused, misapplied and used as a tool for
exacting revenge, the notion of justice itself teeters on the edge of
inversion. Courts have in many cases sounded alarm regarding this
situation. Misuse of the POCSO Act highlights a grim societal
chasm - on the one end children are silenced by fear and their
families are constrained by poverty or stigma, meaning thereby that
justice remains distant and uncertain, and on the other hand, those
equipped with privilege, literacy, social and monetary capital are
able to manipulate the law to their advantage. The impugned
judgment is one amongst many where Courts have spoken out. Not
only are instances rife where the age of the victim is misrepresented
to make the incident fall under the stringent provisions of this law
Criminal Appeal @SLP (Crl)10656 of 2025 Page 60 of 66


but also there are numerous instances where this law is used by
families in opposition to relationships between young people. In
32
Satish alias Chand v. State of U.P . , the High Court, noted that
on few occasions concern had been expressed by the Court with
respect to application of the Act on consenting adolescence when it
comes to consensual relationships between teenagers, four factors
have been highlighted which, is crucial for the Courts to consider:

“A. Assess the Context: Each case should be evaluated on
its individual facts and circumstances. The nature of the
relationship and the intentions of both parties should be
carefully examined.

B. Consider Victim's Statement: The statement of the
alleged victim should be given due consideration. If the
relationship is consensual and based on mutual affection,
this should be factored into decisions regarding bail and
prosecution.

C. Avoid Perversity of Justice: Ignoring the consensual
nature of a relationship can lead to unjust outcomes, such
as wrongful imprisonment. The judicial system should aim
to balance the protection of minors with the recognition of
their autonomy in certain contexts. Here the age comes out
to be an important factor.

D. Judicial Discretion: Courts should use their discretion
wisely, ensuring that the application of POCSO does not
inadvertently harm the very individuals it is meant to
protect.”


32
Crl.Misc.Bail Appl.No.18596 of 2024
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33
[See also: Mrigraj Gautam @ Rippu v. State of U.P .]

34
The Delhi High Court in Sahil v. the State NCT of Delhi the Court
noted in para 11 of the order that POCSO cases filed at the behest
of a girl’s family objecting to romantic involvement with a young
boy have become common place and consequent thereto these
young boys languish in jails. Therein, reference is also made to an
35
order of the Gujarat High Court , where the Court noted that
considering the closeness in age of the prosecutrix and the accused
as also the fact that she had left home of her own accord observed
that the application deserved consideration.

This chasm between access and abuse is also mirrored in the
misuse of Section 498-A IPC and the Dowry Prohibition Act, 1961.
Amongst numerous examples, we may only refer to Rajesh
36
Chaddha v. State of U.P , where this Court lamented the use of
these Sections without specific instances or relevant details, among
other cases. It is also to be stated though that no amount of judicial
vigilance against misuse can alone bridge this ever-widening gap.
The first line of defence lies with the Bar i.e., the body that translates
grievance into action and is the gatekeeper of justice at the point of

33
2023: AHC : 204171
34
2024: DHC: 6100
35
Jayantibhai Babulbhai Alani v. State of Gujarat 2018 SCC Online Guj. 1223
36
2025 SCC OnLine SC 1094
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entry. When it comes to matters such as these, the responsibility of
the advocate is profound – to examine the allegations with
detachment and necessary discretion and to counsel restraint when
grievance masks vengeance and to refuse participation in litigation
when it can be seen that an ulterior motive is sought to be agitated
under the guise of seeking protection of the law. It is only when the
Bar takes a principled, proactive role, that the legislation intended
as a shield can be stopped from being twisted into a weapon. A
lawyer who tempers aggression with calm, reason and rationality,
protects not only the opposing party from unwarranted harm but also
the client from the long-term consequences of frivolous or malicious
litigation, including adverse orders, and judicial censure. By taking
a principled stand, the Bar acts as a crucial filter, preventing the legal
system from being overwhelmed by abuse masquerading as
enforcement. Such self-regulation strengthens public faith in the
profession, ensures that judicial time is reserved for genuine
disputes, and reinforces the foundational idea that law is a means of
justice, not a weapon of convenience. In this sense, the ethical
vigilance of lawyers is not ancillary to justice, it is indispensable to
it. When they do not do so, the chasm alluded to above widens.
Society also must match institutional reform with moral awakening.
The intent and object of these legislations must be at the forefront
Criminal Appeal @SLP (Crl)10656 of 2025 Page 63 of 66


when a person wishes to lodge a complaint thereunder. The misuse
of these laws is a mirror to the opportunistic and self-centered view
that pervades the application of law. It is only through discipline,
integrity and courage that these problems can be remedied and
rooted out. Any legislative amendment or judicial direction will
remain lack-luster without this deeper change.


We have referred to certain instances of the High Courts
noting the misuse/misapplication of the POCSO Act, somewhat in
line with the indices appended to the impugned judgment as also its
progenitors.

Considering the fact that repeated judicial notice has been
taken of the misuse of these laws, let a copy of this judgment be
circulated to the Secretary, Law, Government of India, to consider
initiation of steps as may be possible to curb this menace inter alia ,
the introduction of a Romeo – Juliet clause exempting genuine
adolescent relationships from the stronghold of this law; enacting a
mechanism enabling the prosecution of those persons who, by the
use of these laws seeks to settle scores etc.

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20. In that view of the matter, we pass the following order:
(a) The appeal is allowed. The directions issued in the
impugned judgment are set aside.

(b) In view of ‘III)’ as extracted in para 5.6 as also in view
of their intrinsic connection, such effect will extend to Aman (supra)
and Manish (supra)

(c) The bail granted in terms of these judgments and orders,
is left undisturbed in view of the other factors considered by the
learned Single Judge subject to judicial review, if any.

(d) Insofar as the cases listed in the appendices to these
judgments are concerned, this Court refrains from making any
comment. The effect of this judgment will be prospective and shall
not therefore, impact negatively, any of those cases wherein,
following the procedure laid down in the impugned judgment or its
progenitors, bail has been secured.

(e) The Registrar (Judicial) is directed to dispatch forthwith
a copy of this judgment to the learned Registrar General, High Court
of Judicature at Allahabad, for necessary follow-up action, as also
information to the Trial Courts.
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Pending applications, if any, stand disposed of.





…..…………………..………………………J.
(SANJAY KAROL)





..……………………….……………….……J.
(NONGMEIKAPAM KOTISWAR SINGH)


New Delhi;
January 9, 2026



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