Assadul Islam Alias Asadul Islam vs The State Of Assam And Anr

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GAHC010246282025

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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./459/2025
ASSADUL ISLAM ALIAS ASADUL ISLAM
SON OF ALIM UDDIN
R/O VILL- BISHNUPUR, P.O. HARIBOR NAHARONI, P.S. LALUK DIST.
LAKHIMPUR, ASSAM
PIN- 784160
VERSUS
THE STATE OF ASSAM AND ANR
REP BY THE PP, ASSAM
2:MUSST. HAFIZA KHATUN
W/O SOHUR UDDIN

VILL- BISHJNUPUR
P.O. HARIBOR NAHARONI
P.S. LALUK

DIST. LAKHIMPUR
ASSAM
PIN-78416
Advocate for the Petitioner : ALHAJJ I UDDIN, MRS. ROMA ENGTIPI,MR ROBIUL
HOQUE,MRS. R MOMTAZ
Advocate for the Respondent : PP, ASSAM, MS. C SAIKIA (R-2),MR. B BORGOHAIN (R-2),MR.
B SAIKIA (R-2),MR. S NEOG (R-2),MS. S G BARUAH (R-2)

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Date on which Judgment was reserved : 26.02.2026
Date of pronouncement of Judgment : 15.05.2026

Whether the pronouncement is
of the operative part of the Judgment ? : NA

Whether the full Judgment has been
pronounced ? : Yes

:::BEFORE:::
HON’BLE MR. JUSTICE ANJAN MONI KALITA
JUDGMENT & ORDER (CAV)
Dated: 15.05.2026
Heard Mr. A. I. Uddin, learned counsel for the petitioner. Also heard Mr. R.
J. Baruah, learned Additional Public Prosecutor for the State of Assam as well as
Ms. S. G. Baruah, learned counsel appearing for the respondent/opposite party
No. 2.
2. The instant application under Sections 438/442 of the Bharatiya Nagarik
Suraksha Sanhita (BNSS), 2023, read with Article 227 of the Constitution of
India, has been filed assailing the order dated 11.08.2025, passed by the
learned Special Judge (POCSO), Lakhimpur, in Special POCSO Case No.
143/2025, arising out of Lakhimpur Police Station Case No. 54/2025, registered
under Sections 76/65(1) of the BNS, 2023, read with Section 4 of the POCSO
Act, 2012 (hereinafter referred to as POCSO Act), though the charge-sheet was
submitted under Sections 75(2)/64(1) of the BNS, 2023, but the learned Special
Judge (POCSO), Lakhimpur framed the charge under Sections 76/65(1) of the

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BNS, 2023, read with Section 4 of the POCSO Act. The petitioner has also
assailed the order dated 26.06.2025, passed by the learned Sessions Judge,
Lakhimpur, in Sessions Case No. 93/2025 (corresponding to Special POCSO Case
No. 143/2025), whereby the learned Sessions Judge, Lakhimpur, transferred the
case to the Court of the learned Special Judge (POCSO) with a direction to
register the same as a POCSO case and proceed with the trial after
determination of the age of the alleged victim as per law.
3. The facts giving rise to the instant petition, in brief, are that the informant,
i.e., the opposite party No. 2, lodged an FIR alleging, inter alia, that on
10.03.2025 at about 6:00 PM, her minor daughter, stated to be about 16 years
of age, while returning home from her brother’s house was allegedly raped by
the petitioner after threatening her with a sharp weapon. It was further alleged
that the petitioner threatened the victim with dire consequences in the event of
disclosure of the incident.
4. Upon receipt of the FIR, the police registered a case under Sections
76/65(1) of the BNS, 2023, read with Section 4 of the POCSO Act, being
Lakhimpur Police Station Case No. 54/2025.
5. During the course of investigation, the police got the victim medically
examined and on such medical examination, the age of the victim was found to
be above 18 years. Accordingly, the police submitted the charge-sheet, vide
Charge-sheet No. 78/2025 dated 08.05.2025 under Sections 75(2)/64(1) of the
BNS, 2023. After registration of the case, the police arrested the petitioner on
16.03.2025 and he was produced before the Court of the learned Chief Judicial
Magistrate (CJM), Lakhimpur. The learned Chief Judicial Magistrate remanded
him to judicial custody, and since then the petitioner is behind the bars.

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6. Upon receipt of the charge-sheet, the learned Special Judge (POCSO),
Lakhimpur, vide Order No. 66/2025, remanded the matter to the Court of the
learned Chief Judicial Magistrate, Lakhimpur, as the charge-sheet was filed
under Sections 75(2)/64(1) of the BNS, 2023 and no offence under the POCSO
Act was made out against the petitioner. Since the case was triable by the
Sessions Court, the learned Chief Judicial Magistrate, Lakhimpur committed the
case to the Court of the learned Sessions Judge, Lakhimpur. Thereafter, the
learned Sessions Judge, Lakhimpur, vide order dated 26.06.2025, transferred
the case to the Court of the learned Special Judge (POCSO), Lakhimpur with a
direction to proceed with the trial after determining the age of the victim girl as
per law. The learned Special Judge (POCSO), vide order dated 30.06.2025
accepted the same and took cognizance of the offence and fixed the matter for
supply of copy/consideration of charge. The learned Special Judge (POCSO) also
directed the opposite party No. 2 to produce the School Certificate or Birth
Certificate of the alleged victim girl in order to ascertain her age, and fixed
07.07.2025 for the same. After having found sufficient grounds, the learned
Special Judge (POCSO) passed the impugned order dated 11.08.2025 and
framed charges against the petitioner. After framing of the charge, the trial
proceeded and the case is presently pending at the evidence stage after
examination of 4 (four) witnesses at this stage.
7. Mr. A. I. Uddin, learned counsel for the petitioner submits that the learned
Special Judge (POCSO), Lakhimpur has erred both in law and on facts in
framing charge against the petitioner under Sections 76/65(1) of the BNS, 2023,
read with Section 4 of the POCSO Act. He submits that the learned Special
Judge (POCSO), Lakhimpur, without first determining the age of the alleged
victim girl, framed the charge under the POCSO Act, merely on the basis of the

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direction issued by the learned Sessions Judge, Lakhimpur, without applying its
independent mind drawing own satisfaction. Therefore, the impugned order
dated 11.08.2025 is liable to be set aside, as the same is not sustainable in law.
8. Learned counsel further submits that although the case was initially
registered under Sections 76/65(1) of the BNS, 2023, read with Section 4 of the
POCSO Act, however, after completion of investigation, the Investigating Officer
medically examined the victim girl and also conducted an ossification test and
upon finding that the victim a major, the Investigating Officer had submitted the
charge-sheet against the petitioner under Sections 75(2)/64(1) of the BNS,
2023. In the charge-sheet, it was categorically mentioned that the age of the
alleged victim was above 18 years on the date of the alleged occurrence.
Therefore, since the alleged victim girl was found to be a major, no case under
Section 4 of the POCSO Act was made out. He submits that the learned Special
Judge (POCSO), Lakhimpur overlooked the said aspect and illegally framed
charge against the petitioner under Sections 76/65(1) of the BNS, 2023, read
with Section 4 of the POCSO Act, despite the charge-sheet being submitted
under Sections 75(2)/64(1) of the BNS, 2023, which is totally untenable and
liable to be set aside. The learned counsel submits that since the charge-sheet
was not filed under any section of the POCSO Act, the learned Special Judge
(POCSO), Lakhimpur had framed the aforesaid section erroneously against the
petitioner; therefore, the same is liable to be set aside. He submits that since
the charge-sheet was not filed under the POCSO Act, the learned Special Judge
(POCSO) had no jurisdiction to try the instant case. He submits that the learned
Special Judge (POCSO) without examining those aspects and position of law has
committed a grave error in framing the aforesaid charges against the petitioner
under Sections 76/65(1) of BNS, read with Section 4 of the POCSO Act. He

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submits that since the charge-sheet was not filed under any section of the
POCSO Act, the learned Special Judge (POCSO), Lakhimpur ought to have been
sent back the matter to the competent court for trial as per Section 251(1)(a) of
the BNSS.
9. The learned counsel for the petitioner submits that the Special Court
under the POCSO Act has been established in terms of Section 28(1) of the
POCSO Act, which is not a court subordinate to the Sessions Court. Therefore,
the direction issued by the learned Sessions Judge, vide order dated 26.06.2025
to register the case as a POCSO case is beyond its jurisdiction and not
sustainable in law. He submits that vide order dated 26.06.2026, the learned
Sessions Judge, Lakhimpur directed the learned Special Judge (POCSO) to
register a case under the POCSO Act and to proceed with the trial after
determining the age of the alleged victim girl. Pursuant thereto, the learned
Special Judge (POCSO) registered the instant POCSO case and framed charges
under Sections 76/65(1) of the BNS read with Section 4 of the POCSO Act.
Therefore, he submits that the entire trial has been vitiated as it has proceeded
on the basis of an erroneous direction passed by the learned Sessions Judge,
Lakhimpur. He submits that since the Court of the learned Special Judge
(POCSO) is not subordinate to the Sessions Judge, such direction issued by the
learned Sessions Judge, Lakhimpur, is beyond his jurisdiction, and therefore, the
order dated 26.06.2025 as well as the order dated 11.08.2025, whereby
charges were framed against the petitioner under the POCSO Act, are liable to
be set aside.
10. In support of his submissions regarding the error committed by the
learned Special Judge (POCSO) in framing charge under the POCSO Act in view

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of the direction issued vide order dated 26.06.2026 by the Sessions Judge,
Lakhimpur, the learned counsel for the petitioner referred to the case of
Deepak Yadav & Anr. Vs. State of Uttar Pradesh & Anr. (Criminal Appeal
No. ___ of 2025 arising out of SLP (Crl.) No. 6904/2025) of the Hon’ble
Supreme Court dated 17.09.2025, wherein, the Hon’ble Supreme Court has held
that it is incumbent upon the trial court to form its perspective of its own with
regard to applicability of a particular section independently, based on the
materials produced either by the complainant or by the defence and from the
investigating agency or in alternative to conduct the enquiry of its own. The
learned counsel’s contention is that in the instant case also, the learned Special
Judge (POCSO), without applying its own mind and without arriving at an
independent satisfaction, has mechanically framed charge against the petitioner
under the POCSO Act. Therefore, the order dated 11.08.2025 is unsustainable in
law.
11. While referring to the case of State through Central Bureau of
Investigation Vs. Hemendhra Reddy & Anr. etc., reported in 2023 0
Supreme (SC) 442 , the learned counsel for the petitioner submits that
whenever a final report is submitted before a Magistrate, the Magistrate may
either: (i) accept the report and take cognizance of the offence and issue
process; (ii) may disagree with the report and drop proceeding or may take
cognizance on the basis of the report/material submitted by the Investigation
Officer; (iii) may direct further investigation under section 156(3) Cr.P.C and
require police to make report as per section 173(8)of the Cr.P.C. He submits that
since in the instant case, without either accepting the final report or directing
further investigation, the charge has been framed against the petitioner, which

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could not have been done by the learned Special Judge (POCSO) after filing of
the final report by the police.
12. So far as his submission regarding determination of the age of the victim
girl and insufficiency of records regarding the age of the victim, he has referred
to the decisions in Mannu @ Saddam @ Md. Mannu Saddam Vs. State of
Bihar, reported in 2024 0 Supreme (Pat) 1105 and Rishipal Singh
Solanki Vs. State of Uttar Pradesh & Ors ., reported in (2022) 8 SCC 602,
to buttress his submission that that determination of the age of the victim girl is
required to be made in accordance with the provisions of the Juvenile Justice
(Care and Protection of Children) Act, 2015 (hereinafter referred to as the ‘JJ
Act, 2015’). He further submits that in the present case, the determination of
age was not done as per the provisions of the aforesaid JJ Act, 2015 and no
reasons have been recorded by the learned Special Judge (POCSO), Lakhimpur
in forming his/her mind to go ahead with framing of the charge against the
petitioner under the POCSO Act.
13. Mr. Uddin, the learned counsel further referred to the decision in Saroj &
Ors. Vs. IFFCO Tokio General Insurance Co. Ltd. & Ors., reported in
2024 0 Supreme (SC) 969 , wherein the Hon’ble Supreme Court has held that
Aadhaar Card may not be treated as conclusive proof of age. He submits that
the learned Special Judge (POSCO) had framed the charge under the POCSO
Act against the petitioner only on the basis of the Aadhaar Card produced by
the Opposite Party No. 2.
14. Per contra, Mr. R. J. Baruah, learned Additional Public Prosecutor for the
State, submits that there is no infirmity in the order passed by the learned

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Sessions Judge, Lakhimpur, inasmuch as, after finding sufficient materials
indicating commission of an offence under the POCSO Act, the learned Sessions
Judge, not being empowered to take cognizance of the case, has rightly
transferred the case to the learned Special Judge (POCSO), vide order dated
26.06.2025. He submits that no wrong has been committed by the learned
Special Judge (POCSO) in framing charge against the petitioner under the
POCSO Act, as sufficient materials were available before the learned Special
Judge (POCSO) for framing charge against the petitioner. Therefore, the petition
challenging the aforesaid two orders passed by the learned Sessions Judge and
the learned Special Judge (POCSO), respectively, may not be interfered with and
accordingly, the instant petition should be dismissed.
15. Ms. S. G. Baruah, learned counsel appearing for the respondent/opposite
party No. 2 has supported the submissions made by the learned Additional
Public Prosecutor. She submits that there is no illegality in framing the charge
against the petitioner. She submits that even if the charge-sheet was filed
without including any provision of the POCSO Act, the learned Special Judge
(POCSO) is empowered to frame charge under the POCSO Act, if sufficient
prima facie materials are available on record. She further submits that the
petitioner has not filed any application for discharging him under Section 251 of
BNSS, 2023 (Section 228 Cr.PC). She submits that while framing charge, the
Court of the learned Special Judge (POCSO) is not required to record detailed
reasons. She further submits that after hearing both sides and granting due
opportunity, and upon arriving at a prima facie conclusion that sufficient
materials had been found against the petitioner to frame the charge under the
POCSO Act, the learned Special Judge (POCSO) framed the charge. Therefore,
there is no infirmity in the impugned orders dated 11.08.2025 and 26.06.2025,

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passed by the learned Special Judge (POCSO) and the learned Sessions Judge,
respectively. She submits that since the learned Sessions Judge is not
empowered to try such case, the same was transferred to the appropriate Court
having jurisdiction, i.e., the learned Special Judge (POCSO), for proceeding with
the trial after framing of the charge. In view of the aforesaid submissions, she
submits that the instant petition being devoid of any merit is liable to be
dismissed.
16. In support of her submission that the learned Special Judge (POCSO) has
sufficient powers and it is not precluded from adding certain sections even if the
charge-sheet omitted the same, the learned counsel for the
respondent/opposite party No.2 relied upon the case of State of Uttar
Pradesh Vs. Girish Radhakrishnan Varde, reported in 2013 Supreme
(SC) 1070 , wherein the Hon’ble Supreme Court held that in a case lodged
before the police, the correct stage for addition or subtraction of sections will
have to be determined at the stage of framing of charge after taking into
account the incriminating material available on record. In the instant case, the
section under POCSO Act has been rightly added by the Court of learned Special
Judge (POCSO), Lakhimpur at the time of framing of charge after taking into
account the available incriminating material against the petitioner. Therefore,
there is no wrong in framing of charge under the POCSO Act.
17. In support of her submission regarding non-requirement of detailed
reasons while framing charge, the learned counsel referred to the decision in
Dinesh Tiwari Vs. State of Uttar Pradesh & Anr., reported in 2014
Supreme (SC) 509 , wherein the Hon’ble Supreme Court held that at the stage
of framing charge under Section 228 Cr.PC, the Judge is not required to record

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detailed reasons as to why such charge is framed and a prima facie satisfaction
is sufficient.
18. Trial Court record has been produced before this Court which has been
perused. It is seen from the record that the case record was initially put up
before the learned Chief Judicial Magistrate, Lakhimpur, North Lakhimpur on
12.03.2025, since the case was registered under Sections 76/65(1) of the BNS,
read with Section 4 of the POCSO Act. Since the same is triable by the Court of
the learned Special Judge (POCSO), accordingly, the learned Chief Judicial
Magistrate forwarded the original case record to the Court of the learned Special
Judge (POCSO), vide order dated 12.03.2025. However, as the charge-sheet
was submitted under Sections 75(2)/64(1) of the BNS, 2023 before the learned
Special Judge (POCSO), Lakhimpur and the same being not triable by the said
Court, the case record was sent back to the learned Chief Judicial Magistrate,
Lakhimpur, North Lakhimpur. Thereafter, the case record was forwarded to the
Court of the learned Sessions Judge, Lakhimpur, as the same was triable by the
Sessions Court. Upon receipt of the record, the learned Sessions Judge, on
perusal of the materials, found the alleged victim girl to be a minor. Accordingly,
vide order dated 26.06.2025, the learned Sessions Judge transmitted the case
record to the Court of the learned Special Judge (POCSO), Lakhimpur, for
registration of the case under the POCSO Act, with a direction to determine the
age of the victim girl as per the provisions of law and to proceed with the case
accordingly.
19. Upon receipt of the record transmitted from the Court of the learned
Sessions Judge, the learned Special Judge (POCSO), Lakhimpur registered
Special POCSO Case No. 143/2025 and thereafter, upon hearing the parties on

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11.08.2025, passed the order, wherein it has been recorded that there were
sufficient grounds for presuming that the petitioner/accused, namely Assadul
Islam @ Asadul Islam (the petitioner), has committed offences punishable under
Sections 76/65(1) of the BNS and Section 4 of the POCSO Act. Accordingly,
charges under the aforesaid provisions of law were framed against the
accused/petitioner. Thereafter, the trial proceeded and as many as 4 (four)
witnesses, including the informant and the victim have already been examined.
The petitioner in the instant case has challenged the order dated 26.06.2025
passed by the learned Sessions Judge, Lakhimpur and the subsequent order
dated 11.08.2025 passed by the learned Special Judge (POCSO), Lakhimpur.
20. An argument has been made by the learned counsel for the petitioner that
the Court of the learned Special Judge (POCSO), being an independent Court
having special jurisdiction and being at par with the Sessions Court, is not
subordinate to the Sessions Court and therefore, the learned Sessions Judge
has no jurisdiction to direct the learned Special Judge (POCSO) to register a
case under the POCSO Act and to proceed with the trial. Chapter VII & VIII of
the POCSO Act, 2012 relates to Special Courts and Section 28 relates to
designation of Special Courts. Since the same is relevant to the present case,
Section 28 is extracted hereinbelow:
“ 28. Designation of Special Courts. —(1) For the proposes of providing a
speedy trial, the State Government shall, in consultation with the Chief Justice
of the High Court, by notification in the Official Gazette, designate for each
district, a Court of Session to be a Special Court to try the offences under the
Act:
Provided that if a Court of Session is notified as a children’s court under

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the Commissions for Protection of Child Rights Act, 2005 (4 of 2006) or a
Special Court designated for similar purposes under any other law for the
time being in force, then, such court shall be deemed to be a Special
Court under this section.
(2) While trying an offence under this Act, a Special Court shall also try an
offence (other than the offence referred to in sub-section 1), with which the
accused may, under the Code of Criminal Procedure, 1973, (2 of 1974) be
charged at the same trial.
(3) The Special Court constituted under this Act, notwithstanding anything in
the Information Technology Act, 2000, shall have jurisdiction to try offences
under section 67B of that Act in so far as it relates to publication or
transmission of sexually explicit material depicting children in any act, or
conduct or manner, or facilitates abuse of children online.”
21. Section 33 of the POCSO Act provides for the procedure and powers of a
Special Court. A conjoint reading of Sections 28 and 33 reveals that, subject to
the provisions of the POCSO Act, a Special Court shall have all the powers of a
Court of Session and shall try offences under the Act as if it were a Court of
Session and as far as may be, in accordance with the procedure specified in the
Code of Criminal Procedure, 1973 for trial before a Court of Session. Sub-section
(1) of Section 33 provides that the Special Court may take cognizance of any
offence without the accused being committed to it for trial, upon receiving a
complaint of facts constituting such offence, or upon a police report of such
facts. Sub-section (9) of Section 33 mandates that, subject to the provisions of
the Act, a Special Court shall, for the purpose of trial of any offence under the
Act, have all the powers of a Court of Session and shall try such offence as if it
were a Court of Session and, as far as may be, in accordance with the

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procedure specified in the Code for trial before a Court of Session. Section 33 of
the POCSO Act, is reproduced hereinbelow:
“ 33. Procedure and powers of Special Court.—
(1) A Special Court may take cognizance of any offence, without the accused
being committed to it for trial, upon receiving a complaint of facts which
constitute such offence, or upon a police report of such facts.
(2) The Special Public Prosecutor, or as the case may be, the counsel appearing
for the accused shall, while recording the examination-in-chief, cross-
examination or re-examination of the child, communicate the questions to be
put to the child to the Special Court which shall in turn put those questions to
the child.
(3) The Special Court may, if it considers necessary, permit frequent breaks for
the child during the trial.
(4) The Special Court shall create a child-friendly atmosphere by allowing a
family member, a guardian, a friend or a relative, in whom the child has trust or
confidence, to be present in the court.
(5) The Special Court shall ensure that the child is not called repeatedly to
testify in the court.
(6) The Special Court shall not permit aggressive questioning or character
assassination of the child and ensure that dignity of the child is maintained at
all times during the trial.
(7) The Special Court shall ensure that the identity of the child is not disclosed
at any time during the course of investigation or trial:
Provided that for reasons to be recorded in writing, the Special Court may

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permit such disclosure, if in its opinion such disclosure is in the interest of the
child.
Explanation.-- For the purposes of this sub-section, the identity of the child shall
include the identity of the child's family, school, relatives, neighbourhood or any
other information by which the identity of the child may be revealed.
(8) In appropriate cases, the Special Court may, in addition to the punishment,
physical or mental trauma caused to him or for immediate rehabilitation of such
child.
(9) Subject to the provisions of this Act, a Special Court shall, for the purpose of
the trial of any offence under this Act, have all the powers of a Court of Session
and shall try such offence as if it were a Court of Session, and as far as may be,
in accordance with the procedure specified in the Code of Criminal Procedure,
1973 (2 of 1974) for trial before a Court of Session.”
22. From the above, it is discernible that a Special Court (POCSO) which is
designated as a Special Court by the State Government in consultation with the
Chief Justice of the High Court, has the same powers as per as the POCSO Act,
along with the powers under the Cr.P.C. (BNSS). Therefore, it is evident that a
Special Court under the POCSO Act and a Sessions Court are at par and possess
similar powers. Accordingly, the Special Court cannot not be termed as an
inferior Court to the Sessions Court.
23. Be that as it may, in the instant case, upon perusal of the order dated
26.06.2025 passed by the learned Sessions Judge, Lakhimpur, it is seen that
after considering the materials placed before it, the learned Sessions Judge
found incriminating materials against the petitioner regarding commission of a
sexual offence against the alleged victim girl who is presumed to be a minor girl

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as per the available material, transmitted the case to the Court of the learned
Special Judge (POCSO), Lakhimpur. The learned Sessions Judge, while doing so,
also considered the statements of the alleged victim recorded under Sections
181 and 183 of the BNSS and on the basis of which, the learned Sessions Judge
prima facie found the victim girl to be a minor at the time of the alleged
incident. In view of the aforesaid materials, the learned Sessions Judge also
observed that the charge-sheet was filed without any section under the POCSO
Act, as the medical report suggested that the alleged victim girl was above 18
years of age, and came to a prima facie conclusion that in the absence of any
High School Certificate, Birth Certificate, or any other proper proof of age, the
Ossification Test, which was conducted without any order of the Court, may not
be trustworthy and may not be treated as conclusive proof for determining the
age of the alleged victim girl.
24. Accordingly, the learned Sessions Judge, Lakhimpur, transmitted the
matter to the Court of the learned Special Judge (POCSO), Lakhimpur, with a
direction to register the case under the POCSO Actand after determining the age
of the alleged victim as per the provisions of law, to proceed with the case.
Upon due consideration of the order so passed on 26.06.2025, this Court does
not find any infirmity in the transmission of the case to the Court of the learned
Special Judge (POCSO), Lakhimpur. However, while transmitting the case, the
direction given in the said order appears to be unwarranted, as mere
transmission of the case to the competent Court would have sufficed and the
learned Special Judge (POCSO), having jurisdiction to take cognizance of the
case, would have proceeded in accordance with law. However, in considered
view of this Court, the aforesaid direction itself does not render the order
untenable in law.

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25. Coming to the next issue, it is seen from the record that after receipt of
the case record from the Sessions Court, the learned Special Judge (POCSO),
vide order dated 07.07.2025, directed the victim girl to produce her Birth
Certificate or School Certificate on the next date fixed and accordingly fixed
16.07.2025 for production of the same/further hearing on the bail petition/CC.
However, on 16.07.2025, since notices were not properly served upon the
informant and the victim, the matter was refixed for 18.07.2025. Ultimately, on
21.07.2025, upon receipt of notice, the victim girl appeared before the Court.
However, from the record of Special POCSO Case No. 143/2025, this Court could
not find any material to show as to whether any Birth Certificate or School
Certificate was actually produced by the alleged victim girl, or whether any
other material was considered by the learned Special Court (POCSO) for
determination of the age of the victim girl other than the aforesaid statements
under Sections 181 and 183 of the BNSS. It is seen from the impugned order
dated 11.08.2025 that after hearing the learned counsel for both parties and
upon perusal of the materials available on record, including the Case Diary
submitted by the Investigating Officer, the learned Special Court (POCSO) came
to a prima facie finding that sufficient grounds were available for presuming that
the accused, namely Asadul Islam, has committed offences under Sections
76/65(1) of the BNS and Section 4 of the POCSO Act. Accordingly, charges
under the aforesaid provisions of law were framed against the petitioner.
26. Now the question arises as to whether the Court of learned Special Judge
(POCSO) committed any error in not determining the age of the alleged victim
girl as per the provisions of law. It is seen from the records that no petition was
filed by the petitioner at the stage of framing of charge, contending that the age
of the victim girl must be determined before framing of charge under the

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POCSO Act. It is also pertinent to mention that the petitioner has contended
that an Aadhaar card was produced by the alleged victim girl to show her age
as a minor at the time of the alleged incident. However, no such document
could be found in the records though a copy of the same has been annexed to
the instant petition, which has been certified to be a true copy by the Chief
Administrative Officer, Office of the District & Sessions Judge, Lakhimpur, North
Lakhimpur.
27. Another contention of the petitioner is that only on the basis of the
direction passed by the learned Sessions Judge, Lakhimpur, vide order dated
26.06.2026, the learned Special Judge (POCSO) framed charges under the
POCSO Act against the petitioner. On perusal of the record and upon
consideration of the impugned order dated 11.08.2025, along with the earlier
order passed by the learned Special Judge (POCSO), this Court is not in
agreement with the contention raised by the petitioner. It is seen that there is
no material suggesting that the charges were framed only on the basis of the
direction passed by the learned Sessions Judge, Lakhimpur. Rather, it appears
that on the basis of the materials available before the learned Special Judge
(POCSO) and upon application of an independent mind, having prima facie
found incriminating materials, the learned Special Judge (POCSO) framed
charges against the petitioner under the POCSO Act. Therefore, the case of
Deepak Yadav (Supra) relied upon by the learned counsel for the petitioner is
not applicable to the facts of the instant case.
28. However, the question remains as to whether the learned Special Judge
(POCSO) was correct in not determining the age of the alleged victim girl and
whether the charge framed against the petitioner could be termed as correct. It

Page No.# 19/26
is a settled proposition of law that the issue relating to juvenility can be raised
at any stage, whether at the pre-trial stage, during trial, or even after
completion of trial. The decision of the Hon’ble Supreme Court in Abuzar
Hossain v. State of West Bengal , reported in (2012) 10 SCC 489 , being
relevant, can be referred to, wherein the Hon’ble Supreme Court held that the
claim of juvenility may be raised at any stage, irrespective of any delay in raising
the same. In that case, it was held that a claim of juvenility may be raised even
after final disposal of the case. It may be raised for the first time before the
Hon’ble Supreme Court as well as after final disposal of the case. Paragraph 39
of the aforesaid judgment, being relevant, is reproduced hereinbelow:
“39. Now, we summarise the position which is as under:
39.1. A claim of juvenility may be raised at any stage even after the final
disposal of the case. It may be raised for the first time before this Court as well
as after the final disposal of the case. The delay in raising the claim of juvenility
cannot be a ground for rejection of such claim. The claim of juvenility can be
raised in appeal even if not pressed before the trial court and can be raised for
the first time before this Court though not pressed before the trial court in the
appeal court.
39.2. For making a claim with regard to juvenility after conviction, the claimant
must produce some material which may prima facie satisfy the Court that an
inquiry into the claim of juvenility is necessary. The initial burden has to be
discharged by the person who claims juvenility.
39.3. As to what materials would prima facie satisfy the Court and/or are
sufficient for discharging the initial burden cannot be catalogued nor can it be
laid down as to what weight should be given to a specific piece of evidence

Page No.# 20/26
which may be sufficient to raise a presumption of juvenility but the documents
referred to in Rules 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie
satisfaction of the Court about the age of the delinquent necessitating further
enquiry under Rule 12. The statement recorded under Section 313 of the Code
is too tentative and may not by itself be sufficient ordinarily to justify or reject
the claim of juvenility. The credibility and/or acceptability of the documents like
the school leaving certificate or the voters' list, etc. obtained after conviction
would depend on the facts and circumstances of each case and no hard-and-
fast rule can be prescribed that they must be prima facie accepted or rejected.
In Akbar Sheikh and Pawan these documents were not found prima facie
credible while in Jitendra Singh the documents viz. school leaving certificate,
marksheet and the medical report were treated such documents prima facie
inspire confidence of the court, the court may act upon such documents for the
purposes of Section 7-A and order an enquiry for determination of the age of
the delinquent.
39.4. An affidavit of the claimant or any of the parents or a sibling or a relative
in support of the claim of juvenility raised for the first time in appeal or revision
or before this Court during the pendency of the matter or after disposal of the
case shall not be sufficient justifying an enquiry to determine the age of such
person unless the circumstances of the case are so glaring that satisfy the
judicial conscience of the court to order an enquiry into determination of the
age of the delinquent.
39.5. The court where the plea of juvenility is raised for the first time should
always be guided by the objectives of the 2000 Act and be alive to the position
that the beneficent and salutary provisions contained in the 2000 Act are not
defeated by the hypertechnical approach and the persons who are entitled to
get benefits of the 2000 Act get such benefits. The courts should not be

Page No.# 21/26
unnecessarily influenced by any general impression that in schools the
parents/guardians understate the age of their wards by one or two years for
future benefits or that age determination by medical examination is not very
precise. The matter should be considered prima facie on the touchstone of
preponderance of probability.
39.6. Claim of juvenility lacking in credibility or frivolous claim of juvenility or
patently absurd or inherently improbable claim of juvenility must be rejected by
the court at the threshold whenever raised.”
29. From the aforesaid, it is very clear that the Hon’ble Supreme Court has
categorically held that the issue relating to juvenility can be raised at any stage
before any Court. Therefore, it can be construed that the issue relating to the
age of the alleged victim can also be raised even at a belated stage, including
before framing of the charge. The reason behind the same is that the
jurisdiction of the POCSO Court is limited to cases where the victim is a minor.
Therefore, whenever the issue regarding the age of the victim is raised, the
same must be determined irrespective of the stage of the trial. If the victim is
found to be a minor, the Special Court will have jurisdiction to proceed with the
matter, including framing of charge. In the event the victim is found not to be a
minor, the Special Court (POCSO) would lose its jurisdiction to try the case
under the POSCO Act. Accordingly, whenever an issue is raised regarding the
age of the victim, the question of age has to be decided irrespective of the
stage of the trial, even before framing of charge. Therefore, if before framing of
the charge, it is found that the victim is a minor, the Special Court (POCSO) will
have jurisdiction to proceed with the matter, including framing of charge and if
not, the Special Court (POCSO) would have no jurisdiction to try the case under
the POCSO Act.

Page No.# 22/26
30. In this connection, the decision of the Hon’ble High Court of Manipur in
Sri Longjam Pinky Singh Vs. State of Manipur, represented of its
Additional Chief Secretary, Home Department & Ors. , reported in 2017
Supreme (Manipur) 11 , being relevant is referred to, wherein it was held that
if the issue of the age of the victim is raised, i.e., whether the victim was/is a
minor or a major, the same has to be decided first. If the victim was/is found to
be a minor, the Special Court (POCSO) will have jurisdiction to proceed with the
matter. However, if the victim is found not to be a major, the provision of POCSO
Act will not be applicable and the petitioner/accused is to be tried in accordance
with the normal law applicable.
31. This Court has considered the case laws that have been referred to by the
learned counsel appearing for the respective parties.
32. In view of the discussions hereinabove, this Court finds that the impugned
order dated 18.05.2025 does not disclose any determination of the age of the
victim girl as per law, though the same was a disputed issue. This is more so
because although the case was initially registered under the POCSO Act along
with other offences under the BNS, 2023, ultimately the charge-sheet was filed
without any section under the POCSO Act. It is also seen that the Investigating
Officer could not find any document relating to the age of the alleged victim girl
as provided under Section 94(2) of the JJ Act, 2015, which provides that the
Date of Birth Certificate from the school, or the Matriculation or equivalent
Certificate from the concerned examination board, are given priority, and in the
event of non-availability of the those documents, a Birth Certificate issued by a
Corporation or Municipal Authority or Panchayat can be taken into account.
However, in the present case, no such certificate or document could be

Page No.# 23/26
produced by the alleged victim girl despite opportunity was given to her. The
Investigating Officer also could not locate any such document to determine the
age of the alleged victim girl. Therefore, determination of age by the
Investigating Officer only on the basis of the Ossification Test, which is not
conclusive, cannot conclusively determine the age of the alleged victim girl.
Accordingly, it would have been prudent on the part of the learned Special
Judge (POCSO) to conduct an inquiry for determination of the age of the alleged
victim girl as per the provisions of the JJ Act, 2015. As to the conclusiveness of
determination of age by Ossification Test, the case of Rishipal Singh Solanki
(Supra) can be referred to, wherein the Hon’ble Apex Court held as follows at
paragraph 33.11:
“Ossification test cannot be the sole criterion for age determination and a
mechanical view regarding the age of a person cannot be adopted solely on the
basis of medical opinion by radiological examination. Such evidence is not
conclusive evidence but only a very useful guiding factor to be considered in the
absence of documents mentioned in Section 94(2) of the JJ Act, 2015.”
33. Having discussed as above, it is also a settled position of law that a roving
enquiry is not warranted before the framing of charge by a Trial Court. The Trial
Court is required to prima facie satisfied about the commission of an offence
before framing of the charge. If there are sufficient materials available before
the Trial Court for presumption that the victim girl is a minor then Trial Court
may not be estopped from framing charges under the POCSO Act, if no such
serious dispute is raised about the age of the victim girl prior to framing of the
charge. In the instant case, this Court could not find any material to suggest
that a serious dispute was raised on behalf of the petitioner about the age of

Page No.# 24/26
the victim girl at the time of the framing of the charge as the trial proceeded
thereafter.
34. In the case of Dinesh Tiwari (Supra) , which has been relied on by the
learned counsel appearing for the respondent No. 2, the Hon’ble Supreme Court
held as under:
“ 11. In this case, it is not alleged that the Sessions Judge has not followed
Sections 226 and 227 Cr.P.C before framing the charge. Further, it is not the
case of the appellant that the court has not given him hearing at the stage of
discharge u/s 227 Cr.P.C. For framing of charge u/s 228, the judge is not
required to record detail reasons as to why such charge is framed. On perusal
of the record and hearing the parties at the stage of discharge u/s 227 Cr.P.C if
the Judge is of the opinion that there is ground for presumi9ng that the
accused has committed an offence, he is competent to frame charge for such
offence even if not mentioned in the charge sheet. We find no merit in this
appeal. The appeal is accordingly dismissed.”
35. In the instant case also, it is seen that hearing of the parties occurred
before the framing of the charge and upon finding prima facie materials against
the petitioner, the charges were framed against the petitioner including the
POCSO Act. However, taking into account the fact that the Chargesheet was not
filed under the POCSO Act, the Special Judge (POCSO) should have conducted a
proper age determination of the victim girl as per the provisions of Section 94 of
the JJ Act, 2015. In this connection, this Court is in agreement with the
judgment of the Hon’ble Manipur High Court in the case of Shri Longjam
Pinky Singh (Supra) wherein it was held that age determination exercise
could be carried out by the Special Judge (POCSO) even before the framing of

Page No.# 25/26
the charge.
36. In the instant case, though no such serious issue was raised by the
petitioner earlier regarding the age of the alleged victim before framing of
charge and accordingly, the trial has proceeded by examination of four (4)
witnesses. Therefore, at this stage, this Court is not inclined to interfere with
the order dated 11.08.2025 whereby charges against the petitioner were framed
under Section 76/65(1) of BNS read with Section 4 of the POCSO Act. However,
considering the fact that no age determination as per the JJ Act, 2015 was
carried out by the learned Special Judge (POCSO), Lakhimpur in terms of the
Section 94 of the JJ Act, 2015, the same should be carried out by the learned
Special Judge (POCSO), Lakhimpur on an application being filed by the
petitioner for such determination. After competition of such determination, the
Trial shall proceed as per law.
37. In view of the aforesaid, considering the facts involved in the present case,
this Court is of the considered opinion that the Special Court (POCSO),
Lakhimpur should first consider and determine the age of the alleged victim girl
and thereafter, proceed with the trial under the POCSO Act, if the victim is found
to be a minor, or else, proceed with the trial under Section 76/65 (1) BNS as the
Special Judge(POCSO) is having the powers of a Sessions Court. Therefore,
none of the impugned orders, i.e., 26.06.2025 and 11.08.2025 are interfered
with by this Court. The petitioner is directed to approach the Court of learned
Special Judge (POCSO), Lakhimpur, in connection with Special POCSO Case No.
143/2025, arising out of Lakhimpur Police Station Case No. 54/2025 and file an
appropriate application before the said Court within a period of three (3) weeks
from the date of passing of this judgment and order, for determination as to

Page No.# 26/26
whether the alleged victim girl was a minor or a major at the time of the alleged
occurrence, for which the petitioner is required to be tried under the POCSO
Act.
38. On submission of such application, the Court of the learned Special Judge
(POCSO), Lakhimpur shall undertake the exercise of determining the age of the
alleged victim girl as per the JJ Act, 2015 after providing opportunities to the
parties to bring on record the relevant materials and evidence and thereafter, if
the victim girl is found to be a minor, the trial shall proceed from the stage it
has already reached under the BNSS, 2023 read with the POCSO Act, 2012 and
in the event of the victim girl is found to be a major, the Court of the learned
Special Judge (POCSO), Lakhimpur shall go ahead with the trial under the BNSS,
2023 for alleged commission of offences under the BNS, 2023.
39. In terms of the aforesaid directions, the instant criminal revision petition
stands disposed of. No order as to cost(s).
40. Return the Trial Court Record.

JUDGE
Comparing Assistant