Loopholesin Determining Age Under Protection Of Children From Sexual Offences (Pocso) Act, 2012

Abstract

When it comes to the cases which involves a minor as a victim or an offender, age determination is of paramount importance to ascertain the applicability of relevant statute.  When an offender is tried under the Juvenile Justice (Care and Protection) Act, 2015, age determination has its importance as after ascertaining the age the trial begins.

Similarly, when the victim under the POCSO Actlodges a complaint, it is of supreme importance that at the initial stage of trial, the determination of age of the victim is done. For if the victim is a child under section 2 (d) of POCSO Act, only then the POCSO Act shall be applicable. Evidently there is no procedure prescribed under the POCSO Act by the legislature in respect to determination of age, it became difficult to ascertain the age of the child victim, which is the basis to decide whether the accused be given punishment under the special law which is a strict one or be punished under the Indian Penal Code for committing sexual crime. The Judiciary thus came up with the idea to apply the procedure of determining the age as mentioned in the JJ Act, 2015. Though the procedure mentioned therein is for a child in conflict with law or minor who is in need of care and protection. Now the scenario is that the very initial as well as the most important aspect of the trial under the POCSO Act, 2012 is in vacuum by not providing the procedure for ascertainment of age of the victim to decide whether or not the case falls under the purview of POCSO Act, 2012. This paper is a review of the practices adapted by different courts of law to determine the age of the victim and the interpretations done where no definite procedure is mentioned, discussing about the problem and probable solution to the same.