Gauhati High Court
Jinnat Ali vs The State Of Assam And Anr on 9 June, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/9
GAHC010250922023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/1077/2023
JINNAT ALI
S/O MD. HAZRAT ALI @ HAZRAT ALI, VILL.- BECHIMARI, P.S.- DALGAON,
DIST.- DARRANG, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
TO BE REP. BY THE P.P., ASSAM.
2:SAMAR ALI
S/O LATE SIRAJ UDDIN
VILL.- BARUAJHARI
P.S.- DALGAON
DIST.- DARRANG
PIN- 784514
ASSAM
Advocate for the Petitioner : MR H R A CHOUDHURY, MR. A AHMED,MR. M A
CHOUDHURY,MR. I U CHOWDHURY,MS R DEKA
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
09.06.2025
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[Manish Choudhury, J]
Heard Mr. A. Ahmed, learned counsel for the applicant-appellant; Ms. B. Bhuyan,
learned Senior Counsel & Additional Public Prosecutor, Assam assisted by Ms. R. Das, learned
counsel for the opposite party-respondent no. 1; and Ms. B. Barman, learned counsel for the
opposite party no. 2-informant.
2. The instant application under Section 389, CrPC is preferred by the applicant-appellant
seeking suspension of execution of sentence passed against him and for his release on bail
during the pendency of the connected criminal appeal, Criminal Appeal no. 408/2023. The
applicant-appellant has been convicted by a Judgment and Order dated 11.10.2023 passed by
the Court of learned Additional Sessions Judge, FTC, Darrang at Mangaldai [‘the Special
Court’, for short] in Special Case no. 82 of 2019 finding the applicant-appellant guilty of the
offence under Section 6 of the POCSO Act. By the Judgment and Order dated 11.10.2023, the
applicant-appellant has been sentenced to undergo rigorous imprisonment for twenty years
and to pay a fine of Rs. 5,000/- with default stipulation. In addition, the applicant-appellant
has also been convicted and sentenced under Section 448, Indian Penal Code [IPC].
3. By the instant application, the applicant-appellant has raised a plea of juvenility. It is
stated that the alleged offence had occurred in the year 2019.
4. Having regard to the plea of juvenility raised on the ground that the applicant-
appellant was below 18 years of age at the time of the occurrence, this Court by an Order
dated 08.04.2025 directed the learned Special Court to make an enquiry to ascertain the age
of the applicant-appellant. In the order dated 08.04.2025, it was further observed that the
learned Special Court shall also go for an ossification test for ascertaining the age of the
applicant-appellant and thereafter, to send an inquiry report within a period of thirty days
thereafter.
5. The learned Special Court by an Office Letter dated 16.05.2025, transmitted a
supplementary case record along with an Ossification Test Report in connection with the
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applicant-appellant. From the said supplementary case record opened by the learned Special
Court, it transpires that the learned Special Court had observed that no School Certificate or
Birth Certificate of the applicant-appellant was available before the Court as the applicant-
appellant did not submit any School Certificate or Birth Certificate in compliance of the Order
dated 08.04.2025. It was further observed that in the absence of any School Certificate or
Birth Certificate, the learned Special Court was not in a position to call any relevant authority
for inquiry in respect of the age of the applicant-appellant. The learned Special Court had,
thereafter, directed the Joint Director of Health Services, Darrang, Mangaldai to make
necessary arrangements for an Ossification Test for ascertaining the age of the applicant-
appellant by constituting a Medical Board.
6. It further transpires that the Superintendent, Mangaldai Civil Hospital constituted a
Medical Board vide an Order dated 06.05.2025 comprising of [i] SDM&HO, Mangaldai Civil
Hospital; [ii] Dental Surgeon, Mangaldai Civil Hospital; and [iii] M.O. [NHM], Mangaldai Civil
Hospital. The Medical Board so constituted, submitted two Certificates, dated 14.05.2025 and
dated 15.05.2025. As per the Certificate dated 15.05.2025, the Medical Board is of the
opinion that the age of the applicant-appellant is in between 18-21 years. At one place of the
Certificate dated 14.05.2025 of the Medical Board, it has opined that the age of the applicant-
appellant estimated to be around 15 to 17 years and at another place, it has opined that the
estimated age of the applicant-appellant would be around 18 to 21 years. Thereafter, a
conclusion has been drawn that the age of the applicant-appellant would be around 17 years.
Thus, it appears that the two Certificates, dated 14.05.2025 and dated 15.05.2025, have
portrayed estimation of the age of the applicant-appellant in two different manner.
7. Section 9 of the Juvenile Justice [Care and Protection of Children] Act, 2015 [‘the J.J.
Act, 2015‘, for short] has provided as under :-
Section 9 – Procedure to be followed by a Magistrate who has not been empowered under this Act.
[1] When a Magistrate, not empowered to exercise the powers of the Board under this Act is of the
Page No.# 4/9opinion that the person alleged to have committed the offence and brought before him is a child, he shall,
without any delay, record such opinion and forward the child immediately along with the record of such
proceedings to the Board having jurisdiction.
[2] In case a person alleged to have committed an offence claims before a court other than a Board, that
the person is a child or was a child on the date of commission of the offence, or if the court itself is of the
opinion that the person was a child on the date of commission of the offence, the said court shall make an
inquiry, take such evidence as may be necessary [but not an affidavit] to determine the age of such
person, and shall record a finding on the matter, stating the age of the person as nearly as may be:
Provided that such a claim may be raised before any court and it shall be recognised at any stage, even
after final disposal of the case, and such a claim shall be determined in accordance with the provisions
contained in this Act and the rules made thereunder even if the person has ceased to be a child on or
before the date of commencement of this Act.
[3] If the court finds that a person has committed an offence and was a child on the date of commission of
such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if
any, passed by the court shall be deemed to have no effect.
[4] In case a person under this section is required to be kept in protective custody, while the person’s
claim of being a child is being inquired into, such person may be placed, in the intervening period in a
place of safety.
8. As regards presumption and determination of age, Section 94 of the J.J. Act, 2015 has
provided as under :-
Section 94 – Presumption and determination of age
[1] Where, it is obvious to the Committee or the Board, based on the appearance of the person brought
Page No.# 5/9before 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 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.
9. The age of juvenile is to be determined on the basis of the date of the alleged offence
or crime. From the provisions of Section 94 of the J.J. Act, 2015, it is evident that only in the
absence of the certificates mentioned in Clause [i] and Clause [ii] of sub-section [2], the age
shall be determined by an Ossification Test or any other latest age determination test.
10. The Ossification Test is a medical procedure which is used to determine a person’s
approximate age, which can provide an estimate of their chronological age. It involves taking
X-rays of specific bones, typically in the hands and wrists, and comparing the degree of
ossification [bone development and growth] with standard age-related benchmarks. The Test
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requires an X-ray of the hand and wrist, or sometimes other bones like the clavicle, sternum
and pelvis. A trained professional such as radiologist analyzes the X-ray images. The degree
of ossification including the fusion of growth plates and the development of various bones, is
compared to established standards for bone development at different ages. The dental
pattern Ossification Test is also a method for age estimation and by this method, assessment
of skeletal maturity, especially teeth, is made by examining the development of permanent
teeth.
11. It has been held that directing an inquiry is not the same thing as declaring the
accused to be a juvenile. The standard of proof required is different for both. While directing
an inquiry, the court simply records a prima facie conclusion. In the latter, the court makes a
declaration on evidence that it scrutinises and accepts only if it is worthy of such acceptance.
12. The statute, that is, the J.J. Act, 2015 has provided about the manner in which the
inquiry is to be conducted. As per sub-section 9[2], the court shall make an inquiry, take such
evidence as may be necessary [but not an affidavit] to determine the age of such person and
shall record a finding on the matter, stating the age of the person as nearly as may be. A
claim of juvenility may be raised at any stage even after the final disposal of the case. The
proviso to sub-section [2] of Section 9 has provided that even if a claim is raised after final
disposal of the case, and such a claim is to be determined in accordance with the provisions
contained in the Act and the rules made thereunder. With regard to the ‘inquiry’ contemplated
under the Juvenile Justice [Care and Protection of Children] Act, 2000 which has been
repealed subsequently by the Juvenile Justice [Care and Protection of Children] Act, 2015, a
two-Judge Bench of the Hon’ble Supreme Court in Ashwani Kumar Saxena vs. State of
Madhya Pradesh, [2012] 9 SCC 750 has inter-alia observe as under :-
32. ‘Age determination inquiry’ contemplated under Section 7-A of the Act read with Rule 12 of the 2007
Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or
equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the
court needs to obtain the date of birth certificate from the school first attended other than a play school.
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Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school
first attended, the court needs to obtain the birth certificate given by a corporation or a municipal authority
or a panchayat [not an affidavit but certificates or documents]. The question of obtaining medical opinion
from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In
case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if
considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side
within the margin of one year.
33. Once the court, following the above-mentioned procedures, passes an order, that order shall be the
conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in
sub-rule [5] of Rule 12 that no further inquiry shall be conducted by the court or the Board after examining
and obtaining the certificate or any other documentary proof after referring to sub-rule [3] of Rule 12.
Further, Section 49 of the JJ Act also draws a presumption of the age of the juvenility on its determination.
13. After enactment of the Juvenile Justice [Care and Protection] Act, 2015 and having
regard to the provisions contained in Section 9 and Section 94 thereto, a three-Judge Bench
of the Hon’ble Supreme Court in Narayan Chetanram Chaudhary vs. The State of
Maharashtra, [2023] 6 S.C.R. 1055, has observed that the meaning and scope attributed to
the expression ‘inquiry’ in the case of Ashwani Kumar Saxena [supra] to be proper
construction of the word ‘inquiry’ and may be followed in dealing with the question of
determination of juvenility claim under the J.J. Act of 2015. The Hon’ble Supreme Court in
Narayan Chetanram Chaudhary [supra] has gone onto observed as under :-
30……. The aim of such inquiry obviously is to determine the juvenility of the claimant. So far as Section
94 of the 2015 Act is concerned, though the said provision deals with determination of age of a juvenile
claimant by the Committee or the Board, in our opinion the documents or tests referred to therein would
guide the Court as well in making inquiry of such nature. In absence of any specific legislative mandate
as regards the course a Court ought to undertake in an inquiry under Section 9[2] of the said Act, the
prescription of the provisions of Section 94[2] provides a safe guidance which the Court ought to follow.
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The result of such inquiry pronounced by the Court would be in the nature of a declaration on juvenility of
a claimant accused.
14. On perusal of the contents of the two Certificates, dated 14.05.2025 and dated
15.05.2025 of the Medical Board constituted by the Superintendent, Mangaldai Civil Hospital,
this Court is unable to reach a satisfaction from the case papers that the age determination
inquiry made through the Ossification Test contains the necessary details. In view of the fact
the opinions of the Medical Board, given in the Certificates, dated 14.05.2025 and dated
15.05.2025, are at variance, this Court is of the considered view that the Ossification Test
Report is not acceptable to determine the plea of juvenility of the applicant-appellant. As this
court is unable to reach a satisfaction on the basis of Ossification Test Report, this Court is of
the considered view that the learned Special Court shall, at first, ascertain as regards
availability of any of the documents mentioned in Clause [i] and Clause [ii] of Section 94[2] of
the J.J. Act, 2015 or otherwise, only after ascertaining the absence of such documents, the
learned Special Court shall proceed to determine the age of the applicant-appellant by an
Ossification Test conducted by a Medical Board consisting of experts such as a Radiologist
and Dental expert from the Tezpur Medical College & Hospital. The learned Special Court shall
direct the Superintendent of the Tezpur Medical College & Hospital to constitute such a
Medical Board. The Superintendent of the concerned Jail where the applicant-appellant is
undergoing incarceration, shall make necessary arrangement for the applicant-appellant’s
appearance before the Medical Board so constituted. After conclusion of the inquiry, the
learned Special Court shall forward a fresh inquiry report to this Court for further
consideration of the plea of juvenility of the applicant-appellant. It is expected that the
learned Special Court shall complete the entire exercise within a period of 6 [six] weeks.
15. List the case on 28.07.2025.
JUDGE JUDGE
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Comparing Assistant