[Juvenile Justice] Age of accused on date of crime relevant and not date of arrest: Meghalaya High Court

The Meghalaya High Court on Monday held that in order to decide on juvenility of an accused, the age of the accused on the date of occurrence of crime is what is relevant and not the age on the date of arrest [Bashan Skhem Kharsahnoh vs. State of Meghalaya]..Single-judge Justice W Diengdoh opined that in a case where an accused is absconding, it may take months or years before he is arrested and hence determining the age of the accused based on date of arrest would be incorrect."It is well settled that determination of age has to be counted from the date of occurrence and not from the date of arrest, example if an accused is absconding, by the time he is arrested, it may take months or years and as such, if the issue of determination of age is to be considered, then the correct approximate may not be arrived at," the judgment said.The Court was hearing a matter in which the petitioner had approached the Court to rectify what he termed as "an abuse of the process of law" by the special judge who permitted his trial as an adult for offences under the Protection of Children from Sexual Offences Act (POCSO Act). The petitioner was accused of 'taking advantage of' a 14-year-old girl.Baptism and school certificates of the petitioner and his 'dental age', showed that he was not 18 at the time of commission of the offence, while the ossification test said that he was between 17 to 18 years. The special judge, being convinced that the accused was 18+ on the date of his arrest, treated him as an adult and took cognizance. The counsel for the petitioner submitted that the special court erred in its in conclusion of his age since the judge ignored documentary proof of the same. He stated that the age for deciding if a person has to be tried as juvenile or not should be ascertained based on the date when the alleged offence occurred, not when the person was arrested.The counsel said "it would be a miscarriage of justice if the matter is allowed to proceed" before the special POCSO judge.The Public Prosecutor said there was no infirmity in the special court's order and asked whether the High Court can arrive at findings contrary to those of a board of medical experts who had carried out a medical examination of the accused.The High Court accepted the submissions of the petitioner and ruled that the special judge failed to consider the material on record and the law established with regard to determination of age of an accused."This Court is of the opinion that the petitioner has been able to make out a case to ensure that justice is not only done but seen to be done, the learned Special Judge, having failed to consider material and relevant legal issues and has come to a wrong finding, as far as placing the age of the petitioner/accused at the time of arrest and not at the time of occurrence is concerned," the Court ruled.The Court said that there was no disputing the petitioner's age as against documentary and medical proof. However, it stated that in the instant case the matter was different and the question of which date to use was the issue to be adjudicated upon.It then held that it is the age of accused on the date of the alleged crime that would be relevant. "In the final analysis, this petition succeeds and is accordingly allowed," the High Court ruled. It, therefore, ordered the Juvenile Justice Board in Shillong to take up the case of the petitioner and proceed in accordance with law.Advocates AD Syiem and K Sunar appeared for the petitioner. Senior Public Prosecutor K Khan and Additional Public Prosecutors S Sengupta and H Kharmih appeared for the respondent-State. [Read judgment]