The State of Uttar Pradesh vs Anurudh & Anr

12 year old girl was abducted from her home – Respondent no.1 is the accused person – Bail rejected by the trial Court – However, the High Court directed to constitute a medical board for determination of the age of the victim and then released the accused on interim bail – The High Court also issued directions mandating age determination test to be conducted in all cases involving the POCSO Act – Correctness: Held: 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 Court could not have passed directions that go against clearly stated legislative intent u/s.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 – The impugned judgment and order of the High Court is set aside on grounds of transgression of the jurisdiction present and thereby lacking the appropriate directions. [Paras 18, 19] Code of Criminal Procedure, 1973 – s.439 – Jurisdiction of the Court of Sessions or the High Court – Whether, in the instant case, the High Court erred in undertaking an exercise of issuing directions and getting the age of the victim examined in an application seeking grant of bail:

Held: A Court’s jurisdiction, i.e., either the Court of Sessions or the High Court u/s.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 – 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 – On the aspect of jurisdiction, 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 – As far as determining the age of the victim is concerned, it is settled that it 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 s.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. [Para 16]

Juvenile Justice (Care and Protection) Act 2015 – s.94 – Consideration of documents enumerated in s.94 – Whether the High Court, in the instant case, fell in error in holding that a Court in bail jurisdiction is empowered to entertain a challenge to the documents at bail stage:

Held: The consideration of the documents enumerated in s.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 considered view of this Court, therefore, the High Court fell in error in holding that a Court in bail jurisdiction is empowered to entertain a challenge to the documents as s.94 would not apply at the bail stage. [Para 14.10] Bail – Mini Trial – Impermissible at the stage of Bail: Held: Its trite in law that a Court, at the stage of bail cannot conduct a mini trial – s.439 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 s.439 is narrower in scope, the Court cannot undertake a mini trial at the bail stage. [Para 15.3] Protection of Children from Sexual Offences Act, 2012 – Juvenile Justice (Care and Protection) Act 2015 – s.94 – Medically Determining the Age of the Victim:

Held: 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 s.94 JJ Act are not/cannot be met. [Para 17]

Constitutional Power – Statutory power – High Court – Distinction between Constitutional Power and Statutory power: Held: 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, unless otherwise permitted by law. [Para 11.3] Juvenile Justice (Care and Protection) Act 2015 – Protection of Children from Sexual Offences Act, 2012 – Difference between – Discussed. [Paras 14.5.1-14.5.4]

Protection of Children from Sexual Offences Act, 2012 – Misrepresentation of age of victim – Law used by families in opposition to relationships between young people – Consenting adolescence – Discussed. [Para 19] Professional Ethics – Bar – Responsibility of advocates – Consensual relationships between teenagers – Exercise of restraint, when grievance masks vengeance – Discussed. [Para 19]

Judicial Notice – Misuse of POCSO Act – Consideration for introduction of a Romeo–Juliet clause – Discussed. [Para 19]