Accused Must Not Be Forced To Face POCSO Trial If Victim Was Major: Delhi HC Asks UIDAI To Furnish Prosecutrix's DoB Record

Hearing a bail plea of a rape accused, who is also facing charges under the Protection of Children from Sexual Offences (POCSO) Act, the Delhi High Court has directed the Unique Identification Authority of India (UIDAI) to furnish details of the victim's date of birth as per the records relating to her Aadhar card.

The court passed the order after the accused claimed that the prosecutrix, as per the copy of Aadhar card in his possession, was major on the alleged date of incident. The claim was opposed by the State.

Justice Anoop Kumar Mendiratta said the investigating agency as well as the Special Court during the course of trial have a duty to ascertain or determine and satisfy itself to the age of the victim considering the fact that trial under provisions of POCSO Act places presumption and existence of mental state under Section 29 and 30 of the Act.

"The proper determination of the age of the victim is important from jurisdictional perspective which determines the applicability of provisions of POCSO Act. It is imperative that the law operates in a balanced manner to ensure that the rights of the victim child are protected under the provisions of POCSO Act and at the same time, it is of paramount importance that the accused is not forced to face the trial under the rigorous provisions of POCSO Act which provides for stringent punishment, in case the victim happens to be a major on the date of the incident," said the court

The court further noted that Sub-section (2) of Section 34 of the POCSO Act also requires the Special Court to satisfy itself about the age of child and record in writing its reasons for arriving at a conclusion in this regard.

"The aforesaid objectives need to be kept in perspective even at the stage of bail or charge," it added.

The observations were made while dealing with a bail plea filed by a man accused of raping a minor girl last year. FIR against him was registered under Sections 363, 366, 376 and 506 of IPC and section 6 of the POCSO Act. 

Considering the claims regarding victim's age, the court on July 27 had said it was imperative that the particulars of the date of birth of prosecutrix/victim entered in Aadhar Card be confirmed by UIDAI.

However, on November 1, the APP as well as the counsel representing UIDAI told the court that specific orders need to be passed by this Court in terms of Section 33 (1) of the Aadhar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 in case correct particulars are to be ascertained and shared by authority.

While the counsel representing the victim said he has no objection for verification of the DoB, the ascertainment of correct date of birth of the victim as per her Aadhar Card was vehemently opposed by accused's counsel by placing reliance on a recent order passed by a coordinate bench in Hanzla Iqbal v. The State & Anr.

In that case, the court had granted bail to an accused in a POCSO case observing that "the person, who is in a consensual physical relationship with another person, is not required to judicially scrutinise the date of birth of the other person. He is not required to see Aadhar card, PAN card and verify the date of birth from her school record before he enters into a physical relationship."

Justice Mendiratta observed that the objections raised by the accused's counsel appear to be "completely misplaced", as ascertaining the correct date of birth of the victim is "imperative to ensure that the trial proceeds in the correct direction."

"The authority cited by the learned counsel for the petitioner is distinguishable on facts as it never involved the issue of two dates of birth being claimed in respect of the same document. The date of birth furnished in one of the copies of Aadhar Card could be correct while the other would be fake, until and unless the same is explainable on any other hypothesis, since the cards are updated in case of a child after a period of five years, as clarified by learned counsel appearing for UIDAI," the court noted.

Seeking details from the UIDAI on the minor victim's date of birth, the court listed the matter for hearing next on January 1, 2023.

Title: VIPIN SINGH v. STATE AND ANR.

Citation: 2022 LiveLaw (Del) 1062

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