Bail Granted Under SC/ST Atrocities Act May Be Recalled/ Cancelled Under Crpc; Procedure Under POCSO Act Prevails Over SC/ST Act: MP HC [Read Judgment]

In a significant judgment, the Gwalior Bench of the Madhya Pradesh High Court discussed the scope of bail granted to an accused under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and it was held, "High Court can entertain application under Section 439 (2) of Cr.P.C. for cancellation of bail granted in exercise of powers conferred under Section 14-A(2) of Atrocities Act." The Bench of Justice Anand Pathak held so while emphasizing that a victim cannot be rendered "remediless" if the accused gets bail but keeps on interfering in the investigation / trial and intimidating the victim or the witnesses. Section 14-A (1)(2) of Atrocities Act provides that an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail. The accused in the present case was booked for the offence of kidnapping and rape and had been charged under the relevant provisions of IPC, POCSO and the SC/ST Act. He was enlarged on bail in appeal under Section 14A(1)(2), after the Special Court declined his bail plea. The Complainant had moved an application under Section 439(2) of CrPC, seeking cancellation of bail granted under Section 14-A, alleging that the accused had defeated his bail conditions and was constantly intimidating the victim and her family. Thus, the question which arose before the Court was whether bail, once granted under a Special law, can be cancelled under CrPC. The counsel for the accused had raised a question of maintainability arguing that once the bail is granted under the special statute i.e. Atrocities Act, then there is no provisions under the Atrocities Act empowering the Court to recall the bail granted under Section 14-A(1)(2) of Atrocities Act. Even though the Court did not favour cancellation of bail in the facts and circumstances of this case, it noted that it does have the power to do so. Disagreeing with proposition proposed by the accused, the Court noted that in 2015, the SC/ST Act was amended to ensure speedy trial and remove defects that affected the protection of rights and interest of victim. In this backdrop it held, "any interpretation which restricts the right of victim to approach the High Court in case the bail condition is violated would be against the very spirit of the Amendment Act and this may lead to an anomalous position where the whole purpose of Amendment Act would be defeated and therefore, said interpretation cannot be accepted as suggested by counsel for the accused." In effect, it was held that an application for cancellation of bail under Section 439 of Cr.P.C. at the instance of complainant /aggrieved party is maintainable before the High Court which passed the order and order granting bail in an appeal can be recalled, of course in a fit case for recalling. Reliance was placed on Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka & Ors., (2019) 2 SCC 752), where the Supreme Court deprecated "Secondary Victimization" of the complainant/ victim. The Court added, "Even otherwise, if the language used is capable of bearing more than one Construction, in selecting the true meaning regard must be had to the consequences resulting from adopting the alternative constructions. A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and preference should be given to that construction which avoids such results." Inter alia, it was held that the High Court can even "recall" the benefit of bail granted under Section 14-A(2) of the Atrocities Act, if the facts warrant so. It said, "Court has power to recall an order which has been passed by it earlier. Power to issue or pass order includes its recalling." Interplay between Atrocities Act and POCSO Act Since the accused in the present case was charged under two special laws, i.e. the Protection of Children from Sexual Offences Act, 2012 and the Atrocities Act, the Court was faced with a question as to procedural law of which legislation shall prevail. The Court came to a finding that when an accused is being tried by Atrocities Act as well as POCSO Act simultaneously, then Special Court under POCSO Act shall have the jurisdiction for the following reasons: Section 42-A of the POCSO Act permits Special Courts established under the said Act, to implement the provisions of other enactments also, insofar as they are not inconsistent with provisions of POCSO Act and in case of any inconsistency, the provisions of POCSO Act are given overriding effect over the provisions of such other enactments to the extent of inconsistency;Special Court, POCSO Act can try for offence under other enactments also with which the accused may...

Bail Granted Under SC/ST Atrocities Act May Be Recalled/ Cancelled Under Crpc; Procedure Under POCSO Act Prevails Over SC/ST Act: MP HC [Read Judgment]

Akshita Saxena

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