The Bombay High Court has held that in a case where the child subjected to abuse happened to be belonging to the Scheduled Caste or the Scheduled Tribe, procedure carved out in the Protection of Children From Sexual Offences (POCSO) Act of 2012 would not take away the powers of the Special POCSO Court to try the offences under the SC/ST Prevention of Atrocities Act, 1989.
Justice Bharati Dangre was hearing a bail application filed by a 21-year-old from Pune, who was accused of raping a minor. FIR in the case was lodged by the girl's mother in relation to an incident that took place on November 10, 2019.
According to the FIR, the age of the complainant's daughter on the date of incident was 16 years and 6 months, but the bench noted that on the basis of birth certificate which is placed on record, the date of birth of the victim girl is June 18, 2004, making her age on the date of incident to be precisely 15 years 4 months and 23 days.
As per the prosecution's case, the victim was in friendly relationship with the Applicant and on the date of incident, she accompanied him on his motorcycle and travelled to a place approximately 40-45 Kms from Pune where she along with the applicant had access to a lodge where they were there for almost 1½ to 2 hours as per the receptionist of the concerned lodge.
Justice Dangre noted-
"The issue as to whether a physical relationship was established on account of the promise of marriage is to be determined at the time of trial. Undisputedly the fact that the victim was minor and attracted provisions of Section 376 of Indian Penal Code and her consent is totally immaterial."
In a hearing on June 19 in the matter, Additional Public Prosecutor SP Gavand had submitted before the single bench of Justice SV Kotwal that since the offence alleged is under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, an appeal would be required to be preferred under Section 14(A) of the Act of 1989 and the application under Section 439 of CrPC was not maintainable.
Applicant's counsel Abhijit Desai placed the record following judgments-
1. In Re the Registrar (Judicial High Court) [Madras High Court]
2. Rinku Vs. State of UP (Allahabad High Court)
3. Sarwan Singh Vs. Kasturilal (AIR 1977 Supreme Court 265)
4. Guddu Kumar Yadav Vs. State of Bihar (Patna High Court)
Justice Dangre observed that Court was in agreement with the ratio laid down in the aforesaid judgments and said-
"The Judgments relied upon by Mr. Desai which are delivered by the Allahabad High Court, Madras High Court clearly lay down a position of law to the effect that Protection of Children from Sexual Offences Act, 2012 being a special enactment and also a subsequent enactment and containing non obstante clause, the bar created under Section 14 (A) of the Act of 1989 would not operate."
Finally, the Court observed-
"In a case where the child subjected to abuse happened to be belonging to Scheduled Caste and Scheduled Tribe, the procedure carved out in the Act of 2012 would not take away the powers of the Special Court to try the offences under the said Act coupled with a provision contained in Section 42(A) which was introduced by Act No. XIII of 2013 which introduced a provision that the Act and its provisions shall be in addition to and not in derogation of provisions of any other law for the time being in force and in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of inconsistency."
Keeping in mind that the victim is a resident of Dhanori, Pune, Court asked the accused to give an undertaking stating that he will not enter the jurisdiction of Pune city and applicant's lawyer Desai agreed to this and assured compliance by the accused.
As for the allegations under the SC & ST (Prevention of Atrocities) Act, Justice Dangre noted that except in a statement of the victim girl where she has disclosed that the applicant abused her by mentioning her caste, there is no other material to attract the offences under the said Act-
"The effect of the statement under Section 164 of CrPC and the content therein and its appreciation would be done at the time of trial. It is not the case of the prosecution that the Applicant was aware that the victim girl belongs to scheduled caste and therefore intentionally he assaulted her sexually, being conscious of this fact. Therefore, perusal of the material in the charge-sheet does not prima facie attract the provisions contained in Act of 1989."
Thus, bail was granted on a bond of Rs.25,000.
Case Number: Bail Application 817 of 2017 Case Name: Suraj S Paithankar Vs. State of MaharashtraCoram: Bharati Dangre JCounsel: Adv Abhijeet Desai and Adv Amol Jagtap instructed by Desai Legal for the Applicant, APP SV Gavand for the State
Case Number: Bail Application 817 of 2017
Case Name: Suraj S Paithankar Vs. State of Maharashtra
Coram: Bharati Dangre J
Counsel: Adv Abhijeet Desai and Adv Amol Jagtap instructed by Desai Legal for the Applicant, APP SV Gavand for the State
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