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The Legislature In Its Wisdom Has Conferred Precedence On The POCSO Act Above The Atrocity Act: Gujarat HC [Read Order]

Sparsh Upadhyay
7 Oct 2020 9:24 AM GMT
The Legislature In Its Wisdom Has Conferred Precedence On The POCSO Act Above The Atrocity Act: Gujarat HC [Read Order]
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The Gujarat High Court on Monday (05th October) ruled that the comparative analysis of provisions of both the Acts [Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 & The Protection of Children from Sexual Offences Act, 2012] leads to the sole conclusion - that the legislature in its wisdom has conferred precedence on the POCSO Act above the Atrocity Act.

Notably, in the present matter, the Bench of Justice A. S. Supehia was confronted with the issue of maintainability of the an application filed under section 439 of the Code of Criminal Procedure, 1973 instead of an appeal under section 14-A(2) of the Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act, 1989.

The matter before the Court

Pursuant to the offences registered vide C.R No.I-11187006200762 of 2020 for the offences under section 376, 376(d), 201 and 506(2) of Indian Penal Code, 1860, under sections 4 and 12 of the POCSO Act and sections 3(1) (r), 3(1) (w) (1), 3 (2) (v) of the Atrocity Act, at Lunavada Police Station, Dist. Mahisagar, the applicant was arrested on 22.05.2020.

After filing of the charge-sheet, he filed Criminal Misc. Application No.272 of 2020 in the Court of Additional Sessions Judge & Special POCSO Judge & Special Atrocity Judge, Mahisagar at Lunwada.

The same met with the fate of rejection vide order dated 09.07.2020. As a sequel, he filed the present application under section 439 of the Cr.P.C before the High Court.

Argument put forth by the Counsel for the Applicant

In the response, the advocate appearing for the applicant, placed reliance on the judgement dated 07.11.2019 of the Single Bench of the Hon'ble High Court of Judicature at Patna passed in the case of Guddu Kumar Yadav vs The State of Bihar Criminal Misc. No.52792 of 2019, and submitted that while dealing with the analogous issue, the Hon'ble Patna High Court has held that in a case involving offences under both Acts, i.e. the POCSO Act and the Atrocity Act, the same would not be appealable under section 14-A(2) of the Atrocity Act and only the bail application under section 439 of the Cr.P.C. would alone be maintainable.

It was submitted by him that the POCSO Act, being a Special Act enacted for the purpose of protection of children would prevail over the Atrocity Act, hence the bail application under the provision of section 439 of the Cr.P.C. is precisely filed by the applicant.

Argument put forth by the State

The State raised the preliminary objection with regard to the maintainability, whereas it is the case of the applicant-accused that the application is precisely filed under the provision of section 439 of the Cr.P.C. as he is arrested in connection with the offences under the POCSO Act.

While referring to the provision of Section 14-A(2) of the Atrocity Act, the Public Prosecutor urged that the application (filed under Section 439 CrPC) may be rejected as non-maintainable since the applicant has to file an appeal under the said provision (i.e., Section 14-A(2) of the Atrocity Act).

He also submitted that section 14-A(2) was inserted vide Amendment Act, 2015, which is subsequent to the POCSO Act, 2012, and hence the later Act would prevail.

The question before the Court

The issue which needed deliberation was - whether the subsequent amendment in the Atrocity Act will have the overriding effect to the former POCSO Act by the virtue of "principle of later act will prevail"?

Court's Analysis

The Court acknowledged the fact that the non-obstante clauses are manifested in both the Acts. There cannot be any scintilla of doubt that both the Acts are Special Acts enacted through the wisdom of the Legislature for the benefit of the respective classes.

Further, the High Court cited two rulings of the Apex Court in the cases of Sarwan Singh Vs Kasturilal, AIR 1977 SC 265 and Bank of India vs Ketan Parekh, 2008(8)SCC 148, to drive home the point that in case, two or more laws having non-obstante clause operate in the same field, then

(a) in such conflict in the provisions of law cases have to be decided in reference to the object and purpose of the laws under consideration; and

(b) the other test would be that the later enactment must prevail over the earlier one.

Further, the Court observed,

"The protection of the interest of the child is the supreme and penultimate objective of the POCSO Act. Similarly, the Government enacted the Atrocity Act in 1989 to prevent atrocity and violence on the members of the Scheduled Castes and Scheduled Tribes meted out to them by the perpetrators other than the Scheduled Castes and Scheduled Tribes."

In the present case, the Court observed, the victim is a child below 18 years, who belongs to schedule caste.

"The contentious issue which requires deliberation is whether the social status of the child will eclipse his or her wellbeing or safety. The answer is apparent. The caste of a child cannot override or prejudice the security and wellbeing of a child", the Court stated. (emphasis supplied)

In this context, the Court remarked,

"Thus, a bare glance on the laudable objects of the POCSO Act will illuminate its supremacy on the Atrocity Act, though both the Acts can be termed as Special Acts. Hence, in case both the Special Acts are armed with non-obstante clauses, but the one which has the dominant feature of having supremacy in object and purpose of the laws for which it was enacted, the same will prevail over the other Act irrespective of the date of its promulgation. In such circumstances, the principle of "later Act shall prevail" will cease to apply." (emphasis supplied)

Lastly, the Court observed that in the present application, the applicant accused had approached the Court of Additional Sessions Judge & Special POCSO Judge & Special Atrocity Judge by filing Criminal Misc. Application No.272 of 2020 under section 439 of the Cr.P.C, which resulted into rejection.

The applicant thereafter filed the present application seeking bail by invoking the provisions of section 439 of the Cr.P.C.

The Court noted,

"The powers of granting bail by the High Court under section 439 of the Cr.P.C. will not get diluted even after the special court has exercised such powers. Once it is established that the POCSO Act will have an overriding effect on the Atrocity Act, the provisions of section 31 of the POCSO Act will come into play which speaks of applicability of the provisions of Cr.P.C."

Consequently, the registry was directed to register the bail application under the provisions of section 439 of the Cr.P.C. in case, the same is filed pertaining to the offences registered under both -- the POCSO Act and the Atrocity Act.

Click Here To Download Order

[Read Order]



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