Friday, 10 July 2020

Bombay HC: POCSO Act overrides S. 14-A of SC/ST Act while granting bail to accused

On 19/06/2020, this Court (Coram: Sarang Kotwal, J.)
recorded an objection raised by the APP that since the ofence
alleged is under the Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989, (Hereinafter referred to as
‘Act of 1989’ for the sake of brevity) an appeal would be
required to be preferred under Section 14(A) of the Act of

1989. For consideration of the said objection, matter was
subsequently listed and Mr. Desai, learned counsel for the
Applicant has placed on record following Judgments:
1. In Re the Registrar (Judicial High Court)
[Madras High Court]
2. Rinku Vs. State of U. P. (Allahabad High
Court)
3. Sarwan Singh Vs. Kasturilal (A.I.R. 1977
Supreme Court 265)
4. Guddu Kumar Yadav Vs. State of Bihar
(Patna High Court)
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 efect that Protection
of Children from Sexual Ofences Act, 2012 (Hereinafter
referred to as ‘POCSO Act’ for the sake of brevity) 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. I have
perused the aforesaid Judgments and I am in agreement with
the ratio laid down in the aforesaid Judgments.
Protection of Children from Sexual Ofences Act, 2012
being a special enactment which deal with the ofences of
child abuse, was brought into force w.e.f. 14/11/2012. It is a
comprehensive legislation which provides for protection of
children from ofences of sexual assault, sexual harassment
and pornography, by safeguarding the interest of the child at
every stage of judicial process by incorporating child friendly
mechanism for reporting, recording of evidence, investigation
and conduct of speedy trial of ofences through designated
courts. It ensures child friendly judicial process and involves
multidimensional approach keeping in view the child’s right.
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 ofences 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 efect on the
provisions of any such law to the extent of inconsistency.
Insertion of provision of Section 42A in the POCSO Act, make
the position of law amply clear and the objection raised by
the learned APP therefore do not warrant any merit. Going a
step further, in accordance with Section 31 of the POCSO Act
which make provisions of Code of Criminal Procedure,
(Hereinafter referred to as ‘Cr.P.C.’ for the sake of brevity)
applicable to the proceedings before the Special Court trying
ofences under the said Act, provisions of Appeal contained in
the Cr.P.C. would be equally made applicable to the
proceedings to the ofences under the POCSO Act.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 817 OF 2020

Suraj S. Paithankar  V/s. The State of Maharashtra 

CORAM : BHARATI DANGRE, J.
DATE : 3rd JULY 2020.



On 19/06/2020, this Court (Coram: Sarang Kotwal, J.)
recorded an objection raised by the APP that since the ofence
alleged is under the Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989, (Hereinafter referred to as
‘Act of 1989’ for the sake of brevity) an appeal would be
required to be preferred under Section 14(A) of the Act of

1989. For consideration of the said objection, matter was
subsequently listed and Mr. Desai, learned counsel for the
Applicant has placed on record following Judgments:
1. In Re the Registrar (Judicial High Court)
[Madras High Court]
2. Rinku Vs. State of U. P. (Allahabad High
Court)
3. Sarwan Singh Vs. Kasturilal (A.I.R. 1977
Supreme Court 265)
4. Guddu Kumar Yadav Vs. State of Bihar
(Patna High Court)
2 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 efect that Protection
of Children from Sexual Ofences Act, 2012 (Hereinafter
referred to as ‘POCSO Act’ for the sake of brevity) 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. I have
perused the aforesaid Judgments and I am in agreement with
the ratio laid down in the aforesaid Judgments.
Protection of Children from Sexual Ofences Act, 2012
being a special enactment which deal with the ofences of
child abuse, was brought into force w.e.f. 14/11/2012. It is a
comprehensive legislation which provides for protection of
children from ofences of sexual assault, sexual harassment
and pornography, by safeguarding the interest of the child at
every stage of judicial process by incorporating child friendly
mechanism for reporting, recording of evidence, investigation
and conduct of speedy trial of ofences through designated
courts. It ensures child friendly judicial process and involves
multidimensional approach keeping in view the child’s right.
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 ofences 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 efect on the
provisions of any such law to the extent of inconsistency.
Insertion of provision of Section 42A in the POCSO Act, make
the position of law amply clear and the objection raised by
the learned APP therefore do not warrant any merit. Going a
step further, in accordance with Section 31 of the POCSO Act
which make provisions of Code of Criminal Procedure,
(Hereinafter referred to as ‘Cr.P.C.’ for the sake of brevity)
applicable to the proceedings before the Special Court trying
ofences under the said Act, provisions of Appeal contained in
the Cr.P.C. would be equally made applicable to the
proceedings to the ofences under the POCSO Act.

3 After scrutinizing the legal position and the Judgments
relied by Mr. Desai and the learned APP who also fairly
concedes to the position of law and has consented for
proceeding to hear the matter on its merits.
4 Heard Shri. Abhijeet Desai, learned counsel for the
Applicant and Shri. S. V. Gavand, learned APP for the State.
Perused the charge-sheet placed on record. F.I.R. is lodged by
mother of the victim as it discloses is fled by mother in
relation to an incident which took place on 10/11/2019.
Mother has mentioned age of her daughter on the date of
incident as of 16 years and 6 months, but on the basis of birth
certifcate which is placed on record and form part of the
charge-sheet, the date of birth of the victim girl is
18/06/2004; on the date of incident her age is precisely 15
years 4 months and 23 days. Going by the version of
prosecution 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 alongwith 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 whose
statement forms part of the charge-sheet. CCTV footage of
their entry and exit from the lodge is also part of the chargesheet.
5 Mr. Desai, learned counsel for the Applicant would
submit that the Applicant is 21 years of age and he was in
friendly relationship with the victim and it is not the case that
he had forced himself upon her. In any case, taking into
consideration the fact that the age on the date of incident,
victim was 15 years 4 months and 23 days, the ofence with
which Applicant is charged is undisputedly attracted. The
issue as to whether physical relationship was established on
account of promise of marriage is to be determined at the

time of trial. Undisputedly the fact that victim was minor and
attracted provisions of Section 376 of Indian Penal Code and
her consent is totally immaterial.
6 This being a settled position of law, the only aspect
which arises for consideration is whether Applicant is entitled
for bail at this stage. Applicant came to be arrested on the
date of which F.I.R. was lodged i.e. on 12/11/2019 and since
then he is in custody. Investigation is completed, chargesheet
is filed. On consideration of matter on merit, there is no
prohibition that the Applicant cannot be released on bail
though he may be convicted on the basis of evidence brought
on record. Once the investigation is completed and chargesheet
is fled, what is to be ensured is that the Applicant do
not tamper with the prosecution evidence and and make
himself available for trial. The victim being of tender age also
needs to be kept away from the Applicant as she may not feel
free to depose if she comes in contact with the Applicant.

This can be ensured by taking an undertaking from the
Applicant that he will not enter into jurisdiction of Pune City
since the victim is resident of Dhanori, Pune. On this
suggestion, Mr. Desai is acceptable to the fact that the
Applicant would not enter the jurisdiction of Pune city till the
conclusion of trial. Similarly Mr. Desai also submits that all
directions would be complied by the Applicant which would
ensure his attendance at the time of trial.
7 As far as the allegations under the Atrocities Act of 1989
is concerned, except in a statement of the victim girl recorded
under section 164 of Cr.P.C., where she has disclosed that
Applicant abused her by mentioning her caste, there is no
other material to attract the ofences under the said Act. The
efect of the statement under Section 164 of Cr.P.C. 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 do not prima facie attract the provisions
contained in Act of 1989.
8 Considering the aforesaid facts, I am inclined to release
the Applicant on bail subject to following conditions.
O R D E R
(a) Applicant is directed to be released on bail in
connection with 370 of 2019 registered with
Vishrantwadi Police Station, Pune, on furnishing P.
R. bond of Rs. 25,000/- and on executing one or
two sureties of the like amount.
(b) He shall not directly or indirectly make any
inducement, threat or promise to any person
acquainted with facts of case so as to dissuade
him from disclosing the facts to Court or any
Police Ofcer or tamper with evidence.

(c) The Applicant shall not enter into jurisdiction
of Pune City during the pendency of trial.
(d) On his release, the Applicant would report to
the Investigating Ofcer of Vishrantwadi Police
Station, Pune about his place of stay i.e. address,
telephone number within period of one week.
(e) The place which he choses as the place of his
residence while he is on bail, he would report to
the concerned police station of that area, once in
a month and mark his presence.
9 The Application is allowed in the aforestated terms.
SMT. BHARATI DANGRE, J.

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