Gorakshnath @ Samadhan Navnath ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 16248 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                   CRIMINAL APPEAL NO.362 OF 2021

        GORAKSHNATH @ SAMADHAN NAVNATH PAGAR
                           VERSUS
        THE STATE OF MAHARASHTRA AND ANOTHER
                               ...
            Advocate for Appellant : Mr. Kedar B. R.
          APP for Respondent no.1 : Mr. R V Dasalkar
      Advocate for Respondent 2 : Mr. Z H Farooqui h/f B.S.
                            Doifode
                               ...
     CORAM : V.K. JADHAV & SANDIPKUMAR C. MORE, JJ.

...

Reserved on : November 15, 2021 Pronounced on : November 24, 2021.

...

ORDER :- (Per V.K. Jadhav, J.)

1. The appellant/accused is seeking regular bail in

connection with crime no.30 of 2021 registered with

Chopda police Station for the offences punishable under

sections 363, 366A, 368, 376(1)(A), 354(D), 34 of the

Indian Penal Code, under sections 4,8, 12 of the

Protection of Children from Sexual Offences Act, 2012

(for short 'POCSO Act') and u/s 3(1)(w)(i)(ii), and 3(2)

and (va) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (for short 'SCST Act').

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2. His application with similar prayer came to be

rejected by the learned Additional Sessions Judge,

Amalner, District Jalgaon, vide order dated 20.7.2021

passed below exhibit 62 in Special Case (POCSO) no.18

of 2021.

3. Learned counsel appearing for respondent no.2

has raised a preliminary objection that present appeal is

not maintainable before this Court. Learned counsel

submits that the latter statute will prevail over the

earlier statute. It is held in catena of the judgments of

the Supreme Court that later statute will prevail over

the earlier enactment. In view of the same, since the

POCSO Act came into force in the year 2012 and the

SCST Act enacted in the year 1989, the provisions of the

POCSO Act will prevail over the provisions of the SCST

Act. There is no appeal provision in the POCSO Act. As

such, in the event, if the application fled under section

439 of Cr.P.C. is rejected, then, the application is

required to be fled before the High Court. Learned

counsel submits that the appellant has committed an

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error in fling the present appeal under the provisions of

Section 14-A (2) of the SCST Act, which is not at all

maintainable.

4. Learned counsel for respondent no.2, in order to

substantiate his contentions, placed reliance on the

following judgments :-

i. Sharad Babu Digumarti Vs. Govt of NCT Delhi in Criminal appeal 1222 of 2016 (Arising out of S.L.P criminal 7675 of 2015).

ii. Pramod Yadav Vs. State of Madhya Pradesh in criminal appeal no.5189 of 2020.

5. The learned counsel appearing for the appellant

submits that, both the Acts i.e. the SCST Act and the

POCSO Act are the special laws. In both the acts, there

are non obstante clause. In terms of section 20 of the

SCST Act, the provisions shall have the effect

notwithstanding anything inconsistent therewith

contained in any other law for the time being in force.

Similarly, in terms of the provisions of Section 42-A of

the POCSO Act, the provisions of the Act shall be in

addition to and not in derogation of the provisions of

any other law for the time being in force and, in case of

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any inconsistency, the provisions of this Act shall have

overriding effect on the provisions of any such law to the

extent of the inconsistency.

Learned counsel for the appellant submits that,

section 14-A of the SCST Act came to be inserted by Act

1 of 2016 w.e.f. 26.1.2016 providing an appeal from any

judgment, sentence or order, not being an interlocutory

order, of a Special Court or an Exclusive Special Court,

to the High Court both on facts and on law and in terms

of sub-section (2) of Section 14-A, an appeal shall lie to

the High Court against an order of the Special Court or

the Exclusive Special Court granting or refusing bail.

Learned counsel submits that, said provisions of section

14-A inserted by Act 1 of 2016 w.e.f. 26.1.2016 is later

amendment, so far as the POCSO Act of 2012 is

concerned. Learned counsel submits that the provisions

of section 14-A are not in inconsistent with any of the

provisions of the Act of 2012.

6. Learned counsel for the appellant in order to

substantiate his contentions, placed reliance on the

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     following judgments :-

             i.       Ram Narain Vs. Simla Banking and Industrial

Company Limited reported in 1956 AIR (SC) 614.

ii. Sarwan Singh Vs. Kasturi Lal reported in 1977 AIR (SC) 265.

7. Learned counsel appearing for the parties have not

disputed the legal position that where there are two

special statutes, which contains non obstante clauses,

the later statute must prevail.

8. In the instant case, after due investigation, charge-

sheet has been submitted against the appellant/accused

for the offence punishable under sections section 4,8,

12 of the Protection of Children from Sexual Offences

Act, 2012 and u/s 3(1)(w)(i)(ii), and 3(2) and (va) of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989.

9. In a case of Pramod Yadav Vs. State of Madhya

Pradesh (supra), relied upon by the learned counsel for

respondent no.2, the Division Bench of the Madhya

Pradesh High Court dealt with the similar issue on

reference. In paragraph no.14, the Division Bench of the

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Madhya Pradesh High Court has referred the views of

the Supreme Court in the various cases and reproduced

the summary of the observations made by the Supreme

Court in the following manner :-

"In all of which the Supreme Court has laid down the guidelines resolving the confict of two non obstante clauses contained in two different statutes and held that when two or more laws operate in the same feld and each contained a non obstante clause indicating that the provisions have been given overriding effect over any other law, the cases shall be decided with reference to the object and purpose of the law under consideration by applying the test that latter enactment must prevail over earlier one."

The Division Bench of the Madhya Pradesh High

Court in paragraph no.26 has referred the view

expressed by the Bombay High Court in Suraj

Paithankar Vs. The State of Maharashtra (Bail

application No.817 of 2020) case, wherein it is held that

in the composite offence involving POCSO Act and the

SCST Act, the provisions of the POCSO Act will prevail.

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The Trial of the case will also be done by Special Court

constituted under the POCSO Act.

The Division Bench has further referred the

Rajasthan High Court judgment in a case of Lokesh

Kumar Jangid Vs. State of Rajasthan, (Cri. Misc Second

Bail application No.9440 of 2020), wherein it is held

that no appeal will lie in a composite offence of POCSO

and SCST Act and a regular bail application under

section 439 would be maintainable.

10. In a case of Sharat Babu Digumarti Vs. Govt. of

NCT Delhi (supra), relied upon by learned counsel for

respondent no.2, in paragraph no.31 and 32 the

Supreme Court has made the following observations :-

"31. In Solidaire India Ltd. v. Fairgrowth Financial Services Ltd., this Court while dealing with two special statutes, namely, Section 13 of Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 and Section 32 of Sick Industrial Companies (Special Provisions) Act, 1985, observed as follows :- "Where there are two special statutes which contain non obstante clauses the later statute must prevail. This is because at the time of enactment of the later statute, the Legislature was aware of the earlier legislation and its non obstante clause. If the Legislature still confers the later enactment with a non obstante clause it means that the Legislature wanted that enactment to prevail. If the Legislature does not want the later enactment to prevail then it could and would provide in the later enactment that the provisions of the earlier enactment continue to apply."

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32. The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of the IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission is covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC."

11. In the instant case, the provisions of the POCSO

Act, dealt exhaustively about the protection of children

and it is a later enactment having over riding effect

which covers the criminal Act and offender.

12. Learned counsel for the appellant brought to our

notice the view taken by the Supreme Court in a case of

Ram Narain Vs. Simla Banking and Industrial

Company Limited (supra). In paragraph no.9 the

Supreme Court has made following observations :-

"9. Now, the Displaced Persons (Debts Adjustment) Act is one of the statutory measures meant for relief and rehabilitation of displaced persons. It is meant for a temporary situation brought about by unprecedented circumstances. It is possible, therefore, to urge that the provisions of such a measure are to be treated as being particularly special in their nature and that they also serve an important national purpose. It is by and large

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a measure for the rehabilitation of displaced debtors. Notwithstanding that both the Acts are important benefcial measures, each in its own way, there are certain relevant differences to be observed. The frst main difference which is noticeable is that the provisions in the Displaced Persons (Debts Adjustment) Act are in a large measure enabling and not exclusive. There is no provision therein which compels either a displaced debtor or a displaced creditor to go to the Tribunal, if he is satisfed with the reliefs which an ordinary civil court can give him in the normal course. It is only if he desires to avail himself of any of the special facilities which the Act gives to a displaced debtor or to a displaced creditor and makes an application in that behalf under sections 3, or 5(2), or 13, that the Tribunal's jurisdiction comes into operation. At this point it is necessary to notice the further difference that exists in the Displaced Persons (Debts Adjustment) Act between applications by displaced debtors and applications by displaced creditors against persons who are not displaced persons. So far as the applications by displaced debtors are concerned, section 15 in terms provides for certain consequences arising, when the application is made to the Tribunal by a displaced debtor under section 3 or section 5(2), i.e., stay of all pending proceedings, the cessation of effect of any interim orders or attachments, etc. and a bar to the institution of fresh proceedings and so forth. But the terms of section 13 relating to the entertainment of an execution proceeding by the said Tribunal on a decree so obtained, do not appear to bring about even the kind of consequences which section 15 contemplates as regards applications by displaced debtors. Section 13 is, in terms, only an enabling section and section 28 merely says that "it shall be competent for the civil court to execute the decree passed by it as a Tribunal". They are not couched in terms vesting exclusive jurisdiction in the Tribunal.

Whatever, therefore, may be the inter se, position, in a given case, between the provisions of the Banking Companies Act and the provisions of the Displaced Persons (Debts Adjustment) Act, in so far as such provisions relate to displaced debtors, we are unable to fnd that the jurisdiction so clearly and defnitely vested in the High Court by the very specifc and comprehensive wording of section 45-B of the Banking Companies Act with reference to the matters in question, can be said to be overridden or displaced by anything in the Displaced Persons (Debts Adjustment)

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Act, 1951, in so far as they relate to displaced creditors."

13. In a case of Sarwan Singh Vs. Kasturi Lal

(supra), relied upon by the learned counsel for the

appellant, wherein Ram Narain case (supra) is also

referred. In paragraph no.20 and 21 of the Judgment,

the Supreme Court has made following observations :-

"20. Speaking generally, the object and purpose of a legislation assume greater relevance if the language of the law is obscure and ambiguous. But, it must be stated that we have referred to the object of the provisions newly introduced into the Delhi Rent Act in 1975 nor for seeking light from it for resolving an ambiguity, for there is none, but for a different purpose altogether. When two or more laws operate in the same feld and each contains a non obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has no conventional protocol, cases of such confict have to be decided in reference to the object and purpose of the laws under consideration. A piquant situation, like the one before us, arose in Shri Ram Narain v. The Simla Banking & Industrial Co. Ltd., (1) the competing statutes being the Banking Companies Act, 1949 as amended by Act 52 of 1953,and the Displaced persons (Debts Adjustment) Act, 1951. Section 45A of the Banking Companies Act, which was introduced by the amending Act of 1953, and s. 3 of the Displaced Persons Act 1951 contained such a non obstante clause, providing that certain provisions would have effect "not-

withstanding anything inconsistent therewith contained in any other law for the time being in force ......" This Court resolved the confict by considering the object and purpose of the two laws and giving precedence to the Banking Companies Act by observing: "It is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the

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relevant provisions therein. "(p. 615). As indicated by us, the special and specifc purpose which motivated the enactment of s. 14A and Chapter IIIA of the Delhi Rent Act would be wholly frustrated if the provisions of the Slum Clearance Act requiring permission of the competent authority were to prevail over them. Therefore, the newly introduced provisions of the Delhi Rent Act must hold the feld and be given full effect despite anything to the contrary contained in the Slum Clearance Act.

21. For resolving such inter se conficts, one other test may also be applied through the persuasive force of such a test is but one of the factors which combine to give a fair meaning to the language of the law. That test is that the later enactment must prevail over the earlier one. Section 14A and Chapter IIIA having been enacted with effect from December 1, 1975 are later enactments in reference to S. 19 of the Slum Clearance Act which, in its present form, was placed on the statute book with effect from February 28, 1965 and in reference to S. 39 of the same Act, which came into force in 1956 when the Act itself was passed. The legislature gave over- riding effect to A. 14A and Chapter IIIA with the knowledge that Sections.19 and 39 of the Slum Clearance Act contained non obstante clauses of equal effcacy. Therefore the later enactment must prevail over the former. The same test was mentioned with approval by this Court in Shri Ram Narain's case (Supra) at page

615."

14. The the Protection of Children from Sexual

Offences Act, 2012 came to be enacted to protect

children from the offences of sexual assault, sexual

harassment, pornography and provide for establishment

of Special Courts for trial of such offences and for

matters connected therewith or incidental thereto.

The Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 enacted with a view

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to prevent the commission of offences against the

members of Scheduled Castes and Scheduled Tribes and

to establish Special Courts for the trial of such offences

and for providing relief and rehabilitation of the victims

of such offences and for matters connected there with or

incidental thereto.

15. In the instant case, the victim is not only the

member of the Scheduled Caste, but she is also the

child suffering from the offences of sexual assault and

harassment. The provisions under the POCSO Act are

more benefcial to the suffering child and various

provisions prescribe the procedure for recording the

statement of the victim child, providing safeguard at the

time of recording the evidence of the victim child and

also deals with the scheme of compensation and

rehabilitation of the victim.

16. The Hon'ble Supreme Court in Sarwan Singh's

case (supra) has also observed that when two or more

laws are operating in the same fled and each contains a

non obstante clause stating that its provision will

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override those of any other law, stimulating and incisive

problems of interpretation arise. Since statutory

interpretation has no conventional protocol, cases of

such confict have to be decided in reference to the

object and purpose of laws under consideration. The

Supreme Court thus referred the view expressed in Ram

Narain Vs. Simla Banking and Industrial Company

Limited reported in 1965 AIR (SC) 614. Thus,

considering the object and purpose of the newly

introduced provisions the Delhi Act must hold the feld

and be given full effect despite anything to the contrary

contained in the Slum Clearance Act.

17. In a case of Sarwan Singh Vs. Kasturilal Lal

(supra), the Supreme Court has also discussed that one

test may also be applied to give a fair meaning to the

language of law. That test is the later enactment must

prevail over the earlier one.

18. In the instant case, in view of the observations

made by the Supreme court in a Sarwan Singh Vs.

Kasturi Lal's case (supra), this confict has to be decided

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in reference to the object and purpose of the laws under

consideration. As discussed above, the provisions of the

POCSO Act, 2012 exhaustively deal with the issue of

Care, Protection and best interest of the Child from the

offences of sexual assault and sexual harassment. In

view of the same, we are of the considered opinion that

the provisions of the later enactment i.e. the Protection

of Children from Sexual Offences Act, 2012 would

prevail.

19. At this stage, the learned counsel for the appellant

seeks leave to convert this Criminal Appeal into

Criminal Application for bail.

20. Leave granted to convert this Criminal Appeal into

Criminal Application for bail. Offce to list the matter

before the Appropriate Bench.

( SANDIPKUMAR C. MORE, J. ) ( V.K. JADHAV, J. ) ...

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