Jharkhand High Court
Sarfaraz Ahmad @ Sarfaraz Alam @ ... vs The State Of Jharkhand on 2 February, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
B.A. No.7931 of 2020
Sarfaraz Ahmad @ Sarfaraz Alam @ Sarfaraz Ansari
... Petitioner
Versus
The State of Jharkhand ... Opposite Party
Coram: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
For the Petitioner : Mr. Pankaj Kumar, Adv.
For the State : Mr. Rajneesh Vardhan, Addl. P.P.
For the Informant : Mr. Rahul Pandey, Adv.
03 /02.02. 2021 Heard the parties through video conferencing.
The Stamp Reporter has raised the objection that since the
offence punishable under the penal provisions of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 is also involved in
this case, therefore the appellant must have filed an appeal under
Section 14-A of Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act, 1989. Drawing attention of this court to the provisions
of Section 42A of the Prevention of Children from Sexual Offences Act,
2012 which read as under:-
"42A. Act not in derogation of any other law.- The
provisions of this 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 any inconsistency, the
provisions of this Act shall have overriding effect on the
provisions of any such law to the extent of the
inconsistency."
Mr. Pankaj Kumar, learned counsel for the petitioner submits that
under the POCSO Act it has been provided that notwithstanding with
anything contained in the Cr.P.C., there is a separate procedure for
reporting of cases and protocol for media and it contemplates a special
procedure for recording statement of child below 18 years of age and
there is another safeguard as it provides that at the time of testifying,
the victim shall not be exposed to any of the accused and for that
purpose the statement may be recorded through video conferencing or
through any other devices. It is then submitted that the special court
constituted under the POCSO Act has been vested with power to pass
an order for interim compensation to meet the immediate needs of the
child for relief or rehabilitation at any stage after lodging the F.I.R. and
also to recommend the award of compensation to be paid by the State
Government within 30 days of receipt of such order.
It is submitted by Mr. Pankaj Kumar- learned counsel for the
petitioner that comparative analysis of the objects, scheme and scope of
Protection of Children from Sexual Offences Act, 2012 and Scheduled
Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 shows
that, the special provision or procedure for recording the statement of
the victim child, safe guard provided at the time of testifying of the
victim child and the scheme for rehabilitation of the child victim; has
not been contemplated in the Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989; therefore in any case, involving
both the offences punishable under the protection of Child from Sexual
Offences Act, 2012 and Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989; the procedure laid down under the
provisions of Protection of Child from Sexual Offences Act, 2012 shall
be applicable. In this respect, the learned counsel for the petitioner relies
upon the judgment on Hon'ble Patna High Court in the case of Guddu
Kumar Yadav Vs. The State of Bihar in Criminal Miscellaneous
No.52792 of 2019 dated 07.11.2019. Hence, it is submitted that the
instant bail application under Section 439 Cr.P.C. is maintainable
therefore the objection raised by the Stamp Reporter be overruled.
It is pertinent to mention here that in the case of Guddu
Kumar Yadav Vs. The State of Bihar (supra), the Patna High Court,
relied upon the judgment of the Allahabad High Court in the case of
Rinku Versus State of U.P., (Cr. Miscellaneous Bail Application No.
33075 of 2018 wherein the Allahabad High Court framed the following
issues for consideration
(i) Whether, a case, which being instituted under penal provisions of
two Special Acts as referred above, should be tried by the Special Court
constituted under SC/ST Act or by the Special Court constituted under
POCSO Act.
(ii) Whether, an order of rejection of bail to an accused by the Special
Court, POCSO Act, in a case instituted for committing offences under the
POCSO Act, and the SC/ST Act, is amenable to appeal in terms of
the Section 14A (2) of SC/ST Act.
And answered them as under
(A) Question No.(i) stands answered in the affirmative in
terms that where in a case, offences both under the POCSO Act and
SC/ST Act are charged arising out of the same crime, that under the
Code may be tried at the same trial, the Special Court, POCSO Act, would
have jurisdiction to determine the bail plea of an accused to the exclusion
of the Special Court, SC/ST Act;
(B) Question No.(ii) stands answered in the negative in terms that where
an order declining bail to an accused is passed by the Special Court,
POCSO Act, in a crime involving offences, both under the POCSO Act
and the SC/ST Act, that order would not be final, and appealable under
Section 14A(2) of the SC/ST Act; an application under Section 439 of the
Code would alone be maintainable before the High Court."
Patna High Court in that judgment also relied upon the judgment of
Madras High Court, in the case of Registrar (Judicial) Vs.
Krishnnaswami Naidu & Anr., wherein considering the same issue the
court observed as follows :-
"43. Yet another question has also been included in this reference, namely,
when offences under the POCSO Act have been committed against a child
belonging to either a Scheduled Caste or Scheduled Tribe, which Court is
competent to remand the accused and to try the offender. In other words,
whether it is the Special Court under the POCSO Act or the exclusive
Special Court or the Special Court under the SC & ST Act which has the
power to remand the accused during investigation, to take cognizance of
the offences on a police report or on a private complaint and also to try the
offender."
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56. If the act of the accused is an offence under the POCSO Act and also
an offence under the SC & ST Act, the Special Court under the POCSO
Act alone shall have jurisdiction to exercise all the powers including the
power to remand the accused under Section 167 of the Code, to take
cognizance of the offences either on a police report or on a private
complaint and to try the offender. The said Special Court shall have
jurisdiction to grant all the reliefs to the victim for which the victim is
entitled to under the SC & ST Act."
In the case of Guddu Kumar Yadav Vs. The State of Bihar
(supra), the Patna High Court relied upon the judgment of the Supreme
Court of India in the case of Sharat Babu Digumarti Versus Govt. of
NCT of Delhi, 2017 (1) PLJR (SC) 382 wherein the Supreme Court of
India inter alia held that Where there are two special statutes which
contain non obstante clauses the later statute must prevail because at
the time of enactment of the later statute, the Legislature was aware of
the earlier legislation and it's non obstante clause and the Legislature
still confers the later enactment with a non obstante clause, means that
the Legislature wanted that the later 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 which in other words means that in case of conflict
between two enactments the earlier enactment shall prevail.
The Patna High Court in that case of Guddu Kumar Yadav Vs.
The State of Bihar (supra) also relied upon the judgment of Supreme
Court of India in the cases of ASHOKA MARKETING LTD. AND
ANOTHER Versus PUNJAB NATIONAL BANK AND OTHERS,
(1990) 4 SCC 406 and Sarwan Singh Versus Kasturi Lal, AIR 1977, S.C,
265, in support of the principle of law of that in the case of inconsistency
between the provisions of two enactments, both of which can be
regarded as special in nature, the conflict has to be resolved by
reference to the purpose and policy underlying the two enactments and
the clear intendment conveyed by the language of the relevant
provisions therein.
The Patna High Court in that case of Guddu Kumar Yadav Vs.
The State of Bihar (supra) further considered the judgment rendered
by the Hon'ble Supreme Court of India in the Case of Union of India
Vs. Ranjit Kumar Saha and Another, (2019) 7 SCC 505, wherein it
was held that in case of apparent conflict between two enactments, such
enactments so far as reasonably possible, be construed to be in harmony
with each other and it is only when there is an irreconcilable conflict
between the new provision and the prior statute relating to the same
subject-matter, that the former, being the later expression of the
legislature, may be held to prevail, the prior law yielding to the extent
of the conflict.
The Patna High Court in that case of Guddu Kumar Yadav Vs.
The State of Bihar (supra) also considered as under in paragraph 20, 21,
22 and 23
20. Under the POCSO Act, notwithstanding anything contained in
the Cr.P.C., there is a separate procedure for reporting of cases and a
protocol for media, it contemplates a Special Procedure for recording of
statement of child i.e. below 18 years of age. There is another safeguard
that at the time of testifying, the victim is not exposed in any way to the
accused and for that purpose statement may be recorded through
videoconferencing or curtains or any other device. It is worthwhile to
notice that the Special Court constituted under the POCSO Act, has been
invested with power to pass an order for interim compensation to meet the
immediate needs of the child for relief or rehabilitation at any stage after
lodging the F.I.R., and also to recommend the award of compensation to be
paid by the State Government within thirty days of receipt of such
order. The Special Court can recommend the award of the compensation
even in case of acquittal or discharge or accused being not traced or
identified, if in the opinion of the Special Court the child has suffered loss
or injury as a result of that offence.
21. After comparative analysis of the object, scheme and scope of the
both Special Acts, i.e. POCSO Act and SC/ST Act, I, nowhere find such
Special Provisions or procedure under the SC/ST Act for reporting of
cases, recording of statements of the victim child, safeguard provided at the
time of testifying the victim child and such a broad scheme of
compensation and rehabilitation for child victim and the power invested to
the Special Court as to grant interim compensation or compensations
notwithstanding the result of the prosecution, as being contemplated
under the POCSO Act.
In the SC/ST Act, no special procedure being contemplated for trial
of the offences. The Special Court constituted under the SC/ST Act, shall
follow almost procedure contemplated under the Cr. P.C. for trial of
Session Cases. In the said Act there being no separate provision for
investigation of the offences relating to child victims belonging to that
section of the society.
22. Therefore, this Court is of the opinion that the POCSO Act takes
within its fold the protection of children of all sections of the society
including those belonging to SC/ST. The POCSO Act, being later
legislation than the SC/ST Act, and a self-contained legislation having
number of safeguards to the children at every stage of proceeding with the
better scheme of compensation and rehabilitation for child victims
including those belonging to SC/ST.
23. There is no dispute that the Special Court to be constituted under the
both Acts as referred above are Court of Session and the courts so
established or specified shall have the power to directly take cognizance of
the offences under the respective Acts.
Section 14 of the SC/ST Act talks about the establishment of special
court and exclusive special court for the purpose of providing speedy trial
of the offences under the said Act. Nowhere, it provides that while trying
the offences under the said Act the Special Court having jurisdiction to try
an offence other than the offences of SC/ST Act. On the contrary, Section
28 of the POCSO Act, which talks about the designation of a Court of
Session to be a Special Court to try the offences under the said Act, further
explicitly provides under sub-section Patna High Court CR. MISC.
No.52792 of 2019(5) dt.07-11-2019 (2) of Section 28 that the Special
Court designated under Section 28 of the POCSO Act, while trying an
offence under the said Act, shall also try an offence other than the offences
referred to in sub-section (1), with which the accused may under the
Code of Criminal Procedure, 1973, be charged at the same trial."
The Patna High Court ultimately held in Guddu Kumar Yadav Vs. The
State of Bihar (supra) that if a case is registered for the offences under
two special Acts, i.e. Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and POCSO Act, such case should
be tried by Special Court constituted under POCSO Act, especially,
taking into consideration sub-section (2) of Section 28 under POCSO Act
which contemplates that a Special Court while trying an offence under
the said Act having jurisdiction to try an offence other than the offence
referred to in sub-section (1) of Section 28 of the POCSO Act, with
which the accused may under the Code of Criminal Procedure be
charged at the same trial.
I am in agreement with the concurrent views expressed by the
Hon'ble Madras High Court, Allahabad High Court as already
mentioned in this order and Patna High Court in the case of Guddu
Kumar Yadav Vs. The State of Bihar (supra) and hold that when order
of granting or refusing bail to an accused is passed by the Special Court
constituted under POCSO Act in connection with the case involving the
offences under both Acts i.e., POCSO Act and Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 , the same would
not with appealable under Section 14 A (ii) of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 and in such cases
the application for bail in terms of Section 439 of the Cr.P.C. would be
maintainable before the High Court.
Further an appeal under Section 14 (A) Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 will lie only when
the orders granting or refusing bail to an accused is passed by the
Special Court or the Exclusive Special Court constituted under the
provisions of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act 1989 but in this case the order refusing bail has been
passed by the Special Court constituted under the POCSO Act and not
the Special Court under the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989.
In view of this observation, the objection raised by the stamp
reporter is over ruled.
The petitioner has been made accused in connection with Godda
(M) P.S. Case No. 104 of 2020 registered under sections 366A of the
Indian Penal Code and Section 8 of POCSO Act and later on becomes
Special (POCSO) Case No. 27 of 2020 in which cognizance has been
taken under Section 366A/34 & 376 of I.P.C. and Section 4 of the
POCSO Act, 2012 and also under Section 3(2)(Va) of SC/ST (Prevention
of Atrocities) Act.
Learned counsel for the petitioner submits that the allegation
against the petitioner is that the petitioner enticed away the minor
victim girl to marry her. It is submitted that the allegation against the
petitioner is false. Drawing attention of this Court towards Annexure-
3/A at page nos. 7-8 of the supplementary affidavit, which is the copy
of the certified copy of the joint compromise petition filed by the parties
in the court of A.S.J.-III, Godda, it is submitted by the learned counsel
for the petitioner that the parties have compromised the matter and the
informant does not want to proceed with the case. It is then submitted
that the petitioner undertakes to co-operate with the trial of the case. It
is lastly submitted that the petitioner has been in custody since
01.06.2020 as mentioned in paragraph 8 of the bail application. Hence it
is submitted that the petitioner be released on bail.
Learned Addl. P.P. opposes the prayer for bail.
Considering the facts of this case, the above named petitioner is
directed to be enlarged on bail on furnishing bail bond of Rs.25,000/-
(Rupees twenty five thousand) with two sureties of the like amount
each to the satisfaction of learned Add. Sessions Judge-III-cum Spl.
Judge (POCSO) at Godda in connection with Godda (M) P.S. Case No.
104 of 2020 with the condition that he will co-operate with the trial of
the case.
AFR-Pappu/ (Anil Kumar Choudhary, J.)
