Somashekar vs The State By
2023 Latest Caselaw 7192 Kant

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                                                         NC: 2023:KHC:37164
                                                     CRL.P No. 7421 of 2023




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 11TH DAY OF OCTOBER, 2023

                                           BEFORE
                                                                               R
                       THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY

                           CRIMINAL PETITION NO. 7421 OF 2023

                BETWEEN:

                SOMASHEKAR
                S/O SHEKAR PUJARI
                AGED ABOUT 24 YEARS
                R/O VATEHALLI VILLAGE
                BELAGODU HOBLI
                SAKALESHPURA TALUK
                HASSAN DISTRICT.
                                                                ...PETITIONER
Digitally
signed by B A   (BY SRI SHETTY DEEPAK, ADV.)
KRISHNA
KUMAR           AND:
Location:
HIGH COURT
OF              1. THE STATE BY
KARNATAKA
                   RURAL POLICE STATION
                   AUTHORITIES, SAKALESHPURA
                   REPRESENTED BY STATE PUBLIC
                   PROSECUTOR, HIGH COURT OF
                   KARNATAKA, BENGALURU - 560 001.
                2. SUNANDA
                   W/O MAHESH
                   AGED 37 YEARS
                   R/O VATEHALLI VILLAGE
                   BELAGODU HOBLI
                   SAKALESHPURA
                                                             ...RESPONDENTS
                (BY SMT. SOWMYA R, HCGP)

                      THIS CRL.P FILED U/S.439 CR.P.C PRAYING TO ENLARGE THE
                PETITIONER ON BAIL IN CR.NO.279/2023 REGISTERED BY
                SAKALESHPURA RURAL POLICE STATION, HASSAN FOR THE
                OFFENCE P/U/S 448, 504 AND 305 OF IPC, SECTION 12 OF POCSO
                ACT, AND SECTION 3(2)(va) OF SC/ST (POA) AMENDMENT ACT,
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                                              NC: 2023:KHC:37164
                                         CRL.P No. 7421 of 2023




2015, PENDING BEFORE THE ADDITIONAL DISTRICT AND SESSIONS
JUDGE, FTSC-1, HASSAN IN SPL.C.NO.279/2023.

    THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:

                             ORDER

1. Accused in Spl.C.No.279/2023 pending before the Court

of Addl. District & Sessions Judge, FTSC-I, Hassan, for the

offences punishable under Sections 448, 504, 305 of IPC,

Section 12 of the Protection of Children from Sexual Offences

Act, 2012 (for short, 'POCSO Act') and Section 3(2)(va) of the

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (for short, 'Atrocities Act'), arising out of

Crime No.67/2023 registered by Sakaleshpura Rural Police

Station, Hassan District, is before this Court under Section 439

of Cr.PC.

2. Heard the learned Counsel for the petitioner and the

learned HCGP for respondent no.1. Respondent no.2/defacto

complainant though served in the matter, has remained

unrepresented.

3. The defacto complainant, who belongs to Scheduled

Caste community, had approached Sakaleshpura Rural Police

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Station and submitted a typed complaint dated 17.03.2023 at

about 3.00 p.m., alleging that the petitioner who is the resident

of their village was pestering her minor daughter aged about 17

years to love him. On 17.03.2023 at about 11.00 a.m.,

petitioner allegedly came to the house of the complainant and

called out her minor daughter's name. When the complainant

inquired with him about his whereabouts, he informed her that

he was the lover of her daughter. Complainant and her brother-

in-law Praveen advised the petitioner, but he went inside the

house of the complainant and quarreled with her minor

daughter and started pestering her to love him. Since the

complainant's daughter did not agree, petitioner allegedly

abused her and threatened her with dire consequences to her

life and went away. Complainant's daughter who got ashamed

due to the said incident, went inside the house and allegedly

committed suicide by hanging herself with a saree. It is under

these circumstances, complainant had approached the police

and submitted the typed complaint, based on which, FIR was

registered in Crime No.67/2023 against the petitioner herein

and another initially for the offences punishable under Sections

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306, 504, 34 of IPC, Section 12 of the POCSO Act and Section

3(2)(va) of the Atrocities Act.

4. During the course of investigation in the said case,

petitioner was arrested on 30.04.2023. Investigation in the

case was completed and charge sheet was filed only against the

petitioner herein for the aforesaid offences. The bail application

filed by the petitioner before the Trial Court in

Spl.C.No.279/2023 was dismissed on 28.06.2023. Therefore,

he is before this Court.

5. Learned Counsel for the petitioner submits that the

petitioner and the victim girl were in love and this was objected

to by her parents and relatives. On the date of incident,

petitioner had gone to the house of the complainant since the

victim girl was confined in her house by her parents. The

allegation made in the complaint against the petitioner is totally

false. Even if the charge sheet allegations are presumed to be

true, the alleged offences cannot be made out against the

petitioner. Petitioner who is aged about 24 years, is in custody

from 30.04.2023. Investigation in the case is completed and

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charge sheet has been filed. Accordingly, he prays to allow the

petition.

6. Learned HCGP has raised a preliminary objection with

regard to the maintainability of the criminal petition on the

ground that since the offence punishable under the provisions

of Atrocities Act is invoked against the petitioner, he is required

to file an appeal as provided under Section 14A(1) of the

Atrocities Act. Alternatively, on the merits of the case, she

submits that the material on record makes out a prima facie

case against the petitioner, and therefore, she prays to dismiss

the petition.

7. Considering the preliminary objection raised by the

learned HCGP regarding maintainability of this petition, before

adverting to the merits of the case, it would be necessary for

this Court to examine the said aspect of the matter.

8. Petitioner has been charge-sheeted for the offences under

Sections 448, 504, 305 of IPC, Section 12 of the POCSO Act

and Section 3(2)(va) of 'Atrocities Act'. Since the offences

punishable under the provisions of Atrocities Act is invoked

against the petitioner in the charge sheet, learned HCGP has

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raised an objection with regard to the maintainability of the

petition in view of Section 14A(1) of the Atrocities Act.

9. The Atrocities Act and the POCSO Act are special

enactments. The Atrocities Act was enacted on 30.01.1990,

while the POCSO Act was enacted on 09.11.2012. Section 20 of

the Atrocities Act provides for overriding effect of the said Act,

while Section 42A of the POCSO Act provides for overriding

effect of the POCSO Act.

10. Section 20 of the Atrocities Act, reads as under:

"20. Act to override other laws.- Save as otherwise provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law."

11. Section 42A of the POCSO Act, reads 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 pf 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."

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12. Section 31 of the POCSO Act, reads as under:

"31. Application of Code of Criminal Procedure, 1973 to proceedings before a Special court.-Save as otherwise provided in this Act, the provisions of the code of Criminal Procedure, 1973 (2 of 1974), (including the provisions as to bail and bonds) shall apply to the proceedings before a Special court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor."

13. From a reading of Section 31 of the POCSO Act, it is

evident that the provisions of Cr.PC is made applicable for the

cases to be tried under the said Act, and therefore, the

provision for bail under Cr.PC would also be applicable for the

cases registered under the provisions of the POCSO Act.

14. Section 14A of the Atrocities Act which provides for an

appeal remedy as against the orders passed by the Special

Judge trying the offences under the provisions of the said Act,

reads as under:

"14A. Appeals.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2of 1974), an appeal shall lie, from any judgment, sentence

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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.

(2) Notwithstanding anything contained in sub- section (3) of section 378 of the Code of Criminal Procedure, 1973 (2 of 1974), an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail.

(3) Notwithstanding anything contained in any other law for the time being in force, every appeal under this section shall e preferred within a period of ninety days from the date of the judgment, sentence or order appealed from:

PROVIDED that the High Court may entertain an appeal after the expiry of the said period of ninety days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of ninety days:

PROVIDED FURTHER that no appeal shall be entertained after the expiry of the period of one hundred and eighty days.

(4) Every appeal preferred under sub-section (1) shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal."

15. A reading of the aforesaid provision of law would go to

show that against an order rejecting bail for the offences

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punishable under the provisions of the Atrocities Act, the

accused is required to file an appeal as required under Section

14A(1) of the Atrocities Act.

16. Whenever, there is a conflict between the provisions of

two special enactments, it is trite that the provisions of the

later of the two enactments will prevail. This is because the

legislature was aware of the earlier statute at the time of

enactment of the later statute. Unless the legislature

specifically provides in the later statute that the provisions of

the earlier statute would prevail, then it has to be understood

that the provisions of the later statute would prevail over the

earlier statute.

17. In the background of the aforesaid principle of law,

having regard to Section 42A of the POCSO Act, it is very clear

that the provisions of the POCSO Act will prevail over the

provisions of the Atrocities Act. Similar view has been taken by

various High Courts and I am in complete agreement with the

same.

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18. The Division Bench of Madhya Pradesh High Court in

Criminal Appeal No.5189/2020 disposed of on 22.04.2021, had

considered the following questions:

(i) Which court shall conduct the trial of a case, instituted under penal provision of two Special Acts i.e., the Atrocities Act as well as the POCSO Act, either the Special Court constituted under Atrocities Act or the Special Court constituted under the POCSO Act.

(ii) Whether an Appeal against an order of rejection of bail of an accused by the Special Court, in a case instituted for committing offences under the POCSO Act & the Atrocities Act, shall lie under the provisions of Section 14-A of the Atrocities Act or application under Section 438/439 of Code of Criminal Procedure, as the case may be."

19. In the said case, the Division Bench of Madhya Pradesh

High Court after having referred to the various judgments of

the Hon'ble Supreme Court and other High Courts has held that

the trial of the case instituted under the provisions of the said

Acts viz., Atrocities Act and POCSO Act, shall be conducted by

the Special Courts constituted under the POCSO Act and the

remedy of the accused against the order of rejection of bail

under Section 439 of Cr.PC by such Special Judge would be by

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filing the bail application under Section 439 of Cr.PC before the

High Court.

20. Under the circumstances, I hold that in cases where the

offences punishable under the provisions of these two special

enactments viz., Atrocities Act and POCSO Act are invoked, a

petition under Section 439 Cr.PC before the High Court is

maintainable.

21. Coming to the merits of the case, as per the complaint

averments, petitioner allegedly came to the house of the

complainant and had called out the name of her daughter and

on inquiry, he had informed the complainant that he was the

lover of her daughter. Inspite of the complainant and her

brother-in-law advising the complainant, petitioner allegedly

went inside the house and was pestering complainant's minor

daughter to love him, for which she had refused. Thereafter,

petitioner allegedly abused her and also criminal intimidated

her and had left the house.

22. There is no allegation in the complaint that the petitioner

had misbehaved with the complainant's daughter except asking

her to love him.

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23. According to the learned Counsel for the petitioner, the

victim girl and the petitioner were in love and this was objected

to by the parents and relatives of the victim girl and since she

was confined in their house, the petitioner had gone to their

house on 17.03.2023.

24. Considering the nature of allegations made in the

complaint, the aforesaid submission made by the learned

Counsel for the petitioner cannot be simply brushed aside.

Petitioner has not committed any such act in the house of the

complainant which would have abetted or instigated the minor

girl to commit suicide.

25. Complainant and her brother-in-law who were present in

the spot, had not gone to rescue the minor girl when allegedly

the petitioner was abusing and pestering her. This conduct of

the complainant and her brother-in-law raises a serious doubt

with regard to the allegations made by them in the complaint.

26. Investigation in the case is completed and charge sheet

has been filed. Undisputedly, the minor girl has died by

committing suicide in the house of the complainant. Petitioner

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who is an youngster aged about 24 years is in custody from

30.04.2023. The allegations made in the charge sheet against

the petitioner is required to be proved in a full-fledged trial.

Under the circumstances, I am of the view that the prayer

made by the petitioner for grant of regular bail is required to be

answered in the affirmative. Accordingly, the following order:

27. The petition is allowed. The petitioner is directed to be

enlarged on bail in Spl.C.No.279/2023 pending before the Court

of Addl. District & Sessions Judge, FTSC-I, Hassan, for the

offences punishable under Sections 448, 504, 305 of IPC,

Section 12 of the POCSO Act and Section 3(2)(va) of the

Atrocities Act, arising out of Crime No.67/2023 registered by

Sakaleshpura Rural Police Station, Hassan District, subject to

the following conditions:

a) Petitioner shall execute personal bond for a sum of Rs.1,00,000/- with one surety for the likesum, to the satisfaction of the jurisdictional Court;

b) The petitioner shall appear regularly on all the dates of hearing before the Trial Court unless the Trial Court exempts his appearance for valid reasons;

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c) The petitioner shall not directly or indirectly threaten or tamper with the prosecution witnesses;

d) The petitioner shall not involve in similar offences in future;

e) The petitioner shall not leave the jurisdiction of the Trial Court without permission of the said Court until the case registered against him is disposed off.

SD/-

JUDGE

KK