Madhya Pradesh High Court
Pramod Yadav vs The State Of Madhya Pradesh on 22 April, 2021
Author: Chief Justice
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Criminal Appeal No.5189/2020
THE HIGH COURT OF JUDICATURE FOR MADHYA
PRADESH AT JABALPUR
(Division Bench)
Criminal Appeal No.5189/2020
Pramod Yadav
Versus
The State of Madhya Pradesh and others
Present:
Hon'ble Shri Justice Mohammad Rafiq, Chief Justice
Hon'ble Shri Justice Sanjay Dwivedi, Judge
Appearance
Shri Rakesh Kumar Sharma, Senior Advocate appears as amicus curiae.
Shri Arpan Shrivastava, Advocate for the appellant.
Shri Harpreet Singh Ruprah, Advocate for the High Court Advocates'
Bar Association.
Shri Pushpendra Yadav, Additional Advocate General for the
respondent/State.
Law laid down:
In view of the conflicting views expressed by two Single Benches of this Court in
Mohd. Juned vs. State of M.P. reported in 2016(1) MPJR 108 and in Smt. Sunita
Gandharva vs. State of M.P. and another in MCRC No.22615/2020, the matter has been
referred to Larger Bench, in this case the Division Bench for answering 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."
Question No.1: Held-The trial of a case instituted under the
provisions of two special Acts viz. the Scheduled
Castes and Scheduled Tribes (Prevention of
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Atrocities) Act, 1989 and Protection of Children
from Sexual Offences Act, 2012, shall be conducted
by the Special Courts constituted under the POCSO
Act.
Question No.2: Held - In a case involving the offences under both
the Atrocities Act and POCSO Act, since the trial of
the accused involving offences of both the special
enactments namely Atrocities Act and POCSO Act
shall be conducted by the Special Court constituted
under Section 28 of the POCSO Act, the remedy of
the accused against the order of rejection of bail
under Section 439 of Cr.P.C. by the Court of
Special Judge would be by filing the bail
applications under Section 439 of Cr.P.C. before the
High Court.
Significant paragraph Nos. 13 to 30
Whether approved for reporting- Yes.
Heard on: 05/04/2021
ORDER
(Pronounced on 22/04/2021)
Per: Mohammad Rafiq, C.J.
1. This matter has been referred to the Division Bench in view of
difference of opinion expressed by two Single Benches of this Court in Mohd.
Juned vs. State of M.P. reported in 2016(1) MPJR 108 and in Smt. Sunita
Gandharva vs. State of M.P. and another in MCRC No.22615/2020.
2. The present matter in which the order of reference has been made, has
been filed as a Criminal Appeal under Section 14-A(1) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short
"the Atrocities Act") against the order dated 23.07.2020 passed by Special
Judge, Atrocities Act, Seoni in SC ATR No.08/2020. In fact, earlier appeal
filed by appellant viz. Criminal Appeal No.10267/2019, was dismissed as
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withdrawn vide order dated 10.12.2019 with liberty to him to file afresh
appeal after recording of the statement of the prosecutrix.
3. The facts of the case in brief are that the police station Keolari, District
Seoni registered Crime No.314/2019 against the accused/appellant for offence
punishable under Sections 363, 366, 376(2)(n), 376(3) of IPC, Section 5(L)
and 6 of Protection of Children from Sexual Offences Act, 2012 (for short
"the POCSO Act") and Section 3(1)(w)(i), 3(2)(va) and 3(2)(v) of Atrocities
Act on the allegation that he abducted the minor prosecutrix and took her to
Nagpur where he sexually exploited her on the pretext of marriage. During the
course of investigation, the accused/appellant was arrested on 22.10.2019. He
filed an application under Section 439 Cr.P.C. for grant of bail which was
rejected by the Special Judge, Atrocities Act, Seoni vide order dated
23.07.2020. Aggrieved thereby, he filed the earlier appeal viz. CRA
No.10267/2019, which was dismissed as withdrawn vide order dated
10.12.2019 with liberty to file afresh after recording of the statement of
prosecutrix. Thereafter the trial Court recorded the statement of prosecutrix
wherein she did not support the prosecution story and deposed that appellant
did not commit rape with her. This paved the way for the accused/appellant to
file second appeal on the same subject matter.
4. In the course of argument of appeal before the Single Bench, an
objection was raised by the learned Public Prosecutor that since the accused is
also being tried for offences punishable under Sections 5 and 6 of the POCSO
Act, therefore, he should have filed an application under Section 439 of
Cr.P.C. before this Court rather than filing appeal. It was argued that when the
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accused is being tried for offences of POCSO Act as well as for offences
under the Atrocities Act, such trial should be conducted by the Special Judge
notified for trial of the cases registered under POCSO Act, whereas, in the
present case, the trial is being conducted by the Special Judge notified for trial
of the cases registered under the Atrocities Act. It was therefore argued that
the trial against the accused stood vitiated and a direction be issued to transfer
this case to the court of Special Judge notified for trial of the cases under the
POCSO Act. Reliance was placed on the Single Bench judgment of this Court
in Smt. Sunita Gandharva (supra).
5. Learned counsel for the accused/appellant contested the aforesaid
objection and submitted that there was nothing objectionable even if the trial
of the case involving offences of both POSCO Act as well as Atrocities Act
was being conducted by the Special Court notified for trial of the offences
under the latter Act. Since the application filed by the accused under Section
439 of Cr.P.C. was dismissed by the Special Judge notified under the
Atrocities Act, an appeal against such order would lie to this Court under
Section 14 of the Atrocities Act. Reliance in support of this argument was
placed on the judgment of Single Bench of this Court in Mohd. Juned
(supra).
6. The learned Single Judge in view of the conflicting views expressed by
two Single Benches of this Court, referred the matter to Larger Bench, in this
case the Division Bench, on 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
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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."
7. When the matter was listed before this Court on 11.12.2020, a direction
was issued to issue notice to the High Court Bar Association, Jabalpur; High
Court Advocates' Bar Association, Jabalpur; High Court Bar Association,
Indore; and High Court Bar Association, Gwalior to address the Court on the
issue. Shri Rakesh Kumar Sharma, learned Senior Advocate was appointed as
amicus to assist the Court.
8. We have heard Shri Rakesh Kumar Sharma, learned Senior Advocate
appearing as amicus curiae, Shri Arpan Shrivastava, learned counsel for the
appellant, Shri Harpreet Singh Ruprah, Advocate/Secretary, High Court
Advocates' Bar Association, Jabalpur and Shri Pushpendra Yadav, learned
Additional Advocate General for the State.
9. Shri Rakesh Kumar Sharma, learned Senior Advocate submitted that
there is no conflict between the two judgments passed by the Single Benches
of this Court in Mohd. Juned (supra) and Smt. Sunita Gandharva (supra).
The ratio of both the judgments is that the POCSO Act being the latter Act, its
provisions would prevail over those of the Atrocities Act. In both the
judgments, the learned Single Judges of this Court have relied on the
authoritative enunciations of law by the Supreme Court in Sarwan Singh
and another vs. Kasturi Lal, AIR 1977 SC 265 holding that the latter
enactment must prevail over the earlier one. It is argued by the learned Senior
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Counsel that both the POCSO Act and Atrocities Act contain non-obstante
clauses regarding applicability of various provisions of Cr.P.C. The Special
Courts have been constituted under both the enactments for the purpose of
taking cognizance, conducting trials etc. However, in Atrocities Act, the
application for bail is filed under Section 439 of Cr.P.C. before the Special
Court and if the same is refused or allowed then the remedy would be to file
an appeal under Section 14-A(2) of the Atrocities Act before this Court. But
there is no such appeal provided under the POCSO Act and in such an
eventuality, the regular bail application under Section 439 of Cr.P.C. has to be
filed. The learned Senior Counsel in support of his arguments has placed
reliance on the following judgments:-
(i) In Re.: Registrar (Judicial) High Court, Madras, 2017 Cri.L.J. 4519
(ii) State of Andhra Pradesh vs. Mangali Yadagiri, 2016 Cri.L.J. 1415
(iii) Guddu Kumar Yadav vs. The State of Bihar, Cr. Misc. No.52792 of
(iv) Rinku vs. State of U.P., Cri. Misc. Bail Application No.33075/2018
(v) Vikrambhai Amrabhai Malivad vs. State of Gujarat, R/Criminal
Misc. Application No.11014/2020.
(vi) Suraj S. Paithankar v. The State of Maharashtra, Bail. Application
No.817/2020.
(vii) Lokesh Kumar Jangid vs. State of Rajasthan, Criminal
Miscellaneous Second Bail Application No.9440/2020.
10. Shri Harpreet Singh Ruprah, learned counsel relying on Section 42A of
the POCSO Act submitted that both the Atrocities Act as well as POCSO Act
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contain non-obstante clauses. Section 42A of the POCSO Act provides that
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. Relying on
Section 20 of the Atrocities Act, it is submitted that 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. Relying on the judgment of Supreme Court
in Sharat Babu Digumarti vs. Govt. (NCT of Delhi), (2017) 2 SCC 18, the
learned counsel argued that where there are two special enactments, which
contain non-obstante clauses, the latter statute must prevail. Similar view has
been taken by the Supreme Court in Sarwan Singh vs. Kasturi Lal (supra),
K.S.L. and Industries Limited vs. Arihant Threads Limited and Others,
(2008) 9 SCC 763, Guddu Kumar Yadav vs. The State of Bihar in
Cr.Misc. No.52792/2019. Learned counsel has also relied on the judgment of
Allahabad High Court in Rinku vs. State of U.P. in Criminal Misc. Bail
Application No.33075/2018 and of Chhattisgarh High Court in the case of
Ram Swarup Rajwade vs. State of Chhattisgarh in W.P. (Cr.)
No.540/2020.
Mr. Harpreet Singh Ruprah, learned counsel appearing for the High
Court Advocates' Bar Association, Jabalpur has also referred to the celebrated
book titled 'Principles of Statutory Interpretation' by Justice G.P. Singh
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13th Edition, Page 376 observing that conflict in such cases is resolved on
consideration of purpose and policy underlying the enactments and the
language used in them. Another test that is applied is that the latter enactment
normally prevails over the earlier one. It is argued that the POCSO Act has
much wider scope and has a detailed procedure which is evident from the
provisions contained in Sections 19 to 27 of the POCSO Act.
11. Shri Pushpendra Yadav, learned Additional Advocate General argued
that the Atrocities Act was enacted in 1989 to prevent the commission of
offence of atrocities against the member of Scheduled Castes and Scheduled
Tribes with a non-obstante clause giving overriding effect on other laws. The
POCSO Act was enacted in the year 2012 with an object to provide protection
to the children from sexual offences which also contains the non-obstante
clause having overriding effect to the other inconsistent laws. The learned
Additional Advocate General submits that where there are two special statutes
containing non-obstante clauses, the latter statute must prevail. This is because
at the time of enactment of the latter statute, the legislature is presumed to be
aware about the earlier legislation and its non-obstante clause. If the
legislature still confers the latter enactment with a non-obstante clause, it
means that the legislature wanted that enactment to prevail. If the legislature
would not want the latter enactment to prevail, then it could provide in the
latter enactment that the provisions of the earlier enactment continue to apply.
In support of his argument, learned Additional Advocate General has placed
reliance on Solidare India Pvt. Ltd. Vs. Fairgrowth Financial Services
Ltd, (2001) 3 SCC 71; Maruti Udyog Ltd. Vs. Ram Lal and others, (2005)
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2 SCC 638; KSN and Industries Ltd. Vs. Arihant Threads Ltd. and
others, (2008) 9 SCC 763, KSN and Industries Ltd. Vs. Arihant Threads
Ltd. and others, (2015) 1 SCC 166.
Learned Additional Advocate General submits that Section 362 under
chapter XXVII of Cr.P.C. having title "The Judgement". Section 353 defines
judgment passed in Criminal Trial. Section 362 prescribes that no court, when
it has signed its judgment or final order disposing of a case, shall alter or
review the same except to correct a clerical or arithmetical error whereas
Section 439 talks about special power of the High Court and Sessions Court
for grant of bail. Section 439(1) confers the power to grant the bail on certain
conditions and Section 439(2) confers the power to cancel the bail. Therefore,
Section 362 cannot restrict the power of the High Court under Section 439(2)
to cancel the bail granted. The law in this respect has been correctly laid down
by this Court in Smt. Sunita Gandharva (supra).
12. We have given our anxious consideration to the submissions made by
the learned counsel for the parties.
13. We have to first of all test the correctness of the argument that there is
in fact no conflict between the two judgments of different Single Benches of
this Court in Mohd. Juned (supra) and in Smt. Sunita Gandharva (supra)
and, therefore the reference was uncalled for.
14. Mohd. Juned (supra) is an earlier judgment, having been rendered on
04.10.2014. The aforesaid judgment was passed in Criminal Revision
No.645/2013 filed under Section 397 read with Section 401 of Cr.P.C.
whereby Sessions Judge, Ratlam in Sessions Trial No.13/2013 by his order
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dated 15.05.2013 relegated the trial of a case registered for offences under
Sections 363, 366, 342, 506-B & 376-D of IPC and also under Section 5(g), 6
and 12 of the POSCO Act and Section 3(1)(xi) of Atrocities Act to the Court
of Special Judge notified under Atrocities Act. The argument before the High
Court was that since cognizance has been taken by Special Judge notified
under the POCSO Act, which has been illegally transferred by the Sessions
Judge, Ratlam to the Special Judge notified under the Atrocities Act, this shall
prejudice the accused. It was therefore prayed that the order passed by the
Sessions Judge may be set aside and the trial of the case may be entrusted to
Special Judge notified under the POCSO Act. The learned Single Judge has
relied on the judgments of Supreme Court in Sarwan Singh (supra), Jain
Ink Mfg. & Co. v. LIC of India and another, AIR 1981 SC 670,
Sanwarmal Kejriwal vs. Vishwa Co-operative Housing Society Ltd. and
others, AIR 1990 SC 1563, Ashoka Marketing Ltd. v. Punjab National
Bank, AIR 1991 SC 855, A.P. State Financial Corporation v. Official
Liquidator, AIR 2000 SC 2642, Allahabad Bank v. Canara Bank and
another, (2000) 4 SCC 406, Maruti Udyog Ltd. v. Ramlal & others, (2005)
2 SCC 638 and in Jay Engineering Works v. Industry Facilitation Council
and another, AIR 2006 SC 3252, in all of which the Supreme Court has laid
down the guidelines for resolving the conflict of two non-obstante clauses
contained in two different statutes and held that when two or more laws
operate in same field 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
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consideration by applying the test that the latter enactment must prevail over
the earlier one.
15. Another argument that was examined by the learned Single Judge in
Mohd. Juned (supra) was that challan in cases involving POCSO Act has to
be filed before the Special Court notified under that Act whereas for offences
under the Atrocities Act the trial of the case has to be made over to the Special
Court after committal by the Chief Judicial Magistrate. It was noted that in
that particular case the challan was filed before the Sessions Court, therefore,
it would affect the right of the applicant. Referring to Section 193 of Cr.P.C.,
it was observed that except as otherwise expressly provided by this Code or
by any other law for the time being in force, no Court of Session shall take
cognizance of any offence as a Court of original jurisdiction unless the case
has been committed to it by the Magistrate under the Code. Since in that case
the offences of POCSO Act, Atrocities Act and IPC were involved but the
challan was filed before the Court of Session, therefore, the challan filed
before the Court of Session cannot be said to be prejudicial to the interest of
the applicant, held the Court. Relying on the judgment of Supreme Court in
Rattiram & others vs. State of M.P., (2012) 4 SCC 516, the learned Single
Judge noted that the Supreme Court in that case reversed the judgment of this
Court and held that mere filing of challan before the Session Court would not
amount to illegality and the trial would not vitiate for non-observance of
Section 193 of the Code. It was held that until and unless the prejudice is
shown and established by the accused, mere filing of the challan before the
Court of Sessions, does not amount to illegality. In those facts, it was
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observed by this Court in Mohd. Juned (supra) that considering the
provisions of Atrocities Act, POCSO Act as well as Cr.P.C., it is apparent that
the offence registered under the POCSO Act shall be tried by the Court
notified under Section 25 of the Commissions for Protection of Child Rights
Act, 2005, which shall be deemed to be the "Children's Court" as per the
proviso to Section 28 of the POCSO Act. Simultaneously, if the offence
registered under the provisions of the Atrocities Act, then such offences shall
be tried by the Special Court notified to try the said offence by Session Judge
posted in the said Court from the date of assuming the offence. If the offences
of IPC are also involved with respect to the offences of the respective special
enactments, then those offences shall also be tried by the said Special Court
notified under the respective enactments. It was further held that in a same
crime number if the offences have been registered under the provisions of
Atrocities Act and POCSO Act, then such offences shall be tried by a Court of
Session notified under the Atrocities Act with the aid of Section 9 of Cr.P.C.
and as per the language of the notifications. In such circumstances, trial of the
offences involved under both the Acts is not required to be split up. But at the
same time, the learned Single Judge further made it clear that in case of any
inconsistency, the POCSO Act being latter enactment shall prevail over the
provisions of the Atrocities Act. However, mere filing of challan before the
Sessions Court would not vitiate the trial ipso facto in view of the judgment of
the Apex Court in the case of Rattiram (supra).
16. Smt. Sunita Gandharva (supra) is again a very considered and
detailed judgment. It however, appears that the judgment of this Court in
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Mohd. Juned (supra) was neither cited nor considered by the learned Single
Judge while deciding Smt. Sunita Gandharva (supra) but a critical analysis
of the aforesaid judgment does not show any conflicting view having been
taken by the learned Single Judge in the case of Smt. Sunita Gandharva.
Para 17 of the judgment of Smt. Sunita Gandharva shows that unlike in
Mohd. Juned where a solitary question was whether the trial was vitiated for
the reason of being transferred to the Court of Special Judge notified under the
Atrocities Act, even though it also involves offences under the POCSO Act,
much larger issues were involved therein, which would be evident from para
17 of the judgment in Smt. Sunita Gandharva (supra), which is reproduced
hereunder:
"17. Instant case is by way of an application for cancellation of
bail at the instance of complainant and the main objection to the said
application is maintainability itself. Beside that question of interplay of
Atrocities Act and POCSO Act and extent of bail conditions as per Section
437(3) Cr.P.C. are involved. Therefore, according to this Court Five
Questions are involved in this case, viz.:-
(i) Whether, High Court can entertain an application
under Section 439(2) of Cr.P.C. for cancelation of
bail granted in exercise of powers conferred under
Section 14-A(2) of Atrocities Act?;
(ii) Whether, the Court granting bail in an appeal under
Section 14-A(2) of Atrocities Act can be
recalled/cancelled as the order granting bail does
not attain finality?;
(iii) Whether, in an offence where the provisions of
Atrocities Act and POCSO Act are involved, the
procedural law of POCSO Act will apply or the
provisions of Atrocities Act?;
(iv) Whether, in a composite offence involving of
provisions of POCSO Act and Atrocities Act, an
order refusing bail under Section 439 Cr.P.C. will
be appealable as per Section 14-A(2) of Atrocities
Act or an application under Section 439 Cr.P.C.
simpliciter will lie before the High Court?; and
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(v) What is the scope and extent of bail conditions as
referred in Section 437(3) of Cr.P.C.?"
What is relevant for the purpose of answering the reference in the
present case can be found in paragraphs 40 to 47 of the judgment in Smt.
Sunita Gandharva (supra), which are reproduced hereunder:-
"40. Conflict of jurisdiction between two Special Acts operating
in the same field, both carrying non-obstante clause is always
perplexing for the Courts to decide. Therefore, Aims and Objects
and the Purpose of the enactments that operate in the same field are
one of the first and foremost principles to be applied for
application of statutes. On this touchstone, looking to the
legislative intent, statement of objects and reasons, different other
provisions contained in the respective enactments and the language
of provisions providing overriding effect indicate that POCSO Act
would get precedence over Atrocities Act.
41. Perusal of provisions of Section 42-A of the POCSO Act
reveals that it permits the Special Courts established under the said
Act, to implement the provisions of other enactments also, insofar
as they are not inconsistent with provisions of POCSO Act and in
case of any inconsistency, the provisions of POCSO Act are given
overriding effect over the provisions of such other enactments to
the extent of inconsistency. It needs to be kept in mind that said
provision (Section 42-A of POCSO Act) has been inserted in the
POCSO Act w.e.f. 3/2/2013 by amendment and Atrocities Act
underwent amendment in year 2018 but still Section 20 does not
carry any such analogous provision that may enable the Special
Court under the said Act to extend safeguards and provide benefit,
that are being contemplated under the provisions of the POCSO
Act. Provisions of POCSO Act are in addition and not in
derogation of the provisions of any law including Atrocities Act.
Therefore, POCSO Act is all encompassing in nature, whereas,
Section 20 of Atrocities Act limits the interplay of other statutes.
42. Beside that, statement of objects and reasons of POCSO
Act and Atrocities Act are to be seen, wherein, although both the
statutes are dedicated to serve the interest of a special class of
citizens but the legislative priority or preference appears to be in
favour of the child because, if, Chapters V,VI, VIII and IX of
POCSO Act and its different provisions are seen in tandem then it
reveals that legislature intended to give delicate and protected
treatment to the victim under the POCSO Act and special care of
children as victims of crime have been designed to go through the
process of investigation and trial of the accused. It applies
irrespective of social or economic background of a child, therefore,
welfare of children transcending all barriers of caste and creed and
because of its all pervasive nature, POCSO Act is having
overriding effect over the Atrocities Act.
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43. It is to be remembered that POCSO Act has much wider
scope so far as victims are concerned because POCSO Act is an act
to protect Children from sexual offences, sexual harassment and
pornography and provide for establishment of special Court for
trial of such offences and for matters connected therewith or
incidental thereto, therefore, ambit and scope of POCSO Act
appears to be much wider than the Atrocities Act. Even otherwise,
Child being considered the father of man is a biological
evolution/phenomenon; whereas, Caste has a social/customary
connotation.
44. One more facet of the controversy deserves attention is
Section 28 (2) of the POCSO Act by which Special Court under
the POCSO Act has been bestowed with the authority to try an
accused for an offence other than the offence referred to in
subsection (1) of Section 28. Meaning thereby that Special Court,
POCSO Act can try for offence under other enactments also with
which the accused may under the Cr.P.C. be charged; whereas, no
such analogous provision for such inclusion exists in Atrocities
Act, therefore, on this Count also, legislative intent and rule of
harmonious construction weigh in favour of POCSO Act.
45. Section 31 of the POCSO Act can also be profitably
referred in this regard:-
"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 purpose 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."
Perusal of above provision, makes it clear that provisions of
the Code of Criminal Procedure have been made applicable to all
the proceedings before the Special Court including bail and bonds
and in later part of the same provision deeming fiction has been
created whereby a Special Court for the purpose of all its
proceedings shall be deemed to be a Court of Sessions. Therefore,
Section 439 of Cr.P.C. is impliedly included by such provision and
therefore, against the order of Special Court (POCSO Act),
application under Section 439 of Cr.P.C. for bail shall be
maintainable instead of appeal under Section 14-A (2) of the
Atrocities Act.
46. Another principle for guidance in relation to non-obstante
clause in two legislations would be the settled principle that both
statutes have to be harmoniously construed as far as possible.
Taking the cue from such principle, if both the Acts are taken into
consideration where Special Protection, Remedies and Speedy
Trial have been contemplated, it appears that POCSO Act is
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designed to a wider range of victims than the Atrocities Act. Since
the procedure has been specifically provided, children of whatever
background including the background from Scheduled Castes or
Scheduled Tribes, process of investigation and trial of the accused
meanders through different specifically enacted provisions while
taking into consideration the delicate mind of a child victim, his
probable subjugation to secondary victimization and procedural
safeguards appear to be extensively incorporated in the POCSO
Act, but not in Atrocities Act.
47. In fact, a Special Court under the Atrocities Act does not
have the kind of infrastructure, procedure, staff and training as
contemplated in different provisions of the POCSO Act, specially
Section 33 to 38 of the POCSO Act, therefore, on this count also,
harmonious construction and reconciliation between the two
enactments would be achieved when POCSO Act given
precedence over the Atrocities Act in case a Child suffers and
when he belongs to a Scheduled Caste or Scheduled Tribe
Community."
17. The learned Single Judge in Sunita Gandharva (supra) has relied on
all those judgments which have been cited by Shri Rakesh Kumar Sharma and
Shri Harpreet Singh Ruprah and thereafter recorded his conclusion in para 56
which is reproduced hereunder:-
"56. Conclusively, regarding questions No. (iii) and (iv), it can
safely be concluded that when an accused is being tried by
Atrocities Act as well as POCSO Act simultaneously, then Special
Court under POCSO Act shall have the jurisdiction and if any bail
application of accused is allowed or rejected under Section 439 of
Cr.P.C. by that Special Court then appeal shall not lie under
Section 14-A (2) of Atrocities Act. Only an application under
Section 439 of Cr.P.C. for bail shall lie."
18. The view taken by the learned Single Judge in Smt. Sunita Gandharva
(supra) finds support from the judgment of the Supreme Court in Sharat
Babu Digumarti (supra) which can be seen from para 36 and 37 of the
report, reproduced hereunder:-
"36. In Solidaire India Ltd. v. Fairgrowth Financial Services
Ltd. [Solidaire India Ltd. v. Fairgrowth Financial Services Ltd.,
(2001) 3 SCC 71, this Court while dealing with two special
statutes, namely, Section 13 of the Special Court (Trial of Offences
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Relating to Transactions in Securities) Act, 1992 and Section 32 of
the Sick Industrial Companies (Special Provisions) Act, 1985,
observed as follows: (SCC p. 74, para 10):-
"10. .....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'. [Ed.: As observed in
Bhoruka Steel Ltd. v. Fairgrowth Financial Services
Ltd., 1996 SCC OnLine Bom 717]"
37. 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 are 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."
19. The Supreme Court in Sarwan Singh (supra) has also taken the same
approach that in the case of conflict between two non-obstante clauses in two
different enactments, the latter will prevail. Para 20 of the report containing
relevant discussion is reproduced herein below:-
"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 field and each contains a non-
obstante clause stating that its provisions will over-ride those of
any other law, stimulating and incisive problems of interpretation
arise. Since statutory interpretation has no conventional protocol,
cases of such conflict have to be decided in reference to the object
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and purpose of the laws under consideration. A piquant situation,
like the one before us, arose in Shri Ram Narain v. Simla Banking
& Industrial Co. Ltd. [AIR 1956 SC 614 : 1956 SCR 603] 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
Section 3 of the Displaced Persons Act 1951 contained each a non-
obstante clause, providing that certain provisions would have
effect "notwithstanding anything inconsistent therewith contained
in any other law for the time being in force ......" This Court
resolved the conflict 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
relevant provisions therein "(p. 615).
As indicated by us the special and specific purpose which
motivated the enactment of Section 14A and Chapter III-A 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 field
and be given full effect despite anything to the contrary contained
in the Slum Clearance Act.
21. For resolving such inter se conflicts, 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 14-A and Chapter III-A having
been enacted with effect from December 1, 1975 are later
enactments in reference to Section 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 Section 39 of the
same Act, which came into force in 1956 when the Act itself was
passed. The legislature gave overriding effect to Section 14-A and
Chapter III-A with the knowledge that Sections 19 and 39 of the
Slum Clearance Act contained non-obstante clauses of equal
efficacy. 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 at p. 615."
20. The Supreme Court in K.S.L. and Industries Limited (supra) in para
70 of the report similarly held as under:-
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"70. I am thus at a point where two statutes employ non obstante
clause having "overriding effect". Such a conflict, as laid down in
several cases, may be resolved by judiciary on various
considerations: such as the policy underlying the enactments, the
language used, the object intended to be achieved; or mischief
sought to be remedied, etc. One of the tests applied by Courts is
that normally a later enactment should prevail over the former. The
Courts would also try to reconcile both Acts by adopting
harmonious interpretation and applying them in their respective
fields so that both may operate without coming into conflict with
each other. In resolving the clash, the Court may further examine
whether one of the two enactments is "special" and the other one is
"general". There can also be a situation in law where one and the
same statute may be held to be a "special" statute vis-a`-vis one
legislation and "general" statute vis-à-vis another legislation. On
the basis of one or more tests, the Court will try to salvage the
situation by giving effect to non obstante clause in both the
legislations."
21. Similarly, most of the High Courts have also taken the same line of
approach on the question involved in the present matter, which shall be
evident from some of such judgments. The Division Bench of Madras High
Court in Re: Registrar (Judicial) High Court (supra) held in paragraph
No.55 as under:-
"55. 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."
22. The Andhra Pradesh High Court in Mangali Yadagiri (supra) in
paragraph Nos.19 and 20 held as under:-
"19. A perusal of both the enactments would show that POSCO
Act is a self contained legislature which was introduced with a
view to protect the children from the offences of sexual assault,
harassment, pornography and other allied offences. It was
introduced with number of safeguards to the children at every stage
of the proceedings by incorporating a child friendly procedure. The
legislature introduced the non obstante clause in Section 42-A of
the POSCO Act with effect from 20.06.2012 giving an overriding
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effect to the provisions of the POSCO Act, though the legislature
was aware about the existence of non obstante clause in Section 20
of the SC/ST Act.
20. Applying the test of chronology the POSCO Act, 2012
came into force with effect from 20.06.2012 whereas SC/ST Act
was in force from 30.01.1990. The POSCO Act being beneficial to
all and later in point of time, it is to be held that the provisions of
POSCO Act have to be followed for trying cases where the
accused is charged for the offences under both the enactments."
23. The Patna High Court in Guddu Kumar Yadav (supra) after
considering all the relevant provisions and case law held as under:-
"18. Now the Court would proceed to consider the direct
conflict between Section 20 of the SC/ST Act, and Section 42 A of
the POCSO Act, as both the provisions having overriding effects.
Dealing with an issue identical to the case on hand, the Apex
Court, in the case of Sarwan Singh (supra) held that cases of such
conflict have to be decided in reference to the object and purpose
of the laws under consideration. For, resolving such inter-se
conflict, another test is that the later enactment must prevail over
earlier one. Therefore, to resolve the issue, this Court would like to
examine the object and purpose of the both enactments and further
the point of time of such enactments.
19. It would be apparent form the statement of Objects and
Reasons of SC/ST Act, that it was enacted with a view to prevent
the commission of offences of atrocities against the members of
the Scheduled Caste and the Scheduled Tribes by persons other
than SC/ST and to establish Special Courts for the trial of such
offences and to provide relief and rehabilitation to the victims of
such offences.
Now coming to the statements of Objects and Reasons described in
the statute book of POCSO Act, which indicate that it was enacted
towards securing that the tender age of children are not abused and
their childhood and youth are protected against exploitation. It is a
self-contained comprehensive legislation inter-alia to provide
protection of children from the offences of sexual assault, sexual
harassment and pornography with due regard for safeguarding the
interest and well being of the child at every stage of the judicial
process, incorporating child-friendly procedures for reporting,
recording of evidence, investigation and trial of offences and
provision for establishment of Special Courts for speedy trial of
such offences. Apart the above mentioned, abatement of such
offence is also punishable under Section 17 of the POCSO Act,
and Section 18 of the said Act, makes an attempt to commit an
offence also punishable under the said Act.
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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."
24. The Allahabad High Court in Rinku (supra) after elaborate discussions
of the law in para 14 to 16 of the report held as under:-
"14. Conflict of jurisdiction between two special Acts operating
in the same field, both carrying non obstante clauses, is not a new
phenomenon to confront courts. When the question does arise as to
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which special statute would prevail generally, or over a certain part
of the rights and liabilities regulated, the procedure or jurisdiction
provided, there are no thumb rules to determine the conflict. There
are, however, well settled principles for guidance to be applied in
such situations, in order to resolve which of the two special
enactments would prevail. The first and the more pervasive of the
principles to be applied, is to look to the object and the purpose of
the enactments that operate in the same field. Here, it has to be the
endeavor of the Court to find out the legislative priority. It has to
be discerned by the Court where in the compete and conflict
between two special statutes, the legislative priority lies. This
conflict can arise between two provisions of the same statute, and
that is why it is commonplace to come across statutory
phraseology that seeks to obviate the conflict by wording the non
obstante clause in one of the two provisions in the same statute
saying, "notwithstanding anything in this Act or any other law for
the time being in force .....".
15. The test of looking to the object of the two special statutes
to determine which of the two would prevail, in cases where there
is a conflict between the two, is the more enduring one to guide.
The other that is invariably applied, or may be alongside the first,
is to see which of the two special statutes, both carrying non
obstante clauses was enacted subsequent in point of time. It is a
dependable principle that a subsequent legislation is enacted by the
legislature with knowledge of the provisions of the earlier special
statute. Thus, it is presumed that if a subsequent statute gives
overriding effect to a particular provision, that impinges upon the
field occupied by an existing special statute, the legislature is
presumed to have intended the subsequent enactment to take
precedence over the former. But, it may not be always so. There
the wider tests relating to the objects of the two legislations is to be
applied alongside, in order to arrive at a construction that resolves
the conflict, giving fullest effect to the legislative intent.
16. It is in the aforesaid background of facts and fundamental
legal principles adumbrated above, that the submissions of learned
counsel appearing for the parties, and the learned Amicus Curiae,
may be considered with reference to the first of the two questions
formulated supra. The learned counsel appearing for the applicants
have relied heavily upon the provisions of Section 28(2) of the
POCSO Act, to submit that the Court constituted under the said
statute is invested with exclusive jurisdiction to try offences, other
than those under the POCSO Act, about which provision is made
under Section 28(1) of the said Act, wherever the accused may be
charged under the Code with such offences, at the same trial. They
submit that wherever it is permissible under the Code to try an
accused for an offence under the POCSO Act, and under any other
law, special or general, at the same trial, exclusive jurisdiction
would lie with the Special Court under the POCSO Act, and not
with any court under any other law. They have further referred to
the provisions of Section 42-A of the POCSO Act, that gives
overriding effect to the provisions of the said Act, over those of
any other law, to the extent that provisions of such other law are
inconsistent."
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25. On this very question of law, the Gujarat High Court in Vikrambhai
Amrabhai Malivad (supra) in para 12 and 13 of the report held as under:-
"12. 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 has filed the
captioned application seeking bail by invoking the provisions of
section 439 of the Cr.P.C. 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 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. The same declares that the Special Court shall be deemed
to be a Sessions Court, whereas such deeming fiction is
conspicuously absent in section 14 of the Atrocity Act. Section 33
of the POCSO Act mandates the procedure for safeguarding the
interest of the child during the trial proceedings. Thus, the
comparative analysis of provisions of both the Acts, leads to sole
conclusion, that the legislature in its wisdom has conferred
precedence on the POCSO Act above the Atrocity Act. Hence, the
only remedy available for the applicant will be of filing an
application under section 439 of the Cr.P.C. before the High Court.
13. Before parting with the observations, I would like to deal
with the case law cited by the respective advocates appearing for
the parties. The R/CR.MA/11014/2020 CAV ORDER judgement
of the Coordinate Bench of this Court in case of Anilaben (supra)
will not apply in light of the given facts, since the issue before the
Coordinate Bench only pertained to applicability of section 14-A
of the Atrocity Act vis-à-vis section 439 of the Cr.P.C. The
Coordinate Bench has held that section 14-A of the Amendment
Act, 2015 will have overriding effect on the provision of section
378 of the Cr.P.C. The Coordinate Bench was not seisin of any
other Special Act having non-obstante clause. With regard to the
judgement of the Patna High Court, it appears that while
considering the provision of section 14-A of the Atrocity Act, the
Court was invited the attention to the date of Amendment
Act which was promulgated subsequent in 2015 after the POCSO
Act. However, I am in complete agreement with the final opinion
expressed by the Patna High Court with regard to the
maintainability of an application for bail in terms of section 439 of
the Cr.P.C. in a case involving the POCSO Act and the Atrocity
Act."
26. The Bombay High Court in Suraj S. Paithankar (supra) where a
similar question arose, followed most of the judgments which have been
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referred to above and held that in the composite offence involving POCSO
Act and S.C. S.T. Act, the provision of the POCSO Act will prevail. The trial
of the case will also be done by Special Court constituted under POCSO Act.
Similarly, the Rajasthan High Court in Lokesh Kumar Jangid (supra) also
held that no appeal will lie in a composite offence of POCSO and SC ST Act
and a regular bail application under Section 439 would be maintainable.
27. The Chhattisgarh High Court in Ram Swarup Rajwade (supra) on
this aspect of the matter had the following observations to make in para 40
and 41 of the report:-
"40. A careful perusal of Section 28(2) read with Sections 31
and 42A of the POCSO Act read with Sections 26 and 220 of the
Code of 1973, would reveal that it makes the path for operation /
provisions of other laws particularly the trial of offences under the
provisions of other law if the accused is charged at the same trial.
In other words, the POCSO Act harmoniously allows the
incorporation of other Acts for their operation by virtue of Section
28(2) of the POCSO Act. In this regard, there is neither any
inconsistency nor any conflict in the POCSO Act and as such, the
SC-ST Act of 1989 and the POCSO Act can co-exist and stand
independently together with each other for operational purpose and
as such, "Special Court" designated under the POCSO Act would
have exclusive jurisdiction to try the offence of both the Acts if
arise out of same crime in one incident.
41. Similarly, it is well settled position of law that if two Acts
operate in the same field then the Act which is later enacted will
prevail over the earlier one. This legal principle is based on the
foundation that at the time of enactment of the later statute, the
Legislature was well aware of the earlier legislation and its non
obstante clause. Since the Legislature still confers the later
enactment with a non obstante clause, it means that the Legislature
wanted that enactment to prevail."
28. In view of the above, it must be held that "even though the learned
Single Judge in last para of the judgment in Mohd. Juned (supra) mentioned
that if the offences have been registered under the Atrocities Act and POCSO
Act and such offences would be tried by the Court of Sessions under the
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provisions of Atrocities Act with the aid of Section 9 of Cr.P.C. and as per
language of the notification". But at the same time, the learned Single Judge
also made it clear that "POCSO Act being latter enactment shall prevail to the
provisions of the Atrocities Act in case of any inconsistency". Then learned
Single Judge further held that "mere filing of challan before the Court of
Sessions as appears in the present case will not vitiate the trial in the light of
the judgment of the Apex Court in Rattiram (supra)". The observances in
the first and third part of this para should, therefore, be taken to have been
confined to the facts of that particular case in view of peculiarity attached to
that case by relying on the ratio of the Supreme Court in Rattiram (supra) to
repel the argument that trial of the case was vitiated but simultaneously it was
also held by the learned Single Judge in that very judgment on the authority of
several Supreme Court judgments that in case of conflict between two
enactments having non-obstante clause, apart from object and purpose for
which the Act has been enacted, the latter enactment shall prevail over the
provisions of the former Act. This was the precious view taken by another
Single Bench in Smt. Sunita Gandharva (supra). That being the crux of the
judgment in Mohd. Juned (supra), it must be held that there in fact is no
conflict between the ratio of the two judgments.
29. In view of the above discussions, the question No.1 is answered in the
terms that the trial of a case instituted under the provisions of two special Acts
viz. Atrocities Act and POCSO Act, shall be conducted by the Special Courts
constituted under the POCSO Act.
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30. That in a case involving trial of the accused for the offences under both
the Atrocities Act and POCSO Act shall be conducted by the Special Court
constituted under Section 28 of the POCSO Act and remedy of the accused
against the order of rejection of bail under Section 439 of Cr.P.C. by the such
Special Judge, would be by filing the bail applications under Section 439 of
Cr.P.C. before the High Court. Question No.2 is answered accordingly.
31. Referred questions having been answered as per above, let this matter
be listed before the Single Bench as per Roster for appropriate orders.
(MOHAMMAD RAFIQ) (SANJAY DWIVEDI)
CHIEF JUSTICE JUDGE
psmishra
