Madhya Pradesh High Court
Jitendra Rathoe vs The State Of Madhya Pradesh on 23 June, 2021
Author: B. K. Shrivastava
1 MCRC-22493-2021
The High Court Of Madhya Pradesh
MCRC-22493-2021
(JITENDRA RATHOE Vs THE STATE OF MADHYA PRADESH AND OTHERS)
3
Jabalpur, Dated : 23-06-2021
Through Video Conferencing.
Shri Ram Saran Rathore, counsel for the applicant.
Shri Anuj Singh, Panel Lawyer, for the respondent/State.
It is orally objected by the counsel for State that this application is not
maintainable and criminal appeal under section 14-A of SC/ST (Prevention of
Atrocities) Act should be filed; while the counsel for applicant submitted that
in the light of judgment dated 22.4.2021 passed by the Division Bench of this
High Court in the case of Pramod Yadav Vs. State of M.P. (Criminal
Appeal No.5189/2020), the application under section 439 of CrPC is
maintainable.
It appears from the record that Crime No.216/2020, registered at Police
Station Chachai, District Sehore, under sections 363, 366-A, 376, 376(2)(n)
of IPC, section 3(2)(v) of SC/ST Act and sections 3/4, 5L/6 of POCSO
Act. The appellant filed an application for grant of bail under section 439 of
CrPC, which has been dismissed by the trial court on 6.10.2020.
The questions referred to the aforesaid Division Bench were :-
"(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.
( i i ) 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."
Signature
SAN Not
Verified
Digitally signed by
TRUPTI GUNJAL
Date: 2021.06.23
17:00:57 IST
2 MCRC-22493-2021
The Division Bench answered the questions in Paras 29 and 30 as
under:-
" 2 9 . 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.
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
o f 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."
Therefore, it is clear that as per the Division Bench order if the case is
registered under POCSO Act and the Atrocities Act both, then the trial will be
conducted by the Special Court constituted under section 28 of POCSO Act.
In Para 30 it is clearly stated that the remedy of the accused against the
order of rejection of bail under section 439 of CrPC by the such Special
Judge, POCSO Act would be by filing the bail application under section 439
of CrPC.
If we see the impugned order, then it appears that the order has been
passed by the Special Judge appointed under the Atrocities Act not by the
Special Judge under the POCSO Act. If the order is passed by Special
Judge under POCSO Act, then the remedy of filing the application under
section 439 of CrPC before the High Court is available. But if the order is
passed by the Special Judge, Atrocities Act, then section 14-A of the
Atrocities Act will be applicable and the remedy is only to file appeal under
section 14-A of SC/ST (Prevention of Atrocities) Act.
Signature
SAN Not Therefore, as per request of counsel for applicant, permission is
Verified
Digitally signed by
TRUPTI GUNJAL
Date: 2021.06.23
17:00:57 IST
3 MCRC-22493-2021
granted to withdraw this application with the liberty to file an appropriate
appeal under section 14-A of the SC/ST (Prevention of Atrocities) Act.
The original Vakalatnama and the documents etc. be returned to the
applicant's counsel by replacing them from photocopies.
Accordingly, the present M.Cr.C. stands dismissed as withdrawn.
Certified copy as per rules.
(B. K. SHRIVASTAVA)
JUDGE
TG /-
Signature
SAN Not
Verified
Digitally signed by
TRUPTI GUNJAL
Date: 2021.06.23
17:00:57 IST
