POCSO Act Prevails Over SC-ST Act, Anticipatory Bail Plea U/S 438 CrPC Maintainable Where Accused Charged Under Both: Allahabad HC

A bench of Justice Shekhar Kumar Yadav observed thus while rejecting the anticipatory bail plea moved by one Deepak Prakash Singh, a teacher by profession, who has been accused of committing rape on a 14-year-old mentally retarded girl.

With this, the Court rejected a preliminary objection raised by AGA and the counsel for the informant against the maintainability of the pre-arrest bail plea moved by the accused under Section 438 CrPC.

Essentially, the objection was raised given the bar contained under Sections 18 and 18A of the S.C./S.T. Act and Section 438(6) CrPC (as applicable in the State) contending that anticipatory bail application is not maintainable as an offence under SC ST Act is also alleged against the accused.

Here it may be noted that while the SC/ST Act specifically bars the grant of anticipatory bail to the accused, there is no such bar present under the POCSO Act. It may further be noted that Section 18 of the Atrocities Act provides that an accused under this Act cannot file an anticipatory bail application under Section 438 of the CrPC.

However, Section 42A of the POCSO Act is a non-obstante clause giving overriding effect to the POCSO Act over any other law in case of any inconsistency.

Dealing with the contention of the counsel for the State, the bench referred to Apex Court’s judgment in the case of Prithvi Raj Chauhan Vs. Union of India and others (2020), as well as Allahabad HC’s judgment in the case of Rinku Vs State of UP (2018) to note that the provision of the POCSO Act would prevail over the SC/ST Act and whenever an offence under the POCSO Act is alleged, along with the provisions of SC/ST Act, the accused is entitled to take recourse of the procedure contemplated under the POCSO Act for bail.

Agreeing with both the rulings, the Court noted that where an accused has been charged under the SC/ST Act and the POCSO Act, a Special Court under the POCSO Act, would have jurisdiction to determine the bail plea and hence, the Court rejected the objection of the AGA regarding maintainability of the present anticipatory bail application.

Further, taking into account the facts of the case, where a teacher allegedly raped a mentally retarded minor girl, the Court, while stressing the importance of a teacher in society, remarked thus:

“In our society, a teacher plays a very important role in shaping the future of their students and such conduct of the teacher would certainly create an atmosphere of fear in the minds of people of society and such perpetrators should not go unpunished and should get just punishment from the Courts of law to curb such incidents in future.”

Consequently, looking at the facts and circumstances of this case, the gravity and nature of the accusation, the medical report and the statement under Sections 161 & 164 CrPC, the Court found that no case was made out for exercising its discretionary power under Section 438 CrPC.

Appearances

Counsel for Applicant: Senior Counsel VP Srivastava assisted by Advocate Arun Kumar Tripathi

Counsel for Opposite Party: G.A., Babu Lal Ram, Gyanendra Kumar

Case title - Deepak Prakash Singh @ Deepak Singh vs. State of U.P. and Another [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 10246 of 2023]

Case citation: 2023 LiveLaw (AB) 388

Click Here To Read/Download Order