Anticipatory Bail | POCSO Act Prevails Over Atrocities Act Only If Offence Under POCSO Act Prima Facie Established: Bombay High Court

The Bombay High Court held that provisions regarding anticipatory bail in the POCSO Act would not prevail over provisions of appeal in the SC and ST (Prevention of Atrocities) Act if the allegations under POCSO Act are not prima facie made out against the accused.

Justice NJ Jamadar, while dealing with an anticipatory bail application of a person accused under both POCSO Act and Atrocities Act, observed –

“Apart from a passing reference that there were girls in the procession and they were also video-graphed, there is no other allegation which would prima facie fall within the dragnet of section 12 of the Act, 2012. In the circumstances, it would be appropriate that the applicant prefers an appeal as envisaged by section 14A(4) of the SC and ST Act, 1989.”

The applicant sought pre-arrest bail in a criminal case under various sections of the IPC, the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Atrocities Act). The charges included offenses related to assault, sexual harassment, and caste-based atrocities.

The trial court refused to grant anticipatory bail to the accused. Thus, he approached the high court. He sought anticipatory bail under Section 438 of the CrPC, instead of filing an appeal under section 14A of the Atrocities Act.

Advocate Pooja Agarwal relied on a Division Bench judgment in Gorakshnath v. State of Maharashtra, and argued that an anticipatory bail application under Section 438 of the CrPC is maintainable when allegations under both the Atrocities Act and the POCSO Act are involved.

Section 14A of the Atrocities Act gives an overriding effect over the CrPC providing that an appeal will lie in the High Court against any judgment, sentence or order, and grant/refusal of bail of a Special Court. Section 18 of the Atrocities Act provides that an accused under this Act cannot file anticipatory bail application under section 438 of the CrPC.

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

The court noted that when two statutes contain non-obstante clauses, the later enactment is presumed to prevail, as the legislature is assumed to be aware of the previous enactment and chose to give overriding effect to the later one.

However, the court clarified that for this principle to apply, the offenses punishable under the later enactment (in this case, the POCSO Act) should be prima facie established.

Some allegations pertained to offenses under the Atrocities Act, such as outraging the modesty of a member of a Scheduled Caste and caste-based abuse. The accused was also alleged to have video-graphed girls dancing in a procession with a malicious intent. This did not establish a prima facie case under the POCSO Act, the court opined.

Thus, the court directed the applicant to prefer an appeal, envisaged under Section 14A of the Atrocities Act, rather than seeking anticipatory bail under Section 438 of the CrPC.

The court allowed the applicant to convert the anticipatory bail application into an appeal under the Atrocities Act. The court directed the necessary amendments to be carried out promptly and granted the applicant the liberty to mention the matter before the appropriate bench.

Case no. – Anticipatory Bail Application No. 2589 of 2023

Case Title – Dinanath Manik Katkar v. State of Maharashtra and Anr.

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