Victim Can't Appeal U/S 14-A SC/ST Act Against Acquittal/Bail In Cases Involving Offences Under Both POCSO & SC/ST Acts: Bombay High Court (FB)

The Bombay High Court on Tuesday held that in cases involving offences under both the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act) and the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), a victim does not have the right to file an appeal under Section 14-A of the Atrocities Act against acquittal or bail.

A Full Bench of Justice Mangesh S Patil, Justice Vibha Kankanwadi and Justice RG Avachat sitting at Aurangabad while answering a reference by a Single Judge in an anticipatory bail application held –

“in a case involving offences under both, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Protection of Children from Sexual Offences Act, a victim thereof does not have a right to prefer appeal under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.”

The court said that provisions of the CrPC apply to cases involving offences under both Acts, and the victim can appeal against acquittal or conviction for lesser offence as per proviso to section 372 of the CrPC.

"except the proviso to Section 372, the relevant Section providing right of appeal speak of such a right to be exercised only by the convict or the prosecution agency, namely the State. A right accrued to the victim to prefer appeal in terms of the said proviso is supposed to be exercised against an order passed by the Court either acquitting the accused or convicting for a lesser offence and none others", the court held.

The applicant Aniket Labade is booked under various sections of IPC, the POCSO Act, and the SC/ST Act. His anticipatory bail application under section 438 of CrPC was rejected, prompting him to approach the High Court for anticipatory bail.

The victim's mother contended that as Section 14A(2) of the SC/ST Act provides a remedy of appeal against an order granting or refusing bail, the anticipatory bail application under Section 438 or 439 of CrPC is not maintainable.

The Single Judge referred the matter to a Full Bench to decide whether the interpretation that Section 42-A of the POCSO Act prevails over Section 14-A of the Atrocities Act, in the context of granting or refusal of bail, infringes upon the victim's right to appeal under Section 14-A.

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 an anticipatory bail application under section 438 of the CrPC.

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.

Section 28(2) of the POCSO Act explicitly confers jurisdiction on Special Courts constituted under POCSO to try offenses under other Acts. In contrast, the court noted, the SC/ST Act lacks a similar provision, indicating that Special Courts under it did not have jurisdiction over offenses under other statutes, the court observed.

Section 42A of the POCSO Act, gives overriding effect to the POCSO Act in case of conflict with any other law. Section 20 of the SC/ST Act provides that its provisions would have overriding effect, except as otherwise provided in the Act.

The court noted that Section 20 of the SC/ST Act had been in force since 1990, while Section 42A of the POCSO Act is the later enactment. Thus, by virtue of section 42A of the POCSO Act, Section 28(2) of the POCSO Act would prevail over the SC/ST Act, the court held.

Thus, only a Special Court under the POCSO Act can deal with cases involving both the POCSO Act and SC/ST Act, the court observed.

The court said that under Section 14-A of the SC/ST Act, the remedy of appeal is provided only against orders of Special Courts constituted under the SC/ST Act. However, in cases involving offenses under both Acts, only the Special Court under POCSO Act would have jurisdiction, the court noted.

The court emphasized that Section 31 of the POCSO Act, which provides that provisions of CrPC, including those related to bail, would apply to proceedings before a Special Court under the POCSO Act. However, POCSO Act or CrPC does not provide a remedy of appeal against an order granting or refusing to grant bail by such a Court, the court noted.

“provisions of the Cr.P.C. including the provisions as to bail and bonds shall apply to the proceedings before a Special Court inquiring into or trying an offence under the POCSO Act and under any other Statute including S.C. & S.T. Act”, the court held.

Thus, the court concluded that a victim in a case involving offenses under both Acts did not have the right to prefer an appeal under Section 14-A of the SC/ST Act. It held that the POCSO Act, being a later enactment, would prevail, and Special Courts constituted under it would have jurisdiction over offenses under both Acts.

The court directed the application to be considered by a Single Judge for decision on merits.

Case no. – Anticipatory Bail Application No. 1005 of 2023

Case Title – Aniket s/o Shahadev Labade v. State of Maharashtra and Anr.