POCSO Act Prevails Over SC-ST Act, Bail Plea U/S 439 CrPC Maintainable If Accused Charged Under Both: Karnataka High Court

The Karnataka High Court has held that where the offences punishable under the provisions of two special enactments viz, the Scheduled Castes and Tribes (Prevention of Atrocities) Act and POCSO Act are invoked, the POCSO Act, being a later enactment, should prevail over the Atrocities Act.

Justice S Vishwajith Shetty clarified that a petition under Section 439 of the CrPC before the High Court was maintainable when both the Atrocities Act and the POCSO Act were invoked, rather than having to file an appeal as mandated by the Atrocities Act.

“Whenever there is a conflict between the provisions of two special enactments, it is trite that the provisions of the later of the two enactments will prevail. This is because the legislature was aware of the earlier statute at the time of enactment of the later statute. Unless the legislature specifically provides in the later statute that the provisions of the earlier statute would prevail, then it has to be understood that the provisions of the later statute would prevail over the earlier statute.”

The petitioner had approached the Court seeking bail in a case accusing him of offences under Sections 448, 504, and 305 of IPC, Section 12 of the POCSO Act, and Section 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.

According to the complaint, the petitioner allegedly pestered the complainant's minor daughter to be in a romantic relationship with him. On the day of the incident, the petitioner visited the complainant's house and revealed his intentions. She and her brother-in-law advised him against it, but the petitioner entered the complainant's house and quarrelled with her daughter, urging her to love him. When her daughter refused, the petitioner allegedly abused and threatened her. This allegedly drove her to suicide. 

Since the trial court dismissed his first bail application, he approached the High Court. 

The Government Pleader raised a preliminary objection regarding the petition's maintainability, claiming that because the petitioner was charged under the Atrocities Act, an appeal should be filed as mandated by Section 14A(1) of the Act. Alternatively, it was argued that the material on record established a prima facie case against the petitioner and urged the court to dismiss the petition.

The bench noted that the Atrocities Act and the POCSO Act are special enactments. The Atrocities Act was enacted in 1990, while the POCSO Act was enacted in 2012. Section 20 of the Atrocities Act provides for the overriding effect of the said Act, while Section 42A of the POCSO Act provides for the overriding effect of the POCSO Act.

“It is evident that the provisions of Cr.PC is made applicable for the cases to be tried under the said Act, and therefore, the provision for bail under Cr.PC would also be applicable for the cases registered under the provisions of the POCSO Act.”

It was also found that as per Section 42A of the POCSO Act, it was obvious that the provisions of the POCSO Act would prevail over the provisions of the Atrocities Act.

Considering the merits of the complaint, the bench said that there was no allegation in the complaint that the petitioner had misbehaved with the complainant's daughter except by asking her to love him. 

“Considering the nature of allegations made in the complaint, the aforesaid submission made by the learned Counsel for the petitioner cannot be simply brushed aside. Petitioner has not committed any such act in the house of the complainant which would have abetted or instigated the minor girl to commit suicide.”

The Court also noted the behaviour of the complainant and her brother-in-law, who were present during the incident but did not intervene when the petitioner allegedly abused and pestered the girl. This behaviour raised doubts about the allegations made in the complaint.

It was also found that the petitioner was a youngster aged about 24 years and has been in custody since 30.04.2023. Given the nature of the allegations and the lack of a direct link between the petitioner's actions and the girl's suicide, the High Court concluded that the petitioner should be granted regular bail.

"The allegations made in the charge sheet against the petitioner are required to be proved in a full-fledged trial. Under the circumstances, I am of the view that the prayer made by the petitioner for grant of regular bail is required to be answered in the affirmative.”

Allowing the petition the court granted the accused bail. The petitioner was ordered to furnish a personal bond, appear regularly before the Trial Court, refrain from threatening or tampering with prosecution witnesses, avoid involvement in similar offences, and not leave the jurisdiction of the Trial Court without permission until the case against him was resolved.

Appearance: Advocate Shetty Deepak for petitioner, HCGP Sowmya R for respondent.

Citation: 2023 LiveLaw (Kar) 393

Case Title: Somashekhar And State by Rural Police Station.

Case No: Criminal Petition No. 7421 of 2023

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