POCSO Act Being Enacted Subsequently Will Prevail Over SC/ST Act In Case Of Conflict: Punjab & Haryana High Court

The Punjab & Haryana High Court has reiterated if there is a conflict between the provisions of POCSO Act and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, then provisions of the POCSO Act will be applicable as it was enacted subsequently.

It also reaffirmed that a regular bail plea moved in a case registered under the provisions of the two special legislations is maintainable before the high court.

Justice Manisha Batra noted, "With regard to the question of maintainability of the present petition, in view of the fact that apart from the offence punishable under Section 6 of POCSO Act, the petitioner has been charge sheeted under the provisions of SC/ST Act as well, learned counsel for the petitioner has relied upon Somashekar v. State by Rural Police Station Authorities Sakaleshpura...wherein High Court of Karnataka, while dealing with a petition for grant of regular bail had considered the same question and had observed that where the offences punishable under the provisions of two special enactments vis SC/ST Act and POCSO Act are invoked, a petition under Section 439 of the Code of Criminal Procedure (Which is pari materia with Section 483 of BNSS) before the High Court is maintainable".

"It was also observed that when there is a conflict between the provisions of two special enactments, it is trite that the provisions of the latter of the two enactments will prevail and since the POCSO Act is a subsequent enactment, therefore, its provisions will prevail over the SC/ST Act," the court added.

While noting that State's counsel did not bring any material contrary to it, the high court said that the bail petition before it "cannot be considered to be non-maintainable."

These observations were made while hearing the bail plea in a rape under Sections 376(3), 376(2)(f), 506, 457, 376(2)(n) and 376 of IPC and Sections 6 and 4(2) of POCSO Act and Section 3 (2)(v) of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

It was alleged that a minor victim was repeatedly raped on several occasions by a man, during the course of investigation, the victim filed another complaint levelling allegations that the petitioner had been subjecting her to rape from the last two years on the pretext of performing marriage with her. She recorded another statement under Section 164 of Cr.P.C.

On the basis of the same, the petitioner had been arrested on June 10, 2022 and is facing trial for commission of aforementioned offences.

Counsel for the petitioner Samay Sandhawalia, argued that the petitioner has become entitled to be released on bail since there is a substantive change in the circumstances as FSL and DNA report have been received and the same are negative.

After examining the submissions, the Court noted that, "Undoubtedly, the victim had not named the petitioner as the person who had subjected her to aggravated penetrative sexual assault at the first instance and his name has been taken for the first time on 24.05.2022 when she had filed a complaint before the police but on that ground simplicitor, it cannot be assumed that the allegations so levelled by the victim are false."

Referring to alleged victim's deposition the Court said, "it is apparent that she has levelled specific and serious allegations against the petitioner of subjecting her to repeated acts of rape/aggravated penetrative sexual assault."

Justice Batra further added that merely the prolonged period of incarceration or examination of some material witnesses is not a ground to extend any such benefit.

Considering the gravity of the offence, the bail plea was dismissed.

Case Title: XXXX v. State of Haryana

Counsel for the petitioner: Advocate Samay Sandhawalia

Counsel for State: Neeraj Poswal, AAG, Haryana.