Bail Granted Under SC/ST Atrocities Act May Be Recalled/ Cancelled Under Crpc; Procedure Under POCSO Act Prevails Over SC/ST Act: MP HC [Read Judgment]

"High Court can entertain application under Section 439 (2) of Cr.P.C. for cancellation of bail granted in exercise of powers conferred under Section 14-A(2) of Atrocities Act."

The Bench of Justice Anand Pathak held so while emphasizing that a victim cannot be rendered "remediless" if the accused gets bail but keeps on interfering in the investigation / trial and intimidating the victim or the witnesses.

Section 14-A (1)(2) of Atrocities Act provides that an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail.

The accused in the present case was booked for the offence of kidnapping and rape and had been charged under the relevant provisions of IPC, POCSO and the SC/ST Act. He was enlarged on bail in appeal under Section 14A(1)(2), after the Special Court declined his bail plea.

The Complainant had moved an application under Section 439(2) of CrPC, seeking cancellation of bail granted under Section 14-A, alleging that the accused had defeated his bail conditions and was constantly intimidating the victim and her family.

Thus, the question which arose before the Court was whether bail, once granted under a Special law, can be cancelled under CrPC.

The counsel for the accused had raised a question of maintainability arguing that once the bail is granted under the special statute i.e. Atrocities Act, then there is no provisions under the Atrocities Act empowering the Court to recall the bail granted under Section 14-A(1)(2) of Atrocities Act.

Even though the Court did not favour cancellation of bail in the facts and circumstances of this case, it noted that it does have the power to do so.

Disagreeing with proposition proposed by the accused, the Court noted that in 2015, the SC/ST Act was amended to ensure speedy trial and remove defects that affected the protection of rights and interest of victim.

In this backdrop it held,

"any interpretation which restricts the right of victim to approach the High Court in case the bail condition is violated would be against the very spirit of the Amendment Act and this may lead to an anomalous position where the whole purpose of Amendment Act would be defeated and therefore, said interpretation cannot be accepted as suggested by counsel for the accused."

In effect, it was held that an application for cancellation of bail under Section 439 of Cr.P.C. at the instance of complainant /aggrieved party is maintainable before the High Court which passed the order and order granting bail in an appeal can be recalled, of course in a fit case for recalling.

Reliance was placed on Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka & Ors., (2019) 2 SCC 752), where the Supreme Court deprecated "Secondary Victimization" of the complainant/ victim.

The Court added,

"Even otherwise, if the language used is capable of bearing more than one Construction, in selecting the true meaning regard must be had to the consequences resulting from adopting the alternative constructions. A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and preference should be given to that construction which avoids such results."

Inter alia, it was held that the High Court can even "recall" the benefit of bail granted under Section 14-A(2) of the Atrocities Act, if the facts warrant so. It said,

"Court has power to recall an order which has been passed by it earlier. Power to issue or pass order includes its recalling."

Interplay between Atrocities Act and POCSO Act

Since the accused in the present case was charged under two special laws, i.e. the Protection of Children from Sexual Offences Act, 2012 and the Atrocities Act, the Court was faced with a question as to procedural law of which legislation shall prevail.

The Court came to a finding that when an accused is being tried by Atrocities Act as well as POCSO Act simultaneously, then Special Court under POCSO Act shall have the jurisdiction for the following reasons:

• Section 42-A of the POCSO Act permits Special Courts established under the said Act, to implement the provisions of other enactments also, insofar as they are not inconsistent with provisions of POCSO Act and in case of any inconsistency, the provisions of POCSO Act are given overriding effect over the provisions of such other enactments to the extent of inconsistency;
• Special Court, POCSO Act can try for offence under other enactments also with which the accused may under the Cr.P.C. be charged; whereas, no such analogous provision for such inclusion exists in Atrocities Act;
• Provisions of POCSO Act are in addition and not in derogation of the provisions of any law including Atrocities Act. Therefore, POCSO Act is all encompassing in nature, whereas, Section 20 of Atrocities Act limits the interplay of other statutes;
• Although both the statutes are dedicated to serve the interest of a special class of citizens but the legislative priority or preference appears to be in favour of the child;
• POCSO Act has much wider scope so far as victims are concerned because POCSO Act is an act to protect Children from sexual offences and provide for establishment of special Court for trial of such offences and for matters connected therewith or incidental thereto, therefore, ambit and scope of POCSO Act appears to be much wider than the Atrocities Act.
• Special Court under the Atrocities Act does not have the kind of infrastructure, procedure, staff and training as contemplated in different provisions of the POCSO Act

The Court remarked,

"if both the Acts are taken into consideration where Special Protection, Remedies and Speedy Trial have been contemplated, it appears that POCSO Act is designed to a wider range of victims than the Atrocities Act. Since the procedure has been specifically provided, children of whatever background including the background from Scheduled Castes or Scheduled Tribes, process of investigation and trial of the accused meanders through different specifically enacted provisions while taking into consideration the delicate mind of a child victim, his probable subjugation to secondary victimization and procedural safeguards appear to be extensively incorporated in the POCSO Act, but not in Atrocities Act."

Based on the above finding, it has been clarified that if any bail application of accused is allowed or rejected under Section 439 of Cr.P.C. by that Special Court then appeal shall not lie under Section 14-A (2) of Atrocities Act. Only an application under Section 439 of Cr.P.C. for bail shall lie.

Scope and extent of bail conditions under Section 437(3) CrPC

The High Court has held that the scope and extent of bail conditions as referred in Section 437(3) of CrPC are wide enough to include Community Service and other reformative measures also. However, such conditions ought not be onerous or excessive in nature.

Emphasizing on the expressions "such other conditions as it considers necessary" and "otherwise in the interest of justice" in Section 437 (3), the Court observed that it has a "discretion" to impose reformative bail conditions. However, it cautioned,

"Bail conditions cannot be excessive, freakish and onerous and it does not amount to buying the bail. When a case is made out for bail and when if the accused volunteers on his own volition and he himself intends to perform community service; then only this condition can be of some help."

Case Title: Sunita Gandharva v. State of MP & Anr.

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