POCSO Act Prevails Over SC/ST Act; Accused Entitled To Directly Approach High Court U/S 439 CrPC When Charged Under Both Statutes: Kerala HC

The Kerala High Court has held that the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) prevails over the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act). Thus, when offences under both the Acts have been alleged, the accused would be entitled to avail the procedure contemplated under the former for bail.

The Court found that by virtue of Section 31 of the POCSO Act which makes the provisions of the Code of Criminal Procedure (Cr.P.C.) applicable, the accused person could approach the High Court under Section 439 Cr.P.C.

Justice Bechu Kurian Thomas, while holding so, observed that, 

"...it is pertinent to notice that despite the SC/ST Act being amended in 2015 and 2018, the overriding effect of POCSO Act, in the event of inconsistency, has not been nullified or interfered with by the Parliament. Thus, it is evident that the legislature intended to give supremacy to the POCSO Act, even over the SC/ST Act, in the event of any inconsistency". 

The Petitioner herein was arrested in connection with a complaint lodged under provisions of the Indian Penal Code, the POCSO Act, and the SC/ST Act, on behalf of the 15 year old victim. 

When the Petitioner approached the High Court for bail, the Registry raised an objection that in view of the offences alleged under the SC/ST Act, an application for bail can be filed only before the Special Court designated under the said statute and that the jurisdiction exercised by the High Court in the matter of bail is only appellate in nature under Section 14A of the SC/ST Act. In view of the urgency of the matter however, the Registry was directed to number the case, and the High Court had subsequently granted bail to the petitioner while reserving the legal question involved.

In order to answer this legal question regarding conflict between the provisions of the POCSO Act and the SC/ST Act, the instant order was passed by the High Court.

On behalf of the petitioner, it was contended by Advocates D. Sreenath, Sijo Pathaparambil Joseph, Renoy Mohan and Teena Mary Thomas that that the objection raised by the Registry on the maintainability of the bail application was devoid of merit, inasmuch as the provisions of POCSO Act enable an accused to seek bail by resorting to the provisions of CrPC. Additionally, it was contended that since POCSO Act was the later statute of the two, it would prevail over the SC/ST Act, having regard to the principle that in case of two conflicting statutes containing non-obstante clauses, the latter would prevail. 

The Court in this case clarified that if the provisions of POCSO Act were found to prevail, the petitioner would be entitled to maintain an application for bail under Section 439 of Cr.P.C and seek the remedy before the Sessions Court as well as the High Court, and if the SC/ST Act was found to prevail, only an appeal would lie to the High Court under Section 14A of the statute. 

 The Court also noted that both statutes had non-obstante clauses - while the SC/ST Act was enacted on 30.01.1990, and Section 20 enshrined the said clause, Section 42A of the POCSO Act was introduced with effect from 03.02.2013. It was also clarified that under the POCSO Act, the provision for bail as provided under the Cr.P.C. The Court thus discerned that both statutes were inconsistent with respect to the nature of jurisdiction to be exercised relating to bail. 

"...the jurisdiction of the High Court under the SC/ST Act relating to bail is appellate, while under the POCSO Act, when read with Cr.P.C the jurisdiction is concurrent and original", the Court observed. 

The Court also placed reliance upon the dictum in Sharat Babu Digumarti v. Government (NCT of Delhi) (2017) which stipulated that, "Where there are two special statutes which contain non obstante clauses, the later statute must prevail. This is because at the time of enactment of the later statute, the legislature was aware of the earlier legislation and its non obstante clause. If the legislature still confers the later enactment with a non obstante clause it means that the legislature wanted that enactment to prevail".

In this light, the Court thus ascertained that as per Section 42A of the POCSO Act, "it is evident that the said statute clearly indicates that the provisions of the POCSO Act will prevail over all other laws in the event of any inconsistency". 

The Court also took note of the decisions in Rinku v. State of U.P (2019), Suraj S. Paithankar V. State of Maharashtra (2020), and In Re: The Registrar (Judicial) High Court (2017) to reiterate that the provisions of the POCSO Act prevail over the SC/ST Act. 

Accordingly, the bail granted to the petitioner on 2nd September 2022 was made absolute. 

Public Prosecutor K.A. Noushad appeared on behalf of the respondents. 

Case Title: Renoj R.S. v. State of Kerala & Anr 

Citation: 2022 LiveLaw (Ker) 546

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