Site icon SCC Times

MP HC | Scope and extent of bail conditions under S. 437(3) CrPC are wide enough to include reformative measures like community service, but ought not be onerous and excessive in nature; HC decides scope and application of Bail under POCSO and SC/ST Act

Madhya Pradesh High Court: Anand Pathak, J., while deciding an application against cancellation of bail said: in cases where “any bail application of accused is allowed or rejected under Section 439 CrPC by the Special Court then appeal shall not lie under Section 14–A(2) of the Atrocities Act. Only an application under Section 439 CrPC for bail shall lie.”

Brief Facts

The instant applicant under Section 439(2) of Code of Criminal Procedure has been preferred by the applicant-complainant for cancellation of bail granted to respondent 2, the accused who was enlarged on bail by this Court vide order dated 26-02-2020 in Criminal Appeal No. 1759/2020. Accused is facing trial for offence under Section 363, 366-A, 376 of the Penal Code, Section 3 (1)(w)(ii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 3/4 of Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”).

Issue

  1. Whether High Court can entertain an application under Section 439(2) of CrPC for cancellation of bail granted in exercise of powers conferred under Section 14-A(2) of Atrocities Act?
  2. Whether the Court granting bail in an appeal under Section 14-A(2) of Atrocities Act can be recalled/cancelled as the order granting bail does not attain finality?
  3. Whether in an offence where the provisions of the Atrocities Act and POCSO Act are involved, the procedural law of the POCSO Act will apply or the provisions of Atrocities Act?
  4. Whether, in a composite offence involving of provisions of POCSO Act and Atrocities Act, an order refusing bail under Section 439 CrPC will be appealable as per Section 14-A(2) of Atrocities Act or an application under Section 439 CrPC will lie before the High Court?
  5. What is the scope and extent of bail conditions as referred in Section 437(3) of CrPC?

Observations

“By virtue of such amendments, which came into being in year 2016, concurrent jurisdiction of this Court to grant regular bail under Section 439 CrPC has been taken away and in place of concurrent jurisdiction, an appellate jurisdiction has been conferred by way of an appeal under Section 14-A(2) of Atrocities Act. Although, provisions of appeal has been made but it still emanates from an order of refusal of bail by Special Court under Section 439 of CrPC. Original statutory source of Section 439 is still intact. Only difference is replacement of concurrent jurisdiction with appellate jurisdiction.”

 “… today, the rights of an accused far outweigh the rights of the victim of an offence in many respects. There needs to be some balancing of the concerns and equalising their rights so that the criminal proceedings are fair to both.

Decision

While deciding the question of jurisdiction and grant of bail, the Court directed the office to place this matter before the Acting Chief Justice of the High Court for issuance of necessary guidance and for circulation amongst District and Sessions Judges for information and compliance. It further said,

“When an accused is being tried under the Atrocities Act as well as the POCSO Act simultaneously, then Special Courts under POCSO Act shall have the jurisdiction and if in the event that 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 the Atrocities Act. Only an application under Section 439 of Cr.P.C. for bail shall lie.”

The true reason for the remedy is to provide speedy justice to the victims and for the provisions to act as a deterrent to the miscreants. The right of victims to approach the High Court in case of bail condition should not be violated to defeat the very spirit of the SC/ST Amendment Act in 2015.[Sunita Gandharva v. State of M.P., 2020 SCC OnLine MP 2193, decided on 8-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Exit mobile version