Kerala High Court: In a conflict between the manner and forum for filing an application for bail when offences under the provisions of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) as well as the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC/ST Act’) are both alleged to have been committed in the same crime, Bechu Kurian Thomas, J. has held that whenever an offence under the POCSO Act is alleged, along with the provisions of the SC/ST Act, the accused is entitled to take recourse to the procedure contemplated under the POCSO Act for bail, as by virtue of section 31 of the POCSO Act, the provisions of CrPC are made applicable, thus, petitioner was justified in approaching the High Court under CrPC.
The Court has already granted bail to the petitioner under Section 439 of the Code of Criminal Procedure, 1973, (CrPC) however, since a legal question regarding conflict between two statutes arose, it was decided to consider the matter in detail.
The Court viewed that the bail application was filed, however, the Registry of the Court raised an objection that in view of the offences alleged under the SC/ST Act, an appeal alone is maintainable under section 14A of the said Act.
The Court took note of the ruling in K.M. Basheer v. Rajani K.T., 2022 SCC OnLine Ker 4470 wherein it was held that “when an offence under the SC/ST Act is alleged, a bail application including that for anticipatory bail, can be filed only before the Special Court designated under the said statute. Further, the jurisdiction exercised by the High Court in the matter of bail is only appellate in nature under section 14-A of the SC/ST Act”
The Court observed that if the provisions of the POCSO Act prevail, then the petitioner is entitled to maintain an application for bail under section 439 of CrPC and seek the remedy before the Sessions Court as well as the High Court. However, if the provisions of the SC/ST Act prevail, then an application for bail must be filed before the Special Court and only an appeal will lie to the High Court under section 14-A of the SC/ST Act. Thus, apparently, there is a conflict in the application of the provisions of the two statutes in question relating to bail.
The Court upon examining Section 20 of the SC/ST Act and Section 42-A of the POCSO Act observed that both the POCSO Act and the SC/ST Act contain provisions which give that Statute an overriding effect over all other provisions of any other law to the extent of the inconsistency. Further, under the POCSO Act, the provision for bail as provided under the CrPC is specifically made applicable.
The Court noted that the main inconsistency that can be noticed in respect of the POCSO Act and the SC/ST Act is in the nature of jurisdiction to be exercised under the statutes relating to bail. Further, as the POCSO Act does not deny the right of an accused to seek bail or anticipatory bail by recourse to the provisions of the CrPC, and confers that right through section 31, and the SC/ST Act specifically excludes the right of an accused to seek anticipatory bail and provides only an appellate remedy to the High Court even in matters of regular bail. Thus, the jurisdiction of the High Court under the SC/ST Act relating to bail is appellate, while under the POCSO Act, when read with CrPC the jurisdiction is concurrent and original.
Moreover, it was observed that despite the SC/ST Act being amended, the overriding effect of POCSO Act has not been nullified or interfered with by 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.
It further relied on Rinku v. State of U.P., Criminal Misc. Bail Application No. – 17348 of 2018, Suraj S. Paithankar v. State of Maharashtra, Bail Application No. 817/2020 wherein it was held that “the provisions of the POCSO Act will prevail over the SC/ST Act” and held that whenever an offence under the POCSO Act is alleged, along with the provisions of the SC/ST Act, the accused is entitled to take recourse to the procedure contemplated under the POCSO Act for bail.
[Renoj R.S v. State of Kerala, Bail Application No. 6688 of 2022, decided on 26-10-2022]
Advocates who appeared in this case :
For Petitioner: Advocate D.Sreenath;
Advocate Renoy Mohan;
Advocate Teena Mary Thomas;
Advocate Sijo Pathaparambil Joseph;
For Respondent: Public Prosecutor K.A. Noushad.