Bombay High Court held that if an accused is booked under the Protection of Children from Sexual Offences (POCSO) Act and Scheduled Castes and Scheduled Tribes ( Prevention of Atrocities) Act and is leading to overriding effect, the matter will only be tried by the POCSO special court and granted bail to a rape accused.
The bench also added that in case a POCSO court has refused to grant the bail to the accused who was booked under both the laws i.e. POCSO and SC/ST act, then the application under Section 439 of the CrPC which entitles the High Court with the special powers to grant bail, will only be maintainable before HC and there is no need to file an appeal under SC/ST Act.
“In a case where the child subjected to abuse happened to be belonging to Scheduled Caste and Scheduled Tribe, it would not take away the powers of the special court to try the offences under POCSO Act, a special enactment, and in case of any inconsistency, its provisions shall have an overriding effect on the provisions of any such laws,” said Bombay High Court bench.
Justice Bharati Dangre was hearing a bail application filed by an accused alleged of raping a 15-year-old girl who belongs to SC community, in Pune last November. The accused stated in his bail plea that he was in a friendly relationship with the girl and was well aware of the fact that she belonged to the SC community.
Arguing on the part of Pune police, Additional Public Prosecutor S V Gavand stated that bail application Section 439 of CrPC is not maintainable when the accused is charged under both the acts. He further added that the applicant is required to file an application under Section 14 A of the SC/ST Act.
However, High court has granted the bail considering it maintainable furnishing a personal bond worth Rs 25,000 and asked him to visit police station every month.
Justice Dangre had granted the relief to the accused and directed the accused not to tamper with any evidence and to ensure his availability for the trial.
Observing “Perusal of the material in the charge-sheet does not prima facie attract provisions of the SC/ST Act.