The Bombay High Court says about a case where the child abused is Scheduled Caste or the Scheduled Tribe. The procedure carry out in POCSO Act of 2012 would not take away the powers of the Special POCSO Court. The power is to seek the offences under the SC/ST Prevention of Atrocities Act, 1989.
Justice Bharati Dangre was hearing a bail application filed by a 21-year-old from Pune. He is accused of raping a minor. FIR in the case was lodged by the girl’s mother in relation to an incident that took place on November 10, 2019.
Facts & Issues
FIR says that the age of the complainant’s girl on the date of incident was 16 years and 6 months. On the contrary, the bench notes the date of birth of the victim girl is June 18, 2004. The bench does it on the basis of birth certificate. This make her age on the date of incident to be precisely 15 years 4 months and 23 days. As per the prosecution’s case, the victim was in good relationship with the Applicant. On the date of incident, she accompanied him on his motorcycle. She also travelled to a place approximately 40-45 km from Pune. There she along with the applicant access to a lodge. They stay there for almost 1½ to 2 hours as per the receptionist of the concerned lodge.
Arguments & Court’s Observation
Justice Dangre noted-
“The issue as to whether a physical relationship was on account of the promise of marriage is to be determined at the time of trial. Undisputedly the fact that the victim was minor and attracted provisions of Section 376 of Indian Penal Code and her consent is totally immaterial.”
In a hearing on June 19 , Additional Public Prosecutor SP Gavand submitted before Justice SV Kotwal. He submits that the offence alleged is under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. Therefore an appeal requires preferring under Section 14(A) of the Act of 1989. And the application under Section 439 of CrPC was not maintainable.
Applicant’s counsel Abhijit Desai puts the record following judgments-
- In Re the Registrar (Judicial High Court) [Madras High Court]
- Rinku Vs. State of UP (Allahabad High Court)
- Sarwan Singh Vs. Kasturilal (AIR 1977 Supreme Court 265)
- Guddu Kumar Yadav Vs. State of Bihar (Patna High Court)
Justice Dangre observes that Court in agreement with the ratio laid down in the aforesaid judgments and said-.
“The Judgments relied upon by Mr. Desai which are delivered by the Allahabad High Court, Madras High Court clearly lay down a position of law to the effect that Protection of Children from Sexual Offences Act, 2012 being a special enactment and also a subsequent enactment and containing non obstante clause, the bar created under Section 14 (A) of the Act of 1989 would not operate.”
At last, the Court observed-
“In a case where the child subjected to abuse happened to be belonging to Scheduled Caste and Scheduled Tribe, the procedure carved out in the Act of 2012 would not take away the powers of the Special Court to try the offences under the said Act coupled with a provision contained in Section 42(A) which was introduced by Act No. XIII of 2013 which introduced a provision that the Act and its provisions shall be in addition to and not in derogation of provisions of any other law for the time being in force and in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of inconsistency.”
Asserting in mind about the victim is a resident of Dhanori, Pune, the court asks the accused to give an undertaking. Then, stating that he will not enter the jurisdiction of Pune city. Applicant’s lawyer Desai agreed to this and assures compliance by the accused.
Justice Dangre noted-
“The effect of the statement under Section 164 of CrPC and the content therein and its appreciation would be done at the time of trial. It is also not the case of the prosecution that the Applicant was aware that the victim girl belongs to scheduled caste and therefore intentionally he assaulted her sexually, being conscious of this fact. Therefore, perusal of the material in the charge-sheet does not prima facie attract the provisions contained in Act of 1989.” In nutshell, the Court bailed on a bond of Rs. 25,000.
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