The main legal point established in the judgment is the overriding effect of the provisions of the POCSO Act on the provisions of the Atrocities Act in cases involving offences under both Acts, and the interpretation of the rights of the victim to prefer an appeal against the grant of bail to the accused.

JUDGMENT :

(R.G. Avachat, J.) :

Learned Single Judge of this Court, relying on Rule 8 of Chapter I of the Bombay High Court, Appellate Side, Rules, 1960, requested the Honourable the Chief Justice to refer the following two issues for decision, by a Bench of two or more Judges. This is how the matter has been referred to this Full Bench for deciding the issues :

(i) Whether interpretation that Section 42-A of POCSO Act shall prevail over Section 14-A of Atrocities Act, in the matter of grant or refusal of bail, would result into abrogating right of victim, to prefer an appeal under Section 14-A of Atrocities Act against grant of bail to accused ?

(ii) Whether such interpretation is sustainable having regard to intention of legislature in providing participation of victim and witness of atrocities at all stages of proceedings under Atrocities Act, with specific provision of Section 14-A thereof ?

2. The facts, in brief, giving rise to this reference are as follows :

A crime vide C.R. No.214/2023 was registered against one Aniket Labade for offences punishable under Sections 363, 376, 376(3) of the Indian Penal Code and Sections 3 and 4 of the Protection of Children from Sexual Offences Act (hereinafter referred to as the POCSO Act for short) with Nagar Taluka Police Station, Taluka and District Ahmednagar. Later on, Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the S.C. & S.T. Act for short) came to be additionally invoked. His application under Section 438 of the Code of Criminal Procedure (Cr.P.C. for short) was turned down by Additional Sessions Judge, Ahmednagar vide order dated 17/6/2023. He, therefore, preferred application under Section 438 of the Cr.P.C., to this Court. While hearing the application, the informant/ mother of the victim raised objection as to maintainability of the said application. It was her contention that, in view of Section 14-A(2) of the S.C. & S.T. Act, since remedy of appeal is provided against an order of grant or refusal of bail, the application under Section 438 or 439 of Cr.P.C. was not maintainable. In support of her submissions, reliance was placed on amendment to Section 18 and newly introduced Section 18-A of the S.C. & S.T. Act. On hearing learned counsel for the parties to the application, learned Single Judge has been pleased to make the reference.

3. Learned Single Judge is of the view that the Division Bench of this Court in case of Gorakshnath @ Samadhan Navnath Pagar Vs. The State of Maharashtra & anr. (Criminal Appeal No.362/2021) and the Madhya Pradesh High Court in case of Pramod Yadav Vs. State of Madhya Pradesh & ors. (Criminal Appeal No.5180/2020), appear to have not considered the vital aspect that introduction of Section 14-A is later in point of time to introduction of section 42-A of the POCSO Act. Moreover, learned Single Judge observed in paragraph No.11 of the order dated 10/8/2023 as under :

“The importance of Section 14-A of the Atrocities Act of providing appeal against any order cannot be ignored by branding it as a procedural aspect, in view of Section 15- A of the Atrocities Act. By Amendment Act 1 of 2016, Chapter IV A came to be introduced to Atrocities Act, creating right in favour of victims and witnesses. A fruitful reference can be made to the relevant provisions of Section 15-A as under :

Section 15A :

(1) xxx

(2) xxx

(3) xxx

(4) xxx

(5) A victim or his dependent shall be entitled to be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing.

It is thus clear that this provision recognises rights of victim and witness, and they shall have the right to be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceeding. Undisputedly, an un