IMPORTANT POINT
Bail can be granted in POCSO offences.

JUDGMENT

Bharati Dangre, J.—On 19/06/2020, this Court (Coram: Sarang Kotwal, J.) recorded an objection raised by the APP that since the offence alleged is under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, (Hereinafter referred to as ‘Act of 1989’ for the sake of brevity) an appeal would be required to be preferred under Section 14(A) of the Act of 1989. For consideration of the said objection, matter was subsequently listed and Mr. Desai, learned counsel for the Applicant has placed on record following Judgments:

1. In Re the Registrar (Judicial High Court) [Madras High Court]

2. Rinku Vs. State of U. P. (Allahabad High Court)

3. Sarwan Singh Vs. Kasturilal (A.I.R. 1977 Supreme Court 265)

4. Guddu Kumar Yadav Vs. State of Bihar (Patna High Court)

2. 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 (Hereinafter referred to as ‘POCSO Act’ for the sake of brevity) 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. I have perused the aforesaid Judgments and I am in agreement with the ratio laid down in the aforesaid Judgments.

Protection of Children from Sexual Offences Act, 2012 being a special enactment which deal with the ofences of child abuse, was brought into force w.e.f. 14/11/2012. It is a comprehensive legislation which provides for protection of children from offences of sexual assault, sexual harassment and pornography, by safeguarding the interest of the child at every stage of judicial process by incorporating child friendly mechanism for reporting, recording of evidence, investigation and conduct of speedy trial of offences through designated courts. It ensures child friendly judicial process and involves multidimensional approach keeping in view the child’s right. 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. Insertion of provision of Section 42A in the POCSO Act, make the position of law amply clear and the objection raised by the learned APP therefore do not warrant any merit. Going a step further, in accordance with Section 31 of the POCSO Act which make provisions of Code of Criminal Procedure, (Hereinafter referred to as ‘Cr.P.C.’ for the sake of brevity) applicable to the proceedings before the Special Court trying offences under the said Act, provisions of Appeal contained in the Cr.P.C. would be equally made applicable to the proceedings to the offences under the POCSO Act.

3. After scrutinizing the legal position and the Judgments relied by Mr. Desai and the learned APP who also fairly concedes to the position of law and has consented for proceeding to hear the matter on its merits.

4. Heard Shri. Abhijeet Desai, learned counsel for the Applicant and Shri. S. V. Gavand, learned APP for the State. Perused the charge-sheet placed on record. F.I.R. is lodged by mother of the victim as it discloses is fled by mother in relation to an incident which took place on 10/11/2019. Mother has mentioned age of her daughter on the date of incident as of 16 years and 6 months, but on the basis of birth certificate which is placed on record and form part of the charge-sheet, the date of birth o