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IN THE HIGH COURT OF JUDICATURE AT PATNA
SUDHIR SINGH, J.
Guddu Kumar Yadav Son of Ashok Yadav - Petitioner
Versus
The State of Bihar - Opposite Party
Criminal Miscellaneous No.52792 of 2019
Decided On : 07-11-2019
Protection of Children from Sexual Offences (POCSO) Act, 2012 – Section 42A – SC/ST (Prevention of Atrocities) Act, 1989 – Sections 14A(2) and 20 – Indian Penal Code, 1860 – Sections 363, 365 and 366 (A) – Criminal Procedure Code, 1973 – Section 439 – Kidnapping and rape of minor girl – Bail application – POCSO Act takes within its fold protection of children of all sections of society including those belonging to SC/ST – POCSO Act, being later legislation than SC/ST Act and a self-contained legislation having number of safeguards to children at every stage of proceeding with better scheme of compensation and rehabilitation for child victims including those belonging to SC/ST – Special Court to be constituted under both Acts are Court of Session and courts so established or specified shall have power to directly take cognizance of offences under respective Acts – Overriding effect as contemplated under Section 42-A of POCSO Act, shall prevail over SC/ST Act – Where any prosecution is brought for offences under both Acts i.e. POCSO Act and SC/ST Act, Special Court constituted under POCSO Act, alone would have jurisdiction in the matter at pre-cognizance stage and post cognizance stage including trial, provided accused may be charged at same trial under Code of Criminal Procedure, 1973. (Paras 22, 23 and 28)
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Section 14A(2) – Protection of Children from Sexual Offences (POCSO) Act, 2012 – Section 31 – Criminal Procedure Code, 1973 – Section 439 – Bail application – Where an order granting or refusing bail to an accused being passed by Special Court constituted under POCSO Act, in connection with a case involving offences under both Acts i.e. POCSO Act and SC/ST Act, same would not be appealable under Section 14-A(2) of SC/ST Act – In such circumstances application for bail in terms of Section 439 of Cr. P.C. would alone be maintainable before High Court – Special Court under POCSO Act would exercise power to grant or refuse bail under Section 439 of Cr. P.C. – There is no fiction under SC/ST Act or POCSO Act that Special Court constituted under POCSO Act, while considering application for bail in a case where one of offences charged was under SC/ST Act, would be deemed to be a Special Court constituted under SC/ST Act, for limited purpose of granting or refusing plea of bail. (Paras 29 and 30)
Criminal Procedure Code, 1973 – Sections 218 and 220(1) – A distinct offence may be distinguished taking into consideration difference in time of their occurrence, or place being different, or victims of crimes being different – Separate charge is required for every distinct offence and not necessarily for ‘every’ or ‘each’ offence – Two offences are distinct if they are non-identical and are not in any way interrelated – In present case, time, place of occurrence as well as victim is same and offence under both Acts are not only interrelated rather they are in one series of acts, so connected together as to form same transaction and being committed by same person, accused of such offences may be charged separately in one trial – Special Court constituted under POCSO Act can also try offence under SC/ST Act provided that it may not be a distinct offence rather such offence being committed in course of same transaction. (Paras 26 and 27)
ORDER :
1. This application has been filed for grant of bail to the petitioner, who is an accused in Raniganj Police Station Case No. 89 of 2019, registered initially under Sections 363, 365 and 366 (A) of the Indian Penal Code. Later on, Sections 302, 201 and 376 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, and Sections 3 (2) (va) of the SC and the ST (Prevention of Atrocities) Act, 1989, having been also added in the First Information Report.
2. The learned counsel for the petitioner Mr. Vivekanand Singh submitted that after institution of the said F.I.R., the police made investigation of the case and submitted Police Report/Charge Sheet on 29.05.2019, under Sections 302, 201 and 376 of the Indian Penal Code and Section 4 of the POCSO Act, 2012, and Sections 3 (2) (va) of the SC and ST (Prevention of Atrocities) Act, 1989, before the 1st Addl. Sessions Judge-cum-Spl. Judge (POCSO), Araria. Whereupon, the Spl. Court (POCSO) took cognizance of all the offences as being referred under the Police Report dated 29.05.2019. Thereafter, the matter is pending before the said court for further proceedings. The petitioner is under judicial custody of the Special Court, (POCSO), Araria.
3. It appears from the records of this case that on the basis of said Raniganj Police Station Case No. 89 of 2019, corresponding Spl. (POCSO) Case No. 11 of 2019 being instituted before the 1st Additional Sessions-cum-Special Judge (POCSO), Araria. The petitioner moved for grant of bail in Spl. (POCSO) Case No. 11 of 2019, which being rejected vide order dated 08.05.2019, passed by the 1st Additional Sessions-cum-Special Judge, Araria. Thereupon, the petitioner has moved before this Court for grant of bail in connection with the said case, filing the instant application.
4. In course of stamp reporting, the office pointed out the defect as under :-
The learned counsel for the petitioner made an application before the Registrar (List), for ignoring the said defect pointed out by the Stamp Reporter, stating the reasons therein that on the basis of the First Information Report bearing Raniganj Police Station Case No. 89 of 2019, corresponding Spl. (POCSO) Case No. 11 of 2019 being instituted and pending before the Spl. Judge (POCSO) Araria and the prayer for bail made on behalf of the petitioner being refused by the 1st Additional Sessions-cum-Spl. Judge, Araria, and further indicating that the order of rejection of bail of the petitioner dated 08.05.2019, in connection with Spl. (POCSO) Case No. 11 of 2019, having not been passed by the Special Court constituted under SC/ST Act, therefore, appeal as provided under Section 14-A of the SC and the ST (Prevention of Atrocities) Act, would not be maintainable.
5. Thereupon, this matter has come up before this Court for consideration of the validity of the objection as referred above, made by the Stamp Reporter.
6. The prosecution case, in brief, is that the informant named Subodh Rishidev made a written statement to the officer-in-charge of Raniganj Police Station, Araria, stating therein that his daughter namely Chandani Kumari, aged about 17 years, had gone in the evening of 21.02.2019, for cutting grass but did not return back to home. Thereafter, the informant with the help of villagers tried to find out but could not get any trace of her daughter. Accordingly, the First Information Report numbered as Raniganj Police Station Case No. 89 of 2019 came to be registered on 27.02.2019, for the offences under Sections 363, 365 and 366 (A) of the Indian Penal Code against unknown miscreants. It appears from the First Information Report (Annexure-1 to the petition) that subsequently Sections 302, 201 and 376 of the Indian Penal Code and Section 4 of the POCSO Act and Section 3 (2) (va) of the SC and the ST (Prohibition of Atrocities) Act, being also added in the
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