Point of Law: Statutory provision itself is clear in respect to law that will prevail whenever there is an inconsistency.

ORDER :

By an order dated 02.09.2022, this Court had granted bail to the petitioner under section 439 of the Code of Criminal Procedure, 1973. However, since a legal question regarding conflict between two statutes arose, it was decided to consider the matter in detail. Hence, despite granting bail to the petitioner, the case was heard in detail on subsequent days.

2. The issue to be resolved relates to the manner and forum for filing an application for bail when offences under the provisions of the Protection of Children from Sexual Offences Act, 2012 (for brevity 'the POCSO Act') as well as the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the SC/ST Act') are both alleged to have been committed in the same crime.

3. The prosecution in the present case alleged that the defacto complainant/victim, aged just 15 years, was in a relationship with the first accused and on 16.07.2022, petitioner, who is the second accused, slapped the victim and scolded her using filthy language thereby committing offences under the Indian Penal Code,1860 apart from the POCSO Act. The prosecution also included provisions of the SC/ST Act since it was learnt that the victim was a member of the Scheduled Caste.

4. Petitioner was arrested on 19.07.2022 and was in custody till this Court directed his release. This bail application was filed on 12.08.2022. However, the Registry of this Court raised an objection that in view of the offences alleged under the SC/ST Act, an appeal alone is maintainable under section 14A of the said Act. Thereafter, the matter was placed for consideration of this Court and having regard to the urgency of the issue, especially since the petitioner was under detention, the Registry was directed to number the case. Subsequently, bail was granted to the petitioner, reserving the legal question to be decided later.

5. It is pertinent to mention at this juncture that this Court had, in a recent decision in Basheer v. Rajani (2022 (5) KLT 352) held that when an offence under the SC/ST Act is alleged, a bail application including that for anticipatory bail, can be filed only before the Special Court designated under the said statute. It was also held that the jurisdiction exercised by this Court in the matter of bail is only appellate in nature under section 14A of the SC/ST Act.

6. Sri. Sijo Pathaparambil Joseph, the learned counsel for the petitioner contended that the objection raised by the Registry on the maintainability of this bail application is without any merit and also pointed out that the said objection resulted in the petitioner remaining in detention until 02-09-2022. After referring to various decisions, the learned Counsel submitted that the provisions of POCSO Act enable an accused even to seek anticipatory bail or bail by resorting to the provisions of the Cr. P.C since there is no restriction as in the SC/ST Act. The learned Counsel relied upon the principle that when two conflicting statutes contain non-obstante clauses, the later statute will prevail. The learned counsel also contended that since POCSO Act is the later of the two statutes, jurisdiction of this Court under Section 439 of Cr. P.C. can be invoked.

7. Sri. K.A Noushad, the learned Public Prosecutor, was also heard. The learned Public Prosecutor fairly submitted that the matter requires clarification to avoid confusion and recurrence in future of similar objections by the Registry.

8. While appreciating the legal issue raised, it is to be borne in mind that if the provisions of the POCSO Act prevail, then the petitioner is entitled to maintain an application for bail under section 439 of Cr.P.C and seek the remedy before the Sessions Court as well as the High Court. However, if the provisions of the SC/ST Act prevail, then an application for bail has to be filed before the Special Court and only an appeal will lie to the High Court under section 14A of the SC/ST Act. There is thus,