ORDER

Rafiq, C.J. -- 1. This matter has been referred to the Division Bench in view of difference of opinion expressed by two Single Benches of this Court in Mohd. Juned v. State of M.P. reported in 2016(1) MPJR 108 and in Smt. Sunita Gandharva v. State of M.P. and another in MCRC No. 22615/2020.

2. The present matter in which the order of reference has been made, has been filed as a Criminal Appeal under section 14-A(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short “the Atrocities Act”) against the order dated 23.7.2020 passed by Special Judge, Atrocities Act, Seoni in SC ATR No.08/2020. In fact, earlier appeal filed by appellant viz. Criminal Appeal No.10267/2019, was dismissed as withdrawn vide order dated 10.12.2019 with liberty to him to file afresh appeal after recording of the statement of the prosecutrix.

3. The facts of the case in brief are that the police station Keolari, District Seoni registered Crime No.314/2019 against the accused/appellant for offence punishable under sections 363, 366, 376(2)(n), 376(3) of IPC, section 5(L) and 6 of Protection of Children from Sexual Offences Act, 2012 (for short “the POCSO Act”) and section 3(1)(w)(i), 3(2)(va) and 3(2)(v) of Atrocities Act on the allegation that he abducted the minor prosecutrix and took her to Nagpur where he sexually exploited her on the pretext of marriage. During the course of investigation, the accused/appellant was arrested on 22.10.2019. He filed an application under section 439 CrPC for grant of bail which was rejected by the Special Judge, Atrocities Act, Seoni vide order dated 23.7.2020. Aggrieved thereby, he filed the earlier appeal viz. CRA No.10267/2019, which was dismissed as withdrawn vide order dated 10.12.2019 with liberty to file afresh after recording of the statement of prosecutrix. Thereafter the trial Court recorded the statement of prosecutrix wherein she did not support the prosecution story and deposed that appellant did not commit rape with her. This paved the way for the accused/appellant to file second appeal on the same subject matter.

4. In the course of argument of appeal before the Single Bench, an objection was raised by the learned Public Prosecutor that since the accused is also being tried for offences punishable under sections 5 and 6 of the POCSO Act, therefore, he should have filed an application under section 439 of CrPC before this Court rather than filing appeal. It was argued that when the accused is being tried for offences of POCSO Act as well as for offences under the Atrocities Act, such trial should be conducted by the Special Judge notified for trial of the cases registered under POCSO Act, whereas, in the present case, the trial is being conducted by the Special Judge notified for trial of the cases registered under the Atrocities Act. It was therefore argued that the trial against the accused stood vitiated and a direction be issued to transfer this case to the Court of Special Judge notified for trial of the cases under the POCSO Act. Reliance was placed on the Single Bench judgment of this Court in Smt. Sunita Gandharva (supra).

5. Learned counsel for the accused/appellant contested the aforesaid objection and submitted that there was nothing objectionable even if the trial of the case involving offences of both POSCO Act as well as Atrocities Act was being conducted by the Special Court notified for trial of the offences under the latter Act. Since the application filed by the accused under section 439 of CrPC was dismissed by the Special Judge notified under the Atrocities Act, an appeal against such order would lie to this Court under section 14 of the Atrocities Act. Reliance in support of this argument was placed on the judgment of Single Bench of this Court in Mohd. Juned (supra).

6. The learned Single Judge in view of the conflicting views expressed by two Single Benches of this Court, referred the matter to Larger Bench, in this case the Division Bench,