The court held that anticipatory bail can be considered even in the presence of statutory bars if the allegations appear fabricated or misconceived.

1. Heard Mr V. P. Srivastava, learned Senior Counsel assisted by Mr Arun Kumar Tripathi, learned counsel for the applicant, learned Additional Government Advocate for the State of U.P. and perused the record. Learned counsel for the informant is also present.

2. This Criminal Misc. Anticipatory Bail Application has been filed seeking anticipatory bail in Case Crime No. 0139 of 2023, under S.354,376 IPC and S.7/8 of POCSO Act and S.3(2)(Va) of SC / ST Act, P.S. Jafarabad, District Jaunpur, during the pendency of present application.

3. A preliminary objection has been raised by learned A.G.A. as well as learned counsel for the informant with regard to the maintainability of the instant application under S.438 Cr.P.C. by virtue of bar contained under S.18 and S.18A of the S.C. / S.T. Act and S.438(6) Cr.P.C. as it is applicable in the State of U.P. contending anticipatory bail application moved by applicant is not maintainable by virtue of bar contained under S.438 (6) Cr.P.C.

4. In reply to the above contention, it is submitted by learned senior counsel for the applicant that comparative analysis of the objects, scheme and scope of Protection of Children from Sexual Offences Act , 2012 and SC / ST Act, 1989 shows that, in any case, involving both the offences punishable under the protection of Child from Sexual Offences Act, 2012 and SC / ST Act, the procedure laid down under the provisions of Protection of Child from Sexual Offences Act, 2012 shall be applicable. Hence, it is submitted that the instant anticipatory bail application under S.438 Cr.P.C. is maintainable.

5. Learned counsel for the applicant has also drawn the attention of this Court towards the judgement of Hon'ble Supreme Court passed in Prithvi Raj Chauhan Vs. Union of India and others ; 2020 (4) SCC 727 and vehemently submitted that though a bar has been created by virtue of S.18 and S.18A of the SC / ST Act and S.438(6) Cr.P.C. pertaining to the anticipatory bail of an accused person seeking anticipatory bail pertaining to the offences provided in SC / ST Act, however, in the above judgment passed by the Supreme Court, it has been categorically laid down that if the allegations in the F.I.R. are prima facie appearing to be misconceived and not appearing truthful and the case appears to have been lodged only for the purpose of harassment with malafide and prima facie the provisions of S.C. / S.T. act are not attracting, in that case the jurisdiction of anticipatory bail is not barred for an accused person, who is charged with offences pertaining to SC / ST Act.

6. Further, in the case of Rinku Vs State of UP , Criminal Misc Bail Application No. 17348 of 2018, it has been held by co - ordinate Bench of this Court that the provision of the POCSO Act will prevail over the SC / ST Act and whenever an offence under the POCSO Act is alleged, along with the provisions of SC / ST Act, the accused is entitled to take recourse of the procedure contemplated under the POCSO Act for bail. I am in complete agreement with the concurrent view expressed by the co - ordinate Bench of this Court.

7. Further, Supreme Court of India in the case of Sharat Babu Digumarti Versus Govt. of NCT of Delhi , 2017 (1) PLJR (SC) 382 has held that where there are two special statutes which contain non obstante clauses the later statute must prevail because at the time of enactment of the later statute, the Legislature was aware of the earlier legislation and it's non obstante clause and the Legislature still confers the later enactment with a non obstante clause, means that the Legislature wanted that the later enactment to prevail. If the Legislature does not