ORDER

The petitioner/accused has filed this petition under Section 439 of Cr.P.C. for enlarging him on bail in Rampura Police Station Cr.No.129/2023 of Molakalmuru Circle in Chitradurga District, registered for the offence punishable under Section 376 of IPC and Sections 4 & 6 of the Protection of Children from Sexual Offences Act (for short ‘POCSO Act’) and Section 3(1)(w)(i)(ii), 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘SC & ST’ Act’).

2. The brief factual matrix leading to the case are that, the complaint was filed by one Smt. Huligemma on 21.09.2023 at 8.30 p.m., which is registered in Cr.No.129/2023 for the offence under Section 363 of IPC against unknown persons. The allegations made initially in the complaint were that, the minor daughter was found missing. However, subsequently on the basis of call records, it is noticed that the petitioner/accused has kidnapped the victim girl from Rampura under the guise of love and then took her to Challakere and from there to Chitradurga and in Challakere, while they were staying in the house of CW14 & CW18, under the guise of marriage, the petitioner has committed forcible penetrative sexual assault on the victim/CW8 and later on, the victim was traced and her statement came to be recorded. It is also alleged that on 24.09.2023, when the petitioner and victim got knowledge regarding the missing complaint being filed, the victim was brought to Rampura Police Station and she has given a statement. On the basis of her statement, the offence under Section 376 of IPC, Sections 4, 6, 17 of the POCSO Act and under Sections 3(1)(w)(i)(ii), 3(2)(va) & 3(2)(v) of the SC & ST Act were incorporated. The petitioner was arrested and was remanded to judicial custody.

3. The petitioner has approached the learned Special Judge seeking regular bail and his bail petition came to be rejected. Initially, he has filed criminal appeal under Section 14(A) of the SC & ST Act. But subsequently, in view of the order of this Court, in Crl.P.No.7421/2023, the said petition came to be withdrawn and this petition under Section 439 of Cr.P.C. was filed seeking the relief of regular bail. 4. The learned Special Public Prosecutor has seriously objected the bail petition on the ground that, in view of Section 14A of the SC & ST Act, an appeal is required to be filed and petition is not maintainable. He would also contend that, in view of the notification issued by Government of India, the SC/ST Court is also designated Court under the POCSO Act and the said notification was issued under Section 28 of the POCSO Act and hence, he would contend that the petition itself is not maintainable. In view of contrary view taken by Co-ordinate Bench in Crl.P.No.7421/2023, he sought for reference of matter to larger bench.

5. Considering this legal issue regarding maintainability of the petition, the learned counsel Sri. P. Prasanna Kumar is appointed as Amicus Curiae to assist the court in this regard.

6. Heard the arguments advanced by the learned counsel for the petitioner and the learned HCGP for the Respondent-State on merits and also heard the learned Amicus Curiae and the learned Special Public Prosecutor on maintainability of the this petition. Perused the records.

7. Having heard the arguments and perusing the records, now the following points would arise for my consideration:

(i) When the prosecution is under provisions of the Schedule Castes and the Schedule Tribes (Prevention of Atrocities) Act, 1989 and the Protection of Children from Sexual Offences Act, 2012, whether the appeal under Section 14A of the SC & ST Act is required to be filed or whether the petition under Section 439 of Cr.P.C., is maintainable?

(ii) Whether the petitioner is entitled for bail as prayed for? Point No.(i)

8. The petitioner is prosecuted for the offence punishable under Section 376 of IPC as well as under Sections 4 & 6 of the POCSO Act and also under Sections 3(1)(w)(i)(ii) and 3(2)(