(Pronounced on 22/04/2021)

Per: Mohammad 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 vs. State of M.P. reported in 2016(1) MPJR 108 and in Smt. Sunita

Gandharva vs. 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 23.07.2020 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

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withdrawn vide order dated 10.12.2019 with liberty to him to file afresh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 Cr.P.C. for grant of bail which was

rejected by the Special Judge, Atrocities Act, Seoni vide order dated

23.07.2020. 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No.10267/2019, which was dismissed as withdrawn vide order dated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

Cr.P.C. before this Court rather than filing appeal. It was argued that when the

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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 Cr.P.C. 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 mat