The Bombay High Court, while granting bail to a 21-year-old Pune resident accused of raping a minor girl from the Scheduled Castes community, held on Friday that in a case where the accused has been booked under both Protection of Children from Sexual Offences (POCSO) Act and Scheduled Castes and Scheduled Tribes ( Prevention of Atrocities) Act, POCSO will have overriding effect and the offences can be tried and bail pleas decided only by the special POCSO Court.
Moreover, the court said that in case a special POSCO court passes an order refusing bail to the accused booked under both the laws, application under Section 439 of the CrPC, which gives HC special powers to grant bail, would alone be maintainable before the HC and the accused was not required to file an appeal under the SC/ST Act.
“In a case where the child subjected to abuse happened to be belonging to Scheduled Caste and Scheduled Tribe, it would not take away the powers of the special court to try the offences under POCSO Act, a special enactment, and in case of any inconsistency, its provisions shall have overriding effect on the provisions of any such laws,” the HC said.
Justice Bharati Dangre was hearing a bail plea filed by a man accused of raping a 15-year-old girl in Pune last November. The applicant argued that he was 21 years old at the time of incident, was in a friendly relationship with the victim, had not forced himself upon her and that he was aware that she belonged to the SC community.
Additional Public Prosecutor S V Gavand, appearing for the Pune Police, opposed the bail plea on the ground that as the accused has been charged under both Acts, bail application under Section 439 of CrPC was not maintainable.
The applicant was required to file an appeal under Section 14 A of the SC/ST Act, Gavand argued.
However, Justice Dangre said the bail plea was maintainable. Granting relief to the accused, the court said that the applicant should not tamper with evidence and make himself available for trial. “Perusal of the material in the charge-sheet does not prima facie attract provisions of SC/ST Act,” it observed.
After advocate Abhijeet A Desai, appearing for the accused, assured the court that the applicant would not enter Pune city till the conclusion of the trial and cooperate with the investigation, the HC granted him bail on furnishing a personal bond of Rs 25,000 and report to the local police station once in a month.
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