In view of the foregoing discussions, especially, taking into consideration the decisions rendered in the case of Sarwan Singh (supra) and Ranjeet Kumar Sinha (supra) this Court is of the view that while harmoniously construing the provisions of two legislations, it is to be presumed that the legislature has enacted the later enactments with knowledge of the provision of the former legislation, and therefore a non-obstante clause in subsequent legislation, may be regarded as overriding in effect. The SC/ST Act was enacted in the year 1989, whereas the POCSO Act, being enacted in the year 2012. Section 42-A has given the POCSO Act, overriding effect over the provisions of any other law to the extent of inconsistency. It clearly indicates the intention of legislature to give overriding effect of POCSO Act over the SC/ST Act. So far the amendment in SC/ST Act is concerned, it having no clause for overriding effect vis-à-vis laws operating at that time. Therefore, the overriding effect as contemplated under Section 42-A of the POCSO Act, shall prevail over the SC/ST Act.
Therefore, in the considered opinion of this Court where any prosecution is brought for offences under both Acts i.e. POCSO Act and the SC/ST Act, the Special Court constituted under POCSO Act, alone would have jurisdiction in the matter at precognizance stage and post cognizance stage including trial, provided the accused may be charged at the same trial under the Code of Criminal Procedure, 1973.
29. Now, this Court thinks it appropriate to clarify one more aspect of the matter that the jurisdiction of the Special Court under the POCSO Act at pre-cognizance and post-cognizance stage including trial of the offences, under both statutes as referred above, would invest ipso-facto that court power to hear bail application of the accused. For answering the second issue that an order of the Special Court POCSO rejecting the bail of an accused who also being prosecuted under SC/ST Act would be appealable under Section 14-A(2) of the SC/ST Act, or the accused would have a right to apply further for bail under Section 439 of the Cr.P.C. before the High Court, at this juncture this Court would take note of Section 31 of the POCSO Act, which contemplates that the provisions of the Code of Criminal Procedure, 1973, including the provisions of bail and bonds shall apply to the proceeding before a Special Court and for the purpose of the said provision the Special Court shall be deemed to be a Court of Session. Under Section 31 of the POCSO Act, there is. fiction that the Special Court for the purpose of its proceedings shall be deemed to be a Court of Session. Therefore, the Special Court under POCSO Act would exercise power to grant or refuse bail under Section 439 of the Cr. P.C. There is no fiction under the SC/ST Act or POCSO Act that the Special Court constituted under POCSO Act, while considering the application for bail in a case where one of the offences charged was under the SC/ST Act, would be deemed to be a Special Court constituted under the SC/ST Act, for the limited purpose of granting or refusing the plea of bail. Furthermore, in view of Section 14-A(2) of the SC/ST Act, an appeal shall lie to the High Court only against an order of the Special Court constituted under the Act, granting or refusing bail, not against the order granting or refusing bail by the Special Court constituted under the POCSO Act.
30. In view of the forgoing discussions and observations, in the opinion of this Court, where an order granting or refusing bail to an accused being passed by the Special Court constituted under POCSO Act, in connection with a case involving offences under both Acts i.e. POCSO Act and SC/ST Act, the same would not be appealable under Section 14A(2) of the SC/ST Act. In such circumstances the application for bail in terms of Section 439 of the Cr.P.C. would alone be maintainable before the High Court.
Cr. Misc. No. 52792 of 2019
Decided On: 07.11.2019
Guddu Kumar Yadav Vs. The State of Bihar
Hon'ble Judges/Coram:
Sudhir Singh, J.
1. This application has been filed for grant of bail to the petitioner, who is an accused in Raniganj Police Station Case No. 89 of 2019, registered initially under Sections 363, 365 and 366(A) of the Indian Penal Code. Later on, Sections 302, 201 and 376 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, and Sections 3(2)(va) of the SC and the ST (Prevention of Atrocities) Act, 1989, having been also added in the First Information Report.
2. The learned counsel for the petitioner Mr. Vivekanand Singh submitted that after institution of the said F.I.R., the police made investigation of the case and submitted Police Report/Charge Sheet on 29.5.2019, under Sections 302, 201 and 376 of the Indian Penal Code and Section 4 of the POCSO Act, 2012, and Sections 3(2)(va) of the SC and ST (Prevention of Atrocities) Act, 1989, before the 1st Addl. Sessions Judge-cum-Spl, Judge (POCSO), Araria. Whereupon, the Spl. Court (POCSO) took cognizance of all the offences as being referred under the Police Report dated 29.5.2019. Thereafter, the matter is pending before the said court for further proceedings. The petitioner is under judicial custody of the Special Court, (POCSO), Araria.
3. It appears from the records of this case that on the basis of said Raniganj Police Station Case No. 89 of 2019, corresponding Spl. (POCSO) Case No. 11 of 2019 being instituted before the 1st Additional Sessions-cum-Special Judge (POCSO), Araria. The petitioner moved for grant of bail in Spl. (POCSO) Case No. 11 of 2019, which being rejected vide order dated 8.5.2019, passed by the 1st Additional Sessions-cum-Special Judge, Araria. Thereupon, the petitioner has moved before this Court for grant of bail in connection with the said case, filing the instant application.
4. In course of stamp reporting, the office pointed out the defect as under:-
"As per offence u/s. of SC/ST Act, this petition may perhaps be converted into Cr. Appeal (S.J.)"
The learned counsel for the petitioner made an application before the Registrar (List), for ignoring the said defect pointed out by the Stamp Reporter, stating the reasons therein that on the basis of the First Information Report bearing Raniganj Police Station Case No. 89 of 2019, corresponding Spl. (POCSO) Case No. 11 of 2019 being instituted and pending before the Spl. Judge (POCSO) Araria and the prayer for bail made on behalf of the petitioner being refused by the 1st Additional Sessions-cum-Spl. Judge, Araria, and further indicating that the order of rejection of bail of the petitioner dated 8.5.2019, in connection with Spl. (POCSO) Case No. 11 of 2019, having not been passed by the Special Court constituted under SC/ST Act, therefore, appeal as provided under Section 14-A of the SC and the ST (Prevention of Atrocities) Act, would not be maintainable.
5. Thereupon, this matter has come up before this Court for consideration of the validity of the objection as referred above, made by the Stamp Reporter.
6. The prosecution case, in brief, is that the informant named Subodh Rishidev made a written statement to the officer-in-charge of Raniganj Police Station, Araria, stating therein that his daughter namely Chandani Kumari, aged about 17 years, had gone in the evening of 21.2.2019, for cutting grass but did not return back to home. Thereafter, the informant with the help of villagers tried to find out but could not get any trace of her daughter. Accordingly, the First Information Report numbered as Raniganj Police Station Case No. 89 of 2019 came to be registered on 27.2.2019, for the offences under Sections 363, 365 and 366 (A) of the Indian Penal Code against unknown miscreants. It appears from the First Information Report (Annexure-1 to the petition) that subsequently Sections 302, 201 and 376 of the Indian Penal Code and Section 4 of the POCSO Act and Section 3(2)(va) of the SC and, the ST (Prohibition of Atrocities) Act, being also added in the First Information Report..
7. It appears from the record that the matter i.e. Spl. (POCSO) Case No. 11 of 2019 (arising out of Raniganj P.S. Case No. 89/19) is pending before the 1st Additional Sessions-cum-Special Judge, Araria, who vide his order dated 8.5.2019, refused the prayer of bail made on behalf of the petitioner in the said case, which being instituted for offences under two Special Acts, i.e. the Protection of Children from Sexual Offences Act, 2012 and the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, besides various Sections of the Indian Penal Code.
8. As it prima facie appears from the facts of the case as referred above, that an offence under Section 4 of the POCSO Act, 2012, was committed against a child, who being a member of Scheduled Caste thus, prosecution being brought under both Acts i.e. POCSO Act and SC/ST Act, apart the relevant sections of the Indian Penal Code. In the given circumstance, the issues arise for consideration of this Court, at this stage, are as under:-
(i) Whether, a case, which being instituted under penal provisions of two Special Acts as referred above, should be tried by the Special Court constituted under SC/ST Act or by the Special Court constituted under POCSO Act.
(ii) Whether, an order of rejection of bail to an accused by the Special Court, POCSO Act, in a case instituted for committing offences under the POCSO Act, and the SC/ST Act, is amenable to appeal in terms of the Section 14A (2) of SC/ST Act.
9. Mr. Prashant Kumar, Learned Amicus Curiae addressed the Court on the question of law involved herein. He has submitted that as to determine, the source of power to grant bail in a case where offences under both Acts, i.e. SC/ST Act, and POCSO Act, are involved, this Court should decide first that whichever Special Court having competent jurisdiction to try such case. He further, submitted that there are instances, where the Hon'ble Supreme Court of India having occasion to decide the issue relating to conflict of Jurisdiction between two Special Acts operating in the same field, both carrying non-obstante clause. He placed his reliance upon several decisions of the Hon'ble Supreme Court of India, which are referred hereinafter.
10. The Hon'ble Supreme Court of India in the case of Sharat Babu Digumarti vs. Govt. of NCT of Delhi, MANU/SC/1592/2016 : 2017(1) PLJR (SC)382 noticing the earlier judgments, held thus:-
31. In Solidaire India. Ltd. vs. Fairgrowth Financial Services Ltd., this Court while dealing with two special statutes, namely, Section 13 of Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 and Section 32 of Sick Industrial Companies (Special Provisions) Act, 1985, observed as follows:-
"Where there are two special statutes which contain non obstante clauses the later statute must prevail: This is because at the time of enactment of the later statute, the Legislature was aware of the earlier legislation and it's non obstante clause. If the Legislature still confers the later enactment with a non obstante clause it means that the Legislature wanted that enactment to prevail. If the Legislature does not want the later enactment to prevail then it could and would provide in the later enactment that the provisions of the earlier enactment continue to apply."
32. The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of the IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission is covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC."
11. In the case of Sarwan Singh vs. Kasturi Lal reported in MANU/SC/0071/1976 : AIR 1977 SC 265, the Hon'ble Apex Court held as under:-
"20. Speaking generally; the object and purpose of a legislation assume greater relevance if the language of the law is obscure and ambiguous. But, it must be stated that we have referred to the object of the provisions newly introduced into the Delhi Rent Act in 1975 not for seeking light from it for resolving in ambiguity, for there is none, but for a different purpose altogether. When two or more laws operate in the same field and each contains a non obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has no conventional protocol, case of such conflict have to be decided in reference to the object and purpose of the laws under consideration. A piquant situation, like the one before us, arose in Shri Ram Narain v. Simla Banking & Industrial Co. Ltd., MANU/SC/0003/1956 : 1956 SCR 603 : (AIR 1956 SC 614) the competing statutes being the Banking Companies Act, 1949 as amended by Act 52 of 1953, and the Displaced Persons (Debts Adjustment) Act, 1951. Section 45A of the Banking Companies Act, which was introduced by the amending Act of 1953, and Section 3 of the Displaced Persons Act 1951 contained such a non-obstante clause, providing that certain provisions would have effect "notwithstanding anything inconsistent therewith contained in any other law for the time being in force.........." This Court resolved the conflict by considering the object and purpose of the two laws and giving. precedence to the Banking Companies Act by observing: "It is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein." (p. 615) As indicated by us, the special and specific purpose which motivated the enactment of Section 14A and Chapter IIIA of the Delhi Rent Act would be wholly frustrated if the provisions of the Slum Clearance Act requiring permission of the competent authority were to prevail over them. Therefore, the newly introduced provisions of the Delhi Rent Act must hold the field and be given full effect despite anything to the contrary contained in the Slum Clearance Act.
21. For resolving such inter-se conflicts, one other test may also be applied though the persuasive force of such a test is but one of the factors which combine to give a fair meaning to the language of the law. That test is that the later enactment must prevail over the earlier one. Section 14A and Chapter IIIA having been enacted with effect from December 1, 1975 are later enactments in reference to Section 19 of the Slum Clearance Act which, in its present form, was placed on the stature book with effect from February 28, 1965 and in reference to Section 39 of the same Act, which came into force in 1956 when the Act itself was passed. The legislature gave overriding effect to Section 14A and Chapter IIIA with the knowledge that Sections 19 and 39 of the Slum Clearance Act contained non obstante clauses of equal efficacy. Therefore the later enactment must prevail over the former. The same test was mentioned with approval by this Court in Shri Ram Narain's case at page 615."
12. In the case of Ashoka Marketing Ltd. and Another vs. Punjab National and Others, MANU/SC/0198/1991 : (1990)4 SCC 406, the Hon'ble Supreme Court of India observed as under:-
"58. Similarly in 'Kumaon Motor Owners' Union Ltd. v. State of Uttar Pradesh, there was conflict between the provisions contained in Rule 131(2) (gg) and (i) of the Defence of India Rules, 1962 and Chapter IV-A of the Motor Vehicles Act, 1939. Section 68-B gave overriding effect to the provisions of Chapter IV-A of the Motor Vehicles Act whereas Section 43 of the Defence of India Act, 1962, gave overriding effect to the provisions contained in the Defence of India Rules. This Court held that the Defence of India Act was later than the Motor Vehicles Act and, therefore, if there was anything repugnant, the provisions of the later Act should prevail. This Court also looked into object behind the two statutes, namely, Defence of India Act and Motor Vehicles Act and on that basis also it was held that the provisions contained in the Defence of India Rules would have an overriding effect over the provisions of the Motor Vehicles Act.
61. The principle which emerges from these decisions is that in the case of inconsistency between the provisions of two enactments, both of which can be regarded as, special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein. We propose to consider this matter in the light of this principle."
13. The Hon'ble Supreme Court of India in the case of Union of India vs. Ranjeet Kumar Sinha and Another, MANU/SC/0892/2019 : (2019)7 SCC 505, held as under:-
"18. The courts, as a rule, lean against implying repeal unless the two provisions are so plainly repugnant to each other that they cannot stand together and it is not possible on any reasonable hypothesis to give effect to both at the same time. If the objects of the two statutory provisions are different and the language of each statute is restricted to its own objects or subject, then they are generally intended to run in parallel lines without meeting and there would be no real conflict though apparently it may appear to be so on the surface. Statutes in pari materia although in apparent conflict, should also, so far as reasonably possible, be construed to be in harmony with each other and it is only when there is an Irreconcilable conflict between the new provision and the prior statute relating to the same subject-matter, that the former, being the later expression of the legislature, may be held to prevail, the prior law yielding to the extent of the conflict.
19. Consolidation and amendment of laws relating to the prevention of corruption is the object of the PC Act whereas consolidation of laws relating to the governance of Assam Rifles for ensuring the security of the borders of India, to carry out the counter-insurgency operations in the specified areas, etc., is the object of the 2006 Act. Since the objects of the two statutes, are different and as the applicability of the 2006 Act is restricted to the members of the Assam Rifles, following the aforementioned principles on the presumption against implied repeal, Section 4, of the PC Act and Section 55 of the 2006 Act which are in apparent conflict can be harmoniously construed. This is on the basis that there is no real conflict between the provisions of the two statutes and they can run in parallel lines.
20. It is also pertinent to refer to the following extract from Sutherland's Statutes and Statutory Construction:- (Ram Chandra Marwa Lal Case, SCC p. 59, Para-48)
"48..'A general statute applies to all persons and localities within its jurisdictional scope, prescribing the governing law upon the subject it encompasses, unless a special statute exists to treat a refinement of the subject with particularly or to prescribe a different law for a particular locality. Likewise, where a later statute adapted for a particular locality conflicts with a general law of State-wide application, the special or local law will supersede the general enactment. Where, however, the later special or local statute is not irreconcilable with the general statute to the degree that both statutes cannot have a coterminous operation, the general statute will not be repealed, but the special or local statute will exist as an exception to its terms."
14. The Learned Amicus Curiae further placed his reliance upon the decisions of the Madras High Court, rendered in the case of Registrar (Judicial) vs. Krishnnaswami Naidu & Anr., wherein considering the same issue the court held as follows:-
"43. Yet another question has also been included in this reference, namely, when offences under the POCSO Act have been committed against a child belonging to either a Scheduled Caste or Scheduled Tribe, which Court is competent to remand the accused and to try the offender. In other words, whether it is the Special Court under the POCSO Act or the exclusive Special Court or the Special Court under the SC & ST Act which has the power to remand the accused during investigation, to take cognizance of the offences on a police report or on a private complaint and also to try the offender."
Cases under both POCSO Act and SC & ST Act:-
56. If the act of the accused is an offence under the POCSO Act and also an offence under the SC & ST Act, the Special Court under the POCSO Act alone shall have jurisdiction to exercise all the powers including the power to remand the accused under Section 167 of the Code, to take cognizance of the offences either on a police report or on a private complaint and to try the offender. The said Special Court shall have jurisdiction to grant all the reliefs to the victim for which the victim is entitled to under the SC & ST Act."
15. He also submitted that while dealing with the identical issues the Allahabad High Court in the case of Rinku vs. State of U.P., (Cr. Miscellaneous Bail Application No. 33075 of 2018) observed as follows:-
"7. Now, in this application, since offences under the SC/ST Act and the POCSO Act are both charged against the applicant, as they are in all matters connected to this application, where there is a competing regime of Special Courts under the two Acts, claiming exclusivity of jurisdiction under both Acts, not only in the matter of their right to try offences under the respective Acts, but also to determine bail pleas in relation to offences under the two statutes, the issue that has generally arisen is as to which of the two Special Courts, that is to say, the Special Court or the Exclusive Special Court established or notified under the SC/ST Act, or the Special Court designated under the POCSO Act would have jurisdiction to determine the bail plea of the applicant in the first instance. A further issue that has arisen is that assuming that the Special Court under the POCSO Act, would have jurisdiction to determine the bail plea in the present crime, where offences under the SC/ST Act are also charged, whether the finality attached to the order of a Special Court under the SC/ST Act, granting or refusing bail, by virtue of Section 14-A(2) thereof, would also attach to the order of Special Court under the POCSO Act. The following questions based on the facts and issues above detailed, therefore, are required to be determined:
(i) Whether the Special Court under the POCSO Act would have jurisdiction, to the exclusion of the Special Court under the SC/ST Act, to hear and determine the bail plea of an accused against whom offences, both under the POCSO Act and the SC/ST Act are charged, arising out of the same crime?
(ii) Whether an order declining bail to an accused passed by the Special Court, POCSO Act, in a crime where he is charged of committing offences, both under the POCSO Act and the SC/ST Act, is final and appealable under Section 14-A(2) of the SC/ST Act?
62. In view of what has been said above, the questions as set out in paragraph 7 (supra), are answered thus:
(A) Question No. (i) stands answered in the affirmative in terms that where in a case, offences both under the POCSO Act and SC/ST Act are charged arising out of the same crime, that under the Code may be tried at the same trial, the Special Court, POCSO Act, would have jurisdiction to determine the bail plea of an accused to the exclusion of the Special Court, SC/ST Act;
(B) Question No. (ii) stands answered in the negative in terms that where an order declining bail to an accused is passed by the Special Court, POCSO Act, in a crime involving offences, both under the POCSO Act and the SC/ST Act, that order would not be final, and appealable under Section 14A(2) of the SC/ST Act; an application under Section 439 of the Code would alone be maintainable before the High Court."
16. In view of the aforesaid submissions and various judgments of the Hon'ble Supreme Court of India and the other High Courts as referred above, before determining the issues involved herein, it would be. worthwhile to take notice of the relevant provisions of the POCSO Act, 2012, which are quoted hereunder:-
"Section 2. (1) (I) "Special Court" means a court designated as such under section 28;
Section 28. Designation of Special Courts:--(1) For the purposes of providing speedy trial, the State Government shall in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, designate for each district, a Court of Session to be a Special Court to try the offences under the Act:
Provided that if a Court of Session is notified as a children's Court under the Commissions for Protection of Child Rights Act 2005 (4 of 2006), or a Special Court designated for similar purposes under any other law for the time being in force, then, such Court shall be deemed to be a Special Court under this section.
(2) While trying an offence under this Act a Special Court shall also try an offence (other than the offence referred to in sub-section (1), with which the accused may, under the Code of Criminal Procedure 1973 (2 of 1974), be charged at the same trial.
(3) The Special Court constituted under this Act, notwithstanding anything in the Information Technology Act, 2000 (21 of 2000) shall have jurisdiction to try offences under section 67-B of that Act in so far as it relates to publication or transmission of sexually explicit material depicting children in any Act, or conduct or manner or facilitates abuse of children online."
Section 31. Application of Code of Criminal Procedure, 1973, to proceedings. before a Special Court-Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 to 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.
Section 33. Procedure and powers of Special Court.-(1) A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts.
(2) The Special Public Prosecutor, or as the case may be, the counsel appearing for the accused shall, while recording the examination-in-chief, cross-examination or re-examination of the child, communicate the questions to be put to the child to the Special Court which shall in turn put those questions to the child.
(3) The Special Court may, if it considers necessary, permit frequent breaks for the child during the trial.
(4) The Special Court shall create a child-friendly atmosphere by allowing a family member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present in the Court.
(5) The Special Court shall ensure that the child is not called repeatedly to testify in the Court.
(6) The Special Court shall not permit aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times during the trial.
(7) The Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial:
Provided that for reasons to be recorded in writing, the Special Court may permit such disclosure, if in its opinion such disclosure is in the interest of the child.
Explanation:-For the purposes of this sub-section, the identity of the child shall include the identity of the child's family, school relatives, neighborhood or any other information by which the identity of the child may be revealed.
(8) In appropriate cases the Special Court may, in addition to the punishment, direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child.
(9) Subject to the provisions of this Act, a Special Court shall, for the purpose of the trial of any offence under this Act, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session, and as far as may be, in accordance with the procedure specified in the Code of Criminal Procedure; 1973 (2 of 1974) for trial before a Court of Session."
Section 42-A. Act not in derogation of any other law.-The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency."
17. It is apt to quote the relevant provisions of the SC & ST (Prevention of Atrocities) Act, 1989, hereunder:-
Section 2. Definitions:-(1) In this Act, unless the context otherwise requires,-
(bd) "Exclusive Special Court" means the Exclusive Special Court established under sub-section (1) of section 14 exclusively to try the offences under this Act;
(d) "Special Court" means a Court of Sessions specified as a Special Court in section 14;
(f) the words and expressions used but not defined in this Act and defined in the Indian Penal Code (45 of 1860), the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973, (2 of 1974) as the case may be; shall be deemed to have the meanings respectively assigned to them in those enactments.
Section 14. Special Court and Exclusive Special Court.-(1) For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, establish an Exclusive Special Court for one or more Districts:
Provided that in Districts where less number of cases under this Act is recorded, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for such Districts, the Court of Session to be a Special Court to try the offences under this Act:
Provided further that the Courts so established or specified shall have power to directly take cognizance of offences under this Act.
(2) It shall be the duty of the State Government to establish adequate number of Courts to ensure that cases under this Act are disposed of within a period of two months, as far as possible.
(3) In every trial in the Special Court or the Exclusive Special Court, the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Special Court or the Exclusive Special Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded in writing:
Provided that when the trial relates to an offence under this Act, the trial shall, as far as possible, be completed within a period of two months from the date of filing of the charge sheet.
14-A. Appeals-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an appeal shall lie, from any judgment, sentence or order, not being an interlocutory order, of a Special Court or an Exclusive Special Court, to the High Court both on facts and on law.
(2) Notwithstanding anything contained in sub-section (3) of section 378 of the Code of Criminal Procedure 1973 (2 of 1974), an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail.
(3) Notwithstanding anything contained in any other law for the time being in force, every appeal under this section shall be preferred within a period of ninety days from the date of the judgment, sentence or order appealed from:
Provided that the High Court may entertain an appeal after the expiry of the said period of ninety days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of ninety days:
Provided further that no appeal shall be entertained after the expiry of the period of one hundred and eighty days.
(4) Every appeal preferred under sub-section (1) shall, as far as possible be disposed within a period of three months from the date of admission in the appeal.
Section 20. Act to override other laws.-Save as otherwise provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law.
18. Now the Court would proceed to consider the direct conflict between Section 20 of the SC/ST Act, and Section 42 A of the POCSO Act, as both the provisions having overriding effects. Dealing with an issue identical to the case on hand, the Apex Court, in the case of Sarwan Singh (supra) held that cases of such conflict have to be decided in reference to the object and purpose of the laws under consideration. For, resolving such inter-se conflict, another test is that the later enactment must prevail over earlier one. Therefore, to resolve the issue, this Court would like to examine the object and purpose of the both enactments and further the point of time of such enactments.
19. It would be apparent form the statement of Objects and Reasons of SC/ST Act, that it was enacted with a view to prevent the commission of offences of atrocities against the members of the Scheduled Caste and the Scheduled Tribes by persons other than SC/ST and to establish Special Courts for the trial of such offences and to provide relief and rehabilitation to the victims of such offences.
Now coming to the statements of Objects and Reasons described in the statute book of POCSO Act, which indicate that it was enacted towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation. It is a self-contained comprehensive legislation inter-alia to provide protection of children from the offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process, incorporating child-friendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment of Special Courts for speedy trial of such offences. Apart the above mentioned, abatement of such offence is also punishable under Section 17 of the POCSO Act, and Section 18 of the said Act, makes an attempt to commit an offence also punishable under the said Act.
20. Under the POCSO Act, notwithstanding anything contained in the Cr.P.C., there is a separate procedure for reporting of cases and a protocol for media, it contemplates a Special Procedure for recording of statement of child i.e. below 18 years of age. There is another safeguard that at the time of testifying, the victim is not exposed in any way to the accused and for that purpose statement may be recorded through video-conferencing or curtains or any other device. It is worthwhile to notice that the Special Court constituted under the POCSO Act, has been invested with power to pass an order for interim compensation to meet the immediate needs of the child for relief or rehabilitation at any stage after lodging the F.I.R., and also to recommend the award of compensation to be paid by the State Government within thirty days of receipt of such order. The Special Court can recommend the award of the compensation even in case of acquittal or discharge or accused being not traced or identified, if in the opinion of the Special Court the child has suffered loss or injury as a result of that offence.
21. After comparative analysis of the object, scheme and scope of the both Special Acts, i.e. POCSO Act and SC/ST Act, I, nowhere find such Special Provisions or procedure under the SC/ST Act for reporting of cases, recording of statements of the victim child, safeguard provided at the time of testifying the victim child and such a broad scheme of compensation and rehabilitation for child victim and the power invested to the Special Court as to grant interim compensation or compensations notwithstanding the result of the prosecution, as being contemplated under the POCSO Act.
In the SC/ST Act, no special procedure being contemplated for trial of the offences. The Special Court constituted under the SC/ST Act, shall follow almost procedure contemplated under the Cr.P.C. for trial of Session Cases. In the said Act there being no separate provision for investigation of the offences relating to child victims belonging to that section of the society.
22. Therefore, this Court is of the opinion that the POCSO Act takes within its fold the protection of children of all sections of the society including those belonging to SC/ST. The POCSO Act, being later legislation than the SC/ST Act, and a self-contained legislation having number of safeguards to the children at every stage of proceeding with the better scheme of compensation and rehabilitation for child victims including those belonging to SC/ST.
23. There is no dispute that the Special Court to be constituted under the both Acts as referred above are Court of Session and the courts so established or specified shall have the power to directly take cognizance of the offences under the respective Acts.
Section 14 of the SC/ST Act talks about the establishment of special court and exclusive special court for the purpose of providing speedy trial of the offences under the said Act. Nowhere, it provides that while trying the offences under the said Act the Special Court having jurisdiction to try an offence other than the offences of SC/ST Act. On the contrary, Section 28 of the POCSO Act, which talks about the designation of a Court of Session to be a Special Court to try the offences under the said Act, further explicitly provides under sub-section (2) of Section 28 that the Special Court designated under Section 28 of the POCSO Act, while trying an offence under the said Act, shall also try an offence other than the offences referred to in sub-section (1), with which the accused may under the Code of Criminal Procedure, 1973, be charged at the same trial.
24. Now this Court would proceed to determine the issue that the case, which being registered for the offences under two special Acts, i.e. SC/ST Act and POCSO Act, should be tried by Special Court constituted under POCSO Act, especially, taking into consideration sub-section (2) of Section 28 which contemplates that a Special Court while trying an offence under the said Act having jurisdiction to try an offence other than the offence referred to in sub-section (1) of Section 28 of the POCSO Act, with which the accused may under the Code of Criminal Procedure be charged at the same trial.
25. At this juncture, this Court would gainfully refer and discuss Section 218 and Section 220 (1) of the Code of Criminal Procedure which read as under:-
"218.- Separate charges for distinct offences.-(1) For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately:
Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby, the Magistrate may try together all or any number of the charges framed against such person.
(2) Nothing in sub-section (1) shall affect the operation of the provisions of Sections 219, 220, 221 and 223.
220. Trial for more than one offence.
(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence."
26. From bare reading of Section 218 of the Cr. P.C., itself appears that this section requires a separate charge to be framed for every distinct offence. It nowhere says 'for every offence' or 'for each offence'. A distinct offence may be distinguished taking into consideration difference in time of their occurrence, or place being different, or victims of crimes being different etc. In the case of Banwarilal Jhunjhunwala vs. Union of India MANU/SC/0159/1962 : AIR 1963 SC 1620 the Hon'ble Supreme Court of India has held that 'distinct offence' must have different content from the expression 'every offence' or 'each offence'. Separate charge is required for every distinct offence and not necessarily for 'every' or 'each' offence. Two offences are distinct if they are non-identical and are not in any way interrelated.
Section 220 (1) of the Cr.P.C. also envisages an exception to the basic rule regarding Joinder of Charges. It is an enabling provision which allows the court to try more than one offence in one trial, if such offences are committed in course of the same transaction. The expression 'same transaction' is not defined anywhere in Cr.P.C. But where there is proximity of time or place or unity of purpose and design or continuity of action in respect of series of acts, it may be inferred that they form part of same transaction, though not necessary that everyone of these elements should co-exist for a transaction to be regarded as the same transaction.
27. In the present case, time, place of occurrence as well as the victim is the same and the offence under both Acts are not only interrelated rather they are in one series of acts, so connected together as to from the same transaction and being committed by the same person, therefore, accused of such offences may be charged separately in one trial. In view of the aforesaid discussions the Special Court constituted under the POCSO Act can also try an offence under the SC/ST Act, provided that it may not be a distinct offence rather such offence being committed in course of same transaction.
28. In view of the foregoing discussions, especially, taking into consideration the decisions rendered in the case of Sarwan Singh (supra) and Ranjeet Kumar Sinha (supra) this Court is of the view that while harmoniously construing the provisions of two legislations, it is to be presumed that the legislature has enacted the later enactments with knowledge of the provision of the former legislation, and therefore a non-obstante clause in subsequent legislation, may be regarded as overriding in effect. The SC/ST Act was enacted in the year 1989, whereas the POCSO Act, being enacted in the year 2012. Section 42-A has given the POCSO Act, overriding effect over the provisions of any other law to the extent of inconsistency. It clearly indicates the intention of legislature to give overriding effect of POCSO Act over the SC/ST Act. So far the amendment in SC/ST Act is concerned, it having no clause for overriding effect vis-à-vis laws operating at that time. Therefore, the overriding effect as contemplated under Section 42-A of the POCSO Act, shall prevail over the SC/ST Act.
Therefore, in the considered opinion of this Court where any prosecution is brought for offences under both Acts i.e. POCSO Act and the SC/ST Act, the Special Court constituted under POCSO Act, alone would have jurisdiction in the matter at precognizance stage and post cognizance stage including trial, provided the accused may be charged at the same trial under the Code of Criminal Procedure, 1973.
29. Now, this Court thinks it appropriate to clarify one more aspect of the matter that the jurisdiction of the Special Court under the POCSO Act at pre-cognizance and post-cognizance stage including trial of the offences, under both statutes as referred above, would invest ipso-facto that court power to hear bail application of the accused. For answering the second issue that an order of the Special Court POCSO rejecting the bail of an accused who also being prosecuted under SC/ST Act would be appealable under Section 14-A(2) of the SC/ST Act, or the accused would have a right to apply further for bail under Section 439 of the Cr.P.C. before the High Court, at this juncture this Court would take note of Section 31 of the POCSO Act, which contemplates that the provisions of the Code of Criminal Procedure, 1973, including the provisions of bail and bonds shall apply to the proceeding before a Special Court and for the purpose of the said provision the Special Court shall be deemed to be a Court of Session. Under Section 31 of the POCSO Act, there is. fiction that the Special Court for the purpose of its proceedings shall be deemed to be a Court of Session. Therefore, the Special Court under POCSO Act would exercise power to grant or refuse bail under Section 439 of the Cr. P.C. There is no fiction under the SC/ST Act or POCSO Act that the Special Court constituted under POCSO Act, while considering the application for bail in a case where one of the offences charged was under the SC/ST Act, would be deemed to be a Special Court constituted under the SC/ST Act, for the limited purpose of granting or refusing the plea of bail. Furthermore, in view of Section 14-A(2) of the SC/ST Act, an appeal shall lie to the High Court only against an order of the Special Court constituted under the Act, granting or refusing bail, not against the order granting or refusing bail by the Special Court constituted under the POCSO Act.
30. In view of the forgoing discussions and observations, in the opinion of this Court, where an order granting or refusing bail to an accused being passed by the Special Court constituted under POCSO Act, in connection with a case involving offences under both Acts i.e. POCSO Act and SC/ST Act, the same would not be appealable under Section 14A(2) of the SC/ST Act. In such circumstances the application for bail in terms of Section 439 of the Cr.P.C. would alone be maintainable before the High Court.
31. Therefore, the defect pointed out in course of stamp reporting is accordingly, ignored and the office is directed to place the matter for admission before the appropriate Bench.
32. This Court directs the Registrar General, Patna High Court to place this order before the Hon'ble Chief Justice of Patna High Court in administrative side, so that necessary directions/instructions may be issued after approval of the Hon'ble Chief Justice to all the Judgeships of Bihar and the Registry of Patna High Court.
33. Before parting with I highly appreciate Mr. Prashant Kumar (Amicus Curiae) for the valuable assistance rendered by him.
The Registrar, Patna High Court Legal Services Committee is directed to make payment of Rs. 5,000/- to Mr. Prashant Kumar (Amicus Curiae) towards legal fee.
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