Karnataka High Court
G Thippesha vs The State Of Karnataka By on 8 April, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL PETITION NO. 1305/2024 (439)
BETWEEN:
G. THIPPESHA S/O GANGANNA
AGED ABOUT 22 YEARS
OCC: COOLIE WORK AND TRACTOR DRIVER
R/O RAMPUR VILLAGE,
MOLAKALMURU TALUK
CHITRADURGA DISTRICT- 577 540.
(NOW IN JUDICIAL CUSTODY)
...PETITIONER
BY SRI. P.B. UMESH, ADVOCATE FOR
SRI. R.B. DESHPANDE, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA BY
RAMPURA POLICE STATION
MOLAKALMURU CIRCLE
CHITRADURGA DISTRICT -577 540.
2. SMT. HULIGEMMA
W/O KRISHNAMURTHY
(IN THE COMPLAINT NAME IS MENTIONED AS
PULIGEMMA W/O KRISHNAMURTHY)
AGED ABOUT 35 YEARS
OCC: LABOURER
R/O 7TH WARD, BASAPURA ROAD,
RAMAPURA VILLAGE, MOLAKALMURU TALUK
CHITRADURGA DISTRICT -577 540.
...RESPONDENTS
(By SRI. K. NAGESHWARAPPA, HCGP FOR R1
R2 SERVED, SRI. P. PRAANNA KUMAR ADV, IS
APPOINTED AS AMICUS CURIE V/O/DATED: 20.03.2024)
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THIS CRL.P IS FILED U/S. 439 CR.P.C PRAYING TO
ENLARGE THE PETITIONER ON BAIL IN CR.NO.129/2023 OF
RAMPURA POLICE STATION CHITRADURGA DISTRICT FOR
THE OFFENCES P/U/S 376 OF IPC. SECTIONS 4, 6 OF POCSO
ACT AND SECTIONS 3(1)(W)(i)(ii), 3(2)(V) OF SC/ST (POA)
ACT.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 26.03.2024 COMING ON FOR
'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT MADE
THE FOLLOWING:
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 3 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. 4
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
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?6
(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)(v) of the SC & ST Act.
9. The learned Special Public Prosecutor would contend that the amendment to SC & ST Act was brought in 2016 by incorporating Section 14A, which will prevail and appeal is required to be filed. In this regard, it is necessary to consider Section 42A of the POCSO Act, which reads as under:
"42A. 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."
10. The POCSO Act came into effect in 2012, but Section 42A was inserted by amendment with effect 7 from 03.02.2013. Section 20 of the SC & ST Act, reads as under:
"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."
11. Section 20 of the SC & ST Act was incorporated in the Act in 1989 itself and it has not gone through any amendment all along. However, under the POCSO Act, by incorporating Section 42A being a subsequent Act, it has got the overriding effect on the provisions of any other law to the extent of its inconsistency.
12. At the same time, much arguments have been advanced regarding notification issued by Government under Section 28 of the Act notifying that the designated SC/ST Court as POCSO Court under the Act. It is relevant to consider Section 28 of the POCSO Act, which reads as under:.
"28. Designation of Special Courts.-(1) For the purposes of providing a speedy trial, the 8 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 67B of that Act insofar 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."
13. As per proviso to Section 28(1) of the POCSO Act, if a Children's Court is designated for the purpose of any other law for the time being in force, the said court is deemed to be a Special Court under the said Section. In view of this proviso, it is evident 9 that Children's Court is designated. The same is required to be treated as Children's Court and admittedly, the POCSO Court is a Children's Court designated as a Special Court. Even under proviso to Section 28(1), it is the POCSO Court which prevails and such proceedings are required to be held under the POCSO Court.
14. This issue has been considered in detail by the Full Bench of the Bombay High Court in an Anticipatory Bail Application No.1005 of 2023 with Criminal Application No.2713 of 2023 (ANIKET S/O SAHADEV LABADE V. STATE OF MAHARASHTRA AND ANOTHER). The Full Court of the Bombay High Court has considered Section 14 of the SC & ST Act and Section 28 of the POCSO Act and observed that Special Court constituted for trial of offences under the POCSO Act has been conferred with a jurisdiction to try an offence other than the offence referred to in sub- section (1) of Section 28 of the POCSO Act, with which accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial. It is further 10 observed that no such similar provision is noticed in Section 14 of the SC & ST Act and hence, it is further observed that on interpretation, both these provisions would suggest that Special Court constituted for trial of offences under SC & ST Act has not been conferred with a jurisdiction to try an offence under any other Act, while a Special Court constituted under Section 28 of the POCSO Act has been conferred with such jurisdiction. Hence, it is observed that a Special Court constituted under the POCSO Act has jurisdiction to enquire into and try the offences under the very act and any other Act including the offences under the SC & ST Act. As such, the Court which passes the order is required to be treated as a POCSO Court and not a Special Court for SC & ST Act. It is further evident that post introduction of Chapter VII in the POCSO Act, there is no corresponding amendment to the SC & ST Act giving overriding effect over the provisions of Section 28 of the POCSO Act, as observed above.
15. The Full Bench of the Bombay High Court has also considered the impact of Section 42A of the 11 POCSO Act, which is a non obstante clause and on reading the provisions of Section 42A of the POCSO Act, it is evident that they are 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 the POCSO Act shall have overriding effect on the provisions of any such law to the extent of inconsistency.
16. Further, Section 20 of the SC & ST Act has been in the statute since 1990 and Section 42A of the POCSO Act was introduced long after, but no amendment was bought to Section 20 of the SC & ST Act. Hence, Section 42A of the POCSO Act is having overriding effect on the provisions of the SC & ST Act.
17. The similar view is also taken by the Division Bench of the Madhya Pradesh High Court in Criminal Appeal No.5189/2020 (PRAMOD YADAV V. THE STATE OF MADHYA PRADESH AND OTHERS) wherein a similar issues were considered and held that, the case involved in trial of the accused for the 12 offences both the Atrocities Act and the POCSO Act shall be conducted by Special Court constituted under Section 28 of the POCSO Act and remedy of the accused against the order of rejection of the bail under Section 439 of Cr.P.C. by the such Special Judge, would be filing a bail petition under Section 439 of Cr.P.C. before High Court but not by filing an appeal under Section 14A of the SC & ST Act. A similar observation though is not directly on this issue, but in respect of other enactments was made by the Apex Court in (2019) 7 SCC 505 (UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS AND OTHERS V. RANJIT KUMAR SAHA AND ANOTHER). In view of proviso to Section 28(1) and 42A of the POCSO Act, the remedy on the rejection of bail is to approach the High Court under Section 439 of Cr.P.C., but not filing an appeal under Section 14A of the SC & ST Act. Hence, the finding given by the Co-ordinate Bench of this Court in Crl.P.No.7421/2023 (SOMASHEKAR v. THE STATE AND ANOTHER) Dated 11.10.2023, is in accordance 13 with law. Though the notification of the Government was not brought to the notice of the Co-ordinate Bench but that notification itself is against the mandate of the law and does not have any overriding effect over the statute. Hence, question of reference of matter to the larger bench does not arise at all. Accordingly, the point under consideration is answered holding that when prosecution is under both provisions of the POCSO & SC & ST Act, against the order of rejection of bail petition by Special Court under Section 439 of Cr.P.C. is maintainable before the High Court and not an appeal under Section 14A of the SC & ST Act. Point No.(ii)
18. The petitioner is seeking a regular bail in Cr.No.129/2023. The petitioner was prosecuted for the offence punishable under Section 376 r/w Section 34 of IPC and Sections 4, 6 & 17 of the POCSO Act as well as Section 3(1)(w)(i)(ii), 3(2)(v), 3(2)(va) of the SC & ST Act.
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19. The complainant-Smt. Huligamma on 21.09.2023 at 8.30 p.m. has lodged a complaint regarding missing of her daughter and initially, the complaint was registered for the offence punishable under Section 363 of IPC against unknown persons. Subsequently, the victim returned to the Police Station and narrated the incident. Thereafter the provisions of Section 376 of IPC and provisions of the POCSO Act and the SC & ST Act came to be incorporated. As per the case of the prosecution, the victim is aged about 14 years, studying in 10th standard and accused under the pretext of marriage, took the victim along with him and later on, he committed penetrative sexual assault on the victim girl, having knowledge that she is minor. Hence, the accused was prosecuted on the basis of statement of the victim. The petitioner was apprehended and remanded to judicial custody and later he has approached the learned Special Judge and his bail petition came to be rejected. Hence, he is before this Court.
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20. The allegations of the prosecution clearly disclose that the victim is aged about 14 years studying in 10th standard. The other allegations disclose that the victim girl and petitioner were in love with each other since last 3 years and the family members of the victim girl advised the petitioner in this regard. It is the case of the prosecution that on 21.09.2023, at the instigation of the victim, the petitioner took the victim girl to Challakere and they stayed in the house of CW14 and there he has committed penetrative sexual assault on the victim girl under the pretext of marriage. It is further alleged that on 22.09.2023 again they had been to the house of CW18 and there also the accused has committed penetrative sexual assault on the victim girl under the pretext of marriage. According to the prosecution, from 22.09.2023 till 24.09.2023 they stayed in the house of CW10 in Chitradurga District and from there CW19 brought the victim girl to Police Station.
21. The statement of the victim girl was also recorded by the learned Magistrate. Though the victim 16 girl has not stated anything regarding penetrative sexual assault, but her evidence discloses that the petitioner secured her and by enticing her, took her to various places. The date of birth of the victim girl is 17.07.2009 and the offence is said to have been committed on 21.09.2023. The victim girl was hardly 14 years and she was incapable to understand the things. The allegations were that, they were in love with each other for 3 years earlier and if this version is accepted, then the victim girl was in love with the petitioner when she was aged about 11 or 12 years and she is incompetent to take any decisions in this regard. Further, the records also disclose that after getting the knowledge of this relationship, the complainant has warned the petitioner, but the petitioner subsequently having knowledge that victim was minor, enticed her and took her away.
22. The medical record of the victim discloses that the hymen was not intact and it is also evident that possibility of intercourse cannot be ruled out. Further, the history given by the victim before the 17 medical officer disclose that she had physical relationship with the petitioner. Though it may be with the consent of the victim, but the fact that, since the victim was hardly aged about 14 years, she was incapable of taking any decisions in this regard and her consent becomes inconsequential or irrelevant. The petitioner having knowledge of the minority of the victim girl, enticed her and then committed penetrative sexual assault on her. The conduct of the petitioner discloses that he wanted to exploit the situation.
23. Considering the nature and gravity of the offences and the punishment prescribed for the said offences, this is not a fit case wherein discretion can be exercised for admitting the petitioner on bail. Hence, considering these aspects, question of admitting the petitioner on bail at this juncture does not arise at all. Hence, the point under consideration is answered in the negative.
24. In view of the findings on point under consideration and reasons assigned thereby, the 18 petition needs to be dismissed on merits and accordingly, it stands dismissed.
The Court places its appreciation on records the assistance rendered by amicus curiae as well as counsels appearing for parties.
The fees of amicus curiae are fixed at Rs.5,000/-.
Sd/-
JUDGE DS