Madhya Pradesh High Court
Pramod Yadav vs The State Of Madhya Pradesh on 24 November, 2020
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey
THE HIGH COURT OF MADHYA PRADESH
CRA.5189/2020
(Pramod Yadav Vs. State of M.P. )
1
Jabalpur, Dated : 24 /11 / 2020
Shri Arpan Shrivastava, learned counsel for the appellant.
Shri Ajay Tamrakar, learned P.L. for the respondent / State.
None for the respondent No.2/complainant despite compliance of provision of Section 15(A)(III) of SC/ST (Prevention of Atrocities) Act by the respondent No.1.
The proceeding was convened through video conferencing. Heard with the aid of case diary.
This criminal appeal has been filed under Section 14-A (1) of SC/ST (Prevention of Atrocities) Act 1989 against the order dated 23.07.2020 passed by Special Judge, SC/ST (Prevention of Atrocities) Act, Seoni in SC ATR No. 08/2020; whereby learned Special Judge rejected the bail application filed by the appellant under Section 439 of Cr.P.C. to get bail in Crime No. 314/2019 registered at P.S. Keolari, Distt. Seoni (M.P.) for the offences punishable under Sections 363, 366, 376(2)(n), 376(3) of IPC, Sections 5(L) and 6 of POCSO Act and Sections 3(1)(w)(i), 3(2) (va), 3(2)(v) of SC/ST (Prevention of Atrocities) Act 1989.
In total, this is the second appeal filed by the appellant and the first appeal filed by the appellant was dismissed as withdrawn by this Court vide order dated 10.12.2019 passed in CRA. No.10267/2019 with liberty to file afresh after recording the statement of the prosecutrix.
As per the prosecution case, on 24.09.2019 appellant abducted the prosecutrix a minor and took her to Nagpur, where he kept her and sexually exploited her on the pretext of marriage. On that report, police registered Crime No.314/2019 for the offences punishable under Sections 363, 366, 376(2)(n), 376(3) of IPC, Sections 5(L) and 6 of POCSO Act and Section 3(1)(w)(i), 3(2)(va), THE HIGH COURT OF MADHYA PRADESH CRA.5189/2020 (Pramod Yadav Vs. State of M.P. ) 2 3(2)(v) of SC/ST (Prevention of Atrocities) Act 1989. During investigation, on 22.10.2019 police arrested the appellant. On that, appellant filed an application under Section 439 of Cr.P.C. for being released on bail, which was rejected by the learned Special Judge, SC/ST (Prevention of Atrocities) Act vide order dated 23.07.2020. Being aggrieved by the impugned order, appellant filed this Criminal Appeal.
Learned counsel for the appellant submits that appellant has not committed any offence and has been falsely implicated in the offence. Earlier bail application of the appellant was dismissed as withdrawn with liberty to file afresh after recording the statement of the prosecutrix by this court vide order dated 10.12.2019 passed in CRA. No.10267/2019. Thereafter, trial court recorded the statement of prosecutrix wherein she did not support the prosecution story and clearly deposed that appellant did not commit rape with her. The appellant has been in custody since 22.10.2019 and the conclusion of trial will take time, hence prayed for release of the appellant on bail.
Learned counsel for the respondent/State opposed the prayer and submitted that appellant abducted a minor girl and committed rape with her. He further submitted that police had registered crime against the appellant for the offence punishable under Section 5/6 of Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act"). Therefore the appellant should have filed Application under Section 439 of CrPC while the appellant filed an appeal against the impugned order of the Special Judge which is not maintainable. He further submitted that in the cases which are instituted under the penal provisions of two special enactments, Protection of Children from Sexual Offences Act, 2012 (hereinafter THE HIGH COURT OF MADHYA PRADESH CRA.5189/2020 (Pramod Yadav Vs. State of M.P. ) 3 referred to as "POCSO Act") as well as under Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "Atrocities Act") should be tried by the Judge notified for the trial of the cases registered under POCSO Act. While in this case, trial is being conducted by the Special Judge notified for trial of the cases registered under Atrocities Act. So the trial of the case is also vitiated. The Special Judge should be directed to send the case in the court of a Special Judge, who is notified for the trial of the cases registered under POCSO Act. In this regard, he also placed reliance upon the judgement passed by the Coordinate Bench of this Court passed in M.Cr.C.No.22615/2020 (Smt. Sunita Gandharva v. State of M.P. & Anr.) decided on 08.10.2020.
In reply, learned counsel of the appellant submitted that police registered Crime No.314/2019 against the appellant for the offences punishable under the provisions of Atrocities Act and POCSO Act. So, only a Special Judge, notified for the trial of the cases registered under the Atrocities Act is empowered to try the case and according to Section 15 of Atrocities Act only appeal shall lie against the order of Special Judge, Atrocities Act. In this regard, he also placed reliance upon the judgment of a Coordinate Bench of this court passed in the case of Mohd. Juned v. State of M.P. reported in 2016 (1) MPJR 108.
Appellant filed this appeal against the order passed by the Special Judge (Atrocities) Seoni.
In the case of Mohd. Juned (supra) the Coordinate Bench of this Court held as under:-
"In view of the foregoing discussions and the interpretation of the provisions contained under the THE HIGH COURT OF MADHYA PRADESH CRA.5189/2020 (Pramod Yadav Vs. State of M.P. ) 4 Prevention of Atrocities Act, POCSO Act as well as the notifications issued thereunder and also considering the provisions of the CrPC., it is apparent that the offence registered under the POCSO Act shall be tried by the Court notified under Section 25 of the Commissions for Protection of Child Rights Act, 2005 which shall be deemed to be the "Children's Court" as per the proviso to Section 28 of the pocso act. Simultaneously, if the offence registered under the provisions of the prevention of atrocities act, then such offences shall be tried by the Special Court notified to try the said offence by the Sessions Judge posted in the said Court from the date of assuming the office. If the offences of the IPC are also involved with respect to the offences of the respective special enactments then those offences shall also be tried by the said special Court notified under the respective enactments. It is to be further held that in the same crime number if the offences have been registered under the provisions of atrocities act and pocso act then, such offences shall be tried by a Court of Session notified under the Prevention of Atrocities Act with the aid of Section 9 of Cr.P.C. and as per the language of the notifications. In such circumstances, trial of the offences involved under both the Acts are not required to be split up. It is to be further made clear that the POCSO Act being later enactment shall prevail to the provisions of preventions of atrocities act in case of any inconsistency. It is to be further held that mere filing of a challan before a Court of Sessions as appears in the present case would not vitiate the trial ipso facto in the light of the recent judgment of the Apex Court in the case of Rattiram (supra) without showing and establishing prejudice to the accused."
While the Coordinate Bench of this Court in the case of Smt. Sunita Gandharva (supra) without taking note of above mentioned judgement of Coordinate Bench of this court in para 56 of his judgement held as under:-
"56. Conclusively, regarding questions No. (iii) and (iv), it can safely be concluded that when an accused is being tried by Atrocities Act as well as POCSO Act THE HIGH COURT OF MADHYA PRADESH CRA.5189/2020 (Pramod Yadav Vs. State of M.P. ) 5 simultaneously, then Special Court under POCSO Act shall have the jurisdiction and if any bail application of accused is allowed or rejected under Section 439 of Cr.P.C. by that Special Court then appeal shall not lie under Section 14-A (2) of Atrocities Act. Only an application under Section 439 of Cr.P.C. for bail shall lie."
So, looking to the conflicting views of two Coordinate Benches of this Court on the point that whether the trial of a case in which an accused is being tried for the offences punishable under the Atrocities Act as well as POCSO Act simultaneously shall be conducted by the Special Judge notified for the trial of the cases registered under the Atrocities Act or by the Special Judge notified for the trial of the cases registered under the POCSO Act. As per the provisions of Rule 8 of Chapter IV of the High Court of Madhya Pradesh Rules, 2008, the matter be placed before Hon'ble the Acting Chief Justice on administrative side with the request to refer the matter to the Larger Bench for appropriate direction on the point that:-
(i) Which court shall conduct the trial of a case, instituted under penal provision of two Special Acts i.e. the Atrocities Act as well as the POCSO Act, either the Special Court constituted under Atrocities Act or the Special Court constituted under the POCSO Act.
(ii) Whether an Appeal against an order of rejection of bail of an accused by the Special Court, in a case instituted for committing offences under the POCSO Act & the Atrocities Act, shall lie under the provisions of Section 14A of the Atrocities Act or application under THE HIGH COURT OF MADHYA PRADESH CRA.5189/2020 (Pramod Yadav Vs. State of M.P. ) 6 Section 438/439 of Code of Criminal Procedure, as the case may be.
Meanwhile, the appellant be released on temporary bail till further orders, it is therefore directed that, the appellant shall be released on bail till further orders upon his furnishing personal bond in the sum of Rs.50,000/- (Rs. Fifty Thousand Only) with one surety in the like amount to the satisfaction of the concerned C.J.M/trial Court for his appearance before the trial Court on all such dates as may be fixed in this behalf by the trial Court during the pendency of trial.
This order will remain operative subject to compliance of the following conditions by the appellant :-
1. The appellant will comply with all the terms and conditions of the bond executed by him;
2. The appellant will cooperate in the trial;
3. The appellant will not indulge himself in extending inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the Court or to the Police Officer, as the case may be;
4. The appellant shall not commit an offence similar to the offence of which he is accused;
5. The appellant will not seek unnecessary adjournments during the trial; and
6. The appellant will not leave India without prior permission of the trial Court.
C.C. as per rules.
(Rajeev Kumar Dubey)
sarathe Judge
Digitally signed
by NAVEEN
KUMAR
SARATHE
Date:
2020.11.25
13:39:20 +05'30'