Cancellation of Bail, Jurisdiction of Special Courts in cases involving SC/ST Act and POCSO offences: What MP HC held

The Madhya Pradesh High Court recently had occasion to clarify certain aspects of the law concerning the cancellation of bail in cases under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (SC/ST Act).

. In an order passed on October 8, Justice Anand Pathak has held:

. Exercising powers under Section 439 of the Code of Criminal Procedure (CrPC), the High Court is empowered to cancel bail granted to a person accused under the SC/ST Act;

In cases where a person is accused of offences under the SC/ST Act as well as the Protection of Children from Sexual Offences (POCSO) Act, the trial procedure under the POCSO Act will prevail;

In a case involving charges under both the SC/ST Act and the POCSO Act, if a special POCSO Act grants of rejects bail, an appeal challenging such an order can only be moved under Section 439, CrPC and not Section 14-A (2) of the SC/ST Act.

. Factual Background

. The Court was dealing with an application moved by a father to cancel the bail granted a man accused of having kidnapped his then 16-year-old daughter, who belonged to a Scheduled community ( Smt. Sunita Gandharva v. State of Madhya Pradesh and anr ).

. The accused man's first bail application under Section 439, CrPC was dismissed by the trial Court. However, following an appeal under Section 14-A of the SC/ST Act, the High Court allowed his release on bail in February this year.

. The victim's father later moved an application alleging that the accused had contacted his daughter again and tried to elope with her, in violation of the High Court's bail conditions. Therefore, the High Court was urged to cancel the bail granted tot he accused.

. What the High Court held

. In deciding the matter, a preliminary objection was made by the accused before Justice Pathak that the SC/ST Act did not have any provisions concerning the cancellation of bail. As such, it was contended that the Secrion 439, CrPC application was not maintainable.

. However, Justice Pathak rejected this contention, reasoning, inter alia that:

Any interpretation which restricts the right of the victim to approach the High Court in case a bail condition is violated would be against the very spirit of the SC/ST Amendment Act.

A victim cannot be rendered remediless, even if the accused gets bail under Section 439 of CrPC. and keeps on interfering in the investigation or trial and intimidating the victim or the witnesses.

bail conditions imposed under the SC/ST Act deserve to be complied with by the accused more stringently.

Ultimately, the Court has the power to recall an order which has been passed by it earlier. Power to issue or pass order includes its recalling.

. "Therefore, in the considered opinion of this Court, an application for cancellation of bail under Section 439 of Cr.P.C. at the instance of complainant /aggrieved party is maintainable before the High Court which passed the order and order granting bail in an appeal can be recalled, of course in a fit case for recalling and that has to be seen as per the merits of the case." Madhya Pradhesh High Court . The Court proceeded to examine which provision would be applicable in matters concerning bail where the case involves both SC/ST Act as well as POCSO Act offences.

. In this regard, the Judge noted that the POCSO Act provisions appear to have an overriding effect over provisions of the SC/ST Act, given the POCSO Act's legislative intent, the statement of objects and reasons, the language of its provisions and the wider amplitude of the POCSO law.

. "It (POCSO Act) applies irrespective of social or economic background of a child, therefore, welfare of children transcending all barriers of caste and creed and because of its all pervasive nature, POCSO Act is having overriding effect over the Atrocities Act." Madhya Pradhesh High Court . Justice Pathak reasoned further,

. ".... if both the Acts are taken into consideration where Special Protection, Remedies and Speedy Trial have been contemplated, it appears that POCSO Act is designed to a wider range of victims than the Atrocities Act. Since the procedure has been specifically provided, children of whatever background including the background from Scheduled Castes or Scheduled Tribes, process of investigation and trial of the accused meanders through different specifically enacted provisions while taking into consideration the delicate mind of a child victim, his probable subjugation to secondary victimization and procedural safeguards appear to be extensively incorporated in the POCSO Act, but not in Atrocities Act." . This being the case, the High Court proceeded to examine the bail provisions applicable in POCSO trials. In this regard, it took note of Section 31 of the POCSO Act which provided that provisions of the CrPC would be applicable in trials under this Act. This apart, it was also pointed out,

" There is no such statutory mechanism provided in the provisions of Atrocities Act including Section 14-A (2) of the Atrocities Act to include a bail plea by way of appeal from any order passed by Special Court under the POCSO Act. "

. As such, the Single Bench clarified,

. "... it can safely be concluded that when an accused is being tried by Atrocities Act as well as POCSO Act 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." Madhya Pradhesh High Court . Given the questions of law clarified in this case, a copy of the judgment has also been directed to be placed before the Acting Chief Justice of the Court so that it may be circulated among subordinate judges for information and compliance.

. Frame scheme for harnessing the potential of accused persons for the betterment of society, Court suggests

. An additional aspect deliberated upon by the High Court concerned the scope of the conditions that can be imposed by High Courts during the grant of bail under Section 439, CrPC.

. Referring to various precedents on the subject, Justice Pathak observed that the High Court is conferred with significant discretion to impose such bail conditions as considered necessary in the interest of justice, and depending on the facts of the case.

. Taking special note of how bail conditions have evolved to include voluntary work and community service, the Judge also observed,

" The emphasis of Community Service is not on punishment nor on rehabilitation at times, rather, it is on accountability. Anatomy of Crime and Violence can be addressed by rekindling innately ingrained human attributes of Compassion, Mercy, Love and Service... This thought in fact is in alignment with Fundamental Duties also, as enshrined under Article 51A of Constitution ."

. The Court added a word of caution, however, that bail conditions cannot be excessive, freakish and onerous.

. Before parting with the case, the Court suggested that the Legislature mull over the possibility of framing a scheme for harnessing the potential of accused persons for the betterment of society by giving them training in disaster or relief operations . Justice Pathak noted that this would help in their reformation and assimilation back to society from the stage of trial itself.

. "It is the domain of the legislature to think over it, if possible, for formulating a scheme as part of pre and post trial reforms for harnessing the energy of such big and sizable section of the society in India. Hopefully, policy makers / stakeholders would think over it one day." Madhya Pradhesh High Court . The Judge made the observations in the backdrop in submissions made by the accused in this case that he has been carrying out voluntary community service by working as an ambulance operator. The Court remarked,

" This was an attempt to engage him in creative pursuits to make him a part of pre trial reforms and he responded well also, but pumping of adrenaline and perhaps (may or may not be true) mutual emotional proximity with prosecutrix persuaded him to allegedly commit same nature of offence again, which otherwise, he was restricted to do so. "

. Ultimately, the application to cancel the bail granted to the accused was rejected considering that:

In view of the stage at which the investigation is presently in, relegating the accused to jail would not serve the cause of justice.

The prosecutrix herself is not living with her parents. Rather, she is living at One Stop Centre. Her statements did not indicate that she had left to meet the accused.

The accused is trying to come out of his stigmatic past by complying other bail conditions and performing community service as a reformatory measure.

. The Judge added that another application to cancel bail may be moved if there is any grievance that the accused is actually harassing or embarassing the victim.

. Advocate HK Shukla appeared for the applicant. Advocate CP Singh appeared for the State. Advocate Gaurav Mishra appeared for the accused.

. Senior Advocate NK Gupta assisted the Court as the amicus curiae , along with Advocates Ravi Gupta, Vijay Dutt Sharma, Atul Gupta and Sameer Kumar Shrivastava.

. Read the Judgment:

Cancellation of Bail, Jurisdiction of Special Courts in cases involving SC/ST Act and POCSO offences: What MP HC held

Meera Emmanuel

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