By Shelal-
While dealing with a case of rape of a minor girl from a scheduled caste, when the Gujarat government objected to the bail plea of the accused not filed as per the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The Gujarat HC has held that the Protection of Children from Sexual Offences (POCSO) Act has supremacy over the Atrocities Act, as the caste of a child cannot override or prejudice his or her security and well being.
Court gave the ruling on Monday in the aforesaid case. In its order on maintainability of a bail plea of an accused held for raping a minor who is from scheduled caste, Justice A S Supehia held that “the caste of a child cannot override or prejudice the security and well-being of a child.” In its order court said “Thus, a bare glance on the laudable objects of the POCSO Act will illuminate its supremacy on the Atrocity Act though both the Acts can be termed as Special Acts.”
“The comparative analysis of provisions of both the Acts leads to sole conclusion, that the legislature in its wisdom has conferred precedence on the POCSO Act above the Atrocity Act,” the High Court said.
In the bail plea of the accused, Vikram Maliwad, who has been booked under the terms of both the Acts, the court’s deliberation on the matter of whether the child’s social status eclipses his or her welfare emerged The accused, through his lawyer Rahil Jain, had filed a bail application under Section 439 of the CrPC (dealing with special powers of high court or sessions court regarding bails). His bail plea was rejected by an additional sessions judge, following which he approached high court.
On the grounds of maintainability, state government opposed his bail, claiming that the plea should have been filed under Section 14 A-(2) ( (regarding appeal for bail in the HC against an order of a special court granting or refusing bail), of the Atrocities Act and not Section 439 of the CrPC.
The lawyer of the accused argued that the aforesaid section will not apply in a case involving offences under both the POCSO and Atrocities Acts. In such case. Only the bail application under CrPC Section 439 would be maintainable, he said.
Court accepted the arguments and directed its registry to “register the bail application under Section 439 of the CrPC in case the same is filed pertaining to offences registered under both the POCSO Act and the Atrocity Act”.