POCSO Act has supremacy over Atrocities Act: Gujarat HC

AHMEDABAD: The Gujarat High Court 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.
The court gave the ruling on Monday in 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.

In its order on maintanability of a bail plea of an accused held for raping a minor who is from a 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".

"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 court said in its order.

"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 HC said.

The court's deliberation on the issue of whether the social status of the child eclipses his or her safety came up in the bail application of the accused, Vikram Maliwad, who has been booked under provisions of both the Acts.

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 bail).

The accused was arrested on May 22 this year and offences were registered at Lunawada police station in the state's Mahisagar district against him under Indian Penal Code sections for rape and disappearance of evidence, as well as provisions of the POCSO Act and the Atrocities Act.

His bail plea was rejected by an additional sessions judge (Special Pocso and Special Atrocity Judge), following which he approached the high court.

The state government opposed his bail on the grounds of maintainability, saying the plea should have been filed under the Atrocities Act Section 14-A(2) (regarding appeal for bail in the HC against an order of a special court granting or refusing bail), and not Section 439 of the CrPC.

The lawyer of the accused argued that the above section will not apply in a case involving offences under both the POCSO and Atrocities Acts. In such a case, only the bail application under CrPC Section 439 would be maintainable, he said.

He also held that the POCSO Act would prevail over the Atrocities Act, and hence the plea has been filed under Section 439 of the CrPC.

Accepting his argument, the high court 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".