where an accused is tried for offences under both the enactments, the appropriate Court to try the offence would be the Court designated under Section 28 of the POSCO Act. =The legislature introduced the non-obstante clause in Section 42-A of the POSCO Act with effect from 20.06.2012 giving an overriding effect to the provisions of the POSCO Act, though the legislature was aware about the existence of non-obstante clause in Section 20 of the SC/ST Act. Applying the test of chronology the POSCO Act, 2012 came into force with effect from 20.06.2012 whereas SC/ST Act was in force from 30.01.1990. The POSCO Act being beneficial to all and later in point of time, it is to be held that the provisions of POSCO Act have to be followed for trying cases where the accused is charged for the offences under both the enactments.
THE HONBLE SRI JUSTICE C. PRAVEEN KUMAR
CRL.REVISION CASE No. 1596 of 2014
08-04-2015
The State of A.P. through P.S. Kowdipally.... PETITIONER
Mangali Yadagiri.. RESPONDENT
Counsel for Petitioner: Public Prosecutor
Counsel for Respondent:Sri Sriharinath
<GIST :
>HEAD NOTE :
?Cases referred :
1977 SC 265
2015 (2) ALD 15 (SC)
HONBLE SRI JUSTICE C. PRAVEEN KUMAR
CRIMINAL REVISION CASE No.1596 of 2014
ORDER:
The I Additional District and Sessions Judge, Medak, invested
with the power to try offences under the Protection of Children from
Sexual Offences Act, 2012 (hereinafter referred to as POSCO Act)
made a reference under Section 395 (2) Cr.P.C. seeking clarification
as to the jurisdiction of the Court to try the case when the offences
alleged against the accused are triable under two legislations ie.
POSCO Act and Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (herein after referred to as SC/ST Act) in view
of Section 14 of the SC/ST Act and Section 42-A of the POSCO Act.
The facts in issue are as under:
The informant/victim girl, who was aged about 14 years at the
time of incident, belonging to Scheduled Caste, lodged a report
before the police on 03.05.2013 stating that the accused, who
belongs to a caste other than scheduled caste or scheduled tribe,
assaulted and used criminal force on her with a dishonest intention
to outrage her modesty within public view. In respect of the above
incident, a case in Crime No.39 of 2013 of Kowdipally Police Station
came to be registered for the offences punishable under Section 354
(A) (1) (i) IPC, Section 2 of the Criminal Law Amendment Act, 2013,
Section 8 of POSCO Act and Section 3 (1) (xi) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (herein
after referred to as SC/ST Act). The police investigated into the
matter and filed a charge sheet which was taken on file as
P.R.C.No.22 of 2013 on the file of the Judicial First Class Magistrate,
Narsapur, Medak District, for the above mentioned offences.
Thereafter, the learned Magistrate committed the case to the
Special Court for trial of offences under the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act-cum-V Additional
Sessions Judge, Medak at Sangareddy. The special Judge sent the
case records to the Court of I Additional District and Sessions Judge,
Medak at Sangareddy, on the point of jurisdiction since it involves an
offence punishable under POSCO Act.
Thereafter, the learned I Additional District and Sessions
Judge, Medak at Sangareddy, through his letter in Dis.No.536, dated
22.05.2014, made a reference under Section 395 (2) Cr.P.C., seeking
necessary clarification from this Court.
Heard learned Public Prosecutor appearing for the State and
learned counsel appearing for the accused.
As seen from the facts of the case, an offence under POSCO
Act was committed against a child, who was a member of Scheduled
Caste/Scheduled Tribe. In such a case, the issue that stems out for
consideration is whether the said case should be tried by a Special
Court constituted under SC/ST Act or by a Special Court constituted
under POSCO Act.
The POSCO Act, which came into force from 14.11.2012, was
enacted with a view to protect the children from offences of sexual
assault, sexual harassment and pornography and to provide for
establishment of Special Courts for trial of such offences and matters
connected therewith or incidental thereto. This Act is a children
friendly Act providing a special procedure for dealing with the
offences relating to the children.
Sections 25 and 26 of the POSCO Act deal with the procedure
to be followed by the Magistrate for recording the statements of the
children under Section 164 Cr.P.C.
Section 28 of the POSCO Act deals with Designation of Special
Courts, which reads as under:
28. Designation of Special Courts. (1) For the purposes of
providing a speedy trial, the 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
Court under the Commissions for Protection of Child Rights
Act, 2005 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
Cr.P.C. be charged at the same trial.
(3) The Special Court constituted under this Act,
notwithstanding anything in the Information Technology Act,
2000, shall have jurisdiction to try offences under Section 67
B 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 facilities abuse of children
online.
Section 31 of the POSCO Act refers to application of Criminal
Procedure Code to the proceedings before the Special Court while
Section 33 of the Act deals with the procedure and powers of Special
Courts while recording the evidence.
Section 42-A of the POSCO Act stipulates that the provisions of
the POSCO Act shall be in addition to and not in derogation to the
provisions of any other law for the time being in force and, in case of
any inconsistency, the provisions of POSCO Act shall have overriding
effect on the provisions of any such law to the extent of the
inconsistency.
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 consistent 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.
As per Section 14 of the SC/ST Act, the State Government
shall, with the concurrence of the Chief Justice of the High Court, by
a notification in the Official Gazette, specify for each district a Court
of Session to be a Special Court to try the offences under this Act.
From the above, it is clear that an offence punishable under the
provisions of SC/ST Act is triable exclusively by a Special Court
constituted under Section 14 of SC/ST Act.
Section 42-A of the POSCO Act reads as under:
42-A. 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 this Act shall have overriding effect on the
provisions of any such law to the extent of the
inconsistency.
A perusal of Section 20 of the SC/ST Act and Section 42-A of
the POSCO Act reveal that there is a direct conflict between the two
non-obstante clauses contained in these two different enactments.
If Section 20 of the SC/ST Act is to be invoked in a case involving
offences under both the Acts, the same would be triable by a
Special Court constituted under Section 14 of the SC/ST Act and if
provisions of Section 42-A of the POSCO Act are to be applied, such a
case shall be tried by a Special Court constituted under Section 28 of
the POSCO Act.
From a perusal of the aims and objects of SC/ST Act, it is
manifest that it was passed with a view to prevent Commission of
atrocities on members of the Scheduled Castes and the Scheduled
Tribes by persons other than SC/ST. The procedure contemplated
under the said Act is almost identical to the procedure contemplated
under Cr.P.C. for trial of Sessions Cases, apart from providing
compensation. The SC/ST Act is silent as to the protection granted
to the children belonging to the weaker sections of the society. The
situation under the POSCO Act is totally different. The statement of
object and reasons of the Act show that it was enacted with a view
to protect children from the offences of sexual assault, sexual
harassment and pornography. It takes within its fold the protection
of children of all castes including those belonging to SC/ST. As stated
earlier, number of safeguards are provided to the children from
being exploited and Special provisions are also made for recording
their statements. Therefore, the paramount consideration of the
legislature under POSCO Act appears to be the interest of all children
including those belonging to SC/ST.
Dealing with an issue identical to the case on hand, the Apex
Court in Sarwan Singh V. Kasturi Lal held as under:
"When two or more laws operate in the same field and each
contains a non-obstante clause stating that its provisions will
override those of any other law, stimulating and incisive
problems of interpretation arise. Since statutory
interpretation has no conventional protocol, cases of such
conflict have to be decided in reference to the object and
purpose of the laws under consideration. For resolving such
inter se conflicts, one other test may also be applied though
the persuasive force of such a test is but one of the factors
which combine to give a fair meaning to the language of the
law. That test is that the later enactment must prevail over
the earlier one. Bearing in mind the language of the two
laws, their object and purpose, and the fact that one of them
is later in point of time and was enacted with the knowledge
of the non-obstante clauses in the earlier.
In KSL & Industries Limited v. Arihant Threads Limited and
others the Apex Court held as under:
In view of the non-obstante clause contained in both the
Acts, one of the important tests is the purpose of the two
enactments. It is important to recognize and ensure that the
purpose of both enactments is as far as possible, fulfilled.
Indeed, the question as to which act shall prevail must be
considered with respect to the purpose of the two
enactments; which of the two Acts is the general or special;
which is later. It must also be considered whether they can
be harmoniously construed.
From a reading of the judgments referred to above, it is clear
that when there are two different enactments containing two non-
obstante clauses, the Court has to see the object and purpose of the
two enactments and the legislation which is later in point of time.
A perusal of both the enactments would show that POSCO Act
is a self contained legislature which was introduced with a view to
protect the children from the offences of sexual assault, harassment,
pornography and other allied offences. It was introduced with
number of safeguards to the children at every stage of the
proceedings by incorporating a child friendly procedure. The
legislature introduced the non-obstante clause in Section 42-A of the
POSCO Act with effect from 20.06.2012 giving an overriding effect to
the provisions of the POSCO Act, though the legislature was aware
about the existence of non-obstante clause in Section 20 of the
SC/ST Act.
Applying the test of chronology the POSCO Act, 2012 came into
force with effect from 20.06.2012 whereas SC/ST Act was in force
from 30.01.1990. The POSCO Act being beneficial to all and later in
point of time, it is to be held that the provisions of POSCO Act have
to be followed for trying cases where the accused is charged for the
offences under both the enactments.
The reference is thus answered holding that where an accused
is tried for offences under both the enactments, the appropriate
Court to try the offence would be the Court designated under Section
28 of the POSCO Act.
________________________
JUSTICE C. PRAVEEN KUMAR
08.04.2015
CRL.REVISION CASE No. 1596 of 2014
08-04-2015
The State of A.P. through P.S. Kowdipally.... PETITIONER
Mangali Yadagiri.. RESPONDENT
Counsel for Petitioner: Public Prosecutor
Counsel for Respondent:Sri Sriharinath
<GIST :
>HEAD NOTE :
?Cases referred :
1977 SC 265
2015 (2) ALD 15 (SC)
HONBLE SRI JUSTICE C. PRAVEEN KUMAR
CRIMINAL REVISION CASE No.1596 of 2014
ORDER:
The I Additional District and Sessions Judge, Medak, invested
with the power to try offences under the Protection of Children from
Sexual Offences Act, 2012 (hereinafter referred to as POSCO Act)
made a reference under Section 395 (2) Cr.P.C. seeking clarification
as to the jurisdiction of the Court to try the case when the offences
alleged against the accused are triable under two legislations ie.
POSCO Act and Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (herein after referred to as SC/ST Act) in view
of Section 14 of the SC/ST Act and Section 42-A of the POSCO Act.
The facts in issue are as under:
The informant/victim girl, who was aged about 14 years at the
time of incident, belonging to Scheduled Caste, lodged a report
before the police on 03.05.2013 stating that the accused, who
belongs to a caste other than scheduled caste or scheduled tribe,
assaulted and used criminal force on her with a dishonest intention
to outrage her modesty within public view. In respect of the above
incident, a case in Crime No.39 of 2013 of Kowdipally Police Station
came to be registered for the offences punishable under Section 354
(A) (1) (i) IPC, Section 2 of the Criminal Law Amendment Act, 2013,
Section 8 of POSCO Act and Section 3 (1) (xi) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (herein
after referred to as SC/ST Act). The police investigated into the
matter and filed a charge sheet which was taken on file as
P.R.C.No.22 of 2013 on the file of the Judicial First Class Magistrate,
Narsapur, Medak District, for the above mentioned offences.
Thereafter, the learned Magistrate committed the case to the
Special Court for trial of offences under the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act-cum-V Additional
Sessions Judge, Medak at Sangareddy. The special Judge sent the
case records to the Court of I Additional District and Sessions Judge,
Medak at Sangareddy, on the point of jurisdiction since it involves an
offence punishable under POSCO Act.
Thereafter, the learned I Additional District and Sessions
Judge, Medak at Sangareddy, through his letter in Dis.No.536, dated
22.05.2014, made a reference under Section 395 (2) Cr.P.C., seeking
necessary clarification from this Court.
Heard learned Public Prosecutor appearing for the State and
learned counsel appearing for the accused.
As seen from the facts of the case, an offence under POSCO
Act was committed against a child, who was a member of Scheduled
Caste/Scheduled Tribe. In such a case, the issue that stems out for
consideration is whether the said case should be tried by a Special
Court constituted under SC/ST Act or by a Special Court constituted
under POSCO Act.
The POSCO Act, which came into force from 14.11.2012, was
enacted with a view to protect the children from offences of sexual
assault, sexual harassment and pornography and to provide for
establishment of Special Courts for trial of such offences and matters
connected therewith or incidental thereto. This Act is a children
friendly Act providing a special procedure for dealing with the
offences relating to the children.
Sections 25 and 26 of the POSCO Act deal with the procedure
to be followed by the Magistrate for recording the statements of the
children under Section 164 Cr.P.C.
Section 28 of the POSCO Act deals with Designation of Special
Courts, which reads as under:
28. Designation of Special Courts. (1) For the purposes of
providing a speedy trial, the 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
Court under the Commissions for Protection of Child Rights
Act, 2005 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
Cr.P.C. be charged at the same trial.
(3) The Special Court constituted under this Act,
notwithstanding anything in the Information Technology Act,
2000, shall have jurisdiction to try offences under Section 67
B 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 facilities abuse of children
online.
Section 31 of the POSCO Act refers to application of Criminal
Procedure Code to the proceedings before the Special Court while
Section 33 of the Act deals with the procedure and powers of Special
Courts while recording the evidence.
Section 42-A of the POSCO Act stipulates that the provisions of
the POSCO Act shall be in addition to and not in derogation to the
provisions of any other law for the time being in force and, in case of
any inconsistency, the provisions of POSCO Act shall have overriding
effect on the provisions of any such law to the extent of the
inconsistency.
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 consistent 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.
As per Section 14 of the SC/ST Act, the State Government
shall, with the concurrence of the Chief Justice of the High Court, by
a notification in the Official Gazette, specify for each district a Court
of Session to be a Special Court to try the offences under this Act.
From the above, it is clear that an offence punishable under the
provisions of SC/ST Act is triable exclusively by a Special Court
constituted under Section 14 of SC/ST Act.
Section 42-A of the POSCO Act reads as under:
42-A. 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 this Act shall have overriding effect on the
provisions of any such law to the extent of the
inconsistency.
A perusal of Section 20 of the SC/ST Act and Section 42-A of
the POSCO Act reveal that there is a direct conflict between the two
non-obstante clauses contained in these two different enactments.
If Section 20 of the SC/ST Act is to be invoked in a case involving
offences under both the Acts, the same would be triable by a
Special Court constituted under Section 14 of the SC/ST Act and if
provisions of Section 42-A of the POSCO Act are to be applied, such a
case shall be tried by a Special Court constituted under Section 28 of
the POSCO Act.
From a perusal of the aims and objects of SC/ST Act, it is
manifest that it was passed with a view to prevent Commission of
atrocities on members of the Scheduled Castes and the Scheduled
Tribes by persons other than SC/ST. The procedure contemplated
under the said Act is almost identical to the procedure contemplated
under Cr.P.C. for trial of Sessions Cases, apart from providing
compensation. The SC/ST Act is silent as to the protection granted
to the children belonging to the weaker sections of the society. The
situation under the POSCO Act is totally different. The statement of
object and reasons of the Act show that it was enacted with a view
to protect children from the offences of sexual assault, sexual
harassment and pornography. It takes within its fold the protection
of children of all castes including those belonging to SC/ST. As stated
earlier, number of safeguards are provided to the children from
being exploited and Special provisions are also made for recording
their statements. Therefore, the paramount consideration of the
legislature under POSCO Act appears to be the interest of all children
including those belonging to SC/ST.
Dealing with an issue identical to the case on hand, the Apex
Court in Sarwan Singh V. Kasturi Lal held as under:
"When two or more laws operate in the same field and each
contains a non-obstante clause stating that its provisions will
override those of any other law, stimulating and incisive
problems of interpretation arise. Since statutory
interpretation has no conventional protocol, cases of such
conflict have to be decided in reference to the object and
purpose of the laws under consideration. For resolving such
inter se conflicts, one other test may also be applied though
the persuasive force of such a test is but one of the factors
which combine to give a fair meaning to the language of the
law. That test is that the later enactment must prevail over
the earlier one. Bearing in mind the language of the two
laws, their object and purpose, and the fact that one of them
is later in point of time and was enacted with the knowledge
of the non-obstante clauses in the earlier.
In KSL & Industries Limited v. Arihant Threads Limited and
others the Apex Court held as under:
In view of the non-obstante clause contained in both the
Acts, one of the important tests is the purpose of the two
enactments. It is important to recognize and ensure that the
purpose of both enactments is as far as possible, fulfilled.
Indeed, the question as to which act shall prevail must be
considered with respect to the purpose of the two
enactments; which of the two Acts is the general or special;
which is later. It must also be considered whether they can
be harmoniously construed.
From a reading of the judgments referred to above, it is clear
that when there are two different enactments containing two non-
obstante clauses, the Court has to see the object and purpose of the
two enactments and the legislation which is later in point of time.
A perusal of both the enactments would show that POSCO Act
is a self contained legislature which was introduced with a view to
protect the children from the offences of sexual assault, harassment,
pornography and other allied offences. It was introduced with
number of safeguards to the children at every stage of the
proceedings by incorporating a child friendly procedure. The
legislature introduced the non-obstante clause in Section 42-A of the
POSCO Act with effect from 20.06.2012 giving an overriding effect to
the provisions of the POSCO Act, though the legislature was aware
about the existence of non-obstante clause in Section 20 of the
SC/ST Act.
Applying the test of chronology the POSCO Act, 2012 came into
force with effect from 20.06.2012 whereas SC/ST Act was in force
from 30.01.1990. The POSCO Act being beneficial to all and later in
point of time, it is to be held that the provisions of POSCO Act have
to be followed for trying cases where the accused is charged for the
offences under both the enactments.
The reference is thus answered holding that where an accused
is tried for offences under both the enactments, the appropriate
Court to try the offence would be the Court designated under Section
28 of the POSCO Act.
________________________
JUSTICE C. PRAVEEN KUMAR
08.04.2015
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