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Legal Conundrum: POCSO Act vs. SC/ST Act – The Bombay High Court’s Perspective

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Case Title – Dinanath Manik Katkar v. State of Maharashtra and Anr.

Anticipatory Bail Application No. 2589 of 2023

CORAM: N. J. JAMADAR, J.

Decided on: 13th September 2023

Introduction

In a recent landmark judgment, the Bombay High Court weighed the conflicting provisions of the Protection of Children from Sexual Offences (POCSO) Act and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, sending ripples through the legal community. The court’s decision hinges on the critical issue of anticipatory bail when allegations under the POCSO Act are not prima facie established against the accused. In this blog, we delve into the background, the court’s decision, and the implications of this ruling.

Facts of the case

The petitioner sought pre-arrest bail in a criminal case under multiple IPC sections, the POCSO Act of 2012, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act) of 1989, and the Atrocities Act. The atrocities based on caste, sexual harassment, and violence were among the charges. The trial judge rejected the accused’s request for anticipatory bail. He therefore went to the high court. Instead of filing an appeal under Section 14A of the Atrocities Act, he requested anticipatory bail under Section 438 of the CrPC.

The Legal Conundrum

The crux of the matter lies in the conflict between these two statutes when an individual accused of a sexual offense against a child seeks anticipatory bail. The question at hand is whether the provisions of anticipatory bail in the POCSO Act should prevail over the SC/ST Act when allegations under the POCSO Act are not prima facie established.

In its recent judgment, the Bombay High Court has held that the provisions of anticipatory bail in the POCSO Act would not prevail over the provisions of appeal in the SC and ST (Prevention of Atrocities) Act if the allegations under the POCSO Act are not prima facie made out against the accused.

The court reasoned that the SC/ST Act, being a special legislation, must be given precedence in cases involving individuals from these marginalized communities. It cited the principle of harmonious construction of statutes and the need to protect the rights and interests of SC/ST communities as the basis for its decision.

Implications of the Judgment

The judgment underscores the importance of safeguarding the rights of individuals from SC/ST communities. It ensures that the special provisions of the SC/ST Act are not diluted when cases involve multiple statutes. This ruling sets a legal precedent that may influence similar cases in other jurisdictions. Courts in India may consider this decision when dealing with conflicts between different statutes. The judgment highlights the significance of interpreting laws in a manner that upholds the principles and objectives of each statute, especially when they seem to overlap. The Bombay High Court’s decision provides clarity on the legal procedures to be followed when allegations under the POCSO Act are not immediately substantiated, especially when an accused seeks anticipatory bail.

The Atrocities Act’s Section 14A supersedes the Criminal Procedure Code by stating that any judgement, sentence, or order, as well as the granting or refusing of bail by a Special Court, may be appealed to the High Court. An accused person under the Atrocities Act is prohibited from filing an anticipatory bail application under section 438 of the CrPC, according to section 18 of the Act. In the event of any conflict, the POCSO Act’s non-obstante clause, included in Section 42A, will take precedence over all other laws.

The court stated that when two statutes contain non-obstante clauses, the later enactment is deemed to prevail since it is inferred that the legislature was aware of the earlier statute and decided to give the later statute superseding force. The court made it clear that in order for this concept to be applicable, the offences that are punishable by the later law (in this example, the POCSO Act) must be prima facie proven. Some claims involved crimes covered by the Atrocities Act, like insulting a Scheduled Caste member’s modesty and caste-based abuse. Additionally, it was claimed that the defendant purposefully videotaped girls dancing in a procession. The court concluded that this did not constitute a prima facie case under the POCSO Act.

In order to avoid violating Section 438 of the CrPC, the court instructed the petitioner to submit an appeal as provided for in Section 14A of the Atrocities Act.

The applicant was granted permission by the court to turn the anticipatory bail application into an Atrocities Act appeal. The court allowed the applicant the freedom to bring up the issue before the relevant bench and ordered the necessary changes to be made as soon as possible.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Shivanshi Singh, NMIMS Law School Mumbai

 

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Suo Motu Cognizance of the Bombay High Court: A Wake-Up Call for Healthcare

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The Bombay High Court has recently taken suo motu note of the unfortunate deaths of patients in government-run hospitals in the Nanded and Chhatrapati Sambhaji Nagar districts, which has shocked the Maharashtra healthcare system. In a letter, lawyer Mohit Khanna expressed worry about the rising rate of mortality, particularly among infants, and this action is in reaction to his letter. Justice Arif Doctor and Chief Justice Devendra Kumar Upadhyaya’s division bench have intervened to look into the situation and make sure that responsibility is established.

The Unsettling Truth

In his letter to the court, Advocate Mohit Khanna revealed a depressing truth: At the Dr. Shankarrao Chavan Government Medical College and Hospitals (GMCH) in Nanded, 31 people, including infants, perished, while 14 more patients perished tragically at the Chhatrapati Sambhajinagar Government Hospital. These deaths were linked to a lack of basic supplies like beds, medical personnel, and medications—a flagrant violation of the right to life protected by Article 21 of the Constitution.

After receiving Khanna’s letter, the Bombay High Court responded promptly to this serious matter. At first, the court instructed Khanna to submit a thorough petition that included information on the number of open hospital beds, the availability of medications, and government spending on healthcare. But after giving the subject some more thought, the court chose to take suo motu cognizance of it, designating Khanna as the case’s amicus curiae.

The court’s prompt response underscores the seriousness and urgency of the circumstance. It recognises that human lives lost as a result of institutional flaws cannot be allowed and that those accountable must be held in check.

An Invitation to Accountability

The state’s fiscal allocation for healthcare is one of the important factors that the court is concentrating on. Birendra Saraf, the advocate general for Maharashtra, has been given the task of outlining the government’s financial commitment to the healthcare industry. This openness is essential for determining whether the deaths could have been avoided and whether resources were used efficiently to save lives.

The court has also requested an investigation into the dearth of specialised physicians in these facilities. Lack of skilled staff can have disastrous effects because specialised medical care can frequently mean the difference between life and death.

The Next Steps

On October 4, 2023, the National Human Rights Commission of India (NHRC) also took “suo motu cognizance” of the situation. According to the reports, patients in these hospitals have reportedly been dying owing to a lack of doctors and medicine.[1] It is crucial that all parties participate fully and openly in the inquiry as the court gets ready to hear the case on Friday, October 6. Families who have lost loved ones need an explanation, and any carelessness or flaws in the healthcare system must be corrected.

[1] Official NHRC website, https://nhrc.nic.in/media/press-release/nhrc-notice-chief-secretary-government-maharashtra-over-reported-deaths-several

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Bombay High Court upholds acquittal of medical officer accused of taking ₹100 bribe in 2007

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Title: State of Maharashtra v. Dr Anil Shinde

Decided on: 3rd October, 2023

CRIMINAL APPEAL NO.1301 OF 2012

CORUM: Jitendra Jain, J

Introduction

A government medical officer was recently acquitted of charges related to the alleged receipt of a ₹100 bribe from a patient in exchange for the issue of a medical certificate. This recent legal event has generated a lot of discussion and attention. Surprisingly, what would appear at first to be a modest money transaction, a ₹100 bribe has given rise to a number of ethical and legal concerns. When compared to the larger context extending from the years 2007 through 2023, Justice Jitendra Jain, the case’s presiding judge, asserts that the amount in question looks unexpectedly minimal.

Facts of the case

Dr. Anil Shinde, who the State of Maharashtra nominated as a medical officer in September 1995, was the subject of the case before the court. He had been sent to a small hospital in Paud, district of Pune. Laxman Pingale, the plaintiff, alleged that the doctor requested ₹100 in 2007 in order to issue a medical certificate certifying Pingale’s injuries. For the certificate, Shinde reportedly wanted a money despite treating the wounds. The Anti-Corruption Bureau (ACB) received a complaint from the patient, Pingale, and a trap was set in February 2007. A team from ACB allegedly inspected the hospital on February 20 and caught the medical professional in the act. Therefore, legal action was taken against him in accordance with the PCA, or the Prevention of Corruption Act. The special ACB court notified Shinde on June 16, 2011, that he had been accused of violating PCA Sections 7 and 13. He submitted a “not guilty” plea, and the trial got started. After the trial was over, on January 31, 2012, the special judge cleared Shinde of all charges. The State government appealed this acquittal to the High Court.

Courts analysis and Decision

The court noted that the Prevention of Corruption Act’s Section 20(3) stated that if the claimed bribe or gratification was modest, no inference of corruption could be made and the court might decline to assume that the accused is corrupt. The court further draws support from the verdict of Coordinate Bench of this Court in Hanmantappa Murtyappa Vijapure through L.R. Vs. State of Maharashtra [1], where the Court considered bribe of Rs.150/- as trivial for establishing criminal prosecution and the proper course of action could have been departmental inquiry.

The Court continued by noting that the purported satisfaction in this case was very little. Based on an evaluation of the facts, the trial court’s perspective is a reasonable one. The High Court concluded that the special judge’s ruling of acquittal did not need intervention and that the current appeal should be rejected. Justice Jain concurred with the trial court’s judgement to acquit the medical officer as a result.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Shivanshi Singh

[1] Hanmantappa Murtyappa Vijapure through L.R. Vs. State of Maharashtra, 2004 (3) M.L.J. 410

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The Bombay High Court dismissed a writ petition filed by a candidate declared ineligible for Ph. D Programme due to his non-completion of the mandatory 5 year service clause.

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The Bombay High Court dismissed a writ petition filed by a candidate declared ineligible for Ph. D Programme due to his non-completion of the mandatory 5 year service clause.

Title: Arun Kumar v. AIIMS

Decided on: July 24, 2023

Citation: 2023 SCC OnLine Bom 1521

CORAM: HON’BLE JUSTICE A.S. CHANDURKAR AND JUSTICE VRUSHALI V. JOSH

Introduction

The Bombay High Court dismissed a writ petition filed by a candidate declared ineligible for Ph. D Programme by assessing his status of completion of the mandatory 5 year service clause.

Facts of the Case

Petitioner filed a writ petition under Article 226 of the Constitution of India seeking declaration that he satisfies the eligibility criteria of rendering minimum continuous service of five years as a regular employee of the All India Institute of Medical Sciences, Nagpur for appearing in the entrance examination for the Ph.D. programme, July 2023 session. His name was not present in the list of eligible candidates as an in service candidate in the notice published on 20.7.2023. In the light of the certificate issued by the Director and Chief Executive Officer, AIIMS on 14.6.2023 coupled with the approval given by the Head of the Department where the petitioner was serving he was eligible to appear at the entrance examination. Having joined as a service candidate on 16.8.2018 the period of five years would have been completed on 15.8.2023 and as the date for joining the Ph.D. programme was 31.8.2023, hence prior to that last date the petitioner would have completed five years of continuous service. The candidature of the petitioner has been treated as ineligible by misconstruing clause 10.1 of the prospectus.

Court Analysis and Judgement:

The Court however sided with the Deputy Solicitor General of India for the respondent who pointed out that the last date for submission of hard copy of the application was 5.7.2023 and the petitioner had not completed the period of continuous service of five years on that date he was rightly held ineligible for participating in the entrance examination. The question of eligibility ought to be determined as existing on the last date of making of such application and not the last date for joining the Ph.D. programme. On the last date of making the application for seeking admission to the Ph.D. programme, July 2023 the petitioner did not satisfy the requirements of clause 10.1 of the prospectus as he had not rendered the minimum continuous service of five years on the last date of submission of application. He would have completed the five year continuous service on 15.8.2023. Since the last date of submission of application forms by hard copy was 5.7.2023 it was necessary for a candidate to have satisfied the requirements of clause 10.1 as on that date. When the final list of eligible candidates was published on 19.7.2023 the petitioner had not completed continuous service of five years. Since the petitioner is not found to be eligible to appear in the entrance examination as on the last date of submission of applications, no fault can be found with the notice dated 10.7.2023 that finds the petitioner ineligible to appear in the said examination for having not completed continuous service of five years on the last date of submitting the application. Due to lack of  any merit in the writ petition, the court hence accordingly dismissed the petition with no costs.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Reema Nayak

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The Bombay High Court at Goa grants bail to an accused charged under the NDPS Act, on the grounds of prolonged incarceration and blatant violation of his Article 21 right.

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The Bombay High Court at Goa grants bail to an accused charged under the NDPS Act, on the grounds of prolonged incarceration and blatant violation of his Article 21 right.

Title: Raju Lama v. State

Decided on: July 17, 2023

Citation: 2023 SCC OnLine Bom 1424

CORAM: HON’BLE JUSTICE M.S. KARNIK

Introduction

The Bombay High Court at Goa grants bail to an accused charged under the NDPS Act, found in possession of drugs, owing to prolonged incarceration and violation of his Article 21 right.

Facts of the Case

This case is an application for bail for the offences punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The applicant was arrested on 29.11.2020. At the time of arrest, it is alleged that the raiding party seized 2.5 kgs of charas which was in the dikky of a scooter parked by the applicant. The applicant is in custody for more than two years and nine months. The prosecution has cited sixteen witnesses and proposes to examine nine more witnesses. The applicant is requesting for a bail from Court.

Court Analysis and Judgement:

The counsel for the applicant submitted that the last date when the third witness was examined was on 23.03.2023 and since then there is no progress in the trial. The trial is likely to take some time to conclude. Supreme Court case Rabi Prakash v. State Of Odisha was cited to contend that the prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(i)(b)(ii) of the NDPS Act. The Court held that the applicant is entitled for bail on the ground of prolonged incarceration and because there are no criminal antecedents reported against the applicant. Also, the Court held that the likelihood of the applicant committing an offence of a similar nature is highly improbable. The Court therefore granted the applicant bail as he is a resident of Himachal Pradesh. He was released on bail upon furnishing a bond worth rupee 1,00,000.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Reema Nayak

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