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[Rama Krishna]

Dear friends,

        When the police failed to comply the proclamation notices for a quite long time, what would be the option left open to the court to proceed further in i) warrant cases ; (ii) summons cases.


         In cases under the provisions of the Protection of Children from Sexual offences Act, and also the provisions of SC/ST Act, after the acused is first remanded ; what is the option that is available for the learned Magistrate.

        In the same case, the accused is released on bail and charge sheet is filed under both the Acts.  then whether it should be committed to SC/ST Court or submit to the Special Court. 

[P Divakar]

so fare as second doubt is concerned, while remanding the accused in the warrant it has to be noted that, he has to present before the I ADJ on the next adjournment. And, the remand report along with F.I.R has to be transmitted to the 1 Adj court, postively prior to proudcing the accused before the I ADJ.

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[Radha Krishna Chowhan]

Hello RK Sir,

I have some material on the issue discussed by you. It may help you and others to come to an opinion.

Trial of cases involving offences under Protection of Children from Sexual Offences Act and S.C’s and S.T’s (POA) Act:

Where an offence defined under Protection of Children from Sexual Offences Act, 2012 is committed against a child, who is a member of scheduled castes or scheduled tribes offences under the S.C’s and S.T’s (POA) Act, 1989 also attracts. Then question arises that by what court the case would be triable? or is there any necessity of splitting into two cases to try the case by two Specal Courts falling under their respective jurisdictions?

Section 20 of the S.C’s and S.T’s (POA) Act, 1989 the provisions of this Act shall have effect notwithstanding anything inconsistent 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.”

Under Section 14 of the S.C’s and S.T’s (POA) Act, 1989, the State Government, with concurrence of the Chief Justice of the High Court is required to specify by notification in the Official Gazette, a Court of Sessions to be a Special Court to try the offences under the Act. So, an offence under Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, is triable exclusively by the Special Court constituted under section 14 of that Act.

The non-obstante clause as given under section 42-A the POCSO Act, 2012 runs as follows:

“42A. 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 any such law to the extent of the inconsistency.

It is true that the non-obstante clause in section 42-A has been constructed in a different manner, however, a perusal of Section 20 of the S.C’s and S.T’s (POA) Act, 1989 and Section 42-A of the POCSO Act would reveal that there is a direct conflict between the two non-obstante clauses contained in these Acts. Now the question is which provision of these acts would prevail?

The Apex Court in the case of Swaran Singh v. Kasturi Lal, AIR 1977 SC 265 provided the guidelines for resolving a direct conflict between two non-obstante clauses. The Court observed that 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, the cases have to be decided by reference to the object and purpose of the laws under consideration.

If we examine the object and purpose of the S.C’s and S.T’s (POA) Act, 1989, we find that the this Act was passed with a view to prevent the commission of atrocities against the members of the Scheduled Castes and Scheduled Tribes; to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of thereof. The procedure laid down in this Special Act is almost identical to the one provided under the Code of Criminal Procedure for trial of sessions cases.

Apart from provisions of compensation, no procedural safeguards have been incorporated in this Act, which address the vulnerabilities of these weaker sections of the society. On the other hand, POCSO Act has been enacted with a view to protect children from offences of sexual assault, sexual harassment and pornography. It professes to protect children of all castes and classes including those belonging to Scheduled Castes and Scheduled Tribes. It provides numerous safeguards to prevent exploitation of children and protect them during various stages of investigation, inquiry and trial. Thus, interests of children, including those belonging to Scheduled Castes and Scheduled Tribes, would be protected better if provisions of the Protection of Children from Sexual Offences Act are applied to a case. Thus, there is merit in the argument that full effect should be given to the provisions of Protection of Children from Sexual Offences Act notwithstanding anything contained in the provisions of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act.

Further the Court has also held that for resolving inter se conflicts, one other test is that the latter enactment must prevail over the earlier one.

Regards,

M.Radha Krishna Chahavan

II Addl. Jr.Civil Judge,

Nizamabad.

[GAJAWADA VENU Venu]

Its quite correct.

On Wed, Sep 10, 2014 at 8:46 PM, Radha Krishna Chowhan <mail2c...@gmail.com> wrote:

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[Jag Jeevan Kumar]

There is no procedure of issuing proclamation notice.   In cases of absconding accused, proclamation under Section 82 CrPC has to be issued.   Procedure is prescribed.   The procedure prescribed has to be followed.   In summons cases,  if the police does not publish the proclamation as directed, one can proceed to stop the proceedings under Section 258 CrPC.    In warrant cases, one has to see that the proclamation is published.   Write steps on the docket correctly keeping in view the time prescribed between the date of publication and the date stipulated for appearance of accused.   Send the required proclamation copies to the SHO with clear instructions him to publish the proclamation as directed and send compliance report.   With planning and strategy, one can get proclamations published through the SHO. 

[kiran kumar.d]

Dear friend,

         under posco act, special court alone competent to take cognizance of offences,  and under section 33(1) it may take cognizance of any other offences,  Strictly, as per posco act, even first remand of the accused is to be before special court, however provisions of cr.p.c applicable to posco act, magistrate court can remand the accused when produced for first time and second time the accused is to be produced before special court, police has to file charge sheet before special court. charge sheet is to be filed before the special court, you return charge sheet even it is filed under both acts, for presentation in special court and submit remand papers to special court. I concur with chowhan. 

      

[Bezawada Radha Rani]

sir, namesthe

 In case adj orally instruct to attend the petitions  in said act like potential test other. can we authorized to allow it. when made said representation that I am not authorized to do so they are not allowing it what can we do

On Fri, Sep 19, 2014 at 8:38 PM, kiran kumar.d <jcj.k...@gmail.com> wrote:

Dear friend,

         under posco act, special court alone competent to take cognizance of offences,  and under section 33(1) it may take cognizance of any other offences,  Strictly, as per posco act, even first remand of the accused is to be before special court, however provisions of cr.p.c applicable to posco act, magistrate court can remand the accused when produced for first time and second time the accused is to be produced before special court, police has to file charge sheet before special court. charge sheet is to be filed before the special court, you return charge sheet even it is filed under both acts, for presentation in special court and submit remand papers to special court. I concur with chowhan. 

      

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[Jag Jeevan Kumar]

One has to put a question to himself whether is he  authorized under the law to order potential test, etc.  If the statute authorizes him to order such test or to do any other act, he can order for it.   Entertaining petitions and passing orders on such petition in compliance of oral instructions from ADJ, PDJ or HCJ will land us in troubles.