Prevention of Atrocities to Schedule Caste and Tribes Act. Questions and Answers

Offences under the
SC/ST (Prevention of
Atrocities) Act.
:: Prepared by ::
H.S. MULIA
1

Disclaimer
Views expressed in this
document are for
information and
academic purpose only.
2

Question:- If the offence is
punishable under the Protection of
Children from Sexual Offences Act,
2012 (hereinafter referred as 'the
POCSO Act')and also under the
Scheduled Caste/Scheduled Tribes
(Prevention of Atrocities) Act,
1989, (hereinafter referred as 'PoA
SC/ST Act') which Special Court
will have jurisdiction to try such
offences? 3

Answer:- When two
statutes having non-
obstante clause, under
such circumstances which
statute would have
overriding effect would be
decided on the basis of
the purpose of statutes.
4

Hon'ble Full Bench of
Supreme Court in the
case of KSL & Industries
Ltd. v. M/s. Arihant
Threads Ltd., reported in
AIR 2014 SCW 6691.
5

While deciding an issue as to whether
Section 22 of the Sick Industrial
Companies (Special Provisions) Act,
1986, would prevail over Section 34 of
the Recovery of Debts Due to Banks
and Financial Institutions Act, 1993 or
not has held that there is nothing
contrary in the intention of the SICA to
exclude a recovery application from
the purview of Section 22, indeed
there could be no reason for such
exclusion.
Continue... 6

Since the purpose of the
provision is to protect the
properties of a sick company, so
that they may be dealt with in the
best possible way for the purpose
of its revival by the BIFR. It is thus
clear that the provisions of SICA,
in particular Section 22, shall
prevail over the provision for the
recovery of debts in the RDDB
Act. 7

As far as above referred
question is concerned same is
no more res integra and
answered in the case of State
of A.P vs Mangali Yadagiri,
decided by Hon'ble Single
Judge of Andhra Pradesh High
Court, reported in 2016 Cr.L.J.
1415.
8

Wherein after relying on the ratio laid down by
Hon'ble Apex Court in the case of KSL &
Industries Ltd. vs. Arihant Threads Ltd. has
held that 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. 9

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 with
effect from 20.06.2012 giving an overriding
effect to the provisions of the PoA to SC/ST
Act (Section 42A) , though the legislature
was aware about the existence of non-
obstante clause in Section 20 of the PoA to
SC/ST Act.
10

Question:-Whether a
Sessions Judge is
competent to take
cognizance of the offence
under the Act without the
case being committed by
a Competent Magistrate?
11

Answer:- Hon'ble Apex Court in the case of
Rattiram Vs. State of M.P., reported in AIR
2012 SC 1485 (FB), while dealing with 14 of
the pre-amended PoA SC/ST Act has held
that Court of Session is not empowered to
take cognizance directly without case being
committed to it by Magistrate. It is further
held that the objection relating to non-
compliance of Section 193 of the Code,
which eventually has resulted in directly
entertaining and taking cognizance by the
Special Judge under PoA SC/ST Act does not
vitiate the trial and on the said ground
alone, the conviction cannot be set aside or
there cannot be a direction of retrial.
12

But as per Second Proviso
of the Section 14(1) of
the PoA to SC/ST Act,
Special Court or Exclusive
Court is empowered to
take cognizance directly
without case being
committed to it.
13

Question:- Investigation
under the PoA SC/ST Act by
the Police Officer below the
rank of Dy.S.P. / D.S.P. can
make any difference over
the trial ?
14

Answer:- A bare perusal of the Rule
7 of the Scheduled Castes and
Scheduled Tribes (Prevention of
Atrocities) Rules, 1995 would reveal
that the State Government/the
Director General of
Police/Superintendent of Police after
taking into account the experience
etc. of a Deputy Superintendent of
Police shall appoint him as the
Investigating Officer in cases under
the above Act. 15

Sub-rule (3) further provides that the
Home Secretary and the Social Welfare
Secretary to the Government and
other officers in charge shall review
the working of the Deputy
Superintendent of Police and the
investigations done by him at the end
of every quarter. It is therefore
apparent that authority to investigate
has to be conferred on a specified
officer not below the rank of Deputy
Superintendent of Police.
16

Please refer ratio laid
down in the case of State
of A. P. v. Viswanadula
Chetti Babu, reported in
AIR 2011 SCW 12.
17

But only investigation qua offence under PoA
to SC/ST Act is vulnerable and not those
relatable to IPC. The investigation to an
offence under Section 3 of the 1989 Act by an
officer not appointed in terms of Rule 7 of
1995 Rules is illegal and invalid. But when the
offence complained are both under the IPC
and any of the offence enumerated in S. 3 of
the 1989 Act the investigation which is being
made by a competent Police Officer, in
accordance with the provisions of the Code
cannot be quashed for non-investigation of
the offence under Section 3 of the 1989 Act
by a competent Police Officer.
Continue... 18

In such a situation the proceedings shall
proceed in appropriate Court for the
offences punishable under the IPC
notwithstanding investigation and the
charge-sheet being not liable to be accepted
only in respect of offence under Section 3 of
the said Act for taking cognizance of that
offence. In the instant case there is
accusations related to offence under both
the Section 3 of 1989 Act and Sections 376,
506 of IPC. Therefore, quashing of the entire
proceedings for want of investigation of
offence under Section 3 by competent Police
Officer was not proper.
19

Please refer - State of
Punjab v. Hardial Singh,
reported in AIR 2010 SC
(supp) 838 and State of
M. P. v. Chunnilal @
Chunni Singh, AIR 2009
SCW 5335.
20

Question:- Whether
Court can entertain an
application for
anticipatory bail, if it
prima facie finds that
such an offence is not
made out?
21

Answer:- Delhi High Court in Dr. R.K.
Sangwan v. State, 2009 (112) DRJ 473
(DB) : (2010 Cri LJ (NOC) 185) and in
Crl. M.C. No. 3866/2008 and Crl. M.C.
No. 1222/2009 titled M.A. Rashid v.
Gopal Chandra decided on 23.03.2012
and a decision of the Orissa High Court
in Ramesh Prasad Bhanja v. State of
Orissa, 1996 Cri LJ 2743, have held
that in spite of the specific bar under
Section 438 of the Code, the Courts
are empowered to grant anticipatory
bail to the accused. 22

Considering above referred
ratios, Hon'ble Apex Court in
the case of Vilas Pandurang
Pawar v. State of Maharashtra,
reported in AIR 2012 SC 3316
and Bachu Das v. State of
Bihar, reported in AIR 2014 SC
(Supp) 1317 has held that:-
23

While considering the application for bail,
scope for appreciation of evidence and
other material on record is limited. Court is
not expected to indulge in critical analysis
of the evidence on record. When a
provision has been enacted in the Special
Act to protect the persons who belong to
the Scheduled Castes and the Scheduled
Tribes and a bar has been imposed in
granting bail under Section 438 of the
Code, the provision in the Special Act
cannot be easily brushed aside by
elaborate discussion on the evidence.
24

Question:- Whether a child
in conflict with law (as
defined under the JJ Act) can
claim anticipatory bail in
connection with an offence
registered against him
under the PoA SC/ST Act?
25

Answer:- The provisions of Section 12 of the JJ
Act of 2015 shall have an overriding effect over
the provisions of Section 18 of the PoA SC/ST
Act and a juvenile who is brought before the
Board or 'appears' even by means of an
application for being granting anticipatory bail,
then notwithstanding the provisions of Section
18 of the PoA SC/ST Act could be dealt with by
the Board/Court [in the light of Section 6(2) of
the JJ Act of 2000 Now Section 8 of the JJ Act,
2015)] as Section 12 of the JJ Act is a special
provision meant exclusively for juveniles as
such the exclusion of Section 438 of CrPC
under, Section 18 of PoA SC/ST Act shall not
apply in the case of a juvenile who is to be
governed by the JJ Act and dealt as such. 26

Thus, in the case of a 'juvenile',
as defined under the JJ Act, the
exclusion of the provisions of
Section 438 of the Code as
provided under Section 18 of
the PoA SC/ST Act shall not
apply.
Please refer Tara Chand v.
State of Rajasthan, reported in
2007 CrLJ 3047 (Raj). 27

Question:- Which remedy
available is available to
Complainant/prosecution vis a
vis accused, if bail has been
granted or rejected by the
competent court and what the
time limit to avail such
remedy?
28

Answer:- As per Section
14A(2) of the PoA SC/ST Act,
an appeal shall lie to the
High Court against an order
of the Special Court or the
Exclusive Court granting or
refusing bail.
29

Every appeal u/s 14A shall
be preferred within a period
of 90 days from the date of
the order appealed from. It
is further provided that no
appeal shall be entertained
after the expiry of the
period of 180 days.
30

Question:- Whether victim
or his dependents is/are
entitled to be heard at the
proceedings of bail,
discharge, release, parole,
conviction or sentence of an
accused?
31

Answer:- Yes. As
provided u/s 15A(5) of
the PoA SC/ST Act.
32

Question:- Whether
by change of
religion, person
would cease to be
member of SC/ST?
33

Answer: - No. The question whether
he ceases to be member thereof,
must be determined by appropriate
Court as such question would
depend upon facts of each case. In
such a situation, it has to be
established that a person who has
embraced another religion is still
suffering from social disability and
also following the customs and
tradition of the community, which he
earlier belonged to. 34

Please refer ratio laid down in
by Hon'ble Full Bench in the
case of State of Kerala v.
Chandramohanan, reported in
2004 CrLJ 1436.
Also refer ratio laid down in the
case of Rosamma Thomas v.
Circle Inspector of Police,
Tripunithura, reported in 1999
CrLJ 1666. 35

Hon'ble Madras High
Court in the case of
Kaliya Perumal v.
State, reported in 1998
CrLJ 1467 has held
that:-
36

When Complainant belonging to
Scheduled Caste and marries to person
belonging to O.B.C., such marriage
does not create conversion of caste.
Accused who was near relative of
husband of complainant, scolded and
insulted her by caste name, in such
circumstances, Complainant would not
loose her right of prosecution under
PoA SC/ST Act, merely because she
has married relative of the accused,
who belong to OBC.
37

Question:- What is to be
done if, habitual
complainant lodges
complaint after complaints
only for the purpose of
getting compensation from
the Government?
38

Answer:- Hon'ble
Apex Court in the case
of Mahila Vinod Kumari
v. State of M.P.,
reported in AIR 2008
SC 2965 has held as
under:-
39

Prosecution for perjury - Prosecutrix
filing F. I. R. that accused persons
waylaid her and raped her one after
other - Accused put on trial - During
trial prosecutrix denying commission
of rape and even the fact of lodging F.
I. R. - Initiation of prosecution against
her for fabricating evidence - Proper -
Prosecutrix admitting guilt - Imposition
of 3 months S. I.
40

For exercising the powers
under Section 344 of the Code,
the Court at the time of
delivery of judgment or final
order must at the first instance
express an opinion to the
effect that the witness before it
has either intentionally given
false evidence or fabricated
such evidence. 41

The second condition is that the Court
must come to the conclusion that in the
interests of justice the witness
concerned should be punished
summarily by it for the offence which
appears to have been committed by the
witness. And the third condition is that
before commencing the summary trial
for punishment the witness must be
given reasonable opportunity of
showing cause why he should not be so
punished. All these conditions are
mandatory. 42

Question:- While trying the
case for offences punishable
under the PoA SC/ST Act
and compoundable offences
punishable under the IPC,
trail court can grant
permission to compound,
compoundable offences
punishable under the IPC? 43

Answer:- In my opinion answer is
No.
In the case of Venkatesan v. Rani,
reported in (2013) 14 SCC 207 =
AIR 2013 SC 3320, the Hon'ble
Supreme Court, has considered its
earlier decision and clearly laid
down, as to cases in which the
High Court should interfere with
the finding of acquittal. 44

Paragraph 8 of the Venkatesan
(supra) decision state as under:
"8. Specifically and for the
purpose of a detailed illumination
on the subject, the contents of
paras 8 and 10 of the judgment in
Akalu Ahir v. Ramdeo Ram,
reported in (1973) 2 SCC 583 =
AIR 1973 SC 2145 may be usefully
extracted below. 45

"8. ... This Court, however, by way of
illustration, indicated the following
categories of cases which would justify
the High Court in interfering with a
finding of acquittal in revision:
(i) Where the trial court has no
jurisdiction to try the case, but has still
acquitted the accused;
(ii) where the trial court has wrongly
shut out evidence which the
prosecution wished to produce.
46

(iii) where the appellate court has
wrongly held the evidence which
was admitted by the trial court to
be inadmissible;
(iv) where the material evidence
has been overlooked only (either)
by the trial court or by the
appellate court; and
(v) where the acquittal is based on
the compounding of the offence
which is invalid under the law. 47

Since the compounding of the offences
punishable under the PoA SC/ST Act is
invalid, trial court should not allow
compounding of offences punishable
under the PoA SC/ST Act.
Since trial court is required to conduct
trial of the offences punishable under
the PoA SC/ST Act, there is no point in
recording the settlement and allow the
parties to compound the offences
punishable under the IPC.
48

Question:- What does
an Expression "in any
place within public
view" occurring in S.
3(1)(x) of the PoA
SC/ST Act mean?
49

Answer:- It means that the public
must view the person being
insulted for which he must be
present. No offence on allegations
under said section gets attracted if
person is not present.

Please refer to ratio laid down in
the case of Asmathunnisa v. State
of A. P., AIR 2011 SC 1905.
50

“In any place within public view" – Meaning
of - Allegation in FIR that first informant
was insulted by accused by calling him a
'Chamar' when he stood near car which
was parked at gate of premises - This was
certainly place within public view, since
gate of house is certainly a place within
public view - Offence is covered by Section
3(1) - Expression "place within public view"
which is used in Section 3(1) must not be
confused with expression "public place".
Please refer to ratio laid down in the case
of Swaran Singh and Ors. v. State, AIR
2008 SC (Supp) 441. 51

Question:- Whether
provision of the Probation
of Offenders Act, 1958
would apply to an
accused who has been
convicted for the offence
punishable under the PoA
SC/ST Act?
52

Answer:- No. Provisions of Section
360 of CrPC and Section 4 of
Probation of Offenders Act do not
apply an accused who has been
convicted for the offence punishable
under the PoA SC/ST Act - Section 20
of PoA SC/ST Act gives overriding
effect to Provisions of said Act over
other law - Consequently, accused
would not be entitled to benefit of
probation.
53

Please refer ratio laid
down in the case of Abaji
Shripatrao Tekale v. State
of Maharashtra, reported
in 2011 CrLJ 2195 (Bom).
54

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