- By an order dated 02.09.2022, the Kerala High Court granted bail to the petitioner under Section 439 of the Code of Criminal Procedure, 1973.
- It was alleged that the accused slapped and scolded the fifteen year old complainant using filthy language. Provisions of the SC/ST Act were also included as the complainant was a member of a Scheduled Caste.
- The petitioner was arrested and was kept under custody until bail was granted.
- The legal question as to whether the petitioner was entitled to move a bail application under Section 439 of CrPC was raised.
- There was a conflict regarding the provisions of two statutes relevant to the case which are the POCSO Act and the SC/ST (Prevention Against Atrocities) Act.
- If provisions of the POCSO Act prevailed, petitioner could rightly make an application for bail under Section 439 of Cr.P.C, the remedy of which could be sought before the Sessions Court as well as the High Court.
- If of the SC/ST Act prevailed, then the application had to be filed before the Special Court and only an appeal will lie to the High Court under section 14A of the SC/ST Act.
- The Court held that it was evident that the legislature intended to give supremacy to the POCSO Act, even over the SC/ST Act, in the event of any inconsistency.
- Thus the petitioner was perfectly justified in approaching this Court as Section 31 of the POCSO Act made the provisions of Cr.P.C applicable for bail applications.
- The bail granted to the petitioner was made absolute and this bail application was allowed.
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