In India, if someone is accused of serious crimes, especially those involving children or members of Scheduled Castes or Scheduled Tribes, there are special enactments in place to protect the victims. Two such laws are:
- The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Often called the SC & ST Act.
- The Protection of Children from Sexual Offences Act, 2012 – Commonly known as the POCSO Act.
Burden of Proof, when it is reversed!
The special statutes require harsher punishments than basic criminal statutes. Carrying out bail procedures and appeals becomes more complex for those under Special Statute legislation. At the start, we must emphasize that under our legal system, the accused person maintains innocence or is presumed to be innocent until proven guilty by prosecution. Under such circumstances, the prosecution bears the responsibility to demonstrate the accused's guilt so that an acquittal becomes possible when their evidence fails to meet standards. In these cases, where the offences are not under the special Acts or statutes, the burden always lies on the prosecution to prove the accused guilty of the offences. On the contrary, Special Statute classifications require the accused to bear the responsibility of proving their innocence throughout all stages of legal proceedings. In those cases, the accused must demonstrate innocence since our system presumes guilt for the charged offenses until he establishes his innocence inasmuch as the burden of proof is reversed and it lies on the accused to prove himself innocent, till then, he is presumed to have committed the alleged offence.
What is Bail and What is an Appeal?
Before we go into the details of these laws, let’s quickly understand what bail and appeal mean:
- Approval for bail allows criminals charged with an alleged crime to spend their pre-trial period outside jail. The legal process permits two types of bail, which are anticipatory bail, which is granted before arrest, and regular bail, where the accused is released after arrest. After granting bail to an accused person, the ongoing court trial proceeds according to its legal course. The Court has complete authority to release accused persons using chosen conditions during regular bail while determining the bail period, either for a descriptive term or until the Trial ends. When convicted, the accused must surrender before the court for the fulfillment of his prison term.
- Appeal acts as the process of asking a superior court to review decisions made by lower judicial bodies. It is filed because the accused feel dissatisfied with their rulings. Appeals should be filed at the Sessions Court whenever the trial took place before JMFC or SDJM or any Judicial Magistrate. If the Session Court conducted the trial, then appeal lies before the High Court.
SC & ST Act
This law protects people belonging to Scheduled Castes and Scheduled Tribes from atrocities and discrimination.
Section 18 of the SC & ST Act
- No anticipatory bail: Section 18 of the Act clearly says that no anticipatory bail (i.e., bail before arrest) shall be granted to any person accused of an offence under this Act. However, there are certain instances where the anticipatory bail applications are entertained by different High Courts, and the accused is directed to surrender before the Court of Seisin, serving an advance copy of the application on the Public Prosecutor. The details of such cases would be discussed in another article.
- Regular bail: However, a person can apply for regular bail after being arrested. The Courts have the power to release the accused on such terms and conditions as deemed fit and proper, subject to the satisfaction of the court that the complaint is not false or made with an intent to humiliate.
Section 14A – Appeals
- This section allows a person to file an appeal before the High Court in case of rejection of their bail application by the Special Court or Exclusive Special Court, as the case may be.
- The appeal must be made to the High Court within a period of 90 days from the date of passing of the Order/Judgment being challenged.
- The High Court has unfettered jurisdiction to entertain the appeal filed beyond the statutory period of 90 days from the date of the Judgment/Order if it is satisfied that the appellant had sufficient cause for not preferring the appeal within 90 days. However, Section 14A(4) mandates that no appeal shall be entertained after the expiry of 180 days.
POCSO Act
This Act protects children (under 18 years) from sexual offences. It is gender-neutral and includes both boys and girls. There is no specific section in the POCSO Act that bars filing of anticipatory bail, but since the offences are serious and often fall under the category of non-bailable offences, courts usually consider such applications very carefully. As stated earlier, the burden of proof is reversed here, and Section 29 of the POCSO Act creates a presumption of guilt — this means the court assumes the accused is guilty unless the contrary is proven.
Section 31:
- The provisions of Cr.P.C would be applicable. Hence the accused is at liberty to file both anticipatory bail or regular bail, as the case may be.
Appeals
- Section 28 of the POCSO Act empowers the Special Courts to hear cases under this Act. It provides that for each district, generally, the Court of Session is to be the Special Court to try the Offences under this Act.
- Appeals from decisions of the Special Court go to the High Court.
What Happens When Both Acts Are Involved?
This is a peculiar situation, when one might be charged under both the SC & ST Act and the POCSO Act. For example, if a child from a Scheduled Caste is sexually assaulted, both laws will apply. Before jumping into the conclusion as to whether regular bail or appeal is to be filed in such cases, it is relevant to put light on the fact that similar situation was there before the Hon’ble High COurt of Orissa in BLAPL No. 8280 of 2020 (Sunil Sahoo @Mantu Sahoo VS State of Odisha & Anr), reported in 2021 (I) OLR 515.
In this matter, the charge sheet against the accused was prepared under Sections 363, 366, 364, 302, and 201 of the IPC, read with Sections 4 of the POCSO Act and Section 3 of the SC & ST (PoA) Act. After the learned Additional Sessions Judge-cum-Special Court dismissed his bail application, he approached the High Court to file the bail application U/S 438 of Cr.P.C.
Objections by State Counsel:
The counself for the state raised a preliminary objection regarding the maintainability of the regular bail application U/S 439 of Cr.P.C and contended that since the alleged offences is under the SC & ST (POA) Act, an appeal ought to have been filed U/S 14A of the SC & ST (POA) Act.
Finding of the Court:
The Hon’ble High COurt of Orissa held that Section 42(A) of the POCSO Act provides that the provisions of any other law for the time being in force and in case of any inconsistency, the provisions of the Act shall have the overriding effect on the provisions of such law to the extent of such inconsistency. Further, under Section 31 of the POCSO Act, the provisions of Criminal Procedure are made applicable to the proceedings before the Special Court trying the offences under the POCSO Act, as also the provisions of appeal contained therein in the code have been made equally applicable to the proceedings of the offences under the POCSO Act. As such, the regular bail application is maintainable.
The link to the judgment is at the bottom of the post.
Summary
- If the only SC & ST Act is involved, anticipatory bail cannot be granted due to Section 18. The person can apply for regular bail, but the court will consider, before granting any relief, whether the complaint is genuine. The seriousness of the offence.The risk of the accused influencing witnesses or tampering with evidence. If the Special Court refuses bail, the accused can file an appeal to the High Court under Section 14A of the SC & ST Act.
- If only the POCSO Act is involved, the accused may approach the High Court seeking anticipatory bail. In case of arrest, regular bail can be moved as per the provisions of Cr.P.C. or the BNSS, 2023, as the case may be. In the event of conviction, the same can be challenged before the High Court in appeal.
- If both the SC & ST Act and the POCSO Act are involved, then the accused can file an anticipatory bail application before the High Court in view of Section 31 read with Section 41(A) of the POCSO Act.