Atrocities and POCSO

 

 

 

PREVENTION OF ATROCITIES ACT, 1989
 

 

 

 

The Scheduled Castes And The Scheduled Tribes (Prevention Of Atrocities) Act, 1989, is a legislation created with the purpose of prevention of committing atrocities against the members of the Schedules Caste and Scheduled Tribes.

 

Atrocities is defined under Section 2(1)(a) as any offence punishable under section 3 of the Act. Section 3 lays down various acts which count as offences, which are committed by people who are not members of Scheduled Caste or a Scheduled Tribe, on members of Scheduled Caste and Scheduled Tribe.

 

 
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (POCSO) ACT, 2012
 

The POCSO Act, 2012 is a legislation made to protect children from various sexual offences, such as sexual assault and sexual harassment and pornography. This act also aims to ensure that interests of the children are safeguarding throughout the stages of the judicial process, by incorporating child friendly methods and mechanism in every step.

 

 

Both of these legislations have been created to protect the interests and facilitate safety towards different groups of people, one catering to the SC and ST group and another to children. However, sometimes there are acts which can fall simultaneously into both the groups. It is also no secret that someone accused under these acts suffer a severe damage.

 

 
RIGHTS OF THE ACCUSED
 
Right of the accused in criminal offences are commonly as follows, which have been enumerated mainly in the Criminal Procedure Code, 1973.
 
1. An accused is assumed to be innocent until proven guilty, as provided in the Evidence Act.
 
2. An accused has a right to defend himself and present evidence during a trial, and the right to be acquitted when there are no grounds.
 
3. An accused has the right to representation and free legal aid, when he does not have adequate means to represent himself
 
4. The accused also has the right to know the grounds of his arrest
 
5. The accused has a right to be granted bail.
 
6. The accused has the right to have the copy of the police report and other relevant documents
 

7. The accused has the rights provided under article 20 of the Indian Constitution, which includes double jeopardy and self incrimination, along with right to life and personal liberty under article 21.

 

 
PREVENTION OF ATROCITIES ACT, 1989
 

This legislation does not allow the accused to have anticipatory bail, which dilutes the right of bail of the accused. This has been stated in section 18, which states that the provisions of section 438 of the CrPC(which concerns with anticipatory bail), cannot be invoked for offences committed under the current act, however, there have been cases, making this provision slightly more flexible.

 

 
Prathvi Raj Chouhan v. Union of India, (2020) 4 SCC 727
 

The High Court can grant anticipatory bail in the capacity of section 482 of the CrPC in exceptional cases to prevent misuse of provisions on settled parameters.

 

 
Mohandas C. v. Sub Inspector of Police, 2020 SCC OnLine Ker 4783
 

Anticipatory bail can be granted for offences under the Act only in the event of no prima facie case being made out. The Supreme Court has alerted the courts to be cautious while exercising such power.

 

 
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (POCSO) ACT, 2012
 

POCSO Act, carries reverse burden for certain offences, which means that the burden of proof lies on the accused to prove that he is not guilty of committing offences enlisted under sections 3,5,7,9 of the act, which are the offences of penetrative sexual assault, aggravated penetrative sexual assault, sexual assault and sexual harassment. This reverse burden has been stated in section 29 of the Act. Adding to this, section 30 of the Act states that for the offences in the act that required a person to have “culpable mental state”, the Courts will assume that the person has culpable mental state to commit the offence unless he doesn’t prove otherwise.

 

 
SPECIAL COURTS – POCSO VS PREVENTION OF ATROCITIES ACT, 2012
 

Both these Acts establish “Special Courts”, which have the power and authority of for the disposing cases which arise from their respective Acts, and follow the respective procedures entailed in the Acts.

 

 
However, when there are the same set of facts constitute a offence in both the legislations, which is the procedure that should override the other? Both Acts contain non-obstinate clauses, which state that the provisions of the said act will prevail, when there exists a contradiction with other legislations.

 

The Courts have answered this questions in various cases, where the conclusions lies that the POCSO Act jurisdiction prevails over the Prevention of Atrocities Act.

 

 

It was stated in the case of Union of India v. Ranjit Kumar, that when there is a case of conflict between any two laws, the law which came in force later is ordinarily given effect, and due to this reasoning, there must be a presumption in favour of the POCSO Act’s provisions in cases of conflict with the Atrocities Act. This preference has also been given in the case of Pramod Yadav v. The State of Madhya Pradesh.

 

 
WHY IS THE POCSO GIVEN A PREFERENCE OVER THE ATROCITIES ACT?
 

1. Section 28(2) of the POCSO Act, allows the Special Courts to try offences which the accused can be tried under offences other than the ones given in the POCSO Act, however, such power has not been given in the Preventions of Atrocities Act.

 

 

2. Another reason that can be given, the POCSO Act, provides for more detailed procedures and several additional safeguards for the special care of children, which are not present in the Atrocities Act. The purpose of both Atrocities Act an the POSCO Act are to protect vulnerable classes of society, which are more prone to being victims of crime. If in these cases, the Atrocities Act is given preference over the POCSO Act, it will be depriving the children of the SC/ST groups, from getting the additional safeguards that are provided to children, which defeats the very purpose of the act.

 

 
PLIGHT OF THE ACCUSED
 
In the POCSO Act, it is clear that the burden of proving innocence is on the accused, and adding to that, according to section 22 of the POCSO Act, if a child makes a false complaint, they will not be penalised for the same, regardless of the fact that the accused had to face the burden of proving himself innocent.

 
 
While for the Atrocities Act, anticipatory bail is not allowed in most cases. Right of bail is an intrinsic right of an accused provided in the Criminal Procedure Code, 1973, and this is taken away partially, when anticipatory bail is not granted. Adding to this the act has been used multiple times to threaten people, and has been heavily misused.
 

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