VIKRAMBHAI AMRABHAI MALIVAD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Court is confronted with the issue of maintainability of the captioned application in the present form i.e. under section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Cr.P.C.") instead of an appeal under section 14-A(2) of the Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Atrocity Act"). The State has raised the preliminary objection with regard to the maintainability, whereas it is the case of the applicant-accused that the application is precisely filed under the provision of section 439 of the Cr.P.C. as he is arrested in connection with the offences under The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "the POCSO Act").

(2.) Pursuant to the offences registered vide C.R No.I-11187006200762 of 2020 for the offences under section 376, 376(d), 201 and 506(2) of Indian Penal Code, 1860 (hereinafter referred to as "the IPC"), under sections 4 and 12 of the POCSO Act and sections 3(1)(r), 3(1)(w)(1), 3(2)(v) of the Atrocity Act, at Lunavada Police Station, Dist. Mahisagar, the applicant was arrested on 22.05.2020. After filing of the charge-sheet, he filed Criminal Misc. Application No.272 of 2020 in the Court of Additional Sessions Judge and Special Pocso Judge and Special Atrocity Judge, Mahisagar at Lunwada. The same met with the fate of rejection vide order dated 09.07.2020. As a sequel, he has filed the captioned application under section 439 of the Cr.P.C.

(3.) Learned Public Prosecutor Mr.Amin, at the outset has raised an objection with regard to the maintainability of the present application. While referring to the provision of section 14-A(2) of the Atrocity Act, he has urged that the application may be rejected as non-maintainable since the applicant has to file an appeal under the said provision. In support of his submission, he has placed reliance on the jugement dated 28.03.2018 rendered by the Coordinate Bench of this Court in Criminal Misc. Application No.6219 of 2018 (Anilaben w/o Vineshbhai Asari d/ o Jivabhai Kharadi vs State of Gujarat).