ANIKET Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Learned Single Judge of this Court, relying on Rule 8 of Chapter I of the Bombay High Court, Appellate Side, Rules, 1960, requested the Honourable the Chief Justice to refer the following two issues for decision, by a Bench of two or more Judges. This is how the matter has been referred to this Full Bench for deciding the issues :

(2.) The facts, in brief, giving rise to this reference are as follows : A crime vide C.R. No.214/2023 was registered against one Aniket Labade for offences punishable under Ss. 363, 376, 376(3) of the Indian Penal Code and Ss.

(3.) and 4 of the Protection of Children from Sexual Offences Act (hereinafter referred to as the POCSO Act for short) with Nagar Taluka Police Station, Taluka and District Ahmednagar. Later on, Sec. 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the S.C. & S.T. Act for short) came to be additionally invoked. His application under Sec. 438 of the Code of Criminal Procedure (Cr.P.C. for short) was turned down by Additional Sessions Judge, Ahmednagar vide order dtd. 17/6/2023. He, therefore, preferred application under Sec. 438 of the Cr.P.C., to this Court. While hearing the application, the informant/ mother of the victim raised objection as to maintainability of the said application. It was her contention that, in view of Sec. 14-A(2) of the S.C. & S.T. Act, since remedy of appeal is provided against an order of grant or refusal of bail, the application under Sec. 438 or 439 of Cr.P.C. was not maintainable. In support of her submissions, reliance was placed on amendment to Sec. 18 and newly introduced Sec. 18-A of the S.C. & S.T. Act. On hearing learned counsel for the parties to the application, learned Single Judge has been pleased to make the reference. 3. Learned Single Judge is of the view that the Division Bench of this Court in case of Gorakshnath @ Samadhan Navnath Pagar Vs. The State of Maharashtra & anr. (Criminal Appeal No.362/2021) and the Madhya Pradesh High Court in case of Pramod Yadav Vs. State of Madhya Pradesh & ors. (Criminal Appeal No.5180/2020), appear to have not considered the vital aspect that introduction of Sec. 14-A is later in point of time to introduction of Sec. 42-A of the POCSO Act. Moreover, learned Single Judge observed in paragraph No.11 of the order dtd. 10/8/2023 as under :