Karnataka High Court: While considering the instant petition wherein the informant had prayed before the Court to cancel the bail granted to the respondent no. 2 by the Trial Court for offences punishable under Sections 354-D, 376(3), 376(2)(n), 450, 366, 506, 420 of Penal Code, 1860 and Sections 4, 6 & 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO), the Bench of S. Vishwajith Shetty, J.*, found that the informant was not notified about the bail application filed by respondent no.2 under Section 439 of CrPC, and therefore, there is factually a denial of right to the informant to participate in the proceedings which is recognized under Section 439(1A) of CrPC. Hence the impugned order was held to be unsustainable in law. The Court further issued directions to ensure effective implementation of POCSO Act and amendments introduced in the CrPC in 2018 vis-à-vis notifying the informants or victims about submissions or filing of regular and anticipatory bail applications and other connected issues.
The informant was sexually assaulted by respondent no 2 when she was allegedly 17 years old. After committing the act, respondent no 2 had promised to marry her and also, threatened her of dire consequences. Allegedly respondent 2 kept repeating the act number of times whenever the informant’s parent had left. In 2020, when the informant became pregnant, her parents got the foetus aborted and immediately solemnised the engagement of the informant with respondent no 2. However, the respondent informed that his mother is not happy with the engagement and forbade. After the informant revealed the same to her parents, the respondent no. 2 along with his friends threatened her with dire consequences if she goes to the police.
The informant eventually lodged a complaint before the police. Application seeking anticipatory bail filed by respondent no.2 under Section 438 of CrPC, but the case was rejected. Thereafter he voluntarily surrendered before the Trial Court on 27-10-2022 and had filed bail application under Section 439 CrPC which was allowed by the Trial Court by the impugned order. Being aggrieved by the same, the informant approached the High Court under Section 439(2) CrPC.
Counsel for the informant submitted that informant or any person authorized by the informant were not heard in the matter by the Trial Court before granting regular bail to respondent no.2 and therefore, the bail granted to respondent no.2 is liable to be cancelled.
Court’s Assessment and Directions: Perusing the facts and legal trajectory of the case and cases referred by the informant’s counsel, the Court pointed out that material on record showed that bail application under Section 439 CrPC was filed before the Trial Court by respondent no.2 for which objections were filed by the informant. During the pendency of the said bail application, and since charge sheet was filed, the afore-stated bail application was withdrawn by respondent no.2 and a fresh bail application was filed before the Trial Court which was allowed on 13-12-2022. In the said application, no notice was given to the informant. Thus, such circumstances render the impugned order to be unsustainable in law.
The Court stated that it is now trite that the bail application of an accused for the offence punishable under Section 376(3), 376-AB, 376-DA or 376-DB of IPC or for the offences punishable under the provisions of the POCSO Act cannot be heard and disposed of without giving opportunity of being heard to the informant/victim, the court and the prosecution are required to take into consideration the obligation on their part to keep the informant/victim informed about the stages of criminal proceedings including filing of applications seeking bail by the accused persons. Failure on the part of the court or the prosecution to take necessary steps in this regard will eventually cause hardship to the accused and thereby his right to liberty gets affected.
The Court thus found it a fit case to issue following directions to ensure effective implementation of POCSO Act and 2018 amendments to CrPC:
(i) Whenever an accused who is charged under Section 376(3), 376-AB, 376-DA or 376-DB IPC or the provisions of the POCSO Act, moves an application for regular bail or anticipatory bail, the Registry of the Court shall inform the accused or the advocate for the accused about the requirement of notifying the informant/victim regarding filing of the bail application, though it is not obligatory on the part of the accused/advocate for the accused to implead the informant or the victim, as the case may be.
(ii) In the event the accused/advocate for the accused impleads the informant/victim as party-respondent to the proceedings, steps shall be taken by the court for service of notice on the informant/victim, as the case may be.
(iii) In the event the accused/advocate for the accused does not implead the informant/victim as party-respondent to the proceedings, the court hearing the application shall take necessary steps for effective service of notice of the bail application on the informant/victim and also direct the prosecution to ensure service of notice of the bail application on the informant/victim and submit requisite acknowledgment to the said effect before the court.
(iv) It shall also be incumbent on the court and the prosecution to keep the informant/victim informed about the date of hearing of the bail application and also, the right of the informant/victim to be represented and the legal assistance for which the informant/victim is entitled through the Legal Services Authority.
(v) If the prosecution is not in a position to trace the informant/victim, a status report shall be filed giving reasons for the same, which shall be taken into consideration by the concerned court and necessary orders be passed.
(vi) In the event the informant/victim does not appear before the court despite service of notice, the Court concerned shall proceed to consider the bail application on its merits after having recorded that service of notice on the informant/victim is completed.
(vii) In cases where applications are filed seeking interim bail, the court concerned can pass suitable orders after recording reasons for the same awaiting service of notice on the informant/victim.
(viii) The Registry of the court shall ensure that in cases where the informant is a minor, notice shall be issued on the bail applications to the parents/guardians of the minor or to the person who is duly authorized to represent the minor victim.
(ix) Registry shall ensure that if the informant or victim is a minor, he/she shall not be made as a party to the proceedings and no notice shall be issued or served on the minor informant/victim.
[Informant v. State of Karnataka, 2023 SCC OnLine Kar 69, decided on 11-10-2023]]
*Order by Justice S. Vishwajith Shetty
Advocates who appeared in this case :
For informant: Tejas N., Advocate
For respondent: N. Anitha Girish, HCGP for R-1; Lakshmikanth K., Adv. for R-2
Buy Protection of Children from Sexual Offences Act, 2012 HERE
Buy Penal Code, 1860 HERE
Buy Code of Criminal Procedure, 1973 HERE
