Victim Must Be Heard Before Granting Bail In Rape Case: Delhi High Court
The Delhi High Court has held that a victim, who sets the criminal law in motion, is entitled to participate at every stage of criminal proceedings, including the hearing of an accused's regular bail application.Justice Saurabh Banerjee observed that the prosecutrix in a rape case must be afforded an opportunity to be present and heard before bail is granted to the accused. The Court made...
The Delhi High Court has held that a victim, who sets the criminal law in motion, is entitled to participate at every stage of criminal proceedings, including the hearing of an accused's regular bail application.
Justice Saurabh Banerjee observed that the prosecutrix in a rape case must be afforded an opportunity to be present and heard before bail is granted to the accused.
The Court made the observations while setting aside a bail order passed by the trial court without issuing notice to the prosecutrix and remanded the bail plea for fresh consideration after hearing her.
The Court was dealing with a plea filed by the prosecutrix challenging order of the the trial court which had granted regular bail to the accused in an FIR registered under Section 376 of IPC read with Section 69 of the Bharatiya Nyaya Sanhita (BNS).
The Court referred to Section 483(2) of BNSS which makes the presence of the informant or a person authorised by them obligatory at the hearing of bail applications in specified sexual offence cases.
It also took note of the Delhi High Court's Practice Direction prescribing the manner in which an informant is to be notified about a bail application.
Justice Banerjee relied upon the Supreme Court's judgment in Jagjeet Singh v. Ashish Mishra, wherein the Court recognised the victim's right to participate in criminal proceedings and emphasised that such rights are substantive and enforceable.
The Court further referred to the Supreme Court's decision in Ms. X v. State of Maharashtra, which reiterated that the prosecutrix's right to be heard cannot be curtailed merely because the State is represented in the proceedings.
Applying the said principles, the Court held:
“…any victim like the prosecutrix herein who set the state machinery in motion by filing a complaint under Section 376 IPC/ Section 69 BNS against the accused herein, is to be given an opportunity of participating at all stage(s) of the criminal proceedings” including when the accused seeks regular bail.
The Court observed that the grant of regular bail within three days, in the circumstances of the case, called for the order to be set aside.
While doing so, it also clarified that it was not examining the merits of the accused's case. It held that the bail order could not be sustained because the prosecutrix had not been given notice and an opportunity of hearing.
The bail plea was remanded to the trial court for fresh consideration, preferably within two weeks, after providing an opportunity of hearing to the prosecutrix.
“However, considering that the existing facts and circumstances involved, particularly, since the impugned order is only being set aside for the limited reason that the learned Trial Court failed to issue notice to the prosecutrix, till fresh adjudication thereof by the learned Trial Court, the accused shall not be re-arrested,” the Court said.
Title: Ms G v. State NCT of Delhi & Anr