S. 483(2) BNSS | Can Bail Plea Be Heard In Victim's Absence If They Choose Not To Appear Despite Notice? Allahabad HC Answers

Interpreting Section 483 (2) BNSS, the Allahabad High Court has clarified that a bail application in certain cases of rape involving minors can be heard even if the informant or complainant/victim is absent, provided they were duly informed about the proceedings [2026 LiveLaw (AB) 324]. The Court stressed that the statutory mandate is to provide the complainant an opportunity of hearing, and thereafter it is at the complainant's "sweet will" whether to appear before the Court at the time of hearing of the bail application. A bench of Justice Subhash Vidyarthi ruled thus while hearing a bail plea filed by a 20-year-old accused who has been booked under Sections 70(2) [Gang Rape], 351(3) BNS [Criminal Intimidation], Section 5/6 POCSO Act [Aggravated penetrative sexual assault] and Section 3(2)(v) of the SC/ST Act. During the hearing, the State raised a preliminary objection against proceeding with the bail hearing by referring to Section 483(2) BNSS [Section 439(1A) CrPC], which makes the presence of the informant or an authorized person 'obligatory' at the time of the bail application in sexual offences involving rape of minors. The State pointed out that although the police delivered the information to the complainant on May 26, 2026, no one was present on their behalf; hence, the bail application could not be heard.Justice Vidyarthi, however, rejected this argument as he referred to Rule 4 of the Protection of Children from Sexual Offences Rules 2020, as well as a 2021 Judgment of the High Court in the case of Rohit v. State of UP. The Court noted that the Rules make it incumbent upon the local police or Special Juvenile Police Unit (SJPU) to inform the child and the local guardian regarding the schedule of court proceedings. This having been done in the present case, the Court observed that the complainant had chosen not to come forward to oppose the bail application.The Court reasoned that if the informant chooses not to appear in spite of having been given information regarding the hearing of bail plea, "he reposes trust in the learned Public Prosecutor or the learned AGA" who would be there to advance submissions in opposition to the bail application. Consequently, the Court held that it cannot be said that the bail application cannot be heard in absence of the informant. Now, on the merits of the case, the single judge took into account the facts of the case and noted that the 14-year-old victim had herself lodged an FIR alleging that two accused persons forcibly took her to a field at around 7:00 p.m., where one shut her mouth and the applicant raped her. However, the bench further noted that in her statement recorded under Section 183 BNSS before the Magistrate, the victim stated that she did not know who the other person involved in the incident was. The Court noted that the medico-legal examination report found no mark of injury on any part of the victim's body and the hymen was found to be intact. The doctor mentioned that the victim's clothes were collected and were not torn or stained. The State also admitted that the investigation had concluded, but the pathological examination reports of the samples drawn during the medico-legal examination of the victim are not available in the case diary. Considering these factors and noting that the applicant is a young man aged about 20 years, having no criminal history, who has been languishing in jail since February 2026, and the investigation has been concluded, the Bench granted him bail.Case title - Umesh Mali vs State Of U.P. Thru. Prin. Secy. Home Lko And 3 OthersCase citation: 2026 LiveLaw (AB) 324Click Here To Read/Download Order

S. 483(2) BNSS | Can Bail Plea Be Heard In Victim's Absence If They Choose Not To Appear Despite Notice? Allahabad HC Answers

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S. 483(2) BNSS | Can Bail Plea Be Heard In Victim's Absence If They Choose Not To Appear Despite Notice? Allahabad HC Answers

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