S.439(1A) CrPC | Denial Of Victim's Right To Be Heard Valid Ground To Cancel Bail: Karnataka High Court Issues Directions

In a landmark ruling, the Karnataka High Court has issued a slew of directions to be followed by trial courts and the prosecution to ensure effective compliance with Section 439(1A) of CrPC which mandates victim participation while deciding bail application filed by the accused in sexual assault cases. Justice S Vishwajith Shetty added that the obligation to notify the informant or victim of the bail application was on the court and prosecution and a failure to comply with this requirement led to a violation of the petitioner's rights..“Since it is now trite that the bail application of an accused for the offence punishable under Section 376(3), 376-AB, 376DA 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.” Directions issued:(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 20 informant/victim and also direct the prosecution to ensure service of notice of the bail application on the informant/victim and submit requisite acknowledgement 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 concerned court 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 concerned court 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 authorised to represent the minor victim. (ix) Registry shall ensure that if the informant or victim is a minor, he/she shall not be made a party to the proceedings and no notice shall be issued or served on the minor informant/victim.Background:The petitioner, who is the informant and victim, had filed a petition under Section 439(2) of the CrPC seeking the cancellation of the bail granted to respondent 2 herein by the Court of Additional District & Sessions Judge, FTSC-II, Mandya. The petitioner, a 21-year-old girl, had filed a written complaint alleging sexual assault and threats by respondent 2 dating back to 2014 when she was in the 9th grade and further claimed that he promised to marry her, leading to her silence. After becoming pregnant in 2020 and a subsequent engagement ceremony, issues arose, with threats from respondent 2 in September 2021. Although his anticipatory bail was rejected, he was granted regular bail. The petitioner had approached the High Court challenging this decision.The petitioner's counsel argued that the informant/victim or her authorised representative was not heard by the Trial Court when granting bail to respondent 2 and thus argued that the Trial Court did not comply with the provisions of Section 439(1A) of CrPC. On these grounds, they sought for the bail to be cancelled.In contrast, the respondent's counsel argued that the obligation to notify the informant/victim lies with the court and the prosecution...

S.439(1A) CrPC | Denial Of Victim's Right To Be Heard Valid Ground To Cancel Bail: Karnataka High Court Issues Directions

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