Delhi High Court has issued a series of directions to ensure that the Sessions Court comply with the court's various orders which mandates that notice must be issued to the complainant in all bail proceedings concerning POCSO cases.
The Single Bench of Justice Prathiba M Singh has noted that the District Judges shall inform and sensitise all the presiding officers of the importance of compliance of the mandatory condition of issuing notice to the complainant/victim/informant, and the legal position in this regard.
The order has come in a criminal petition moved to highlight the grave problem of hearing not being afforded to victims/complainants/informants, in bail applications filed on behalf of those accused who are facing trial under the provisions of Sections 376(3), 376- AB, 376 - DA or 376 DB of the IPC, and the provisions of POCSO Act.
These Practice Directions mandates that the presence of the informant or any person authorized, shall be obligatory at the time of hearing of the application for bail to the person under Sections 376/ 376(3)/ 376-AB/ 376-DA and 376-DB IPC.
Appearing for the Petitioner, Ms Tara Narula submitted that the Sessions Court order is bad in law as the same has been passed without issuance of notice to the complainant of FIR and thereby, denying the opportunity of hearing.
Ms Narula cited the amended section 439 of the Criminal Procedure Code, as well as the Practice Directions issued by the Delhi High Court on 24/09/19, which have mandated that the presence of the informant or any person authorized,shall be obligatory at the time of hearing of the application for bail to the person under Sections 376/ 376(3)/ 376-AB/ 376-DA and 376-DB IPC.
By an order dated 27/01/20, the Petitioner further pointed out, the Delhi High Court had extended the obligation stated under the said Practice Directions to cases under POCSO as well and a direction was issued to the District Judges, National Commission for Protection of Children Rights ('NCPCR') and State Commission for Protection of Children Rights ('SCPCR') to strictly comply with the same.
The report submitted by the Registrar General of the Delhi High Court indicated that out of a total of 294 cases wherein bail was sought by the accused, notices were issued to the Complainant in only 79 cases i.e., in 215 cases, which is almost 70%, no notice was issued.
In light of these figures, the court observed that there is also no doubt that most Sessions Courts are not issuing notices to the complainant before entertaining or hearing bail applications of accused, including those for interim bail.
The court said:
'Suffice to say, that the lockdown period has thrown up several challenges to the Court system which Courts are bracing for on an everyday basis. However, the non-issuance of notice to the complainant/victim/informant is such a fundamental pre-condition, that such a requirement of law cannot be bypassed, ignored or neglected.'
In order to ensure that the trial courts comply with the Practice Directions issued by the court as well as the recent order of this court in the case of Reena Jha v. Union of India, the court laid down with the following directions:
The court also made it clear that any non-compliance of the mandatory condition of issuance of notice and service of notice to the complainant/victim/informant could entail consequential action, in accordance with law.
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