The Orissa High Court last week directed its Registrar (Judicial) to issue a 'practice direction' or 'notification' to all subordinate courts requiring them to ensure the presence of the informant/victim/complainant during the hearing of bail petitions of persons accused in cases of rape and gang-rape of girls younger than 12 years of age and gang-rape of women less than 16 years.
Justice Panigrahi was hearing the bail plea of an accused in a case registered for the offence under Section 363, I.P.C. but subsequently turned to Section 376(2)(n)(3), I.P.C., read with Section 6 of the POCSO Act.
The Court intended to issue notice to the informant/victim/complainant but the counsel for the petitioner submitted that the notice was not required in the instant case.
The Single Judge noted that since the hearing of this case relates to grant of regular bail to the accused in a rape case of a minor, the presence of the informant/victim/complainant is obligatory and that it is a "fundamental requirement of law that cannot be bypassed, ignored or neglected" in view of the Criminal Law (Amendment) Act, 2018.
Justice Panigrahi remarked that in view of the said amendment, non- issuance of the notice to the complainants/ informants/victims in cases under aforementioned Sections of the Indian Penal Code is "not merely a procedural lapse", but it is "clearly contrary to the unequivocal legislative mandate".
As per the Criminal Law (Amendment) Act, 2018, Section 439 of the Cr.P.C. is amended with effect from 21st April, 2020, by which it is made mandatory for the informant or any other person authorised by the informant to be present at the time of hearing of an application for bail filed by the accused under these provisions.
The said amendment reads as under:
"In Section 439 of the Code of Criminal Procedure(a) In sub-section (1), after the first proviso, the following proviso shall be inserted, namely:-
" Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub- section(3) of section 376 or section 376-AB or Section 376-DA or section 376-DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public prosecutor within a period of fifteen days from the date of receipt of the notice of such application.
(b) After sub-section (1), the following sub-section shall be inserted, namely:-
(1-A) The presence of the informant or any person authorized by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376-AB or section 376-DA or section 376- DB of the Indian Penal Code (45 of 1860)."
In view of the above observations, the Single Bench directed the Registry, High Court of Orissa, through Registrar (Judicial) to issue a PRACTICE DIRECTION or NOTIFICATION to all Courts subordinate to it so as to ensure that service to the complainant/informant/victim can be effected before the hearing of bail application in the aforementioned category of cases as per mandate of law.
The Single Bench accordingly directed the counsel for the petitioner to take steps to effect service to the complainant/informant/victim in the instant petition, requiring him to serve a copy of the same to the counsel for the State to ensure effecting the service properly on the complainant/informant/victim or any other person authorized by the informant to be present at the time of hearing the instant bail petition filed by the accused.
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