38.6c New Delhi, India, Tuesday, June 18, 2024

Presence of Victim at Bail Proceedings of Accused Mandatory in POCSO Cases; Delhi HC Passes Direction for Strict Compliance [READ JUDGEMENT]

By Parth Thummar      08 June, 2020 02:32 PM      0 Comments
POCSO Cases Delhi HC

On June 05, 2020, a Single Judge Bench of Justice Pratibha M. Singh of the Delhi High Court, in the matter of Miss G (Minor) Thr. Her Representative v. State of NCT of Delhi & Anr., passed comprehensive directions that Sessions Courts comply with the various order of the High Court as well as a statutory requirement of issuing notice to the complainant in all bail proceedings of the accused in the Protection of Children from Sexual Offences Act, 2012 (“POCSO”) case. 


Background of the Case: 

The Petition was filed to highlight a perennial and 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) (punishment for rape on a woman under sixteen years of age), 376AB (Punishment for rape a on a woman under twelve years of age), 376DA (Punishment for gang rape on a woman under sixteen years of age) or 376DB (Punishment for gang rape on a woman under twelve years of age) of the Indian Penal Code, 1860 as also under the provisions of POCSO. 

Here, the accused had filed one bail application, seeking interim bail on the ground of his wife’s illness. The interim bail application was taken up on May 05, 2020, by the Additional Sessions Judge and he was granted bail for one month till June 05, 2020. It was noticed that the offenses under which the accused had been charged, were Section 376 of the IPC and Section 4 of the POCSO Act but no notice was issued to the complainant and the complainant was not represented at the time when the interim bail was granted.

As per the Criminal Law (Amendment) Act, 2018, Section 439 of the Criminal Procedure Code, 1973 was amended with effect from 21st April 2020 by which it was made mandatory for the informant or any other person authorized by the informant to be present at the time of hearing of an application for bail filed by the accused under these provisions. 

Corresponding with the amendments to Section 439 Cr. P. C., amendments were introduced in Section 42 of the POCSO Act to incorporate offenses under Sections 376(3), 376-AB, 376-DA or 376 DB of the IPC and provide for a higher degree of punishment in cases where a person is charged under provisions of the POCSO Act, 2012 and these provisions of the IPC

The Delhi High Court had issued `Practice Directions’ on September 24, 2019, to ensure compliance of the above amendment.

But the Court observed that,

“The amendments in the Cr. PC. and the Practice Directions issued by this Court leave no room for any doubt that in all cases under these provisions where the accused seeks bail, notice ought to be issued to the complainant, and this obligation does not have any exception. Apart from mere issuance of Notice by the Court, as per the Practice Directions, the IO has to serve notice in the prescribed Form, Annexure -A. After service of notice, the factum of service has to be re-ascertained by the SHO who has to certify that the informant/victim/complainant has been duly communicated the necessity of her presence at the time of hearing of the bail application. It is however seen that a large number of bail applications were moved before the Sessions Court by undertrial prisoners who were accused of offenses under the various provisions of the IPC pertaining to rape, as also the provisions of the POCSO Act. In a majority of these cases, no notice was issued to the Complainant/victim/informant.” The further observed that “this procedure is obviously not being followed by the Courts below.”


Regarding the non-compliance of the law, the Court was compelled to observe that, 

“The non-issuance of notice to the complainants/informants/victims is not merely a procedural lapse but is clearly contrary to the unequivocal legislative mandate as also the declared and settled law…. 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 the law cannot be bypassed, ignored, or neglected.”


As the order dated May 05, 2020, granting bail was contrary to law, holding it unsustainable, the Court proceeded to set it aside.




Share this article:

Leave a feedback about this

Trending Crime, Police And Law
Women, including housewife, approach NCW against controversial IPS officer Gyaneshwar Singh

Two women approach NCW against controversial IPS officer Gyaneshwar Singh, citing harassment for tweets based on news reports about his involvement in high-profile cases.

17 June, 2024 03:10 PM
Trending CelebStreet
Arrest warrant against Tamil film 'Bhaskar Oru Rascal' producer for non-payment of dues

Arrest warrant issued against Tamil film producer for non-payment of dues of Rs. 65 lakhs+ to actor Arvind Swami.

17 June, 2024 06:10 PM


Trending Crime, Police And Law
BJP workers stabbed near village Masjid, for celebrating PM Narendra Modi's victory by raising 'Bharat Mata ki Jai slogan'

BJP workers stabbed near village Masjid in Karnataka for celebrating Narendra Modi's third term as PM.

12 June, 2024 12:11 PM
Trending Executive
Meghwal assumes charge as Minister of State (Ind) in Law & Justice Ministry

Arjun Ram Meghwal assumes charge as Minister of State (Independent Charge) for Law & Justice, focusing on speedy justice and awareness of new criminal laws.

12 June, 2024 12:39 PM
Trending Judiciary
Allahabad High Court quashes FIR, grants protection to adult couple who married against family’s wishes [Read Order]

Allahabad High Court quashes FIR, protects couple who married against family’s wishes, emphasizing their constitutional rights and condemning threats to their lives.

12 June, 2024 02:00 PM
Trending Judiciary
'Inform on action taken against tanker mafia,' SC asks Delhi govt on water crisis

SC demands Delhi govt to explain action against tanker mafia amid water crisis, heatwave in the capital. Affidavit required on measures taken by June 13.

12 June, 2024 03:52 PM


Join Group

Signup for Our Newsletter

Get Exclusive access to members only content by email