Delhi HC Issues Directions To Ensure That Victim is Issued Notice In All Bail Proceedings Concerning POCSO Cases [Read Order]

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:

1. Whenever an accused who is charged under Sections 376(3), 376-AB, 376 - DA or 376 DB of the IPC or the provisions of the POCSO Act, moves an application for regular bail or interim bail, notice shall be issued to the IO as also any counsel on record for the victim/complainant/informant;
2. The IO upon receipt of the bail application and/or the notice of such application, shall immediately issue notice to the victim/complainant/informant in prescribed format as per 'Annexure A' of the Practice Directions. The Practice Directions dated 24th September, 2019
3. The service of notice shall be certified by the SHO of the local police station by signing Annexure A at the prescribed place.
4. The duly completed Annexure A shall be filed along with the reply/ status report filed by the IO in respect of the bail application and shall be presented to the Court.
5. If the IO cannot trace the complainant/victim/informant, the reasons for the same shall be mentioned in the status report. Further, if there is any specific reason for non-appearance of the complainant/victim/informant, the same shall be recorded and placed before the Court.
6. In case the complainant/victim/informant has not been traced, the IO shall try to ascertain the whereabouts of the complainant/victim/informant and place the same before the Court.
7. The Court, before proceeding to hear the bail application would ascertain the service of notice, and if no notice has been served, either through the IO or the counsel on record, as a secondary safeguard, issue summons to the complainant/victim/informant.
8. Once the victim/complainant/informant appears before the Court, and if needed, adequate representation shall be ensured for the victim/complainant/informant either through own counsel or through a legal service authority counsel.
9. All the relevant documents required for the victim/complainant/informant to effectively represent the case for opposing the bail shall be provided.
10. In every bail order, service of notice or reasons for non-service or non-hearing of the complainant/victim/informant shall be specifically recorded before proceeding to pass orders.
11. If the complainant/victim/informant does not appear despite service of notice, bail can be considered by the Court, in accordance with law.
12. In case interim bail is sought for an emergency such as death in family or a medical emergency, and awaiting notice to the complainant/victim/informant appears non-feasible, in a rare case, reasons for the same shall first be recorded in the order.

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.

Click Here To Download Order

[Read Order]