Not Mandatory To Hear Victim While Considering Rape Accused's Plea For Default Bail: Kerala HC [Read Order]

The Kerala High Court has held that provision contained in Section 439(1A) of the Code of Criminal Procedure does not apply to an application for bail under Section 167(2) CrPC.

As per Section 439(1A) CrPC, the presence of the informant or any person authorised 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 376AB or section 376DA or section 376DB of the Indian Penal Code. The case against accused [ the accused is teacher in school where victim pursuing her studies] was registered under Sections 376(2)(f), 376AB and 354B of the Indian Penal Code (the IPC) and Sections 5(f), 5(l) and 5(m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act). Since the final report was not filed despite the accused being in custody for 90 days, the accused moved the Special Court for bail under Section 167(2) of the Code of Criminal Procedure. The Special Court granted him bail observing that the investigation in the case has not been completed despite the accused being in custody for 90 days, the accused is entitled to statutory bail.

Before the High Court, the victim contended that since the offence punishable under Section 376AB of the IPC being one of the offences alleged against the accused, the court ought to have heard the petitioner also as provided for under Section 439(1A) of the Code for granting bail to the accused. Therefore, the issue considered by the court was whether it is necessary for the court granting bail to an accused under Section 167(2) of the Code, to comply with the provision under Section 439(1A) of the Code.?

The court noted that the bail under Section 167(2) of the Code, it is fundamentally different from the bail under Sections 437, 438 and 439 of the Code. Justice PB Suresh Kumar

The contrast is particularly stark since Section 167(2) grants an indefeasible right to an accused, whereas Sections 437, 438 and 439 do not grant any such right to the accused and grant of bail under those provisions is only a matter of judicial discretion. The right of an accused to seek bail under Section 167(2) accrues upon the default of the investigating officer in concluding the investigation within the requisite time specified in the provision. While considering an application for bail under Section 167(2), a court does not consider the merits of the case, but only considers the question as to whether there is default on the part of the investigating agency in completing the investigation in the case within the prescribed period. If the investigating agency fails to file the final report in the case within the time prescribed, the accused in custody gets an absolute right to bail

As opposed to Section 167(2), a court acting under Sections 437 and 439 are guided by different considerations in exercising its judicial discretion namely (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his ascendance; (iv) character, behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations

The court said that purpose of Section 439(1A) of the Code is to ensure that a victim or a person acting in the interest of the victim shall also be heard before a decision on a bail application is made. It said that a decision on the application for bail under Section 167(2) of the Code being one taken by the court on the basis of the period of custody undergone by the accused, compliance of the provision contained in Section 439(1A) of the Code does not make any difference.

"Even if it is held placing reliance on the phraseology used in Section 439(1A) of the Code that the provision therein is to be followed while granting bail under Section 167(2) of the Code, it would be an empty formality. The purpose of Section 167(2) is to protect the liberty of an individual who has been detained and continues to be detained pending investigation in a case. It is trite that in matters relating to personal liberty of an individual, the court must lean in favour of personal liberty. In the aforesaid circumstances, I am inclined to hold that the provision contained in Section 439(1A) of the Code does not apply to an application for bail under Section 167(2) of the Code"

Holding thus, the bench held that the accused was  entitled to bail under Section 167(2) of the Code

Case name: X vs. State of Kerala

Case no.: Crl.MC.No.3463 OF 2020

Coram: Justice PB Suresh Kumar

Counsel: Adv SOORAJ T.ELENJICKAL, Spl GP SUMAN CHAKRAVARTHY, Adv.S.RAJEEV 

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