Victim's Right To Participate Is Vital, But Hearing May Not Be Essential in Certain Cases Before Granting Relief: J&K High Court

Justice Sanjay Dhar observed that if notifying the victim could defeat the purpose of the relief sought, the court may proceed to grant interim protection in such cases.

Admitting an accused on bail the court recorded,

“.. victim has a right to participate in criminal proceedings at all stages. In the instant case also, the victim has been made a respondent by the petitioner but that does not mean that in an appropriate case where the issuance of notice to the victim will defeat the relief sought in the application, it is necessary to hear her before granting such relief”

The petitioner accused had approached the High Court seeking anticipatory bail in connection with FIR for offs under Sections 376 (rape) and 420 (cheating) of the Indian Penal Code. According to the complainant, the petitioner entered into a marital agreement with her four years ago but consistently delayed formalizing their marriage. She alleged that they lived as husband and wife during this period.

The complainant further claimed that, under the petitioner's influence, she obtained a loan of ₹9 lakhs from a bank. Upon default, her father's pension account, being the guarantor, was subjected to recovery proceedings.

The respondents, represented by the Deputy Advocate General, raised two preliminary objections. They argued that the petitioner directly approached the High Court without first seeking relief from the Sessions Court, as required by established judicial practice. Reliance was placed on Mohd. Shafi Masi v. Union Territory of J&K, wherein the High Court ruled that accused persons must ordinarily approach the court of first instance for anticipatory bail.

Citing Jagjeet Singh v. Ashish Mishra, the respondents contended that granting interim relief without first hearing the victim would violate her participatory rights under the law.

In response, the petitioner through counsel Shah Ashiq, with Mr. Wajid Haseeb argued that his pending challenge to the FIR before the High Court justified bypassing lower courts. On the merits, it was contended that the complainant, a consenting adult, lived with the petitioner as his wife, making the allegations of sexual assault baseless.

Addressing each contention in detail Justice Dhar clarified that while the general practice requires the accused to approach the Sessions Court first, the High Court retains concurrent jurisdiction in anticipatory bail matters.

Given that the petitioner's challenge to the FIR was already pending before the High Court, the court found it appropriate to directly entertain the anticipatory bail application in this case.

“Having regard to the fact that subject matter of the present bail application is already under consideration of this Court in another petition, therefore, in such circumstances this Court is of the opinion that the application of the accused for grant of anticipatory bail can be entertained without asking him to approach the court of first instance”, the court opined.

Referring to Jagjeet Singh, the court recognized the victim's right to participate at all stages of criminal proceedings. However, Justice Dhar underscored that this right is not absolute. In cases where issuing notice to the victim might defeat the relief sought by the accused, such as when anticipatory bail is sought to prevent arrest, the court can grant interim relief without prior notice to the victim, the court maintained.

On the merits of the case, the court noted that the complainant admitted to a long-standing consensual relationship with the petitioner, during which she cohabited with him as his wife.

Considering these assertions, Justice Dhar observed that even if sexual relations occurred, they appeared consensual. The allegations, therefore, lacked sufficient prima facie grounds to deny interim protection to the petitioner, the court reasoned.

Granting interim bail, the court ordered that in the event of his arrest, the petitioner be released on bail upon furnishing a personal bond of ₹50,000 with a surety of the same amount.

Additionally, the court imposed conditions requiring the petitioner to cooperate with the investigation, refrain from tampering with evidence, and seek prior permission before leaving the Union Territory.

The case was listed for further consideration on December 24, 2024.

Case Title: Peerzada Mohd Yehya Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 329

Mr. Shah Ashiq, Adv. with Mr. Wajid Haseeb, Adv represented the petitioner, Mr. Syed Musaib, Dy. AG appeared for UT of J&K

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