Notice To Defacto Complainant Need Not Be Issued In Bail Applications Except In Cases Where Law Insists So: Kerala HC [Read Order]

The Kerala High Court has observed that it is not necessary for a court to issue a notice to the defacto complainant suo motu or direct the accused to implead the defacto complainant in a bail application except in cases in which the Criminal Procedure Code and other Acts insist so or the bail court feel that the defacto complainant is also to be heard in the facts and circumstances of that case.

In this case, the accused against whom a case is registered alleging offences punishable under section 420, 406 r/w 34 IPC, had approached the High Court seeking anticipatory bail. In his bail application, he had arrayed the defacto complainant as the second respondent. 

While considering the issue whether it is necessary to issue notice to the de facto complainant, Justice PV Kunhikrishnan noted an earlier judgment Kunhiraman v. State of Kerala (2005(2) KLT 685), in which it was observed that if the defacto complainant files an impleading petition in a bail application, there is no bar in hearing the defacto complainant while considering a bail application. The judge also noted that Section 439(1-A) Cr.P.C says that the presence of the informant or any person authorised by him shall be obligatory at the time of hearing of an application for bail to the person charged under Section 376(3) or Section 376-AB or Section 376-DA or Section 376-DB of IPC. Similarly, in Muslim Women (Protection of Rights on Marriage), Act, 2019 there is a specific provision in which it is clearly stated that the notice should be issued to the victim while considering a bail application by a Magistrate, the court said.

Addressing the question whether in all cases, the bail court should ask the accused to implead the defacto complainant and then issue a notice to the defacto complainant, the court observed:

"In such circumstances, when the legislature thinks that only in certain cases notice is necessary to the victims/defacto complainants while considering the bail applications by courts, the court need not issue a notice to the defacto complainants/victims in all bail applications. Simply because the case is registered under Section 420 IPC or 406 IPC, the bail court need not issue notice to the defacto complainant unless there is a special reason for the same. Similarly, in all cases in which monetary dispute is there, the bail court need not issue a notice to the defacto complainant. Bail court is not an executing court to settle money claims. When the legislature says that notice to the defacto complainant is necessary only in certain cases, the court need not issue a notice to the defacto complaint in all bail applications. It is the legislative mandate to decide bail applications in such cases after hearing the Public Prosecutor. Of course, there is a discretion to the bail court to decide whether notice is to be issued to the defacto complainant/victims in the facts and circumstances of a particular case. Considering the facts and circumstances of each case, the court can decide whether the notice is to be issued to the defacto complainant. Simply because the case is registered under Section 420 IPC or a monetary dispute is involved, in all bail applications, the notice need not be issued to the defacto complainant while considering the bail applications by the courts. The legislature insists that a bail application should be considered by the court after hearing the Public Prosecutor. When such a mandate is there from the legislature, the court need not issue a notice to the defacto complainant unless the facts and circumstances of that case compel the court to issue a notice to the defacto complainant. I make it clear that there is no prohibition in issuing notice to the defacto complainant while considering the bail application. I also make it clear that there is no prohibition in hearing a defacto complainant if a defacto complainant/victim file a petition for impleading in the bail application and request for a hearing while considering the bail application. In such cases as held in Kunhiraman's case mentioned supra, the court can allow the same. But the court need not issue a notice to the defacto complainant suo motu or direct the accused to implead the defacto complainant in a bail application except in cases in which the Criminal Procedure Code and other Acts insist so or the bail court feel that the defacto complainant is also to be heard in the facts and circumstances of that case."

Holding thus, the court decided not to issue notice to the de facto complainant in this case and granted bail by imposing usual conditions.

Case details

Case name: VISHNU GOPALAKRISHNAN vs. STATE OF KERALA

Case no.: Bail Appl..No.4459 OF 2020

Coram: Justice PV Kunhikrishnan

Counsel: Adv S. Rajeev, PP Ajith Murali

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