Trial Courts Cannot Grant Bail In POCSO Cases In The Absence of Complainant: Delhi HC Reiterates

The Delhi High Court has directed the Registrar General to circulate the Practice Direction dated 24/09/19 as well as the orders of this court in the case of Reena Jha v. Union of India, to all the District & Sessions Courts in order to ensure compliance of these directions by the criminal courts.

The order has been passed by the Single Bench of Justice Brijesh Sethi in a plea challenging the grant of interim bail by the Sessions Court to a person accused under section 376 of the IPC and section 4 of the POCSO Act, without issuing any notice to her complainant.

These 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.

It was argued by the Petitioner that in utter violation of the aforesaid directions, District Courts at Delhi are passing bail orders without adhering to the mandatory requirement of issuance of notice to the complainant/ first informant or authorized person in the first instance.

The Petitioner further submitted that the trial court passed has passed the impugned order ignoring the fact that the victim and her family are living in the vicinity of the accused and enlargement of accused on interim bail is a threat to their lives.

Appearing for the state, Ms Meenakshi Dahiya submitted that these directions are already being followed in both the letter and spirit, and the same will also be brought to the notice of Investigating Officers to ensure strict compliance.

While observing that the order dated May 05 wherein interim bail was granted to the accused was passed in the absence of the complainant, the court noted that the court are bound to follow the Practice Directions.

The court also directed the Registrar General to ensure that the name of the judicial officer against whose order the present petition has been filed, does not figure anywhere while circulating the directions.

In order to protect the complainant, the court directed for the number of the Beat Constable, W/ASI, Division Officer as well as of SHO to be provided to the Petitioner forthwith so that in case of any exigency, the concerned officials can be contacted.

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