Mandatory To Hear Informant/Victim Before Granting Bail In Rape Offences, SC/ST Act Cases : Supreme Court

Affirming the importance of victim participation in criminal proceedings, the Supreme Court recently canceled the bail granted to a person accused of serious offences where the bail proceedings were conducted in the absence of the victim.

The bench comprising Justices Bela M. Trivedi and Satish Chandra Sharma heard the criminal appeal filed by a victim against the Allahabad High Court's order granting bail to the accused who neither impleaded the victim in the bail application, nor the public prosecutor informed the victim or her representative about the proceedings before the High Court.

The Court disapproved of the High Court's decision of casually deciding the bail application without following the mandatory provisions of law. The Court reasoned that it requires a meticulous examination of the bail application of an accused charged with a serious offence therefore not informing the victim about the proceedings, due to which she was not able to be present during the bail hearing violated her right to participate in the trial under Section 439(1A) of CrPC and Section 15A(3) of the SC/ST Act.

“In the instant case, there is gross violation of the said statutory provisions contained in Section 439(1A) of Cr.P.C. and Section 15A (3) of the SC/ST Act, at the instance of the respondents. The High Court also in the impugned order has not considered the said mandatory requirement of both the Acts and granted bail to the concerned respondents in a very casual and cursory manner and without assigning any cogent reasons, though the concerned respondents are prima facie involved in a very serious offence.”, the court observed.

The accused was facing offences under Section 376DA( gang rape) of the IPC, and Sections 5(g) and 6 of POCSO Act, 2012, and Sections 3(2) and 5(A) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “SC/ST Act”).

For trial in offences punishable under sub-section (3) of Section 376 or Section 376AB or Section 376DA or Section 376DB of the IPC, 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 Section 439(1A) of Cr.P.C.

Further 15A (3) of the SC/ST Act mandates that “a victim or his dependent shall have the right to reasonable, accurate, and timely notice of any Court proceeding including any bail proceeding and the Special Public Prosecutor or the State Government shall inform the victim about any proceedings under this Act.”

“It is pertinent to note that as per Section 439(1A) of Cr.P.C., the presence of the informant or any person authorised by him or her is 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 IPC. Similarly, it is also mandatory on the part of the Special Public Prosecutor of the State Government to inform the victim about the court proceedings, including bail proceedings as contemplated in sub-section (3) of Section 15A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.”, the court said.

Noting that “the concerned respondents – accused had not impleaded the present appellant as the party – respondent in the bail proceedings filed by them before the High Court, and the concerned Public Prosecutor also had not informed the appellant – victim about the said proceedings”, the Court allowed the appeal.

“Under the circumstances, we are of the opinion that the impugned orders passed by the High Court in utter disregard of the mandatory provisions contained in the Cr.P.C. as well as in the SC/ST Act, deserve to be set aside and are hereby set aside. The concerned respondents, i.e., Khargesh @ Golu, s/o Mukesh Kumar and Karan, s/o Paramhans Singh shall surrender before the Trial Court on or before 30.12.2024.”

Appearance:

For Petitioner(s) Mr. Pranav Sachdeva, AOR Mr. Jatin Bhardwaj, Adv. Mr. D. Abhinav Rao, AOR Mr. Pratik Samajpati, Adv.

For Respondent(s) Dr. Vijendra Singh, AOR Mr. Vikas Bansal, Adv. Mr. Rakesh Mishra, AOR Mr. Rajiv Dewan, Adv. Mr. Divakar Kumar, AOR

Case Title: X VERSUS THE STATE OF UTTAR PRADESH & ANR

Citation : 2024 LiveLaw (SC)1002

Click here to read/download the order