The Hon’ble High Court of New Delhi in a judgement passed on 05.06.2020 issued directions to ensure that victims of offences under the provisions of Protection of Children from Sexual Offences Act, 2012 (POCSO) as well as Sections 376(3), 376(AB), 376 (DA), or 376(DB) of the Indian Penal Code, 1860 are furnished with notice in all bail proceedings in matters relating to the same.
The judgement was passed in response to a petition filed by a minor girl through her Advocate, Ms. Tara Narula which highlighted the problem of hearings not being rendered to victims/complainants/ informants in bail applications of accused facing trial for offences under the provisions of POCSO Act, 2012 or Sections 376(3), 376(A,B), 376 (DA), or 376(DB) of the Indian Penal Code, 1860 dealing with rape of women below the age of 12 and 16 years.
In the present matter of Miss G (Minor) Vs State of NCT of Delhi & Anr (CRL.M.C. 1474/2020 & CRL.M.As. 6330/2020, 6705/2020), the Respondent who was accused of offences under Section 376 of the Indian Penal Code 1860 and Section 4 of the POCSO Act, 2012 filed a bail application on grounds of his wife’s illness and was granted the same by an Additional Sessions Judge for a period of one month i.e. until 05.06.2020. Despite the recent amendments in the Criminal Procedure Code, 1974 that provides for strict directions to issue notice to complainants in cases of bail applications of offences falling under the abovementioned sections of Indian Penal Code 1874 and the POCSO Act, 2012, no notice was issued to the Petitioner and the Petitioner was not represented at the time when the interim bail was granted.
Therefore, the Petitioner in the present case prayed to the Hon’ble High Court to reject the bail application of the Accused. The Petitioner also prayed for strict compliance of the amendments made to the Criminal Procedure Code, 1974 under which it was made mandatory for an informant or any other person authorised by the informant to be present at the time of hearing of an application for bail filed by the accused under the abovementioned provisions, and the Practice Directions issued by the Delhi High Court to ensure the compliance of those amendments.
The Petitioner further submitted that despite a Single Judge of the Hon’ble High Court directing the Respondent to follow the Practice Directions vide order dated 13.05.2020, Sessions Courts continued to entertain bail applications and disposed of the same without hearing the complainant/victim/informant.
Stressing upon the present scenario of the lockdown, the Petitioner brought to notice of the Hon’ble High Court, that most of the presiding officers in relation to the present matter are not regular POCSO judges and neither are regular prosecutors in POCSO cases present in court, and therefore stated the importance of ensuring that specific notice is issued to the Complainant.
Meenakshi Dahiya, Advocate for Respondent No.1 then submitted that, not furnishing the notice to the Complainant was a clear mistake and that even after sending the Respondent’s wife’s medical records to the concerned hospital for verification and due to lack of time present before the prosecution, the records couldn’t be verified on time and bail was thereby granted.
Uttam Singh, Advocate for Respondent No.2 on the other hand submitted that an application for extension of the Respondent’s bail on grounds of financial crisis and wife’s illness has been filed and since the evidence of the Prosecutrix and of the main witnesses have already concluded; there would be no apprehension of witness tampering.
Bringing into consideration the statistical report furnished by the Petitioner wherein it was revealed that in almost 70% of all bail applications no notice was issued to complainants, indicating the non compliance of Practice Directions by the Session Courts, Justice Pratibha M. Singh termed the failure to issue notice “contrary to the unequivocal legislative mandate as also the declared and settled law”.
Stating the importance of fulfilling the pre condition of issuing notice to the Complainant, Hon’ble Justice Singh affirmed that the non issuance of notice cannot be justified even in the situation of lockdown.
Setting aside the order wherein the Accused was granted bail dated 05.05.2020, for being contrary to law and unsustainable, the following directions were issued by the Hon’ble High Court in the present matter:
- “Whenever an accused who is charged under Sections 376(3), 376-AB, 376 – DA or 376 DB of the IPC or the provisions of the POCSO Act, moves an application for regular bail or interim bail, notice shall be issued to the IO as also any counsel on record for the victim/complainant/informant;
- The IO (Investigating Officer) upon receipt of the bail application and/or the notice of such application shall immediately issue notice to the victim/complainant/informant in prescribed format as per ‘Annexure A’ of the Practice Directions. The Practice Directions dated 24th September, 2019.
- The service of notice shall be certified by the SHO of the local police station by signing Annexure A at the prescribed place.
- The duly completed Annexure A shall be filed along with the reply/ status report filed by the IO in respect of the bail application and shall be presented to the Court.
- If the IO cannot trace the complainant/victim/informant, the reasons for the same shall be mentioned in the status report. Further, if there is any specific reason for non-appearance of the complainant/victim/informant, the same shall be recorded and placed before the Court.
- In case the complainant/victim/informant has not been traced, the IO shall try to ascertain the whereabouts of the complainant/victim/informant and place the same before the Court.
- The Court, before proceeding to hear the bail application would ascertain the service of notice, and if no notice has been served, either through the IO or the counsel on record, as a secondary safeguard, issue summons to the complainant/victim/informant.
- Once the victim/complainant/informant appears before the Court, and if needed, adequate representation shall be ensured for the victim/complainant/informant either through own counsel or through a legal service authority counsel.
- All the relevant documents required for the victim/complainant/informant to effectively represent the case for opposing the bail shall be provided.
- In every bail order, service of notice or reasons for non-service or non-hearing of the complainant/victim/informant shall be specifically recorded before proceeding to pass orders.
- If the complainant/victim/informant does not appear despite service of notice, bail can be considered by the Court, in accordance with law.
- In case interim bail is sought for an emergency such as death in family or a medical emergency, and awaiting notice to the complainant/victim/informant appears non-feasible, in a rare case, reasons for the same shall first be recorded in the order.”
The Hon’ble High Court also stated that the fresh bail application filed on behalf of the Accused shall be decided upon in accordance with the law after hearing the Complainant and Prosecution and after taking into consideration all the grounds raised by the Accused for seeking bail.
The Hon’ble Court also made it clear that any non-compliance of the mandatory condition of issuance of notice and service of notice to the complainant/victim/informant could entail consequential action, in accordance with law.