The Delhi High Court on Friday issued directions to Sessions Courts in Delhi. The Court said that they should follow the earlier orders passed by the H.C. Therefore, it was on mandating to serve a notice to the complainant/informant/victim in all bail proceedings on POCSO cases.
Brief Facts of the Case
Respondent No. 2 in the petition has filed a bail application seeking interim bail due to his wife’s illness. The Extra Sessions Judge granted bail to the accused of one month. Neither a notice issued nor was he represented at the time of interim bail. The applicant approached the H.C. He highlighted the legal position and prayed for the quashing of the interim bail.
The Criminal Law (Amendment) Act, 2018 amended Section 439 of the CrPC. The amendment made it mandatory for the informant or any other person authorized by the informant to be present at the time of hearing of an application for bail. The bail was filed by the accused under the provisions of the POCSO Act.
On 24th September 2019, the Delhi H.C. issued “Practice Directions” to ensure compliance with the mandate of Section 439. These directions state that before granting bail in cases of Rape, Gang-rape under the IPC, the High Court or Sessions Court must give notice of the bail application to the Public Prosecutor within 15 days from the date of receiving the bail application. They gave a format for communicating to the informant by the Investigating Officer. The Court must ensure that the Investigating Officer has, in writing, communicated to the informant or any person authorized.
Despite these legal provisions, a notice of bail application was not given to the complainant/informant/victim. Keeping these facts in mind, the Court on 22nd May called for an urgent report from the Registrar General.
Arguments before the Court
Counsel for the Petitioner, Ms Tara Narula submitted that the Sessions Court order granting bail to the respondent is wrong in law. The order was passed without issuing any notice to the complainant. It denied her the opportunity to represent herself. To support this, she relied on the S.C. judgment in UPSC v. Papaiah & Ors. (1997) 7 SCC 614 which held that if the bail order granted is contrary to law, it is liable to be set aside. She cited statutory provisions Section 439 Cr. P.C. and the Practice Directions issued by the H.C.
She further submitted that her Vakalatnama representing the applicant was on record in the Sessions Court. This ruled out any valid reason for the notice of the bail application not issued to her. She also submitted her analysis of 122 bail orders, taken from the E-courts website. It showed that in many matters, courts granted bail without hearing the complainant/informant/victim.
Appearing for the State of Delhi, APP Ms Meenakshi Dahiya, accepted that not giving notice to the victim was erroneous.
Mr Uttam Singh, counsel for the accused submitted that the grant of bail was because his wife had a dental problem requiring urgent surgery. The evidence of all witnesses and the victim concluded. So there is no chance of evidence tampering by the accused.
The Court observed no ambiguity about the mandate of law as per the provisions of Cr. P.C., Practice Guidelines, and the orders passed by the High Court. The Courts have to hear the victim/complainant/informant. Furthermore, the Court stated that the procedure in the Practice Guidelines was not followed as the Investigating Officers were not serving the notice to the victim/complainant/informant.
The Court remarked that notice was not served in almost 70% of cases. It was done after analyzing the Registrar Generals report. The H.C. acknowledged that the lockdown period has been challenging for courts. However, the same cannot be a reason for not issuing the notice.
The Court passed the following directions:
– Whenever the accused puts forth the application for regular/interim bail, service of notice to the I.O. or the counsel of the victim is necessary. After receiving the notice, the I.O. has to issue a notice to the victim in the prescribed format. The SHO has to certify the service of notice which along with the status report should be before the Court.
– If the I.O. is not able to trace the victim, he has to record the reasons in the status report. The Court should have a record stating the specific reason the victim’s absence.
– Finally, before proceeding with bail applications, Courts must ensure the service of notice. If not served, they must issue summons to the victim.
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