The Karnataka High Court reiterated that denying the victim his/her right to participate in the proceedings of the Accused can result in the rightful cancellation of his bail under Section 439(1A) of the Criminal Procedure Code (CrPC).

The Court allowed a Criminal Petition filed by the Informant seeking cancellation of bail granted by the Trial Court. The Court emphasized that even though the requirement to inform the victim falls upon the Court or the Prosection, non-compliance with such provision would ultimately affect the Accused.

Justice S.Vishwajith Shetty observed, “The Hon'ble Supreme Court in Jagajeet Singh's case supra has held that denial of victim's right to participate in the proceedings could be a factor for rightful cancellation of bail granted to the accused, before... Therefore, even if it is held that the obligation to keep the informant or his authorized representative present at the time of hearing the bail application is on the court and the prosecution, ultimately it would be the accused who would be affected by non-compliance of the requirement of Section 439(1A) of Cr.PC. It is under these circumstances, guidelines have been issued by various High Courts for effective implementation of 2018 amendment to Cr.PC. and the provisions of the POCSO Act and the Rules framed thereunder”.

Advocate Tejas N appeared for the Petitioner, Standing Counsel N. Anitha Girish appeared for the First Respondent and Advocate Lakshmikanth K for the Second Respondent.

A Criminal Petitioner was filed seeking cancellation of bail granted to the Second Respondent allowed by the District Court in a case for the offences punishable under Sections 354D, 376(3), 376(2)(n), 450, 366, 506, 420 of the Indian Penal Code (IPC) and Sections 4, 6 & 12 of the Protection of Children From Sexual Offences Act, 2012 (POCSO Act). The Informant and Second Respondent were known to each other as he was working as warden of the Social Welfare Department and used to visit her house. He had proposed to the Informant, but she refused as she was a minor. Per the written information, the Second Respondent took the Informant near an isolated place and sexually misbehaved with her. The Second Respondent also threatened the Informant if she informed anyone of such an incident. Then, the Informant went to her grandmother’s house, where the Second Respondent came and sexually assaulted her without her consent.

The Court referred to the established legal principles articulated by the Supreme Court in the case of Jagjeet Singh and Ors v Asish Mishra Alias Monu and Anr [(2022) 9 SCC 321] and the Delhi High Court in the case of Saleem v State of NCT Delhi and Anr. According to these principles, the Court observed that the victim's participation in legal proceedings is considered fundamental, and the denial of this participation can provide a valid basis for the proper revocation of bail granted to an accused.

Furthermore, the Court asserted that the repercussions of failing to adhere to the stipulations of Section 439(1A) of CrPC fall squarely on the accused. Therefore, the Court held that it is incumbent upon the court to guarantee the acknowledgment and preservation of the victim's right to be heard throughout the legal process, encompassing the proceedings related to bail.

The Court issued the following directions:

“(i) Whenever an accused who is charged under Section 376(3), 376-AB, 376- DA or 376-DB IPC or the provisions of the POCSO Act, moves an application for regular bail or anticipatory bail, the Registry of the Court shall inform the accused or the advocate for the accused about the requirement of notifying the informant/victim regarding filing of the bail application, though it is not obligatory on the part of the accused/advocate for the accused to implead the informant or the victim, as the case may be.

(ii) In the event the accused/advocate for the accused impleads the informant/victim as party-respondent to the proceedings, steps shall be taken by the court for service of notice on the informant/victim, as the case may be.

(iii) In the event the accused/advocate for the accused does not implead the informant/victim as party-respondent to the proceedings, the court hearing the application shall take necessary steps for effective service of notice of the bail application on the informant/victim and also direct the prosecution to ensure service of notice of the bail application on the informant/victim and submit requisite acknowledgment to the said effect before the court.

(iv) It shall also be incumbent on the court and the prosecution to keep the informant/victim informed about the date of hearing of the bail application and also the right of the informant/victim to be represented and the legal assistance for which the informant/victim is entitled through the Legal Services Authority.

(v) If the prosecution is not in a position to trace the informant/victim, a status report shall be filed giving reasons for the same, which shall be taken into consideration by the concerned court and necessary orders be passed.

(vi) In the event the informant/victim does not appear before the court despite service of notice, the concerned court shall proceed to consider the bail application on its merits after having recorded that service of notice on the informant/victim is completed.

(vii) In cases where applications are filed seeking interim bail, the concerned court can pass suitable orders after recording reasons for the same awaiting service of notice on the informant/victim.

(viii) The Registry of the court shall ensure that in cases where the informant is a minor, notice shall be issued on the bail applications to the parents/guardians of the minor or to the person who is duly authorized to represent the minor victim.

(ix) Registry shall ensure that if the informant or victim is a minor, he/she shall not be made as a party to the proceedings and no notice shall be issued or served on the minor informant/victim”.

Accordingly, the Court allowed the Petition and set aside the impugned order.

Cause Title: Informant v State of Karnataka

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Karnataka High CourtJustice S. Vishwajith ShettySection 439 of CrPC

Jayanti Pahwa