Victim's say mandatory in deciding bail of sex-offenders, says HC; calls for sensitising judges

New Delhi: Courts cannot ignore issuing notice to victims in sexual assault cases while deciding bail pleas of offenders, the Delhi High Court has held, noting that survivors were not being informed in a majority of matters.

Hearing a case related to the bail granted to the accused in a minor's rape case, the court said that during emergency situations such as the current lockdown, bail pleas are being heard by sessions judges who are not regular POCSO courts, so it is necessary to sensitise them about these mandatory provisions.

The HC set aside the trial court's order granting interim bail to the accused in the minor's rape case without giving a hearing or notice to the girl.

"It is deemed appropriate to direct 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," the court said.

It also directed respective district judges to conduct sensitisation programmes through videoconferencing within a week and inform all presiding officers about the importance of compliance of this mandatory condition.

Justice Prathiba M Singh said the petition challenging the interim bail granted to the accused without giving her notice has highlighted a "perennial and grave problem": hearing not being accorded to victims in bail pleas filed by the accused facing trial for rape and gang-rape of minors under the IPC and the Protection of Children from Sexual Offences (POCSO) Act.

In pursuance to court's earlier direction, the registrar general of the high court collected data from the trial courts for the period between April 22 to May 23, which is the lockdown period. The data showed that out of 294 cases where bail was sought by the accused in sexual offences cases, notices were issued to the complainant in only 79 matters.

"...in 215 cases constituting almost 70 per cent, no notice was issued. A perusal of the report of the registrar general, in fact, confirms the analysis which has been placed on record by the petitioner in respect of 122 cases, to the effect that complainants/ informants are not being heard prior to hearing in bail applications to accused under the provisions of the POCSO Act," it said, adding that, issuance of notice is the mandate of law.

The court added there was also no doubt that most sessions courts are not issuing notices to the complainant before entertaining or hearing bail applications of accused, including those for interim bail.

In fact, even if compromise is the ground for seeking bail, there is a greater need that the same ought to be verified or confirmed from the complainant/victim, it said.

The plea was filed by the girl's mother, through advocate Tara Narula, challenging the interim bail granted to the accused on May 5 on the ground that the order was passed in routine manner and was not only bad in law but also suffered from procedural lapse on the part of the sessions court.

The victim's counsel submitted that with effect from April 21, 2018, there was an amendment in the law by which it has been mandated that the presence of the informant or any person authorised shall be obligatory at the time of hearing of the application for bail to the person accused of sexual offences.

The period for which the interim bail was granted to the accused expired on June 5, the day the high court passed its verdict.

As the accused has filed a fresh bail application before the sessions court, the high court said it be decided in accordance with law after hearing the complainant and the prosecution and also the grounds raised by the man in the plea.

The court said non-issuance of notice to the complainants or victims is not merely a procedural lapse, but is clearly contrary to the unequivocal legislative mandate and settled law.

It said the lockdown period has thrown up several challenges to the judicial system which courts are bracing for on an everyday basis and issuance of notice to the complainant is such a fundamental precondition, that the requirement of law cannot be bypassed, ignored or neglected.