In a significant ruling, the Karnataka High Court has issued a series of directions to ensure effective compliance with Section 439(1A) of the Code of Criminal Procedure (CrPC) in cases involving sexual assault. This section mandates victim participation when deciding bail applications filed by the accused in such cases.

Justice S. Vishwajith Shetty stressed that the responsibility to notify the informant or victim about the bail application lies with the court and prosecution. Failure to fulfil this requirement results in a violation of the petitioner's rights.

The directions issued by the court are as follows:

  1. When an accused charged under specific sections of the Indian Penal Code (IPC) or under the Prevention of Children from Sexual Offences (POCSO) Act files a regular bail or anticipatory bail application, the court's registry must inform the accused or their advocate about the necessity of notifying the informant or victim, even though it is not obligatory for the accused or their advocate to implead the informant or victim as parties to the proceedings.
  2. If the accused or their advocate chooses to implead the informant or victim as a party to the proceedings, the court must take steps to serve notice on the informant or victim.
  3. If the accused or their advocate does not implead the informant or victim, the court handling the bail application must ensure effective service of notice to the informant or victim. Additionally, the prosecution should be directed to serve notice of the bail application to the informant or victim and provide an acknowledgement of the service to the court.
  4. The court and prosecution must keep the informant or victim informed about the date of the bail application hearing. They should also ensure that the informant or victim is aware of their right to be represented and the legal assistance available through the State Legal Services Authority.
  5. If the prosecution is unable to locate the informant or victim, they should file a status report with reasons for their inability to trace them. The court should consider this and pass necessary orders.
  6. If the informant or victim fails to appear before the court despite being served notice, the court can proceed to consider the bail application on its merits after recording that the service of notice on the informant or victim is complete.
  7. In cases where applications for interim bail are filed, the court may pass suitable orders while awaiting service of notice on the informant or victim.
  8. In cases where the informant or victim is a minor, notice should be issued on the bail applications to the minor's parents, guardians, or duly authorized representatives.
  9. The court's registry should ensure that when the informant or victim is a minor, they should not be made parties to the proceedings, and no notice should be issued or served on the minor informant or victim.

The Karnataka High Court issued these directions while cancelling the bail granted by a trial court in Mandya to a 35-year-old warden who was accused of sexual assault. The court ruled that the bail had been granted without hearing the 21-year-old victim who had filed the complaint. The High Court directed the trial court to hear the bail application afresh, ensuring the victim's participation, and directed the accused to surrender before the trial court.

The High Court emphasized that Section 439(1A) of the CrPC makes it mandatory for accused facing charges under certain sections of the IPC or under the POCSO Act to hear victims or informants in their bail applications. The court also referred to earlier decisions by the Supreme Court and High Courts that affirmed the duty of the courts to hear victims or informants in such cases.

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Rajesh Kumar