Non-issuance of notice to complainant/victim not a mere procedural lapse: Delhi HC sets aside interim bail to POCSO offender

Holding that non-issuance of notice to the complainant or victim in cases of sexual offences is not merely a procedural lapse, the Delhi High Court has set aside the interim bail granted to a POCSO offender for non-compliance. (Minor G vs State - Final order).Interim bail in the matter was granted by the trial court in the presence of the Additional Public Prosecutor but without informing the complainant, who was the mother of the minor victim in this case..When the petition against the grant of interim bail was taken up by the High Court for the first time, the counsel for the victim had asserted that during the lockdown, district courts in Delhi were passing bail orders without issuing notice to the complainant or victim in compliance of amended Section 439 of the Code of Criminal Procedure, 1973, and Practice Directions issued by the High Court..Courts shall ensure presence of rape victim during bail hearing of accused: Delhi HC issues practice direction.Consequently, the Court had called for a report from the Registrar General on the issue. .The Registrar General thus collected data for the period between April 22, 2020 to May 23, 2020 and placed it before the Court. .The status of the 11 districts in Delhi with respect to the issuance of Notice in sexual offences cases was reflected as under: .In view of the data and considering the reasons given for non-issuance of notice in certain cases, a single Judge Bench of Justice Prathiba M Singh remarked, .On the whole, out of a total of 294 cases wherein bail was sought by the accused, notices were issued to the Complainant in only 79 cases i.e., in 215 cases constituting almost 70%, no notice was issued..Suffice to say, that the lockdown period has thrown up several challenges to the Court system which Courts are bracing for on an everyday basis. However, the non-issuance of notice to the complainant/victim/informant is such a fundamental pre-condition, that such a requirement of law cannot be bypassed, ignored or neglected .Delhi High Court.Therefore, in order to ensure the effective implementation of law concerning mandatory issuance of notice to complainant or victim in cases of sexual offences, the Court proceeded to issue further directions..Broadly, the directions are as follows:.- 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 upon receipt of the bail application and/or the notice of such application, shall immediately issue notice to the victim/complainant/informant in the prescribed format under the Practice Directions. - The service of notice shall be certified by the SHO of the local police station and the same has to placed before the court alongwith the reply/ status report filed by the IO.- If the IO cannot trace the complainant/victim/informant, the reasons for the same shall be mentioned in the status report. - 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.- Before proceeding to hear the bail application, the Court would ascertain the service of notice. If no notice has been served, as a secondary safeguard, the Court would 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..Further, considering that presently bail pleas were not being heard by regular POCSO Courts, the Court directed the District Judges to conduct sensitisation programmes through video conferencing, to inform and to sensitise all the presiding officers of the importance of compliance of the mandatory condition of issuing notice..In order to ensure compliance of these directions.. and keeping in view the continuous non-adherence to the same, 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.Delhi High Court has ordered..The petition was accordingly allowed and the interim bail to the accused was set aside..Advocate Tara Narula appeared for the Petitioner..Advocate Meenakshi Dahiya appeared for the State..Read the Order: