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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
S.VISHWAJITH SHETTY, J.
Informant D/o Krishnappa V – Appellant
Versus
State Of Karnataka – Respondent
Crl.P.No.3701 of 2023
Decided on : 11-10-2023
Section 439(1A) of Cr.PC requires the presence of the informant or any person authorized by them at the time of hearing the bail application for certain offences under IPC and POCSO Act. The court examines the language and scope of this provision, as well as previous judgments interpreting it. The court also considers the provisions of the POCSO Act and the Rules framed thereunder, as well as guidelines issued by various High Courts for effective implementation of victim participation rights. The court emphasizes the unbridled right of the informant/victim to be heard in bail proceedings and the obligation of the court and prosecution to notify and involve the informant/victim in the proceedings.
Fact of the Case:
The petitioner seeks to cancel the bail granted to respondent no.2 in a case involving offences under IPC and POCSO Act. The petitioner alleges that the Trial Court did not comply with the requirement of Section 439(1A) of Cr.PC and did not provide valid reasons for granting bail. The petitioner relies on previous court orders and guidelines for victim participation in proceedings. The respondent argues that the obligation to notify the informant/victim lies with the court and prosecution, not the accused. The respondent also argues that the irregularity is a curable defect and has not caused prejudice to the informant/victim. The petitioner contends that the bail granted to respondent no.2 should be cancelled due to non-compliance with Section 439(1A) of Cr.PC. The court examines the relevant provisions and previous judgments and concludes that the informant/victim has an unbridled right to be heard in bail proceedings. The court issues directions for effective implementation of victim participation rights and sets aside the bail granted to respondent no.2. The court orders a fresh consideration of the bail application on its merits, with both parties directed to appear before the Trial Court within a specified time frame.
Finding of the Court:
The court analyzes the provisions of Section 439(1A) of Cr.PC and previous judgments, including the Supreme Court's decision in Jagjeet Singh's case, which recognizes the victim's right to participate in criminal proceedings. The court also considers the Delhi High Court's judgment in Saleem's case, which clarifies that the victim's right to be heard does not require their impleadment as a party to the proceedings. The court concludes that while the informant/victim does not need to be impleaded as a party, their right to be heard cannot be denied. The court emphasizes the importance of effective implementation of victim participation rights and issues directions for compliance by the court and prosecution. The court finds that the bail granted to respondent no.2 is vitiated due to non-compliance with Section 439(1A) of Cr.PC and the informant/victim's right to be heard. The court sets aside the bail and remits the matter for fresh consideration on its merits.
Ratio Decidendi: The court establishes that the informant/victim has an unbridled right to be heard in bail proceedings, even if they are not impleaded as a party. Non-compliance with Section 439(1A) of Cr.PC and denial of the informant/victim's right to be heard can be grounds for cancellation of bail. The court emphasizes the need for effective implementation of victim participation rights and issues directions for compliance by the court and prosecution.
Result: The court allows the petition and sets aside the bail granted to respondent no.2. The matter is remitted for fresh consideration of the bail application on its merits. Both parties are directed to appear before the Trial Court within a specified time frame. The Trial Court is requested to dispose of the bail application within 15 days from the date of appearance of the parties.
ORDER :
1. This petition under Section 439(2) of Cr.PC is filed by the informant/victim with a prayer to cancel the bail granted to respondent no.2 on 30.12.2022 by the Court of Additional District & Sessions Judge, FTSC-II, Mandya, in Spl. Case No.223/2022 arising out of Crime No.120/2022 registered by Maddur Police Station, Mandya District, for the offences punishable under Sections 354D, 376(3), 376(2)(n), 450, 366, 506, 420 of IPC and Sections 4, 6 & 12 of the Protection of Children From Sexual Offences Act, 2012 (for short, 'POCSO Act').
2. Heard the learned Counsel for the parties.
3. On 18.05.2022, the victim girl aged about 21 years had submitted a written information, based on which FIR in Crime No.120/2022 was registered by Maddur Police Station, Mandya District, against respondent no.2 and three others for the offences punishable under Sections 376, 506, 420 of IPC and Sections 4, 6 & 12 of POCSO Act.
4. In the written information, it is averred that in the year 2014, when the informant was studying in 9th Standard, she got acquainted with respondent no.2 who was working as a Warden in Social Welfare Department. He used to often visit the informant's house and he also allegedly informed her that he was in love with her. But since the informant was a minor, she had not agreed for his proposal. The informant has further averred that respondent no.2 had taken her to an isolated place near Arathipura Betta and Ramadevara Betta and had sexually misbehaved with her and also threatened her with dire consequences if she informs the same to her parents. In the year 2017, informant's parents had gone to her grandmother's house at Bengaluru and at that time, respondent no.2 came to the house of the informant at about 11.00 p.m. and took her to a room inside her house and sexually assaulted her against her wishes. At that time, she was allegedly aged 17 years. Respondent no.2 after committing the act of sexual assault on the informant, had promised to marry her and had informed her not to reveal about the incident to anybody. Thereafter, allegedly respondent no.2 repeated the said act number of times in the house of the informant, whenever her parents were not there in the house.
5. In the year 2020, informant got pregnant and when this was informed by her to respondent no.2, he took her to Archana Hospital at Mandya and caused miscarriage. Thereafter, on 10.12.2020, the parents of informant and respondent no.2 had performed their marriage engagement ceremony. Subsequently, respondent no.2 allegedly informed the informant that his mother was not happy with the engagement. The informant allegedly informed the same to her family members. On 17.09.2021, respondent no.2 and his friends Puttaswamy and Lokesh allegedly came to the house of the informant and threatened the informant and her family members with dire consequences, if they approached the police and had left the place. Thereafter, the informant had approached the police on 18.05.2022 and submitted a written information, based on which, FIR in Crime No.120/2022 was registered by Maddur police against the petitioner and three others.
6. Application seeking anticipatory bail filed by respondent no.2 under Section 438 of Cr.PC in the said case was rejected, and thereafter he had voluntarily surrendered before the Trial Court on 27.10.2022 and had filed bail application under Section 439 Cr.PC which was allowed by the Trial Court by order dated 30.12.2022. Being aggrieved by the same, the informant is before this Court under Section 439(2) Cr.PC.
7. Learned Counsel for the informant submits that the informant or any person authorized by the informant were not heard in the matter by the Trial Court before granting regular bail to respondent no.2. He submits that Section 439(1A) of Cr.PC has not been complied in this matter, and therefore, the bail granted to respondent no.2 is liable to be cancelled. He also submits that the Trial Court has not given valid reasons for granting bail to
AI
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