ORDER :

1. Proceedings of this matter have been taken-up through video conferencing.

2. This is the first bail application filed on behalf of the applicant for grant of bail under Section 439 of the Code of Criminal Procedure, 1973 in connection with Crime No. 212/2019, registered at Police Station Pithoura, District Mahasamund, for the offence punishable under Sections 363, 366, 376(2)(n) of the IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’).

3. When the matter is taken-up for final hearing, on being asked to learned counsel for the applicant as to whether notice to the victim/informant would be necessary before hearing the application for grant of bail in view of the amendment incorporated in the provision contained in Section 439(1A) of the Cr.P.C. Mr. Sunil Sahu, learned counsel for the applicant, would submit that though the applicant is charged with Section 6 of the POCSO Act, but under Section 439(1A) of the Cr.P.C. offences under the POCSO Act have not been included and even under the provisions of the POCSO Act, there is no such provision like Section 15A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the SC-ST Act’) i.e. rights of victims and witnesses, therefore, notice to the victim or the complainant or the informant would not be necessary, whereas, Mr. Ghanshyam Patel, learned State counsel, would submit that the High Court of Jammu and Kashmir in the matter of Badri Nath vs. Union Territory of J&K, Bail Application No. 139/2020, decided on 11.12.2020 has held that issuance of notice to the informant in an application for grant of bail to an accused charged under the POCSO Act would be necessary considering the nature and gravity of offence under the POCSO Act.

4. I have heard learned counsel for the parties and considered their rival submissions with regard to notice to victim/complainant/informant in the case where the accused has been charged for the offence under the provisions of the POCSO Act and where the accused has moved application for grant of bail under Section 439 of the Cr.P.C.

5. In accordance with the Criminal Law (Amendment) Act, 2018 (22 of 2018), Section 439 of the Cr.P.C. has been amended with effect from 21-4-2018 and it was made mandatory for the informant or any person authorised by him to be present at the time of hearing of the application for bail filed by the accused under this provision. Second proviso to Section 439 of the Cr.P.C. was added which states as under:-

“Provided further that the High Court or the Court of Session shall, before granting bail to person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.”

6. Similarly, sub-section (1A) of Section 439 of the Cr.P.C. was also inserted by way of amendment with effect from 21-4-2018, which states as under:-

“(1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860).”

7. A careful perusal of the aforesaid provision - sub-section (1A) of Section 439 of the Cr.P.C. would show that the presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person charged under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the IPC.

8. Section 376(3) of the IPC provides that whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to i