Mandatory requirement of issuing notice to the complainant/victim/informant in bail applications under specific sections of IPC and POCSO Act, and the need for effective compliance with legal provisions.

JUDGMENT

Prathiba M. Singh, J. - The present Petition highlights a perennial and grave problem of hearing not being afforded to victims/complainants/informants, in bail applications filed on behalf of those accused who are facing trial under the provisions of Sections 376(3), 376- AB, 376 - DA or 376 DB of the IPC dealing with rape of women below 12, 16 years of age including gang rapes as also under the provisions of Protection of Children from Sexual Offences ("POCSO") Act, 2012.

2. As per the Criminal Law (Amendment) Act, 2018, Section 439 of the Cr. P.C. was amended with effect from 21st April, 2020 by which it was made mandatory for the informant or any other person authorised by the informant to be present at the time of hearing of an application for bail filed by the accused under these provisions. The said amendment reads as under:

"23. In Section 439 of the Code of Criminal Procedure-

(a) In sub-section (1), after the first proviso, the following proviso shall be inserted, namely:-

"Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-Section (3) of section 376 or section 376-AB or section 376-DA or section 376-DB 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."

(b) After sub-section(1), the following sub-section shall be inserted, namely:-

"(1-A) The presence of the informant or any person authorized 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 376-AB or section 376-DA or section 376-DB of the Indian Penal Code (45 of 1860)."

3. The Delhi High Court issued ''Practice Directions'' on 24th September, 2019 to ensure compliance of the above amendment and directed as under:

"In order to ensure better and effective compliance of the above provisions, Hon''ble the Chief Justice has been pleased to direct as under:-

(a) Before granting bail to a person who is accused of an offence triable under sub- Section (3) of section 376 or section 376-AB or section 376-DA or section 376-DB of the Indian Penal Code, the High Court or the Court of Session shall 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; and

(b) The Courts shall ensure that the Investigating Officer has, in writing as per Annexure A, communicated to the informant or any person authorized by her that her presence is obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376-AB or section 376-DA or section 376-DB of the Indian Penal Code. Annexure A shall be filed by the I.O. along with the Reply / Status Report to such bail application and the Courts shall make all endeavour to ensure presence of the informant or any person authorized by her."

As per the above Practice Directions, a format was prescribed for the communication to the informant by the Investigating Officer.

4. The POCSO Act makes special provisions for sexual crimes against children. Under Section 3, penetrative sexual assault ("PSA") is defined and Section 4 provides for punishment for PSA. Section 5 defines Aggravated PSA and Section 6 provides for punishment thereof. Section 7 defines sexual assault and Section 8 provides punishment thereof. Section 9 defines aggravated sexual assault and Section 10 provides for punishment thereof. The provisions of the POCSO Act define a child as "any person below the age of eighteen years". Those sexual offences against children, which would be punishable under certain provisions of the IPC are also punishable under the POCSO Act.

5. Under Section 29 of the POCSO Act, the burden of proof is reversed in respect of offences under Sections 3, 5, 7 and 9 of the Ac