A victim has the right to be heard in bail proceedings, especially in serious offences, as mandated by the Protection of Children from Sexual Offences Act and corresponding rules.

ORDER :

1. The father of the victim involved in crime No.2021 of 2025 of Kottayam East police station filed this Crl.M.C. under Section 528 BNSS praying for setting aside Annexure-A3 bail order passed by the Sessions Judge, Kottayam, granting bail to the accused/2^nd respondent, mainly on the ground that, before granting bail to the accused, no notice was given to the victim.

2. The offences involved in crime No.2021 of 2025 of Kottayam East police station are under Section 351 BNS and Section 4(2), 3(d), 8 r/w 7 of Protection of Children from Sexual Offences Act, 2012 (PoCSO Act). The allegation against the 2^nd respondent is that on 14.11.2025 at about 2.15 p.m, he trespassed into the residence of the victim who was a minor boy aged 14 and committed penetrative sexual assault upon him and intimidated him not to disclose about the same to others. From the records it appears that the 2^nd respondent was arrested by the police on 15.11.2025 and as per Annexure-A3 order, he was released on bail.

3. From Annexure-A3 order, it is not clear as to whether any notice was given to the victim, before granting bail to the 2^nd respondent. In the above circumstances, the learned Public Prosecutor was directed to ascertain whether any such notice was given to the victim, before passing Annexure-A3 order. The learned Public Prosecutor, upon instructions, submitted that no such notice was given to the victim.

4. Relying upon Section 40 of the PoCSO Act, Rule 4 of the Protection of Children from Sexual Offences Rules, 2020 (PoCSO Rules, 2020) as well as sub-section (2) of Section 483 BNSS, the learned counsel for the petitioner would argue that before granting bail, the learned Sessions Judge was bound to hear the victim also. According to him, since no such opportunity was given in this case, Annexure-A3 bail order is liable to be set aside. He has also relied upon the decision of the Bombay High Court in Arjun Kishanrao Maige v. State of Maharashtra and Others, 2021 KHC 3867 and the decision of the Hon'ble Supreme court in Jagjeet Singh and Others v. Ashish Mishra @ Monu and Another, 2022 (3) KHC 449, in support of his argument.

5. The petition was strongly opposed by the 2^nd respondent. In the objection he contends that he was released on bail only about two months after the arrest. The learned counsel would also submit that at the time of hearing the bail application, the mother of the victim was present in the Court. According to the learned counsel for the petitioner, the mother of the victim is working as an advocate clerk and hence according to him, for the mere reason that the mother of the victim attended the court in her capacity as an advocate clerk, the duty of the court to hear the victim cannot be dispensed with. In the objection he further contends that there was property dispute with the petitioner. It was further contended that he is a plumber by profession. His service was utilised by the petitioner for 7 days and no wages was paid. According to him, with respect to the said issue there was wordy altercation which led to registration of this false case against him.

6. Section 40 of the PoCSO Act reads as follows :-

“Right of child to take assistance of legal practitioner.—Subject to the proviso to section 301 of the Code of Criminal Procedure, 1973 (2 of 1974)the family or the guardian of the child shall be entitled to the assistance of a legal counsel of their choice for any offence under this Act:

Provided that if the family or the guardian of the child are unable to afford a legal counsel, the Legal Services Authority shall provide