The recent amendments in section 439(1A) of Criminal Procedure Code should be interpreted in a manner that ensures personal liberty and fair trial, and facilitates smooth facilitation of proceedings.

ORDER :

With consent, heard finally.

2. Looking to the commonality of issues involved in the cases as mentioned above, the issue is decided by passing a common order and facts of M.Cr.C. No. 28634/2018 have been taken for discussion purpose.

3. This is first application under section 439 of Criminal Procedure Code preferred by the applicant seeking bail in respect of a case registered at Police Station Sironj, District-Vidisha vide Crime No. 87/2018 for the alleged offence under sections 363, 366, 376 of Indian Penal Code and section 3/4 and 5/6 of Prevention of Children from Sexual Offences, 2012 (hereinafter referred as POCSO Act). The applicant is in confinement since 5-3-2018.

4. Question involved for consideration before this Court is; Whether as per the recent amendment caused in section 439 of Criminal Procedure Code by way of section 439(1A), the Court is precluded from hearing the bail application in absence of Informant or any person authorized by him, even after service of notice of bail application. It is also to be decided whether, provisions under section 439(1A) of Criminal Procedure Code are held to be Mandatory or Directory and/or Whether once Informant is served effectively and thereafter does not turn up to participate in the proceedings, then in presence of Government Advocate/Public Prosecutor hearing on bail application can be proceeded or not.

5. For considering the said questions, on last date of hearing on 12-11-2018 (in M.Cr.C. No. 28364/2018), Senior Advocate Shri V. K. Saxena and Shri R. K. Sharma, were appointed as Amicus Curiae and requested by this Court for assistance to consider the controversy at length.

6. As per the submission of the counsel for the applicant, he is in jail since 5-3-2018. On 17-7-2018, first bail application under section 439 of Criminal Procedure Code preferred by applicant. On 9-8-2018, notice through Registered mode was issued for service of respondent No. 2 (Informant) in compliance of which, process fee was paid. On 10-9-2018, service report of respondent No. 2 remained awaited therefore, case was adjourned. Thereafter, on 26-10-2018, case was listed but was adjourned for procedural reasons and thereafter, on 12-11-2018, learned counsel for the applicant referred office report and pressed for hearing because according to the Track Consignment of the Department of Post, notice was delivered on 25-8-2018 itself, therefore, he pressed for hearing of the bail application. However, when confronted with the recently amended provisions under section 439(1A) of Criminal Procedure Code, then he sought time to address on this question first. Learned Senior Advocates Shri V. K. Saxena as well as Shri R. K. Sharma, who were present in the Court room, were requested by this Court to address on the point and they gracefully accepted the request and matter was fixed today for hearing.

7. Learned Senior Advocate Shri V. K. Saxena as well as Shri R. K. Sharma opened the arguments and submitted that amendment caused in section 439 of Criminal Procedure Code is Directory and not Mandatory because no consequences have been prescribed in case Informant does not turn up.

8. Similarly, what prejudice would be caused to the prosecutrix, if she is not given the opportunity of hearing, is not explained in the said Amendment Act therefore, provisions is to be read as Directory and not mandatory. It is further submitted that Criminal Procedure Code is procedural law and therefore, its provision cannot be mandatory unless prescribed and only substantive law can be mandatory. In support of their submission, learned Amicus Curiae relied upon the judgments of the Hon’ble Apex Court in the cases of Topline Shoes Ltd. vs. Corporation Bank, AIR 2002 SC 2487 as well as State represented by Inspector of Police, Chennai vs. N. S. Gnaneswaran, (2013) 3 SCC 594.

9. It is the further submitted that no prejudice would be caused to the victim if she did not turn up, because as per the provisions of Criminal Procedure Co