POCSO Rules|Bail Application Can Be Heard In Absence Of Informant If She Chooses Not To Appear: Allahabad High Court

The High Court was considering an application filed for the release of the applicant on bail in a criminal case registered under Sections 70(2), 351(3) BNS, Section 5,6 of the POCSO Act and Section 3(2)(v) of the SC/ST Act.

The Single Bench of Justice Subhash Vidyarthi explained, “The statutory mandate is to provide an opportunity of hearing to the complainant and, thereafter, it is at the sweet will of the complainant to appear before the Court at the time of hearing of the bail application or not. In case the informant chooses not to appear in spite of having been given information about the application and he reposes trust in the learned Public Prosecutor or the learned A.G.A, who would be there to advance submissions in opposition to the bail application, it cannot be said that the bail application cannot be heard in absence of the informant.”

Advocate Ashutosh Kumar Shukla represented the Petitioner while Government Advocate represented the Opposite Party.

Factual Background

The case was registered on the basis of an FIR lodged by the 14-year-old victim herself against the applicant and another person Kuldeep Singh, alleging that when she had gone to attend the call of nature to a field, both the accused persons pressed her mouth and took her to a place at a distance of about 300 meters, where the other accused person kept shutting her mouth and the applicant forcibly raped her.

Arguments

It was the case of the respondent that although the police had delivered the information of the present application to the complainant as nobody was present on behalf of the complainant/victim, the bail application couldnot be heard in view of the provision contained in Section 483(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, which provides 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 under Section 65 or sub-section (2) of Section 70 of BNS, 2023.

Reasoning

The Bench referred to the judgment in Rohit v. State of U.P. (2021) wherein it was held that Sub-Rules (13) and (15) of Rule 4 of the Protection of Children from Sexual Offences Rules, 2020,make it incumbent upon the SJPU or local police to inform the child and the local guardian regarding the schedule of court proceedings and the Court is required to ensure that the SJPU informs the local guardian/parents of the child about the bail application filed by the accused.

The Bench noted that this procedure was adopted in the instant case. However, despite information of the application having been given, the complainant had chosen not to come forward to oppose the bail application. On a perusal of the facts of the case, the Bench noted that prima facie it appeared that the victim herself was the complainant and initially she alleged in the FIR that the named co-accused Kuldeep Singh had shut her mouth and the applicant had forcibly raped her, whereas in her statement recorded before the Magistrate, she stated that she did not know as to who was the other person involved in the incident.

The Bench noted that although the victim had alleged that the accused persons forcibly took her away to a place at a distance of about 300 meters and raped her, this allegation was not supported by the findings of the medico-legal examination report as no mark of injury or sign of use of force had been found on any part of the victim's body and the hymen had been found to be intact. The clothes of the victim were also not found to be torn and no stain was found on the clothes.

Considering the aforesaid aspects coupled with the fact that the applicant is a 20-year-old man having no criminal history and is languishing in jail whereas the investigation had concluded, the Bench allowed the bail application.

Cause Title: Umesh Mali v. State Of U.P. (Neutral Citation:2026:AHC-LKO:41194)

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