"Grave Prejudice To Victim": Allahabad High Court Sets Aside Anticipatory Bail Granted To POCSO Accused Without Mandatory Notice
The Bench noted that setting aside needs no proof of post-bail misuse where order suffers patent procedural illegality; remanded the matter for fresh hearing, grants accused six weeks' protection.
Justice Vivek Kumar Singh, Allahabad High Court
The Allahabad High Court has held that granting anticipatory bail in a POCSO case without notice or hearing to the victim causes grave prejudice by depriving them of their right to present material facts and safety apprehensions.
Terming such an order void ab initio, the Court held that it suffers from a jurisdictional error and is liable to be set aside on the ground of patent procedural illegality alone.
A Bench of Justice Vivek Kumar Singh observed, “In the present case, the learned trial court completely overlooked the mandatory requirement of issuing notice to the victim/informant before considering the anticipatory bail application under the POCSO Act. This failure has caused grave prejudice to the victim depriving her of the right to present material facts, gravity of offence and apprehensions regarding safety”.
“…There is a clear legal distinction between cancellation of bail due to supervening circumstances such as tampering with evidence or breaching conditions and setting aside the order granting bail on account of perversity, non-application of mind, or patent procedural illegality. When an order granting pre-arrest bail is passed in direct contravention of a mandatory statutory command and in violation of the principles of natural justice (audi alteram partem), such an order is void ab initio and suffers from a jurisdictional error. It is liable to be set aside on this ground alone irrespective of whether the accused has misused the liberty after the order”, it noted further.
Advocate Kanchan Chaudhary appeared for the applicant and Advocate Pankaj Kumar Tiwari appeared for the opposite party.
The informant lodged an FIR on February 06, 2023 alleging sexual assault on a minor by the two accused. The police submitted a final report, but the Special Judge (POCSO) allowed the informant's protest petition on February 14, 2025 and treated the matter as a complaint case.
After recording evidence under Sections 223 and 225 of the BNSS, the Special Judge summoned the accused under Sections 74, 115(2), 351(1) and 352 BNS and Sections 7/8 of the POCSO Act. The accused moved for anticipatory bail on January 05, 2026, and it was granted on January 17, 2026 in Anticipatory Bail.
The informant then sought cancellation, which the State supported. The accused argued that bail should not be cancelled lightly and that the omission to issue notice was the court's and the State's, not theirs.
The High Court called for an explanation from the Special Judge, who admitted in a reply dated September 22, 2026 that no notice was issued. The reply relied on a police notice stating that the informant had been told over the telephone. The Court found that notice unsigned and silent on who received the call or how it was served.
Placing reliance on Rule 4(13) to 4(15) of the POCSO Rules, 2020 and Jagjeet Singh and Others v. Ashish Mishra @ Monu and Another, (2022) 9 SCC 321, the Court held that the victim has a right to be heard at every step, including bail. It held that the omission caused grave prejudice by depriving the victim of the chance to place material facts, the gravity of the offence and her safety concerns. Mahipal v. Rajesh Kumar Alias Polia and Another, AIR 2020 SC 670 supported setting aside a bail order marked by non-application of mind.
The Court set aside the order of January 17, 2026 and restored the bail application. It directed the trial court to issue notice to the informant, hear her and the State, and decide afresh uninfluenced by earlier observations. The Court directed that legal aid counsel be provided at State expense if the victim cannot engage one. It also asked that the order be circulated to all POCSO courts in Uttar Pradesh.
Cause Title: Veer Singh v. State of U.P. & 2 Others (Neutral Citation: 2026:AHC:204121).
Appearances:
Applicant: Kanchan Chaudhary, Advocate.
Opposite Party: Pankaj Kumar Tiwari, Neeraj Tripathi, Advocates.