Participatory Right Of Victim In Bail Applications In Sexual Offences Mandatory: Calcutta High Court
An application seeking cancellation of bail granted in respect of offences pertaining to Protection of Children from Sexual Offences Act, 2012.
The Calcutta High Court suspended the order of the Trial Court granting bail to the Accused without giving an opportunity of hearing to the victim and observed that the participatory right of the informant/victim while hearing bail application in sexual offences is mandatory under law.
An application seeking cancellation of bail granted in respect of offences pertaining to the Protection of Children from Sexual Offences Act, 2012
The Bench of Justice Bivas Pattanayak observed, “Sub-section (2) of Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides, inter alia¸ the presence of the informant or any person authorized by him is obligatory at the time of hearing of bail application in sexual offences involving rape of minors.”
Advocate Kaustav Bagchi represented the Petitioner, while Advocates Anwor Hossain and Debasis Kar represented the Respondents.
Case Brief
An application seeking cancellation of bail granted in respect of offences pertaining to the Protection of Children from Sexual Offences Act, 2012, on the sole ground that the Trial Court granted bail to the Accused without giving an opportunity of hearing to the informant/victim or her authorized representative.
It was contended by the Petitioner that the victim/informant of a sexual offence has to be given an opportunity of hearing/participation at the stage of bail hearing, however, the Trial Court, without giving such opportunity, granted bail.
While the Accused contended that the bail can be cancelled only on the ground of any supervening circumstances, like tampering of evidence either during investigation or during trial, threatening of witness, the accused likely to abscond and trial getting delayed on that account etc.
Court’s Observation
The High Court noted that the primary issue on which the bail order was assailed was the denial of opportunity to the Petitioner(Victim) to participate and oppose the bail application.
While referring to Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, the High Court emphasised that the presence of the informant or any person authorized by him is obligatory at the time of hearing of bail application in sexual offences involving rape of minors.
“Since it is now trite that the bail application of accused for offences punishable under Section 65 or Sub-Section 2 of Section 70 of the Bharatiya Nyaya Sanhita (in short, ‘BNS’) or for offences punishable under Sections of POCSO Act cannot be heard and disposed of without giving opportunity of being heard to the informant/victim, the Court and the prosecution are required to take into consideration the obligation on their part to keep the informant/victim informed about the stages of criminal proceedings including filing of the application seeking bail by the accused persons”, the Calcutta High Court observed.
Accordingly, the High Court suspended the order of the Trial Court granting bail.
Cause Title: In Re: XXX
Appearance:
Petitioner: Advocates Kaustav Bagchi, Debayan Ghosh, and Priti Kar
Respondents: Advocates Anwor Hossain, Debanik Das, Debasis Kar, and Arka Tilak Bhadra
