Mere Presence Of Victim’s Mother In Court As Advocate Clerk Cannot Dispense With Duty To Hear POCSO Victim At Bail Stage: Kerala High Court
Court reiterates that victim participation is a substantive right; sets aside bail granted without notice in a case involving a minor.
Justice C. Pratheep Kumar, Kerala High Court
The Kerala High Court has set aside a bail of an accused noting that the mere presence of a victim’s mother in court in her professional capacity as an Advocate Clerk cannot substitute the statutory requirement of hearing the victim before granting bail to an accused under the Protection of Children from Sexual Offences Act, 2012 (POCSO).
The Court further noted that the statutory framework, including Section 40 of the POCSO Act, the POCSO Rules, 2020, and Section 483(2) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), clearly recognises the right of the victim and their family to be informed and to participate in proceedings, including at the stage of bail, especially in serious offences.
Justice C. Pratheep Kumar observed, “In the light of 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, as well as the precedents referred above, it can be seen that the victim is entitled to be heard, before granting bail to the accused, especially in serious and heinous offences. In the instant case, the offences involved are under Section 351 BNS and Section 4(2) r/w 3(d) and 8 r/w 7 of the POCSO Act, which are very serious and heinous in nature. Therefore, in this case the victim/petitioner was entitled to be heard, before granting bail to the accused. Since the learned Sessions Judge has not given notice to the victim and the victim was not heard before passing Ext. A5 bail order, the same is liable to be set aside on that ground alone. Therefore, I am not going into the merits of the bail application”.
Advocate C.S. Manilal appeared for the petitioner and Advocate Usha Baby appeared for the respondent.
In the matter, a petition was filed by the father of a minor victim challenging a Sessions Court order that had granted bail to the accused in a POCSO case. The primary grievance was that no notice had been issued to the victim, nor was any opportunity of hearing afforded before the bail was granted.
During the proceedings, the accused contended that the victim’s mother was present in court at the time the bail application was heard. However, it was clarified that she was present only in her capacity as an advocate clerk.
The Court, however, rejected this contention, observing that such incidental presence cannot be treated as compliance with the legal mandate to hear the victim or their representative.
The Court placing reliance on judicial precedents, including the Bombay High Court’s judgment in Arjun Kishanrao Maige v. State of Maharashtra and Others, 2021 KHC 3867, emphasised that victim participation is an enforceable right and cannot be reduced to a procedural formality. The presence of the State or the Public Prosecutor, it observed, does not substitute the independent right of the victim to be heard.
The Bench referred to the Supreme Court’s judgment in Jagjeet Singh and Others v. Ashish Mishra @ Monu and Another, 2022 (3) KHC 449 where it decided whether a “victim” defined under Section 2(wa) CrPC, is entitled to be heard at the stage of adjudication of bail application of an accused. In that matter, the bail application of the accused involved offences punishable under Sections 147, 148, 149, 302, 307, 326, r/w Sections 34 and 120B of IPC, as well as Sections 3, 25 and 30 of the Arms Act.
The Bench noted, “…After analyzing the UN Declaration of Basic Principles of Justice for the Victims of Crime and Abuse of Power, 1985, and also the law relating to the victim's rights prevailing in different nations as well as various provisions of law and precedents, the Apex Court held that in India also, the victim has the right to be heard, while considering the bail application of an accused. Further, after finding that the High Court has granted bail to the accused without hearing the victim, his bail was cancelled and directed the High Court to dispose of the bail application afresh, after affording opportunity of hearing to the victim”.
The accused had also alleged that the case was falsely registered due to a prior property dispute and a disagreement over unpaid wages for plumbing work. However, the Court chose not to examine the merits of these claims, holding that the failure to hear the victim itself was sufficient to vitiate the bail order.
Observing that the allegations involved serious offences against a minor, the Court set aside the bail order and directed the accused to surrender before the Sessions Court within seven days. The Sessions Court has been directed to reconsider the bail application afresh, after providing an adequate opportunity of hearing to the victim, within one month.
Cause Title: XXX v. State Of Kerala & Anr. [Neutral Citation: 2026:KER:17222]
Appearances:
Petitioner: C.S. Manilal, S. Nidheesh, Advocates.
Respondent: Usha Baby, K.G. Raji PP., Anima M, Advocates.